After viewing the video Did an FBI Sting Operation in Vegas Cross the Line? and reading the article Who’s the “Predator”? discuss the following questions:How do the tactics used in the video and article represent the wave of the future of catching criminals?Do you think that human rights were violated? If yes, how?In response to your peers, propose other tactics that could have been used and describe how you see the tactics supporting a more positive outcome.Peer post oneThe tactics used in the video and article are just the beginning of what is going to be needed to catch criminals in the future. Criminals are getting smarter as the years go on by learning from the failures of others and by learning how to manipulate their actions to avoid arrest. It is imperative that law enforcement abide by the laws and policies and get search warrants for their actions due to the sensitivity of conducting sting type operations. A majority of the crimes are not out in the open like bank robberies, but rather behind closed doors or over the internet. So officers must get creative to either have the criminal come to them or go to the criminal undercover. The actions of the law enforcement involved in the “Predator” ordeal did not violate the rights of the criminals. The criminals willing drove to a house to have sex with a minor. They were not forced, nor was their any illegal search conducted. The criminals willingly entered the house where they were planning on committing a crime. This set up is no different than an undercover officer selling drugs and then arresting the buyers. Those arrested were read their rights and booked accordingly. They all had their day in court as per law. They were innocent until proven guilty. With the FBI sting in Vegas, the rights of the criminals were violated. The charges were dropped due to the judges ruling. Even though they were caught knee deep in criminal activity, their 4th amendment right was violated. The officers used deceit to gain entry into the private room of the criminal without a warrant. ” The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause” ( U.S. Const. Amd. IV) The officers should have got a search warrant first based on information gathered. Unfortunately, everything the FBI had on the two criminals was thrown out due to the process the FBI used to gather information. Peer post twoAfter reviewing the video and reading the article I have to say no human rights were violated and I think these new strategies do work. Some people would disagree with me but in regards to the video as being smart to catch cybercriminals. The FBI did have probable cause and the people in the room gave “consent”. Going to the article I know people disagree with the tv show To Catch a Predator but I think is another great way to catch criminals. To me, both operations are and should be considered undercover work and as long as there are probable cause I do not see anything wrong with it. The tv show has caught 50 people in one day. I think that is a great success especially for people with children. If you watch the after part of the show you will see that the officers are following protocol and no human rights were violated. People will always have there own opinion and may disagree with the way FBI, police officers and anyone in the criminal justice field in how they do their work but they do take the bad guys off the streets and just want to get home to their own families safe.
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Li – Cyber Crime and Legal Countermeasures: A Historical Analysis
Copyright © 2017 International Journal of Criminal Justice Sciences (IJCJS) – Official Journal of the South Asian
Society of Criminology and Victimology (SASCV) – Publisher & Editor-in-Chief – K. Jaishankar ISSN: 0973-5089
July – December 2017. Vol. 12 (2): 196–207. DOI: 10.5281/zenodo.1034658 / IJCJS is a Diamond Open Access
(Authors / Readers No Pay Journal).
This is an Open Access article distributed under the terms of the Creative Commons
Attribution-NonCommercial-ShareAlike 4.0 International (CC-BY-NC-SA 4.0) License,
which permits unrestricted non-commercial use, distribution, and reproduction in any
medium, provided the original work is properly cited.
HTU
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Cyber Crime and Legal Countermeasures:
A Historical Analysis
Johannes Xingan Li1
Tallinn University, Estonia
Abstract
This article reviews the historical development of cyber crime and legal countermeasures. The article divides the
process into four stages and concludes that cyber criminal phenomena have developed almost synchronously with
Information and Communication Technology (ICT). Cyber crimes are in a process of accelerating development
and are becoming gradually routinized. Notably, the electronic divide thus results in cyber crime divide. The
basic conclusion is that criminal resources decide the amount of crime, while judicial resources decide the
deterrence. When the balance is reached between criminal resources and judicial resources in the long term, the
criminal phenomena will be saturated at an equilibrium point.
________________________________________________________________________
Keywords: Cyber crime, History, Deterrence, Legislation, Law enforcement, Criminal
justice, Social control.
Introduction
The computer was an invention that people could not imagine until it was clear what it
happened to be. Before the digital computer had been invented, Thomas Watson, the
former chairperson of IBM predicted in 1943 “I think there is a world market for maybe
five computers.” Although different answers to questions “what exactly is a computer?”
and “how many generations of computers have been developed?” are still running parallel,
it is widely accepted that the first electronic digital computer was invented in the 1940s, in
the final years of World War II (Hamilton, 1973, p. 82). The more notable example is the
Electronic Numerical Integrator and Computer (ENIAC), invented in the U.S. in 1946
and since then, computer technology has experienced several generations.
