Theoretical Basis For Discussion Criminology Essay

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For many years criminologists approached the problem of crime from the perspective of the offender. The public call for action to be taken against increasing crime rates led to a shift in focus from the offender to the victim, allowing the research community to move from a consideration of the causes of crime and the motivations of the perpetrators to an examination of the effects of crime on victims. Crime touches the lives of most South Africans directly or indirectly every day. Many become the victims of crimes covering the spectrum from the trivial to the extremely serious. The quality of life of "non-victims" and "not-yet victims" is negatively affected by the fear of becoming a victim. Many people change their behaviour and restrict their activities in order to reduce the risk of victimization (Glanz, 1989:5). Crime particularly affects the quality of community life as it places various restraints on the lifestyle and general activities of individuals. A further problem that arises is that the public begin to lose confidence in the ability of the police, the courts and the State to maintain law and order (Naude, 1989:13).

Although investigating cyber crime can be very intimidating to a technophobe, an amazing thing happens when the veil of mystery surrounding cyber-related crime is removed, that being that a crime has occurred (Reyes, 2007:7). According to Reyes (2007:17) there are many grey areas in the cyber investigative and forensic process, some due to inefficiencies in the law, while others are due to the rapid change of technologies. Many of these problems are created because we treat cyber crime differently than traditional crimes. Other problematic areas are due to the standards we set in place at the inception of the cyber crime phenomenon. Reyes (2007:17) recommend that, as our standards, best practices and methodologies move farther from reality, that we must revisit the past and come up with ways to make investigating these cases less restrictive. In relation to the gaps in terms of cyber crime laws, it is clear that cyber crime laws do not keep pace with technology, many laws inadequately cover cyber-related crime and that traditional laws can often be utilized to prosecute cyber crimes when the law fails to address a specific type of cyber crime (Reyes, 2007:19). In unveiling the myths behind cyber crime, it is often the situation that cyber crime has elements of an underlying traditional crime. Computers frequently provide a means to aid in the commission of a traditional crime and cyber crime terminology can confuse computer novices in making a "traditional" crime connection when a computer is used to help implement the offense (Reyes, 2007:19). It is important that a cyber crime investigator approach every case with an eye towards trial (Reyes, 2007:50). It is important for investigators to maintain this mindset because the strength of a case is determined by the weight of the evidence and the defendant's perception of the prosecutor's ability to effectively present the evidence to the trier of fact (Reyes, 2007:50).

The rate of technological changes, the increase in computer literacy and growth of e-commerce makes the challenge of restricting cyber crime damage daunting. With legislation lagging behind technology, businesses have no choice but to absorb the responsibility for the securing of their information. The best approach for organizations wanting to counter cyber crime is to apply risk management techniques (Vacca, 2005:156). According to Vacca (2005:156) the basic steps for minimizing cyber crime damage are to create well communicated IT and staff policies, applying effective detection tools, ensuring procedures are in place to deal with incidents, and have a forensic response capacity.

The expansion of computer connectivity has provided opportunities for criminals to exploit security vulnerabilities in the on-line environment (Broadhurst, 2006:2). Most detrimental are malicious codes that interrupt computer operations on a global scale and along with other cyber-crimes threaten e-commerce. Cyber crime is often traditional crime (eg fraud, identity theft) albeit executed swiftly and to vast numbers of potential victims, as well as unauthorized access, damage and interference to computer systems. The cross-national nature of most computer related crimes have rendered many time-honoured methods of policing both domestically and in cross-border situations ineffective even in advance nations, while the "digital devide" provides "safe havens" for cyber-criminals. In response to the threat of cyber-crime there is an urgent need to reform methods of mutual legal assistance and to develop trans-national policing capacity (Broadhurst, 2006:2). According to Broadhurst (2006:3) while the process of "globalization" continues to accelerate, a fully global response to the problem of security in the digital age has yet to emerge and efforts to secure cyberspace has been reactive rather than proactive. Controlling crime involving digital technology and computer networks will also require a variety of new networks: networks between police and other agencies within government, networks between police and private institutions, and networks of police across national borders. At an international level two new treaty instruments provide a sound basis for the essential cross-border law enforcement cooperation required to combat cyber crime. The first of these instruments, the Council of Europe's Cyber-crime Convention, is purpose built and although designed as a regional mechanism has global significance. The second is the United Nations Convention against Transnational Organised Crime which is global in scope but indirectly deals with cyber-crime when carried out by criminal networks in relation to serious crime (Broadhurst, 2006:2). The push for a universal instrument has also gained momentum and a UN draft resolution in 2003 at the fifty-eighth session of the General Assembly on "Cyber security and the protection of critical information infrastructure" to take into account the need to protect critical information structures from possible misuse, including tracing attacks and, where appropriate, the disclosure of information to other nations (Broadhurst, 2006:3).

