Cybercrime and the Law: Challenges, Issues, and Outcomes

8. Mutating Cyberthreats: Crime, Terrorism, and War

>chapter:8 mutating cyberthreats: crime, terrorism, and war Cybercrime is only one of several threats that exist in cyberspace. This chapteranalyzeswhatconstitutesa“threat”andhowthenatureofthetraditional threats to social order mutates once they move into cyberspace. Traditional Threat Categories Crime, terrorism, and war and the distinctions between each are reasonably well defined and reasonably stable in the physical world.1 The definitional clarity and empirical stability of the real-world threat categories is a function of two factors: One is that the categories evolved as pragmatic responsestothechallengesterritoriallybasedsovereignentities(e.g.,citystates and nation-states) must overcome if they are to survive. The other is that these threats emerged in a physical environment far less malleable and therefore far less ambiguous than the conceptual environment of cyberspace. Probably the greatest challenge societies confront is the need to maintain order, both internally and externally. Order is essential if the citizens of a society are to carry out the functions (e.g., procure food and shelter, andreproduce)essentialtoensuretheirsurvivalandthatofthesociety.As 190 | cybercrime and the law failed states demonstrate, a society cannot survive if its members are free to prey on each other in ways that undermine the level of order needed to maintainafunctioningsociety.Tomaintaininternalorder,asocietymust ensure that its citizens are organized and socialized in a fashion that lets them carry out essential functions and that this order is not undermined by the disruptive activity of some citizens. To maintain order externally, a society must fend off encroachments and attacks by other societies. To do this, a society must have trained personnel who are equipped with the weaponry they need to repel external attacks. Societies use two sets of rules to maintain internal order. One consists ofcivilrules that definethebasic structureofthesociety.Theserulesdeal withstatus(e.g.,whenpeoplebecomeadultsandwhichadultshavewhich rights), property (e.g., who can own property and how one acquires property ), familial bonds (e.g., kinship and marriage), and other critical matters . Many civil rules are informal norms; most citizens internalize these norms, which keeps their behavior within socially acceptable bounds. Other civil rules take the form of laws, the enforcement of which falls to civil courts and civil litigation (suits between individuals). Unlike other social species, humans are intelligent and can therefore deviate, that is, can deliberately decide not to follow a rule. Most of the individualsinasocietywillnotintentionallydisobeythesociety ’scivilrules, but some will. Societies use a second set of rules—criminal rules—to control conduct that deliberately violates a society’s rules and challenges its ability to maintain order. These rules are intended to discourage rule violation by letting the state sanction those who commit “crimes.” A crime consists of violating a rule—a law—that prohibits certain conduct or causing certain “harm.” The crime of murder, for example, prohibits causing the death of another person; the crime of theft prohibits someone’s taking another person’s property without that owner’s permission and with the intention to deprive the owner of it. As these examples indicate, criminal rules often relate to matters governed by civil rules; the prohibitionagainsttheftreinforcescivilrulesthatestablishanddefinethe parameters of property ownership. Criminal rules discourage rule violations by prohibiting certain activity and by prescribing and inflicting sanctions (e.g., incarceration and execution )onthosewhoengageinthatactivity.SoifJaneDoemurdersJohn Mutating Cyberthreats | 191 Doe, the society she belongs to will convict her of murder and impose a sanction. The primary goal is to deter Jane from breaking more criminal rules(andthecivilrulestheyreinforce);asecondarygoalistodeterothers from following her example. The punishment imposed on Jane underscores the unacceptability of engaging in such conduct and presumably deters future rule violation. This system assumes that individuals commit crimes. This assumption also applies to terrorism, which consists of committing what would otherwise be a crime for ideological reasons. Criminals commit crimes for financial reasons (e.g., fraud or theft) or passion (e.g., anger or sex). The motive for most crimes is personal: I steal to benefit myself; I murder out of revenge. Terrorists commit crimes (e.g., killing people and damaging property) but do so to promote an ideology. Since terrorists commit crimes (albeit for distinct motives), societies have historically regarded terrorism as a type of crime. Timothy McVeigh, for example, was prosecuted and executed for his terrorist attack on the Oklahoma City federal building,andmembersofal-Qaedawereprosecutedandpunishedforthe 1998 bombing of U.S. embassies in Africa.2 Historically, crime and terrorism were both internal phenomena, that is, were committed within the territory of sovereign entity. The internal character of crime and terrorism was a function of necessity: in the real world, it is...