Along with the continuous development of information technology, computer crime
may, in principle, have been taking place since the very invention of the computer, but at
that time, it neither became a significant problem nor caused great concern. Meanwhile,
the development of computer crime should have kept pace with computer technology.
The computer developed from a calculator to a word processor to a multimedia device.
Besides the research on the history of ICT (Cortada, 2002), the history of the computer
(Allan, 2001; Kuck, 1978, pp. 52-72); the history of the Internet (Okin, 2004) or of
online information services (Bourne & Hahn 2004), and history of computer ethics
(Bynum, 2001), scholars have also explored the history of cyber crime (Overill, 1998), and
Associate Professor of International Law, School of Governance, Law and Society, Tallinn
University, Tallinn, Estonia. E-mail: xingan.li@tlu.ee
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particularly, the history of the hacker (Thomas, 2002; Peterson, 2003; Raymond, 2001,
covering 1945 to 1990s), or the viruses (Dvorak & Pirillo, 2004). Some scholars have
researched into the history of the legislation on cyber crime. Sieber (1996), for example,
concluded that countries have adopted various forms of legislation, and undergone several
waves from the 1970s, addressing different problems respectively. They provide a valuable
foundation for analysis in this book. The different focuses in these researches do not
deliberately furnish any organic links between the development of cyber crime and the
development of deterrence. Yet these links are denoted as the primary concern of this
article. Dealing with cyber crime, there proved to be multi-dimensional obstacles (Li,
2008), this article will present a retrospect of the history of cyber crime and relevant
legislative and judicial practices.
Cyber criminal phenomena and the deterrence of punishment through law
enforcement and social prevention are undergoing a process of development. The history
of cyber crime can roughly be divided into four stages: a stage of germination, a stage of
rapid development, a stage of broad expansion, and a stage of routinization. Furthermore,
the criminal-law reform relating to cyber crime has never been completely synchronous
with cyber crime due to a hysteresis in both the law enforcement and legislation compared
with the relevant criminal phenomena.
Computer Hackers’ Discovery of a Lawless New Frontier
Upon the hypothesis that computer crime emerged soon after the invention of the first
computers, the first stage of computer crime began from the late 1940s and lasted through
the late 1960s, when the general public paid more attention to usability, utility, efficiency,
and development of the computer, and considered that the computer system was
“occasionally unreliable,” but “usually secure” (Dunlop & Kling, 1991, p. 524). Unlike
today’s universal use of computers, there was hardly a computer “market” in this early
stage. The manufacture or installation of a computer is an expensive and time-consuming
work. However, during this stage, computer crime emerged in the context of a limited
number of computers in use, but the legislature did not provide any specific
countermeasures against the phenomenon, leaving law enforcement to deal with it within
the traditional legal framework.
Earlier studies implied that electronic computer” crime most probably emerged in the
fields of military, engineering, science, finance and commerce at the beginning of the
1950s. Nevertheless, the earliest documented computer abuse, which involved the
alteration of bank records, occurred in 1958 (Parker 1989, p. 5). The case became the first
federally prosecuted computer crime in the U. S. in 1966, with a time-lag of eight years.
It was revealed that a bank employee had utilized the institution’s computer to embezzle
cents from interest on long-term accounts (ibid.). The financially motivated employee
created a criminal precedent.
Within less than two decades, worldwide computer installations increased from four
hundred at the beginning of the 1950s to 60,000 at the end of the 1960s (Hamilton, 1973,
p. 82). Even so, the scarcity of the new machine still attracted potential users to hack, to
gain access, and to utilize unauthorized computer time. The term “hacker” in the
traditional sense was not regarded as computer crime, but as essentially pertaining to
computer security. The rise of the hacker culture can be dated to 1961 when the
Massachusetts Institute of Technology acquired the first computer used for commercial
time-sharing (Digital Equipment Corporation (DEC), Programme Data Processor-1,
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Li – Cyber Crime and Legal Countermeasures: A Historical Analysis
1963). The expensiveness and rareness of computers necessitated a shared use of these
machines to extend their utility as widely as possible, in which the boundary between
authorized and unauthorized use was vague. However, at the same time, a security
concern originated due to the breach of access control (Association for Computing
Machinery Professional Knowledge Programme, 1997). The exploited processing ability,
loss of computing time and even waste of electricity alarmed computer owners.
