Problems posed by ‘cybercrimes’

Cyber crime is defined as those crimes involving abuse of electronic media or the information contained in it by influencing the computers functioning or the functioning of its system to the detriment of other individuals/organizations. The emerging information technology trends have seen has seen increased use of computers across the globe. This rapid expansion in terms of information communication technology capability to transmit bulk of information has seen enormous transmission across the internet and computers daily.

With this increased transmission there has emerged a new twist in criminal activities. In addition it has created window for perpetration of harmful activities by criminal organization. Another fundamental twist arising from internet and computer usage is intellectual appropriation. The emergence of such crimes being committed against computers, and the corresponding information in computers is gradually shifting attention towards the threats posed by cyber crimes. This is coupled by the anonymity of such crimes as well as the less aware population being preyed upon.

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The camouflaging nature of such crimes thus presents new challenges to the law enforcement agency due to the inevitable need to transform in response to this changing criminal landscape. In addition lack of proper legal structures and legislations have condemned businesses and the respective governments to there own discretion in protecting themselves against cyber crime. Such measures employed include the technical measures aimed at securing their systems. However, this is not enough to secure the existing cyber space from criminals.

There is an additional need for application of the law in fighting this emerging menace. This paper will analyze the various types of cybercrimes, the problems they pose to the law enforcement agencies and in conclusion analyze the sufficiency of the cyber crimes laws in Australia in dealing with the problems posed by cyber crimes. Understanding the problems that cyber crime pose to the modern nations requires a deeper understanding of the various faces that such crimes take.

Cyber crimes in different forms which include; denial of service (DoS), identity theft, stalking, piracy, pornography, hacking, unauthorized modification, viruses, unauthorized copying, credit card crime, extortion, phishing, spoofing, cyber defamation and salami attack among others. Denial of service involves such acts by criminals aimed at flooding of victim’s network bandwidth of overloading of a victims mailbox with spam thus denying the victim access to his entitled services accessibility/provision.

Unlike the early days DoS where simple tools generated and sent attack packets fro one source to another external source, such attacks have transformed to incorporate use of attacks from single source to multiple destinations as well as multiple sources to single destinations. However, the most recent development which involves use of self propagating worms has increasingly created a new twist to reaction to such attacks. Hacking on the other hand has emerged as a regular crime as technology continues to advance.

Hacking basically involves illegal computer systems intrusion as no permission is sought from the users/owner of the intruded system. Most of hacking is often attributed to teenagers as well as young adults. Hacking is often considered an art of exploration by computer technology buffs who engage in computer exploration rather than being intent on committing crime. The hackers often use hacking as a venue to displaying their skills and not as a tool of harming others.

Virus dissemination on the other hand involves release of malicious software’s that often attach themselves to the existing software application resulting into a range of system detriments including system retardation and information sending among others. Such include; worms and Trojan horse among others. Pornography on the other hand has emerged as a successful product in e-commerce that often applies deceptive techniques in its marketing most common being the mouse trapping technology.

However, the ease of accessing such cites even to children is increasingly raising concern. Internet relays chat servers have likewise emerged as suitable avenues for criminal meetings from anywhere in the world. Hackers too are known to use such sites in discussing of their various exploits and sharing of information on the same. In addition Pedophiles have been known to use such sites in luring of children to their activities. Such avenues have thus presented avenues for increased criminal activities and planning.

Credit card fraud has also increasingly grown more especially when the card’s numbers are used in unsecured electronic transaction resulting into the credit card numbers being stolen by hackers who end up misusing the cards through owner impersonation. Such fraudsters have also been known to use advanced techniques in duplication of credit cards. An emerging trend has also emerged where the confidential data of companies is illegally copied with the aim of extorting huge sums of money from the company.

Phishing has also emerged with the rising of technology where information confidential to account holders in financial institutions is pulled out through deceptive ways. Spoofing on the other hand involves use of one computer in assuming another computer’s identity. Another form of cyber crime involves circumstances where defamatory messages are posted on the internet regarding an individual. Likewise stalking has emerged as a form of crime where the criminals trace individuals using the messages they use within the chat rooms.

Salami attacks have on the other hand used to perform crime acts that involve insignificant amounts deduction from customer’s bank accounts and depositing it into their accounts. Such varied nature of cyber crimes presents with it varied challenges to the law enforcement agencies. Latest significant form of cyber crime is the Nigerian 4-19 scheme where letters supposing presence of large amount of money in which the victim is required to help are distributed to prominent business, and professional personalities with the aim of hoodwinking them.

Law enforcement agencies have had to reckon with the emergence of this new form of crime that comes with a variety of challenges in addition to its shifting landscape. Often such challenges may be classified as technical, judicial or ethical. Technical problems pose the greatest challenge to law enforcement agencies more so, on the issue of traceability more so considering the anonymous nature with which such crimes are perpetrated. It is always extremely cumbersome to locate the IP address from which such crime occur.

