Organized Cybercrime? How Cyberspace May Affect the Structure of Criminal Relationships

• Publication year: 2002
• Citation: Vol. 4 No. 2002

Susan W. Brenner⁰

I. Introduction

"It is hard to say what forms the organised crime will take in the future, but the reality is not very far from some science fiction movies."¹

The twentieth century marked the era when organized crime,² typically equated with the Mafia or La Cosa Nostra, became a widely recognized and widely studied phenomenon. Organized crime in the La Cosa Nostra sense burst into the American awareness in the 1950's and 1960's as a result of Senator Estes Kefauver's inquiries,³ the McClellan Committee hearings,⁴ and the Congressional testimony of Joe Valachi, who was the first Mafia soldier to breach the mob's code of silence.⁵

Organized crime in the form of street gangs and the Black Hand existed in the United States for over a century before Kefauver began his crusade against the mob in the early 1950's.⁶ Despite his efforts, though, organized crime remained outside mainstream American consciousness. The 1920's saw much press and cinematic attention given to organizations such as Al Capone's operation in Chicago, but these bootlegger gangs were generally perceived as a specialized phenomenon, a product of Prohibition.⁷ Since Americans were, to say the least, ambivalent about Prohibition, these gangs were neither regarded as a particularly ominous phenomenon nor considered a threat to the average American citizen.⁸ Much the same was true of the slightly-organized bank robbery gangs, such as the Dillinger gang, Bonnie and Clyde's group, and others that emerged in the 1930's. While these gangs represented a type of organized criminal activity, they were small-scale operations engaging in an activity with which many Americans sympathized in an era of bank foreclosures.⁹

By the 1960's, however, the combined efforts of Senator Kefauver, the McClellan Committee, and Attorney General Robert Kennedy raised American awareness of organized Mafia-type crime and generated the perception that it was a phenomenon which threatened the American way of life.¹⁰ National concern about organized crime resulted in Federal law enforcement making it a priority for the next thirty years.¹¹ The Federal Bureau of investigation, in particular, concentrated on tracking the activities of various mob families and pursuing their leaders, such as Sam Giancana and John Gotti.¹² Federal prosecutors successfully pursued large-scale prosecutions against high-profile Mafia organizations by the 1980's.¹³ The mob still existed but as a known threat under control.¹⁴

in the 1990's, law enforcement officials and others who tracked organized criminal activity identified new types of organized crime emerging in the United States.¹⁵ Some of these new groups were foreign imports, such as the Japanese Yakuza, Chinese triads, Jamaican posses, and, at the end of the decade, Russian gangs composed of expatriate members of the Mafiya.¹⁶ Other groups were domestic. The Hell's Angels motorcycle club, for example, became a highly-organized, widespread criminal organization.¹⁷ These new and mostly foreign groups resembled the Mafia insofar as they had complex organizational structures emphasizing a hierarchical division of labor, but they were more flexible and less parochial than the Mafia, which still retained much of its Black Hand ethos.¹⁸ They also deviated from the Mafia in another important way: they tended to be overtly and self-consciously transnational in their membership and activities.¹⁹ While the Mafia occasionally engaged in transnational activities, these activities tended to be limited, reflecting the Mafia's primary emphasis on local endeavors, such as drug dealing, loan-sharking, illegal gambling, and prostitution.²⁰

The emergence of these transnational criminal organizations in the late twentieth century generated concern analogous to that produced by American society's "discovery" of the mob in the 1960's.²¹ Nations, law enforcement, and others who tracked organized criminal activity began concentrating on transnational organized crime as a new and even more dangerous phenomenon than the emergence of the Mafia.²² This focus continues today. Since the globalization of crime is a trend that will only accelerate, this concentration on transnational organized crime will persist.

