“The criminal is the creative artist; the detective only the critic.”- G.K. Chesterton, The Blue Cross: A Father Brown Mystery
The movie Snowden, by Oliver Stone, came to theatres this week. Edward Snowden is considered a patriot by some and a traitor by others for exposing some of the collection activities of the NSA. He’s also been called a whistleblower. I’m not going to specifically discuss Snowden here overly much because much has already been said and written about him. Snowden won’t be the first or the last individual to buck the rules. I do however want to write about the growing trend we are seeing in America of the rise of cybercriminals and how easy it is for them to commit their crimes. There is also a false conception that problems, on the scale of what was created by people like Snowden. can be easily mitigated in our tech-rich world simply because we have tech.
The world is a complex place for any person living in a modern nation. There is a paradoxical problem that modernization brings to any technologically dominant nation; that having technological superiority over others may at once help the society remain superior but simultaneously it is likewise a hindrance to the society. Every society, even the strongest societies, have some kind of weakness in its defenses. This is the existential conundrum that rings round the marriage of the human condition and any mechanical construct. People are not robots that behave in a mechanical or unemotional manner and critics abound who will always have an unfavorable opinion of something. Robots which in its original Czech, “robota” means forced labour as depicted in Karel Čapek‘s R.U.R. (Rossum’s Universal Robots) story from (1921).
No one can escape having technology, whether it be a society of two using a simple spear or sword, or a nation with a jet-fighter and the unintended consequences which comes out of creating said tech. For every advantage that technology brings a society (I speak of technology in both the material and non-material sense), it also brings to it paradoxes. Technology brings people freedom from drudgery or creates efficiency out of the mundane yet freedom too brings with it human enslavement, and efficiencies brought from possessing technology brings with it new inefficiencies.
So, technology that fulfills one need, can simultaneously create another need. The society, and for that matter the military within that society which relies heavily on the new sword or spear is just as susceptible to product obsolescence as the society that uses the armoured tank. They can choose to ignore, delay or refuse to allow the problem to occur but this only allows another paradoxical problem to occur.
A machine manipulated by an emotionless man is essentially a machine being run by a machine but this isn’t reality; men feel. Men who stray far from the rules and ranks of their own culture, because they see things differently, can be seen as heroes and villans in a world that largely comprehends dualities. Prometheus did such a thing when he stole fire from Mt. Olympus and passed it along to mankind and in doing so became its greatest benefactor. Should society, a free society in this case, view Snowden as a sinner or a saint? Is he a hero or a traitor, criminal or solely a critic, or perhaps he is both? A critic is one who, “forms and expresses judgments of the merits, faults, value, or truth of a matter” according to Merriam-Webster’s dictionary defintion.
What should be done to the citizen who decides to buck the status quo, and chooses instead to go “against” the system?
History is an inquiry, a studied investigation into the past that helps us gain knowledge, especially as it relates to humans and in the field of crime. The development of criminology is relatively a new thing in the field of law enforcement and has evolved since its beginning in the last 300 years. Crime has been around as long as societies have existed but criminology’s systematic study didn’t begin until the 1700’s. As populations increased in size, as societies progressed and as technologies advanced it created a need for law enforcement to develop the field of criminology into a structured, emerging discipline. Criminologists began writing journals to note how criminals behaved, how criminals thought and what their crimes were and might be. Theories were made and tested but something changed; investigators relied more than ever on facts and evidence rather than solely guessing games to prove who committed the crime because good evidence proved reliable.
While criminals used the advancement of technology, such as guns and automobiles, to exploit people our law enforcement was busy developing processes to counteract the abuses of these improving technologies. Trails or clues, like paint stains, were left behind by the perpetrator in the form of gunpowder residue and tire tracks, but it was up to law enforcement to understand how to read these criminals markings.
The great writer G.K. Chesterton noted that the criminal is the creative artist; the detective only the critic. Could Chesterton have ever foreseen the problems coming out of the world’s technological progress? The last 100 years has ushered in much technology.
Improvements in technology such as the cellular phone, home computers, internet sites and pagers have changed the dimension of how crime affects everyone and seems to be outpacing the ability of crime stoppers. Whether they are involved directly or indirectly, computer technology affects the criminal, the citizen and law enforcement and now it is up to the United States federal government and their law enforcement component agencies to change their practices in order to better catch elusive cyber criminals who are affecting technology users.
Professor David Wall of Durham University coined the phrase ‘cyber crime’ to explain the new criminal reach by use of technology into anyplace in the world at anytime; the reach of the criminal using technology for illicit means is expansive. Cybercrimes refers to any type of crime that involves the computer or network. Cybercrimes vary in offenses and this list is exhaustive but they can be grouped into the risk areas and opportunities of computer-facilitated fraud, unauthorized access, malware, intellectual property infringement, industrial espionage, child exploitation and offensive content, sex trafficking and transnational organized crime and terrorism.
Today, the average citizen can become the recipient of fraud, spam, offensive content or harassment but these are no longer problems on a simple and singular scale. These are problematic issues on a global level that affect a great many people. Global cyber crime means criminals have a large canvas to work with. No longer is he just using guns, knives, fists and blood to ‘paint his canvas’ but also through using technological devices such as iPhones, cameras, computers and their ilk to commit a crime.
