Policy Issues Blog 1

This series of blogs will look at policy arguments for and against bringing the criminal law to bear against cybercrimes.  For the sake of convenience and consistency, throughout the blogs I will use the term “cybercrime” to describe the conduct at issue, even where that conduct has not technically been criminalized yet.

The most common policy arguments against creating new laws, or extending existing ones, to address cybercrimes can be summarized as follows:

1.         Cybercrimes do not merit “real world” penalties because they do not inflict harm in the “real world.”

2.         Cybercrimes are matters best suited for social and moral regulation, not government intervention.

3.         Laws against cybercrimes are too difficult to enforce.

4.         Penalties against cybercrimes violate constitutional rights to free speech, due process, and freedom from warrantless search and seizure.

For each of these points, someone has argued a counterpoint.  I address each argument in turn below.

1.         Harm in the “Real World”?

In his article Criminal Law in Virtual Worlds, Orin Kerr argues that new laws should not be enacted to address virtual crimes, because “[i]t is only when harms extend outside the game that the criminal law should be potentially available to remedy wrongs not redressable elsewhere.” [1] Kerr and others see cybercrimes as “harmless” because computers can be turned off at will.[2] The theory is that cybercrime can inflict only the kind of harm that ceases to have consequence once you turn off the computer, exit the virtual world, or close your internet browser.

Susan Brenner gives little credit to the idea that cybercrime has no consequences outside of cyberspace:

Unfortunately, what happens in the cyberworld does not stay in the cyberworld; it migrates out into our world because cyberspace is not a true externality.  It is simply a vector for human activity, both good and bad.  Cyberspace lets the worst of everyplace leak out into anyplace, and that is part of our problem.[3]

Throughout the series of blogs, I will look at the cybercrimes we are studying in this course and try to determine the effects, if any, that those cybercrimes have in the physical world.

2.         Social and Moral Regulation vs. Criminalization

Some argue that cybercrime is a social or moral problem and therefore would be better regulated by societal or market forces than by the criminal law.  For example, some consider cyberbullying to be not a crime but a personal misfortune best dealt with by the affected individual or his or her parents. [4] Cyberstalking is often treated the same way, since many jurisdictions have declined to criminalize cyberstalking that does not involve a credible threat of death or bodily injury.[5] Some consider assault and theft within virtual worlds to be nothing more than gaming risks, better regulated by in-world administrators than by the legal system.[6] In the arena of internet gambling, confusion between morality and the law has resulted in a tortuous legislative history.[7]

Susan Brenner argues that the purpose of the criminal law is to “defeat chaos and maintain order within and among our societies.”[8] If one accepts that position, then it could be argued that the criminal law belongs in cyberspace as much as in the physical world because cyberspace breeds chaos.  We create criminal laws, says Brenner, to control chaos by “limiting its ability to manifest itself in a particular area” in the physical world.[9] Because cybercrime can inflict chaos on our physical world in very real, very devastating ways, Brenner argues that we need to bring the force of the law to bear against cybercrimes as much as we do against crimes that take place wholly in the physical world.[10] Throughout the series of blogs, I will measure objections about the criminal law’s unfitness to address cybercrimes against Brenner’s claim that we need legal intervention in cyberspace to maintain order.  I will try to determine whether there is something newly and distinctly dangerous about cyberspace that specially warrants intervention by the criminal law.

3.         Difficulty of Enforcement

Kerr argues that the criminal law would be a “blunt and awkward tool” for regulation in cyberspace.[11] Investigation and identification would be difficult to do on the internet, and there would also be evidentiary and jurisdictional problems.[12] Enforcement has certainly been a problem in the context of internet gambling.  Despite the fact that there is currently a blanket prohibition against internet gambling in the United States,[13] U.S. citizens still gamble online, through websites based in foreign countries.  The UIGEA is, in effect, enforced against financial institutions, who should not be the parties affected by the legislation.[14]

In the context of internet gambling, Barney Frank’s solution is reasonable regulation rather than criminal prohibition.[15] I will look at the problem of enforcement in the context of the cybercrimes we discuss in this class, identify potential difficulties with enforcement, and, if the difficulties are great, try to propose a solution.

4.         Violations of Constitutional Rights

In contrast to arguments above about the futility and clumsiness of the criminal law in the virtual context, some commentators are wary of applying criminal law against cybercrimes because it is too powerful and effective.  The criminal law allows us to go so far as to take away someone’s freedom, and that kind of power should be exercised with great care.  The concern is that, if it is true that laws against cybercrimes inflict penalties where no harm has been done in the “real world” or where the only conduct at issue was speech, then those laws might violate constitutional rights to free speech, due process, and freedom from unwarranted searches and seizures.[16]

To defeat this argument, some have analogized cybercrimes to inchoate crimes.  Laws against inchoate crimes have long been considered valid and constitutional, despite the fact that they impose penalties where no harmful behavior has occurred.  The validity of inchoate crimes is based on “the logic of risk assessment”[17] and the premise that certain extreme antisocial (but not yet criminal) behavior can demonstrate that an inchoate offender “is sufficiently dangerous to warrant the imposition of sanctions.”[18] In this series of blogs, I will try to determine whether the policy that justifies inchoate crimes is applicable to cybercrimes.


[1] Orin S. Kerr, Criminal Law in Virtual Worlds, 2008 U. Chi. Legal F. 415, 417 (2008).

[2] Stephen J. Morewitz, Stalking and Violence: New Patterns of Trauma and Obsession 16 (2003).

[3] Susan W. Brenner, Cyberthreats: The Emerging Fault Lines of the Nation State 8 (2009) [hereinafter Cyberthreats].

[4] See generally Shaheen Shariff, Confronting Cyber-Bullying: What Schools Need to Know to Control Misconduct and Avoid Legal Consequences 6-8(2009).

[5] Susan W. Brenner, Is There Such a Thing as “Virtual Crime”?, 4 Cal. Crim. L. Rev. 1, 22 (2001) [hereinafter Virtual Crime].

[6] See, e.g., Dan Hunter & F. Gregory Lastowka, The Laws of the Virtual Worlds, 92 Cal. L. Rev. 1 (2004); Kerr, supra note 1, at 416-17.

[7] News in Brief about the Gaming World, 13 Gaming L. Rev. & Econ. 195, 195 (2009).

[8] Cyberthreats, supra note 3, at 8.

[9] Id.

[10] Id. at 9, 11.

[11] Kerr, supra note 1, at 425.

[12] Id.

[13] The Unlawful Internet Gambling Enforcement Act of 2006, 31 U.S.C. §§ 5361-5367.

[14] Nelson Rose, Congress Close To Devastating Internet Gambling, 10 Gam. L. Rev. 443, 444 (2006).

[15] See HR 2267; News in Brief about the Gaming World, 13 Gaming L. Rev. & Econ. 195, 195 (2009).

[16] Morewitz, supra note 2, at 17.

[17] Eric S. Janus, The Preventive State, Terrorists and Sexual Predators: Countering the Threat of a New Outsider Jurisprudence, 40 Crim. Law Bull. 6 (2004).

[18] Virtual Crime, supra note 5, at 26.

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~ by cstockard on October 19, 2009.

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