Forensic specialist tasked with investigating computer-related crime also face new challenges in that there has been a shift away from "scrip kiddie" releases of malicious software to bespoke code designed to steal information, especially personal identification (ID) data (Broadhurst, 2006:5). The greater use of encryption and access protection also poses a growing challenge of extracting evidence from computers, and servers. Another continuing problem was the reluctance of victims to report offences and that many victims are unaware that they or the computers had been compromised. According to Broadhurst (2006:5) the online availability of source code and automated "easy to use" hacking tools that act as system reconnaissance provide multiple exploit tools and deploy "spy-ware" (eg. Keystroke monitoring or transmission) also increase the risks of computer intrusion activity as a predicate to other criminal activity such as extortion, financial or Internet fraud, identity theft, etc.

The "digital devide" between notion-states is growing rapidly and the role of "advance" IT-based economies in bridging this devide is essential. Most developing countries do not have a telecommunications sector capable of supporting Information Communication Technology (ICT). Currently, more than 98% of global Internet protocol bandwidth connects to and from North America (Broadhurst, 2006:5). There is growing concern about the potential for misuse of ICT by terrorists and has made cyber-terrorism a major strategic issue in the prevention of terrorism, because the technologies themselves may be attacked, and can also be used to support terrorism in the same way ICT's are used by predatory cyber criminals. Cases have been reported in which hacking, physical thefts or corruption of officials has been used to gain access to sensitive law enforcement information (Broadhurst, 2006:6). The increased utilization of data surveillance technologies focused on identity and location are based on imperfect convergence technologies that aim to merge existing and new data sources to address the problems arising from "asymmetric warfare" but compel greater collaboration between the private sector and police agencies (Broadhurst, 2006:6). A direct outcome of this is the stress on critical infrastructure protection. This is particularly challenging, given that most elements of critical infrastructure such as power generation, telecommunications, transport and institutions of the financial systems are owned by the private sector. The need for cooperation between law enforcement and the private sector is obvious. To help bridge the public-private gap, the United States Federal Bureau of Investigation (FBI) introduced the "Infraguard Program" with over 4 000 members, a program replicated in other countries. Effective control of cyber-crime, however, requires more than cooperation between public and private security agencies. The role of the communications and IT industries in designing products that are resistant to crime and that facilitate detection and investigation is crucial (Broadhurst, 2006: 6).

The unsafe "highway" analogy often used to describe the Internet aptly reminds us of the inherent decentralized and open architecture of the Internet (Broadhurst, 2006:6). The rapid global expansion of the Internet renders it highly vulnerable to a lawless frontier-style Internet culture. Technology is now driving cultural adaptations and providing an environment for criminal opportunities that can no longer be addressed by the technological "fix". The traditional notion of information security with an emphasis on system and data protection no longer captures the scope of the risks and threats now unleashed by digital and wireless connectivity. The role of public and private law enforcement is crucial in curtailing criminal activity and ensuring the digital "highways" are not lawless or hazardous, but safe for all who wish to travel them. As digital technology becomes more pervasive and interconnected, ordinary crime scenes will contain some form of digital evidence. Crucially many cyber crimes take place across jurisdictional boundaries with offenders routing attacks through various jurisdictions and can only be countered by a cross-border and international policing response (Broadhurst, 2006:7). As a result, the need for reliable and efficient mechanisms for international cooperation in law enforcement matters has never been more urgent. As a result the need for reliable and efficient mechanisms for international cooperation in law enforcement matters has never been more urgent. According to Esposito (2004:54) the fight against cyber-crime either is a global one or it makes no sense. The international community has taken a number of significant steps to facilitate cross-border cooperation in criminal matters, including in the investigation and prosecution of cyber crime.

With government, industries, markets and consumers increasingly dependent on computer connectivity, they are prone to an array of threats (Broadhurst, 2006:7). The most notable have been the widely publicized computer "virus", which have increased in both virulence and velocity since 2000. The risk posed by the release of malicious codes of increasing complexity is substantial and could threaten the viability of e-commerce. Cyber criminals, now operating in "chat rooms" that proliferate on the Internet should not be underestimated, as they can be found in the Internet web-based "businesses" that often operate out of Eastern Europe and Russia to supply counterfeit credit cards. At these e-commerce sites "batches" of cards may be purchased on line from "Trustworthy" but deviant businessmen (Broadhurst, 2006:7).