Notwithstanding, the computer systems were not generally confronted with threats as
serious as the phone systems were. In consequence, the U. S. took action to prevent
tampering with the phone system (Meinel, 2004). Being an early form of hackers,
phreakers’ intrusion into and interference with the telecommunications system became a
kind of punishable offence.
War has been the perpetual inventor in history. Although the apparent causal relation
between the Cold War and the ARPANET was not widely acknowledged in available
literature, the latter was surely a product to deal with the threats of a “Hot War” against
data transmission system. The advantage of this invention was that even if one part of the
system was destroyed by war, particularly by nuclear weapons, the system could function
in its other parts through rerouting (Okin, 2004, particularly, p. 132). The Internet began
in the mid-1960s as a programme created by the U. S. Department of Defence to build a
decentralized network that would provide a communication between various sectors of
the government in the event of nuclear war or an attack on the U. S. (Hafner & Lyon,
1998, pp. 10-14). The nature of the Internet determined that it was connected primarily
to some important institutions, but was not open to the general users. An intrusion of the
networks would endanger interests that were mainly military and those of advanced
science and technology.
At the beginning of this first stage, there was neither cyber crime nor cyber criminal
law in the social and legal environment. When the first computer crimes occurred, no law
was ready to deal with them (Chen, 1990, pp. 71-86; Nelson, 1991, pp. 299-321). With
the emergence of the cyber criminal phenomenon, the principle of “nullum crimen, nulla
poena sine lege” was applied to protect the fundamental rights of the perpetrators from
punishment outside the law. Except for the reluctant application of old laws, there was
neither a cyber crime prohibited by law nor a law enacted against cyber crime. Lack of
punishment reduced the expected cost of the criminals, which were composed thus of
moral costs and substantial costs, specifically, the perpetrators’ necessary devices and labour
in cyber crime. Because there was no cyber crime law, there was neither expected
punishment nor the expected cost induced by the expected punishment. Under such
circumstances, the probability of conviction equalled zero. The expected utility of the
perpetrator almost equalled the utility of a situation in which crime went undetected or
unpunished. According to an economic analysis of crime (Becker 1968, pp. 169-217),
those who are risk-indifferent are indifferent to detection and conviction. For those who
are risk-lovers, cyber crime becomes a new cause, a new chance, a new challenge, and a
new type of risk. For those who are risk avoiders, because of the low risk of detection and
conviction rate of cyber crime, they transfer from other offences to cyber crime.
Therefore, the number of cyber crimes and perpetrators will inevitably increase.
Apart from the gap in legislation when the first cyber crime emerged, law enforcement
had insufficient capacity to deal with it. However, they tried towards imposing
punishment through application of existing laws. This provided for a preliminary
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deterrence on cyber crime, which could be used to deter the potential offenders of
existing types of crimes proscribed by existing laws, but was inadequate to deter potential
offenders of the types of crimes not proscribed explicitly by law. The principle of legality
and the limited possibility of the legislation restrained the coverage of the law and law
enforcement, leaving considerable loopholes and having little deterrence on offences that
remained untouched by law. As a result, deterrence brought very low expected costs for
these perpetrators.
At the same time, existing laws were applied to the limited number of computer crime
cases in countries such as the U. S. In filling the legal gap, the passage of computer crime
legislation by states lagged behind computer abuses, and did not happen in this period.
Furthermore, the debate about computers and personal information only began in the late
1960s (Wood 1982, p. 111). The debate did contribute to providing some forms of
deterrence.
The Rise of the Law against the increasing number of Cyber Crimes
Following the first stage, the subsequent two decades form the second stage, which
began from the 1970s and lasted to the end of the 1980s, during which along with
individuals’ and organizations’ increasing dependence upon computers, the threats of
computer crime increased. The general tendency was that computer crime continued to
increase in volume with a change in methods, while a legal response also began to emerge.
Understanding of the nature of the computer continued developing. In a British case,
R. v Wood, the court held that “The computer was used as a calculator, a tool which did
not contribute to its own knowledge but merely carried out a sophisticated calculation
which cannot have been done manually” (R. v Wood [1982] 767 Cr. App. Rep. 23.). It
was not a rare situation that even many commentators doubted the acceptability of the
computer, predicting only with extreme carefulness that: “The electronic computer would
be technology’s most successful machine were it not for the difficulty that people have in
accepting it.” (Hamilton, 1973, p. 81) Others already began to long for the “postindustrial society” (Bell, 1974), where the computer would not only be broadly used but
also be addictively depended on.
