Is It Time for a Court Dedicated to Cybercrime?

Topics: Access to Justice, Cybersecurity, Cybersecurity & Data Privacy Blogs, Government, Justice Ecosystem: Innovation, Legal Innovation, State Courthouses

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The internet has helped a lot of people, but the people it has arguably helped the most are criminals and terrorists.

It’s difficult to quantify the economic impact of illegal activity on the internet, but a recent report by the Center for Strategic & International Studies (funded by computer security company McAfee) estimates that worldwide cybercrime costs an estimated $600 billion per year. That number is a bit lower than the one provided by the Pardee Center for International Futures at the University of Denver, which speculates that the financial difference between a “Cyber Shangri-La” internet — one with effective defenses against cybercrime — and a “Clockwork Orange” internet — one with inadequate security and escalating criminal activity — could be as much $120 trillion in lost revenue by 2030.

The CSIS/McAfee study begins on an ominous note: “Cybercrime is relentless, undiminished, and unlikely to stop. It’s just too easy and too rewarding, and the chances of being caught or punished are perceived as being too low.”

Cybercrime takes many forms, including:

  •        hacking or phishing
  •        engaging in identity theft, credit-card fraud or money-laundering
  •        cyber-stalking or cyber-bullying
  •        creating viruses, malware or ransomware
  •        piracy
  •        drug trafficking or human trafficking
  •        terrorism

No matter what the actual numbers are, the fact of the matter is that societies the world over are engaged in a technological tug-of-war between people who log onto the internet with good (or at least legal) intentions, and those who don’t. And while fighting cybercrime on the law-enforcement side is no picnic, prosecuting, convicting and sentencing cyber-criminals is an even more daunting task, in part because the current court system is ill-suited for the age of digital crime.

One corrective worth considering is a special court dedicated to cybercrime.

cybercrime

In the past, the argument against such a court has been that cybercrime crosses lots of criminal boundaries addressed by other courts, and specialized courts work best for such areas as drug offenses, domestic violence or traffic violations — where routine matters can be adjudicated more efficiently.

A more useful model for comparison, however, would be California’s Complex Civil Litigation court or Maryland’s Business & Technology Case Management Program, which works with circuit courts to provide the resources necessary to prevent complex technology-related cases from tying up the court system. Not only do such courts give the larger system more flexibility to adapt to the changing demands of 21st Century justice, they also provide the expertise necessary to accomplish it.

A few benefits a court dedicated to cybercrime could provide would be:

  •        A more logical, efficient channel for prosecuting cyber-criminals;
  •        More effective institutional support for the efforts of law enforcement;
  •        A legal vehicle for surmounting issues of geographical jurisdiction;
  •        The establishment of a coherent body of case law related to cybercrime;
  •        More consistent and logical sentencing guidelines for cybercrimes;
  •        The creation, over time, of judges and legal experts who understand complex technologies;
  •        More prosecutions for cybercrime, and therefore better deterrence; and
  •        Symbolic strength that demonstrate the courts take cybercrimes seriously.

The list could go on, but perhaps the most compelling reason to revisit the idea of a special court for cybercrime is that it’s time has come. The internet now provides the global infrastructure for virtually all business, finance and commerce, so protecting it from people who seek to abuse and exploit its vulnerabilities is paramount. Greater awareness, better security, empowered law enforcement, international cooperation and coordination — all are necessary components of an effective response to cybercrime. But at some point, those who commit such crimes must face consequences for their actions; they must be punished.

At the moment, the internet is a both a virtual and literal playground for cyber-criminals. One way to ruin their fun is to send them to court — a court specifically designed to outsmart, outwit and outlast them.

We may never see a Cyber Shangri-La, but we can and should try to avoid a Clockwork Orange future of cyber chaos and skullduggery.