The relative novelty of computer crime has meant that most policing agencies have only recently developed specific measures for recording them (Broadhurst, 2006:9). The advent of computer-related criminal laws and associated prosecutions and the establishment of computer emergency response teams (CERT's) and dedicated technology crime units within police agencies, coupled with the development of crime victim awareness and consumer advocacy, have prompted jurisdictions at the forefront of the digital revolution to begin recording the incidents of illegality in cyberspace. However, in many jurisdictions cyber crimes, if reported, may not be differentiated from other commercial crime, fraud or criminal damage statistics or other categories. It results in the extent of computer-related crimes, even when reported, to remain unclear (Broadhurst, 2006:9). According to Broadhurst (2006:9) police statistics about reported crime tell us more about the activities and priorities than they do about the extent of crime. Many victims of computer crime do not report them to the authorities (Broadhurst, 2006:9).

The transnational nature of cyber crime reflects the process of globalization, which has intensified over the past two decades. The emergence of e-commerce, as well as the social dimension of the Internet and associated "cyber crimes", is a striking example of the challenges to the independent capability of nation-states to regulate social and economic order within their territories (Broadhurst, 2006:9). Broadhurst (2006:9) suggest that within this globalization sphere large commercial institutions play a crucial role in the emergence of what is termed transnational-state-system. The continues use of "human security" perspectives in dealing with complex threats posed by cyber crime together with a over-reliance on the State, especially the public police, to address cyber security issues would expose both markets and society to frequent low level but costly risks. The role of public-private police partnerships in the market place and the emergence of civil society on the Internet, combined with public awareness has thus become essential to contain cyber crime amongst ordinary users (Broadhurst, 2006:9).

According to Broadhurst (2006:9) there exist international conventions and treaties expressly designed to inhibit serious criminal networks or offenders operating across borders, but the reach of these instruments is limited by the speed and scale of domestic ratification consequential laws. Law enforcement is at a disadvantage because of the remarkable speed in which cyber crime unfold against the typically "low speed cooperation" offered by traditional forms of mutual legal assistance which reiterates the role of multinational agencies such as Interpol and the United Nations.

The Council of Europe's Cyber Crime Convention provided for the first time an international legal mechanism for cooperation in law enforcement and harmonization of laws (Broadhurst, 2006:10). Forty two states have signed the Convention, inclusive of South Africa, but as of 2005 only eleven states had ratified the Convention. The Convention, apart from enhancing Mutual Legal Assistance (MLA), provides comprehensive powers to expedite preservation of stored computer data and partial disclosure of traffic data, to make production orders, to search computer systems, to seize stored computer data, to enable real-time collection of traffic data, and to intercept the content of questionable electronic data (Broadhurst, 2006:10). There is an increased transnational activity of corporate and private security industry due to these developments. Given the role of self-regulatory approaches by corporations, especially multinational enterprises, the role for transnational private policing is already significant and widespread (Broadhurst, 2006:11). The sheer volume of potential global cyber crime activity compels police partnerships with banks, telecommunication providers and corporations, which partnerships also raise issues of shared intelligence in environments of trust. According to Broadhurst (2006:11) the mobilization of so-called "private police" and non-government organizations in partnership with public police are essential if cyber crime is to be contained.

The Eighth United Nations (UN) Congress on the Prevention of Crime and the Treatment of Offenders, with its network of institutes on crime prevention and criminal justice, marked the beginning of being involved with addressing problems of transnational crime and cyber crime. Computer related crime affects every country in the UN which led to the UN General Assembly (GA), during 2001, to promote new international efforts to assist member states in addressing computer related crime (Broadhurst, 2006:11). The General Assembly Resolution 56/261, which resolution refer to "Plans of action for the implementation of the Vienna Declaration on Crime and Justice: Meeting the challenges of the Twenty-first Century", devoted a special section to "Action against high-technology and computer related crime", which contain action-orientated preventative and combating policy recommendations. The General Assembly, during 2002, again addressed the Vienna Plan of action under Resolution 57/170, and through the Commission on Crime Prevention and Criminal Justice recommended that the Eleventh United Congress on Crime Prevention and Criminal Justice consider the plan.

