Cyber Criminals on Trial

Russell G. Smith, Peter Grabosky + Gregor Urbas

Cambridge University Press 2004
A book review by Danny Yee © 2004
Cyber Criminals on Trial is a broad-ranging study of the prosecution and sentencing of cyber criminals in the English-speaking world.

An opening chapter argues for the term "cyber crime" rather than "cybercrime", suggesting the latter could be used more narrowly for "new criminal offences perpetrated in new ways" rather than "conventional crimes involving new technologies". It considers overlaps with economic crime, white collar crime and other categories, and takes a look at the evidence from surveys for the extent and severity of cyber crime.

The prosecutor, as "gatekeeper", has to select crimes for prosecution, choose charges, consider the alternative of civil remedies, and so forth. These issues are not novel, of course: one thing that is new with computer crime is the ease with which juveniles can commit serious crimes. There are noticeable differences across jurisdictions.

"The comparative zeal with which American prosecutors pursue perpetrators of piracy and intellectual property crime reflects the power of the software and entertainment industries in the United States."

Computers and networks have vastly increased the frequency of cross-border offences and transnational crimes; cyber crime poses new challenges for prosecutors in determining location and jurisdiction and in evaluating the options for foreign prosecution or extradition. There are also novel possibilities for direct action across borders.

"In the United States, authorities appear to be less constrained in the use of undercover methods. So-called 'stings' and remote cross-border searches conducted without the authority of the host country would probably not occur in Australia, Canada or the United Kingdom."

Special considerations in litigation of cyber crime include the admissibility, volume, integrity, and possible encryption of the evidence, the role of private vigilante action, the nature of intent, and "imaginative" defences. The last two are particularly salient with laws sanctioning possession of child pornography.

Harmonisation has seen both the extension of existing law and the creation of new law. There have also been moves towards international harmonisation (and national harmonisation within federal states), most prominently through the development of model criminal codes such as the Council of Europe's Convention on Cybercrime.

A theoretical survey of the objectives of judicial punishment reveals nothing at all computer-specific. But cyber crime has created new options such as restricted or monitored access to computers and networks, with "courts beginning to adopt sanctions to suit the novel circumstances of the cases".

Sentencing of cyber criminals involves familiar aggravating and mitigating factors, with some unusual problems where superficially minor acts can have drastic consequences. Analysis of statistics suggests that "courts in different countries have not imposed sentences of a widely differing nature" and there have been "few, if any, differences in approach" between cyber and conventional cases.

Cyber Criminals on Trial is dry and, unsurprisingly given its scope, rather general. Some meat is provided by references to specific cases, however, and the sixty pages of appendix A offer summaries of 164 key cases.

The work is framed as an academic argument testing three hypotheses: prosecution and judicial disposition of cyber crime cases are no different to conventional cases; responses to cyber crime have been similar in North America, Britain, and Australasia; and the use of computers in the commission of crimes does not affect the severity of sentences. This framework doesn't narrowly constrain the authors, however, and they cover a much broader range.

Cyber Criminals on Trial will be most useful to legal professionals involved with cyber crime, but it has something for anyone curious about the treatment of cyber crime within the legal system. Some of the material in it was new to me, but I also found it interesting to see familiar territory covered from a different angle, from a perspective slanted towards the prosecutorial.

October 2004

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%T Cyber Criminals on Trial
%A Smith, Russell G.
%A Grabosky, Peter
%A Urbas, Gregor
%I Cambridge University Press
%D 2004
%O hardcover, references, index
%G ISBN 0521840473
%P 264pp