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Cybercrime: Innovative approaches to an unprecedented challenge David Tait Cybercrime represents an unprecedented legislative, law enforcement and policy-making challenge. Countries that do not address it risk becoming the weakest link in global cyber security (Westby, 2004). This brief article will discuss the impact of cybercrime internationally, before reviewing the unprecedented responses resulting from this threat. The definition of cybercrime relied upon throughout will be that advanced in the Commonwealth Expert Group report to law ministers from May 2014 (Expert Report). The report noted that cybercrime includes: ‘(a) offences aimed at computers, computer or communications systems, their users or the data they contain; and (b) more traditional offences committed using these systems, especially if technologies have significant effects on how the crime is committed or investigated.’ This definition is particularly useful not only in providing a clear framework upon which to build understandings of cybercrime, but also by virtue of illustrating the divergence between perceptions of cybercrime and reality. This gulf was aptly illustrated by UK Security Minister James Brokenshire, who observed that: ‘For too long the public’s perception of cybercrime has been a lone bedroom hacker stealing money from a bank account.’ (Brokenshire, 2013) The changing nature of crime is a key facet of this complex policy area. The nature of the threat McAfee estimates the annual cost to the global economy of cybercrime at more than US$400 billion (MacAfee, 2014). This is only set to increase as internet connectivity proliferates. Growth is currently being driven by areas with large concentrations of Commonwealth members. Indeed, as noted by Europol, Asia, despite its low internet penetration of circa 27 per cent, provides more than one billion internet users or 45 per cent of the world’s total users. Furthermore, Africa has seen a growth in internet access of 3,600 per cent in the last decade (Europol, 2014: p. 17). However, it is not merely the growing scale or impact of cybercrime that makes it a unique challenge, but also, a new criminal genus in which the individuality and unique skill-set of each criminal or criminal group results in a high degree of adaptability. Allied with flexibility in communication methods, this allows for the creation of informal networks that can swiftly coalesce around a single task before, equally quickly, dissipating. The effect of this has been the rise of Crime-as-a-Service (CaaS), whereby cyber criminals sell their services to other criminals (Europol, 2014: p. 19). Critically, this significantly diminishes the digital barriers to entry as few technical skills are now required to commit crime via electronic means (Europol, 2014: p. 9). The global community is confronted by a challenge of unprecedented scale, adaptability and speed, and it is in this context that responses must be understood. The international response Despite these hazards, little progress has been made towards forming a unified, international response. In 2010, at the UN’s Crime Congress, the proposal to create a global cybercrime convention failed as a rift developed between Russia, China and certain developing economies, and the USA, Canada and the European Union (Masters, 2010). This was despite the favourable recommendation of the UN Office on Drugs and Crime (UNODC; Harley, 2010). This dispute was multifaceted, and issues of national sovereignty and the fragmentation of the internet and human rights were significant areas of discord. However, so too was the only extant international convention dealing with cybercrime, the Council of Europe’s (CoE) Budapest Convention on Cybercrime (Budapest Commonwealth advantages As noted in the Expert Report, Commonwealth member states are as much affected by cybercrime as any other states. Equally, however, there are significant concentrations of Commonwealth members in areas experiencing disproportionate internet use (Asia) or explosive growth in connectivity (Africa). On this basis the Commonwealth would appear especially vulnerable to cybercrime. However, the Commonwealth also has significant advantages which allow it to respond in unique ways. The most obvious of these is the homogeneity of Commonwealth members regarding their, generally, common law legal systems and high levels of English language usage within a legislative and regulatory context. This allows for easy dissemination of best practice among member states often with reduced concerns regarding applicability or incompatibility with extant legislation. The Commonwealth enjoys both convening power and a reputation as a trusted partner to both member states and other international organisations. While the Commonwealth, whether through CTO, COMNET, CIGF or the Commonwealth Secretariat, has a long history of providing assistance in this area, it has studiously avoided controversies. The Commonwealth does not hold dogmatic views on issues such as governance and is prepared to act as an impartial mediator between all parties. This ‘clean hands’ approach helps promote collaboration on an international level. These strengths are attested to by the continued expansion of the partnerships between the Commonwealth and international actors. Commonwealth Governance 98 Handbook 2014/15


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