A discussion paper titled "Cybercrime Strategies", prepared for Workshop 15 at the Internet Forum, held in Nairobi, Kenya on 28 September 2011, reiterate the concern of the security of ICT and cyber crime, which paper was presented for the purpose that it may lead to being a guidance document on cyber crime policies and strategies (Seger, 2011:4). According to Seger (2011:4) governments only in the recent past began to understand the significance of ICT security for societies that are being transformed by technology and that have become reliant on computer networks, and that the security of ICT is thus becoming a policy priority of many governments. Following the cyber attacks on Estonia during 2007 many countries responded by adopting cyber security strategies. Cyber security strategies, according to Seger (2011:5) are setting policy goals, measures and institutional responsibilities in a fairly succinct manner and that generally, the primary concern is to ensure the confidentiality, integrity and availability of computer data and systems, furthermore to protect against or prevent intentional and non-intentional incidents and attacks. In a cyber security strategy priority is given to critical information infrastructure protection (Seger, 2011:5). According to Seger (2011:5) some of the cyber security strategy would include measures against cyber crime, as these measures would provide for a criminal justice response. However, cyber crime also comprises of offences committed by means of computer data and systems, which would not necessarily be part of a cyber security strategy.

Strategies and measures against cyber crime would have to follow a criminal justice rationale and should be linked to broader crime prevention and criminal justice policies, aimed at contributing to the rule of law and the promotion of human rights. It should be noted that any crime may involve electronic evidence and although this may not be branded as cyber crime, a cyber crime strategy would nevertheless need to ensure that the forensic capabilities be created that are necessary to analyse electronic evidence in relation to any crime, or that all law enforcement officers, prosecutors and judges are provided with basic skills in relation hereto (Seger, 2011:5). While it is correct that strategies in relation to cyber security and cyber crime control are interrelated, intersecting and complementary, they are not identical as the former does not address the full range of cyber crime issues and vice versa. Consideration should therefore be given for the development of a specific cyber crime strategy that complement, add to or become components of cyber security strategies or policies. According to Seger (2011:9) the United Kingdom (UK) is one of the few countries that have complemented its cyber security strategy with a specific strategy on cyber crime. The UK cyber crime strategy builds on the UK cyber security strategy, but focuses more specifically on new offences committed by using new technology, that is, offences against computer data and systems, and old offences committed using new technology, which include fraud and financial crime. The vision of the cyber crime strategy, which is identical to the UK cyber security strategy, is stated as follow: "Citizens, business and government can enjoy the full benefit of a safe, secure and resilient cyber space: working together, at home and overseas, to understand and address the risks, to reduce the benefits to criminals and terrorists, and to seize opportunities in cyber space to enhance the UK's overall security and resilience" (Seger, 2011:9). Measures to be undertaken in accordance with the UK cyber crime strategy include:

Coordinate activity against cyber crime across Government, including clear ownership for measure against cyber crime, review of legislation, establishing standards and promoting duty of care;

Reduce direct harms by making the internet a hostile environment for financial criminals and child abuse predators, including effective law enforcement and criminal justice response through specialised units and intelligence sharing, developing better understanding of scale and scope of cyber crime through reporting systems for public and business, producing a regular strategic overview of the threat to children and young people, developing tools, tactics and technology with industry to ensure that law enforcement are able to investigate online criminals;

Raise public confidence in the safety and security of the internet, not only through tackling crime and abuse, but through the provision of accurate and easy to understand information to the public on threats;

Support industry leadership to tackle cyber crime and work with industry to make products and services safer;

Work with international partners to tackle the problem collectively.

As referred to supra, cyber security strategies only address cyber crime to some extent and while only a few countries adopted specific cyber crime strategies, a wide range of measures has been taken by governments, institutions, the private sector and international organizations that could form part of a cyber crime strategy. The measures vary from reporting and intelligence systems, specific legislation, high-tech crime or other specialised units and forensic capabilities, law enforcement and judicial training, law enforcement/service provider and other types of public/private cooperation, and international cooperation. Cyber crime strategies follow a criminal justice logic and should therefore be embedded in rule of law and human rights principles. The Budapest Convention, with specific reference to Article 15, assists in finding a balance between an obligation of the state to protect people against crime on the one hand, and the need to limit law enforcement powers on the other hand. Article 15 establishes a number of general principles with regard to conditions and safeguards and makes reference to international human rights standards (Seger, 2011:10). A number of principles apply to the procedural powers of law enforcement, namely:

The principle of proportionality, in particular that the power or procedure shall be proportional to the nature and circumstances of the offence (eg. Particular intrusive measures, such as interception, are to be limited to serious offences);

Judicial or other independent supervision;

Grounds justifying the application of the power or procedure and the limitation on the scope or the duration;

Powers and procedures must be reasonable and the impact on the rights, responsibilities and legitimate interests of third parties should be considered (Seger, 2011:11).