The issue to be considered in this article is whether what is true of traditional crime is likely to also be true of cybercrime, which deviates from the traditional model of crime in several ways. Section II of this article examines reasons why organized activity has emerged as an aspect of real-world crime. More precisely, it considers the advantages organization offers for real- world criminals. Section III then considers whether these advantages translate to cybercrime. If they do translate, we can expect to see the emergence of organized cybercriminal activity analogous to that encountered in the real world; that is, we can anticipate the emergence of cybercrime Mafias and cybercrime cartels. To the extent that these advantages do not translate to cybercrime, we may see a very different pattern emerge; organization may prove to be a less significant feature of cybercrime than of real-world crime or it may take quite different forms than those found in real-world crime.

II. Criminal Organization: The Real World

This article is concerned with criminal organization. For purposes of this article, a criminal organization is an organization that devotes the majority of its efforts to committing crimes for the primary purpose of generating wealth.²³ Any criminal organization, so defined, also commits crimes for other purposes, such as security. To ensure its survival, a criminal organization may bribe officials, murder rivals and turncoats, and engage in related activities. These efforts, however, are subordinate to the organization's principal goal of making money; a criminal organization of whatever order of complexity is a business venture. This essentially commercial focus differentiates a criminal organization from an individual criminal, as individual crime is often irrational, emotional crime. The type of group crime considered for this discussion is rational, goal-oriented crime that enriches perpetrators at the expense of victims.²⁴

This commercial focus also differentiates a criminal organization from its closely-related counterpart, a terrorist organization. Much of what is stated below regarding the advantages of organization for criminal groups is also true of terrorist groups, and the next section considers how the availability of cyberspace may influence the structure of terrorist organizations. The analysis concentrates primarily on criminal organizations, however, because their rational, goal-oriented focus means they are likely to seize upon whatever organizational or other techniques enhance their pursuit of wealth.²⁵ This capacity to adopt new organizational or other techniques is less true of terrorist organizations because, while they can operate in a rational, goal-oriented manner, their concern with ideological principles often causes them to make irrational decisions when pursuing their goals.²⁶

Criminal organizations, like their civilian counterparts, are assemblages of individuals whose relationships are structured according to certain principles. Since staff is a defining characteristic of any organization, it is necessary to begin a consideration of criminal organizations by parsing out staffing modalities employed in the commission of crime.

A. Staffing of Criminal Organizations

Logically, there are three modalities for criminal activity: solo commission, collaboration by two people, and activity conducted by three or more people. only the third alternative represents organized criminal activity. Since organization requires a structured relationship between persons, action by a single individual cannot involve organization. one could argue that since it is possible to have a structured relationship between two people,²⁷ such collaboration should qualify as organization. This argument, however, ignores the reasons why organized criminal activity is perceived as a distinct threat. The law has long recognized the increased dangers that result when criminals associate, as evidenced by the historic tradition of imposing liability for conspiracy and complicity. Two criminals can cause more harm than one, but the level of harm they can cause is necessarily limited. A criminal collaboration between two people is just that; it cannot expand into new, different, and more dangerous forms.²⁸ Criminal organizations' ability to expand, both in terms of personnel and the level of harm inflicted, is one of their distinctive aspects²⁹ and is the reason why twentieth century law enforcement devised new strategies to deal with organized or enterprise criminality.³⁰ Another distinctive aspect of criminal organizations is that, like a corporation, the organization survives the departure of individual members.³¹ This is not true of a criminal collaboration between two people; the desertion of either destroys the association.³² Consequently, the remainder of this article will use the term organization to mean a group of at least three individuals that is structured according to certain principles and works to achieve criminal ends.³³ Three individuals is, of course, merely a benchmark; the discussion will assume groups of much larger size.

Having resolved the staffing issue, an important question for purposes of this analysis is why those committed to criminal endeavors find organization attractive. To answer this question, it is necessary to consider the evolution of criminal organization in Anglo-American history.³⁴

B. The Evolution of Criminal Organization in Anglo-American History

Criminal organizations have existed for centuries.³⁵ in the thirteenth century, the perhaps-apocryphal Robin Hood presided over his band of Merry Men, which was clearly a type of criminal organization. The group was structured according to certain principles...