Toward a Criminal Law for Cyberspace: A New Model of Law Enforcement?
Susan W. Brenner · Rutgers computer & technology law journal · 2004
I. 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 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., 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 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 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. II. 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 is perpetrated in and via the real, physical world, that is, without the use of technology. (5) A. Real-World Crime Primarily because it is situated in a corporeal, physical environment, real-world 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 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 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 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. …