Toward a criminal law for cyberspace: a new model of law enforcement?

• Author: Brenner, Susan W.

1. INTRODUCTION

   This article argues that one consequence of the increasing proliferation of computer technology and the attendant migration of human activities, including illegal activities, into cyberspace is that the efficacy of our traditional approach to enforcing the criminal law is eroding. (1) As Section II explains, it is already apparent that the traditional model is not an effective means of dealing with cybercrime, i.e., crime the commission of which entails the use of computer technology. (2)

   We are therefore seeing the emergence of an alternative approach to law enforcement, (3) one that emphasizes collaboration between the public and private sectors and the prevention of crime rather than merely reacting to it. Section III describes how this new, still-evolving model functions and explains why it emerged at this particular point in time. Section IV analyzes how this evolving approach, the operation of which is as yet limited to the commercial sector, can be extrapolated so that it encompasses individuals as well as businesses. Sections III and IV also examine the extent to which reliance upon this new model will require incorporating new doctrines into the criminal law and consider the permissibility of devising what is, in part, at least, a "criminal law for cyberspace." Finally, Section IV provides a brief conclusion.

2. CYBERCRIME AND THE TRADITIONAL MODEL OF LAW ENFORCEMENT

   The Hobbesian principle of sovereignty ... is rooted to the existence of physical territory and is contingent on the ability of the state to protect its citizens, maintain order and uphold the law within confined geographical boundaries.... [T]echnological advances ... have created 'cyberspace': a spontaneous ethereal realm, separate from the physical jurisdiction of the state, where mankind's growing wealth and military power are being stored and channeled. (4) The traditional model of law enforcement, which is the model still in use today, evolved to deal with real-world crime; the essential components of the model were, for all intents and purposes, in place by the nineteenth century. Real-world crime is crime perpetrated in and via the real, physical world, that is, without the use of technology. (5)

   1. Real-World Crime

      Primarily because it is situated in a corporeal, physical environment, real-world crime has several defining characteristics. The sections below identify and examine the four characteristics that are the most significant for this discussion.

      1. Proximity

      Perhaps the most fundamental characteristic of real-world crime is that the perpetrator and the victim are physically proximate to each other at the time the offense is committed or attempted. (6) It is, for example, simply not possible to rape or realistically attempt to rape someone if the rapist and the victim are fifty miles apart. By the same token, in a non-technological world it is physically impossible to pick someone's pocket or take their property by force if the thief and victim are in different countries.

      2. Scale

      A second characteristic of real-world crime is that it tends to be one-to-one crime; that is, it consists of an event involving one perpetrator and one victim. This event--the "crime"--commences when the victimization of the target is begun and ends when it has been concluded; during the event the perpetrator focuses all of his or her attention on the consummation of that "crime." (7) When the "crime" is complete, the perpetrator is free to move onto another victim and another "crime." The one-to-one character of real-world crime derives from the constraints physical reality imposes upon human activity: (8) A thief cannot pick more than one pocket at a time; an arsonist cannot set fire to more than one building at a time; and prior to the development of firearms and similar armament, it was exceedingly difficult for one bent upon homicide to cause the simultaneous deaths of more than one person. (9)

      The one-to-one nature of real-world crime is, however, more a default than an absolute; exceptions occur, especially with regard to the number of perpetrators. Rape, murder, theft, arson, forgery and many other crimes can involve multiple perpetrators; indeed, the aggregation of offenders and the rise of gangs and other types of "organized crime" is a tendency that has accelerated over the last several centuries. (10) But while many-to-one deviations from the one-to-one model have occurred for centuries, one-to-many deviations were rare prior to the use of technology. For example, in a world without computers, copiers, and similar devices, the forging of a document must be done by hand, which takes time and means that only a limited number of forgeries can be produced. Consequently, prior to the 18th century, forgery was almost inevitably a one-to-one crime; the forger falsified a document, used it to victimize his target and then moved onto another document and another victim. The same is true of fraud today; the perpetrator necessarily focuses his or her efforts on a single target, succeeds, and, having done so, moves on to another target. (11)