Under such cases the criminals at times use other persons IP address to connect to a third party who then is unable to identify the actual source of the crime. Such connections are done using proxies with socks4 and socks5 proxies often used by criminals. Often criminals are known to resource proxies through use of machines belonging to innocent and unaware users. Such present a challenge to law enforcement agencies in their quest to track down cyber criminals.

Criminals are also known to use fast-flux networks in making of website resistant to firewall website filters and any attempts at law agencies to track them down. Such criminal activities always direct attempts to access the IP address to some arbitrary Zombie machine. Convicting of cyber criminals upon arrest may also prove cumbersome due to lack of evidence in such instances that the criminal has encrypted his/her computers data. This thus presents the challenge of obtaining evidence even in such circumstances where the criminal has been positively identified.

In addition tracking down such crimes in order to gain crucial evidence is difficult considering that the criminal activity’s traces disappear as soon as the connection is broken such a challenge may also be attributed to the over-reliance exhibited by law enforcement agencies on ISP’s rather engaging in a day to day co-ordination with the providers as this would enhance quick tracking responses. Ignorance also plays a major role in inhibiting the attempts by law enforcement agencies to fight cyber crime.

Most of such crime often goes unreported as ether the victims are unaware that the activity may be classified as criminal or by mere lack of information. Large institutions like banks are also known for failing to report such incidence with the aim of protecting their public image from getting distorted. Other cases are only brought to light after a considerable period of time has elapsed and any evidence that would have aided prosecution has been lost. The digital technology as well as computing convergence has changed the ways of life.

Unprecedented criminal opportunities have emerged with some unforeseeable criminal activities becoming a reality. This comes with the need for prosecutors to possess effective knowledge to deal with these emerging crimes. Appropriate training of the relevant law enforcement agencies to meet the competencies exhibited by such criminals is also a fundamental issue. Most countries, more so the underdeveloped countries lack effectively trained personnel to counter the activities of the criminals.

The moral underpinning of cyber crime is also bound to pose a challenge to the law enforcement agencies as their action aimed at reacting to the same may be interpreted as a human right violations. Such may include arbitrary searches in quick response to an ongoing connection which may be interpreted as a search without warrant. On the other seeking a search warrant may provide adequate time for the perpetrator to break connection before identification.

Jurisdiction problems likewise remain a major challenge to the law enforcement agencies in fighting of cyber crime. Cyber crime is known to take a transnational perspective across various countries borders. The fundamental issue then arising is the issue of sovereign jurisdiction. In USA V Griffiths, the question of dual criminality was raised and the consequent requirement for existence of the same to allows criminal extradition.

While one country may have already recognized a respective cyber offense as constituting a criminal offense, the other may have not. The resultant effect then would allow a criminal to operate from one given country without fear of facing legal action and harming victims of another country. The cases clearly illustrated the extent to which judicial barriers may hinder law enforcement agencies from effectively performing their duty and apprehend such criminals.

In R v BODEN the existing legal provisions proved insufficient to sustain prosecution of Mr. Boden resulting to his release. In addition the question as to who holds jurisdiction likewise presents an obstacle to law enforcement agencies in fighting cyber crime. When a criminal commits the crime in one country but it affects an individual in another country, there exist no clear legislations that prescribe the country on whose laws such an individual should face prosecution.

The major jurisdictional problems facing law enforcement agencies in fighting cybercrime can be summarized as being the lack of harmonized rules in qualifying offences as cyber crimes within various states legal structures, lack of laws empowering investigative agencies in various states capabilities to trail crime across the borders and lastly inadequacy of laws allowing international cooperation to allow cross border prosecution. In the book “Underground” by Dreyfus a true story about an underground computer group threat predated the internet for more than ten years is narrated.

The group was accused of having hacked into secure systems including; the Citibank, the pentagon NASA, NATO among others. It took several raids by both the federal police and the police agencies to bring down the group. The group was subsequently brought to trial under the telecommunications act of 1991which was cited as outlining the legal proceedings surrounding cyber crimes. The penalty levied on the four who hacked major secured websites has been subject to criticism more so regarding the weight of the sentence in relation of the magnitude of the crime committed.

The crimes if physical would have otherwise been considered dangerous and would have attracted sever sentence. This once again puts into spotlight the effectiveness of the Australian laws in dealing with such crimes. The question arising then was whether or not these regulations are sufficient enough to curb the cyber crimes menace. The latest bill on anti money laundering offers stiffer penalties accompanied with possibility of long term imprisonment thus meting out proportional penalties which could have a deterrent effect on such crimes.