The approach to addressing cyber crime is influenced by a number of factors, inclusive but not limited to the nature of the threat, the state of the criminal justice system, the level of respect for human rights and the rule of law (together with the approach to privacy, data protection and freedom of expression), the cyber security landscape and the relationship between the public and private sectors. According to Seger (2011:12) the following elements should be considered in drafting a cyber crime strategy, namely:

Scope of the cyber crime strategy;

Objective of the cyber crime strategy;

Measures in addressing cyber crime;

Responsibilities for the management, coordination, implementation and monitoring of a cyber crime strategy;

Technical measures for capacity building.

With reference to the scope of a cyber crime strategy, in addition to offences against and by means of computers, electronic evidence can play a role with regard to almost any offence (Seger, 2011:12). Even if a supplementary role of computers by definition does not constitute cyber crime, a cyber crime strategy may need to address the question of admissibility of electronic evidence in criminal proceedings and ensure that law enforcement and other criminal justice authorities are capable of collecting, analysing and presenting electronic evidence. The need to address the question of electronic evidence implies that the vast majority of law enforcement officers, prosecutors and judges would need to be trained (Seger, 2011:12). The scope, damage and impact of cyber crime and the wide range of measures to be taken presupposes that there is justification for a strategic approach and the allocation of resources to deal with cyber crime and electronic evidence. The overall objective of a cyber crime strategy would need to ensure that the rule of law applies and that legitimate rights are protected within the ICT and online environment, with a specific objective to ensure an effective criminal justice response to offences against the confidentiality, integrity and availability of computers and by means of computers as well as any offence involving electronic evidence (Seger, 2011:13).

Measures as part of a cyber crime strategy should include establishing reporting channels thereby allowing users, inclusive of public and private sector organisations to report cyber crime, which reporting will enhance the understanding of the scope, threats and trends and collation of data to detect patterns of organised criminality (Seger, 2011:13). Given the fast evolution of technologies together with cyber crime and techniques utilized by criminals, building intelligence would be of particular significance to assess threats and predict trends, which would assist in adjusting measures in line with the strategy. As a prevention measure, public education and awareness, the empowerment of users and technical and other measures should be essential elements of a cyber crime strategy, with specific actions in relation to fraud prevention (Seger, 2011:13).

In relation to the legislative framework, measures should be adopted that is in step with international standards, in order to criminalise behavior, provide law enforcement with procedural law tools for efficient investigations, to establish safeguards and conditions limiting investigative powers and to adopt data protection regulations (Seger, 2011:13). Specialised units, such as high-tech crime units, prosecution services responsible for cybercrime and services for cyber forensics will need to be created (Seger, 2011:14). According to Seger (2011:14) specific procedures and mechanisms for interagency cooperation would need to be established. A training needs analysis would be the first step towards developing a training strategy with the objective to ensure that law enforcement officials possess the skills and competencies to address cyber crime. It would also be important to provide judicial training to ensure that judges and prosecutors have at least basic knowledge to deal with cyber crime and electronic evidence. Cooperation between law enforcement and service providers is principally important and memoranda of understanding or other types of agreements should be considered in providing a framework for efficient collaboration between parties (Seger, 2011:15). Due to the transnational nature of cyber crime efficient international police to police and judicial cooperation is required in order to preserve volatile electronic evidence. The cooperation would be inclusive of 24/7 points of contact-cooperation between high-tech crime units and between prosecutors of different countries, in line with Article 35 of the Budapest Convention (Seger, 2011:15). Although specific attention should be given to prevent fraud and money laundering during cyber crime investigations, financial investigations to search, seize and confiscate the proceeds of crime should also be addressed. In adopting cyber crime strategies, responsibilities for implementation need to be assigned and the strategy needs to be managed, coordinated and monitored.

A coherent strategy on cyber crime would undoubtedly facilitate technical assistance and allow public and private sector donors to understand and decide to what they are contributing (Seger, 2011:16).

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