      3. Physical Constraints

      A third characteristic of real-world crime is that its commission is subject to the physical constraints that govern all activities in the "real," physical world. (12) Because we are accustomed to living our lives according to the dictates of these constraints, we do not appreciate how they enhance the complexity of criminal endeavors. (13) Every "crime," even routinized offenses such as prostitution and street-level drug dealing, requires some level of preparation, planning and considered implementation if it is to succeed. For real-world crime, these activities must be conducted in physical space, actual space.

      So, someone who decides to rob a bank must visit that bank corporeally to familiarize herself with its physical layout (e.g., entrances, teller windows, vault location), security (e.g., guards, surveillance cameras, visible alarm systems) and general routine (e.g., when employees arrive and leave, times when the bank is likely to have the fewest customers, currency pickup and delivery). (14) This process exposes the robber to public scrutiny which can lead to her being apprehended after she commits the crime. (15) The same is true of the robbery itself; while physically inside the bank, the robber can leave evidence or give rise to observations that can result in her being apprehended. (16) It is equally true of the perpetrator's flight once the robbery has been committed; here, again, the perpetrator is exposed to public view and therefore runs the risk of being noticed and identified. (17) In addition to the risks of exposure that arise from planning and committing the "crime" itself, the robber will presumably need to secure a weapon and some type of disguise, (18) and may need to find some way to launder the funds she takes from the bank. (19) Like the processes involved in the robbery itself, each of these steps takes time and effort and incrementally augments the total exertion required for the commission of this "crime;" and like the robbery itself, each increases the likelihood that she will be identified and apprehended. (20)

      4. Patterns

      A fourth characteristic of real-world crime is that over time it becomes possible to identify the general contours and incidence of the "crimes" committed within a society. (21) Real-world victimization tends to fall into demographic and geographic patterns for two reasons. One is that, as is explained below, (22) only a small segment of a functioning society's total populace will be persistently engaged in criminal activity. (23) Those who fall into this category are apt to be from economically-deprived backgrounds and are likely to reside in areas that share certain geographic and demographic characteristics, primarily those in which the less affluent members of that society reside. (24) They will be inclined to focus their efforts on those with whom they share a degree of physical proximity because these are their most convenient victims. (25) This means that much of the "crime" in a society will be concentrated in specific areas, such as on the "West Side of Notown" or "South of 31st Street in Megalopolis." (26)

      The other reason why "crime" falls into certain patterns is that each society has a repertoire of "crimes" of legal rules that proscribe a set of behaviors ranging from more to less serious in terms of the respective "harms" each inflicts. (27) The "harm" caused by a specific "crime" is encompassed by, and limited to, the definition of the offense: a rape produces the "harm" targeted by the "crime" of rape; (28) a theft causes the "harm" inflicted by the "crime" of theft; (29) a forgery yields the "harm" subsumed by the "crime" of forgery, and so on. (30) In a functioning society, (31) the more egregious "crimes" will occur much less often and may occur less predictably than the minor "crimes." (32) Murder, for instance, is an extraordinary event in any society that is successfully maintaining social order and resisting chaos. (33) Theft in its various forms (34) is a far less extraordinary event; (35) and, depending on the cultural mores of the society, drunkenness and/or prostitution may be quite common. (36) Also, various "crimes" fall into localized patterns reflecting geography and particular types of victimization. (37)

      Because these characteristics are inevitable aspects of "crime" in the real-world, they shaped the traditional model of law enforcement which evolved to deal with this type of "crime." The next section explains how each characteristic contributed to the model.

   2. Traditional Model of Law Enforcement

      As explained above, real-world crime has four empirical characteristics: physical proximity of victim and victimizer; default one-to-one "crime"; the influence of physical constraints; and offender and "crime" patterns. (38) As policing evolved over the centuries, these...