Technological thought developed fast in changing the image of the computer in the
1970s, from a bulky mainframe that filled a building to a computer in a desk; and in the
1980s, from a desktop to a host of old and new devices (Mosco, 2004, p. 21). The focus of
this philosophy is that: “The computer would be growing in power while withdrawing as
a presence” (ibid.). The philosophical imagination and the technological development of
new intelligent instruments were propelling an information revolution. Comparatively
instant and cheap, an e-mail message could be sent from New York to San Francisco in
less than a minute for about one dollar, as Fetherolf (1982, pp. 216-217) said. The futurist
Castells bore witness to the fact that: “We are in the middle of a major technological
revolution that is transforming our ways of producing, consuming, organizing, living, and
dying” (Castells 1985, p. 11).
While technology advanced beyond the ability of the average citizens’ understanding,
(State ex rel. McCleary v. Roberts, 88 Ohio St.3d 365, 2000-Ohio-345.) the operation of
computers remained straightforward and vulnerable to criminal manipulation (Bequai,
1979, p. 107). According to Bequai, computer crimes during this period fell into five key
categories, specifically, vandalism, theft of information, theft of services, theft of property,
and fraud (1979, pp. 106-107). Both the merely psychic satisfaction and the pecuniary
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Li – Cyber Crime and Legal Countermeasures: A Historical Analysis
gains motivated users to practise unauthorized access to the machines, or to information in
the machine, hacking for use only being a less guilty act. In fact, before the 1970s, “using”
computers without authorization was more excusable because the available computers
were still insufficient. Later in the 1980s, more computers were available and it became
unnecessary for general users to intrude into others’ systems. Therefore, unauthorized
“use” of computers no longer provided an excuse and became labelled “abuse” in legal
terms.
During this period, there were only some fragmentary reports of computer abuses and
accidents. However, the less bulky, low-cost computer attracted an unprecedented
number of hackers with various motivations. Computer crime was comparatively new and
authorities reacted in a sluggish manner. It was found that the threat of computer crime
was pretty relentless. For instance, the average loss of computer crime was dozens or
hundreds of times that of conventional crimes, regardless of whether the hackers obtained
monetary benefits or psychological satisfaction.
Within this stage, the term “cyberspace,” first coined in a fictional work by William
Gibson (1984) to describe the environment within which computer hackers constructed a
virtual community, became prevalent. In 1978, nevertheless, a perpetrator deprived a bank
of 10.2 million dollars in the Rifkin case (Forester, 1990, p. 263). In 1982, a group of
hackers intruded into a computer with records of cancer patients’ radiation treatment,
modification of which might threaten the lives of these patients. Murder became realistic
with the computer as a tool (Milhorn, 2005, p. 59). In 1986, Stoll uncovered an
international espionage conspiracy (Longstaff & co-workers, 1997, p. 234). These cases
expressed again the potential threats of the hackers against property, life, and state security.
On the other hand, the development of computer technology, which was designed for
social welfare, also constituted a significant source of threats to the social order. Similarly,
the history of technology has been filled with dilemmas of such a kind. For example,
primitive weapons may exactly be productive tools and vehicles may be hijacked. What
was going to happen –unfortunately- in the field of computer science was that something
destructive would be invented. For example, Dan Edwards coined the term “Trojan
Horse” in 1972, denoting an apparently benign macro or utility with undocumented side
effects, which may be security violating or palpably destructive (Overill, 1998). The
Trojan horse caused great security anxiety with institutions such as the military (ibid).
Although it is not an exclusive argument, it has been broadly acknowledged that it was
in 1984 when Fred Cohen defined a computer virus in his paper (1984). The threat of
malicious programmes such as a Trojan Horse, a virus, a worm, and a logic bomb, all
came into being during the 1980s, and necessitated the first business of anti-virus in 1988
(F-secure 2005). These soft offensive and defensive weapons were expected to play their
roles in the information warfare in the near future.
The computer network still played a tiny role during this period. As Clarke (1984)
pointed out: “Even for highly developed countries, these [data and computer networks]
are still in their infancy, though they undoubtedly represent the wave of the future” (p.
27). Nevertheless, computer security incidents increased steadily with the development of
computer networks. Losses due to computer crime had been incessantly escalating. In
1980, losses from computer fraud and other abuse of computer systems in the U. S. alone
were estimated to exceed 300 million dollars (Wood, 1982, p. 69). In contrast, although
software theft found its way in 1964 (Forester, 1990, p. 3), and in the late 1970s, large200
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