The 1991 telecommunication act incorporated section 74 and 76 criminal code of Australia in illustrating the issue of carrier and data. The legislation describes carrier and data considered property of the Australian commonwealth. The law includes data originating from commonwealth computers as well as data into the commonwealth computers as constituting carrier and data within the section definition. Unauthorized access to commonwealth computers is classified as criminal under section 76(b)-1 with section 76(b)-2 describing what qualifies as unauthorized access.

Section 76(b)-3 expounds further to deal with acts that impeded, destroy or after data. Section 76(D) on the other hand emphasizes the on the mode of entry while section 76(e) specifies the prescribed punishment for individuals who contravene the provisions of the aforementioned sections. Unlike the previous cases where creative adaptation was applied in trying to deal with new crimes, the act currently addresses specific cases of computer crimes. For instance in the 1980’s the reported cases faced difficulties regarding whether or not legislation on theft could be applied to computer hackers.

In the rulings the court held that information was not property and thus incapable of being stolen. Based on this, Gordon Hughes at one point suggested that hacking of computers could not be considered to constitute an act of theft. However, the telecommunication act, 1991 prescribes specific clauses that handle such cases. Section 76 of the act not only addresses the issue of unauthorized access and illegal copying, but goes further to include resulting damages of such access as constituting a criminal offense.

Another milestone made by the Australian laws in fighting cyber crime is evidenced by the Victorian state parliament’s amendment of the 1958 Crimes Act top cater for cyber stalking crimes. The act caters addressing cyber stalking eliminating the cumbersome need for proof of a offenders conduct is such circumstance where the offered meant harm. The legislation goes along way in solving the burden of proof shouldered on law enforcement agencies in addition to the fact that unlike its predecessors it offers provisions for extraterritorial jurisdictions.

It is important to note the burden of proving evidence that an offender was stalking was quite cumbersome given the fact that the evidence would disappear as soon as the communication was broken. However, with this new law an offender is considered to have engaged in a criminal by virtue of having meant harm in his/her activity. The cyber crime act has in addition addresses damages and computer related offenses offering more extensive approaches. It was formulated in line with THE recommendations of the Model Criminal Code officer’s committee.

E-commerce has also been on the rise to more so in Australian and USA. The number of internet banking service being offered is constantly on the rise. The Australian government to deal with fraud related issues in this area has a series of legislations that control such operations. Such include; the proceeds of crime act 1987 which has the effect of obligating financial institutions to maintain all transactions records for future references, the payment systems regulation, 1998 within borrows a lot from the Wallis report.

The Wallis legislation establishes three key regulators of e-commerce namely; The Reserve Bank of Australia, The Australian Prudential Regulation Authority and the Australian Securities and Investments Commissions. Such emerging legislations in Australia have had the effect of sealing some of the loopholes that would have let such crime activities go unpunished like the DPP v SUTCLIFFE, the magistrate’s court considering the trans-boundary nature of the crime in question, considered it as not being in apposition to effectively handle the matter.

The Victorian Supreme Court’s decision however in effect came in to redeem the situation to an extent by establishing jurisdiction of the court. Nonetheless the applicability of the crimes act 1958 still posed a challenge to the court in its examination of the reasons that made stalking a criminal offense. This still remains a challenge as even the 2003 amendment in its section 6(3) still makes specific to such cases with regard to limitations of the courts in the light of the individuals rights.

The cases essentially reflected some of the hurdles provided for by the law in the fight against cyber crimes. While the Australian law has made major milestone in dealing with cybercrime within its territory, trans-national cyber crime still remains a challenge. In US v Griffiths, for instance the Australian legislations allowed for extradition of a suspect to face charges in the USA, however, the same cannot be said of other countries whose citizens commit crimes against Australian systems.

Most countries still lack legislations that would provide grounds for such extraditions. This step was inline with both the international and the European conventions on cyber crimes which stressed the need for nation’s cooperation and unity in the fight against this vice. The convention just like the Australian laws undertook an extensive elaboration of the various forms of cyber crimes emphasizing the need for the member states and other signatories to develop legislation on the same.

Unlike the early 1980’s where the legislation focused on criminalizing unauthorized access to computer systems without considerations of the inadequate investigative authority and penalties, recent reforms in Australia have taken a more realistic approach to safeguard computer systems integrity having acknowledged their centrality and commercial value. The cyber crimes act offers the much needed national model for legal response to cyber related offenses. The act possesses transnational aspects as constituted in the European Council Cyber Crime Convention.

This allows expanded jurisdictional scope. The Australian cyber laws adequately prepares it to respond to the emerging cyber crimes more so considering the larger extra-territorial jurisdiction which recognizes both multijurisdictional dimension presented in Australia and overseas jurisdiction. Laws expanding on search warrant and conduction of covert surveillance have additionally had the impact on facilitating gathering of evidence. In general the Australian legislations provide adequate tools in dealing with the cyber crime menace.

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