One thing about internet crime is clear here, it has become more sinister. The ‘victim’, person, business, or government isn’t always exploited by criminals who work solo. Criminals who once worked in pairs or with a gang now have the ability to meet and share their perspective with people on a national and international level and they can potentially connect to cohorts numbering in the hundreds or perhaps thousands of deviants. One criminal could affect millions with one lewd, photo-‘bomb’ infecting recipients emails; victimization is unwanted and criminals don’t care how many they affect. At one time proximity was the key for a criminal to get their hands on a victim. The internet has now given criminals a cloak of invisibility for a moment; proxy servers, fake user accounts, web cafes and false identities allow this to occur and the public is trying to fight back. Computer usage in the world is nearly at one billion users and this number increases yearly.
What are the major problems and what is some of the historical background on this matter? It was the introduction of the microcomputer onto the public market, the growth of personal computing, the development of the Internet and the public and government reliance on cyber technology that opened a new frontier for using old cons to commit new crimes. Cybercrimes and cyber terrorism have evolved quickly over a mere span of roughly four decades.
The first electronic computer was completed in 1945 and the first Internet communication was sent in 1969 but cyber crimes didn’t really take off until the last 25 years of computing because computers were unaffordable, cumbersome and unavailable to most criminals. Cyber crimes developed quickly because advances in technology, gaps in communication, sharing police techniques and manpower shortages brought it to a level that pirates and highwaymen of ‘years gone by’ could never achieve by their old methods of thievery. Thieves could steal anonymously and globally.
Today developments in information and communications technologies will facilitate technology-enabled crime simply by its ubiquity. E-commerce, outsourcing of technology operations, expansion of wireless technologies, digitization of information, increased data holding and dissemination capabilities, and government access cards and biometric passports are ways the technology is used.
Simply put, criminals have learned to abuse the privilege of having computer access because there are continual constraints on law enforcement; no officer can be everywhere at once. Blame can be put on the public appetite for ease of use and ubiquity. Criminals have become more fluid while law enforcement struggles with hampered financial resources, limited access to advanced technology, a continually changing political body, legislative conundrums and corruption. Lastly, criminals are rebellious to societal norms and are not restraint by following any laws. Law enforcement must know the rules, follow the rules and have an understanding of what they are pursuing. What is interesting to note is all tech crimes leave behind a trail and anyone well trained enough, well supported by management, endorsed by laws just might find the perpetrator.
The future trends of cyber crime and terrorism is seemingly becoming more global because there are more emerging economies coming out of lesser developed countries that have no guidelines or respect for rules. Nation-state sponsored crimes and accesses to computer systems by more criminal users is increasing. Huge developments in digitization and skills are obtained by students who are training under gangs who employ these programmers; this is prevalent in China and North Korea for example. Funds transfer systems can outmaneuver the current systems being used and continue to develop exponentially. More destructive malware is being created by criminal minds, and increases in intellectual property infringement is occurring as more companies go cyber.
Greater exploitation of jurisdictional blind spots during evidentiary and procedural issues occurs as legislation attempts to keep up. Abuses of biometric passports, industrial espionage, transnational organized crime and terrorism are all part of the next wave of cyber crime. Lastly, cybercriminals will try to compromise private networks because they are profitable to do so. Major developments in software companies denial systems through the development of secure applications with patches encourages hackers to attack and test their abilities.
There are many issues here contributing to both the problems and solutions in crime and criminology. Increases in viral contamination comes from the increased connectivity emanating from the ubiquity the public and government desire for technology which in turn makes it difficult to police. Daily activities are carried out on systems where reliability is placed on systems that are not perfect. There is a huge reliance on storing information on networked systems that can be hacked, such as the iCloud, Dropbox, Box and Amazon Web, whereas it was prior kept on personal storage systems. The public craves ease of use at the expense of safety.
One of the greatest issues in our own country is the rights to privacy and freedoms arguments. Our own country espouses liberty however this is a hindrance for law enforcement when it becomes necessary to find criminals. Courts, politicians and the security minded are all wondering how to deal with these problems of exploitation, cyber stalking, and obscenity. The most challenging issue for the justice system is the anonymity that citizens have from the privacy of whatever region they happen to be in, criminals are able to exploit the problems with states jurisdictions and statutory authority and lastly, one of the biggest issues is the presentation of evidence by victims or the courts because there is usually a lack of sufficient evidence available to determine probable cause.
In many cases cyber stalkers and cybercriminals use free electronic mailboxes or mail servers that strip identifying information of who they are; and as long as the bills are paid, the ISP’s are not obligated or not interested in bothering to go deeper into verification of the account holders. One other issue is that of free speech and whether it offends sexual morality for determining what is abuse of free speech is constantly challenging, however the Supreme Court has now affirmed the constitutionality of a federal ban of internet obscenity.
A lack of agency resources and distances makes it difficult as well to investigate incidents; even if the law enforcement agency is willing to pursue crimes across state lines or for abuses in free speech and obscenity they do not have properly trained personnel. The lack of statutory authority can also limit a response by the law in dealing with crimes. Another major issue is how to preserve evidence because the trail can lead to a person but not necessarily the proper person; who was actually using the computer used to commit a crime must be proved and has this individual destroyed the evidence?
The Fourth Amendment comes into play when dealing with the issues of search and seizure when a suspect might be identified. The Fourth Amendment regulates the process of investigating crimes of in and outside of homes, however can it regulate the crimes of exploitation, cyber stalking, and obscenity? There is a difference between physical evidence and cyber evidence, and it requires investigators to retrieve evidence differently. In Cyber Crime and Cyber Terrorism, the author wrote, “Search and seizures laws have failed to keep up with the changes brought by increases in cyber crimes and the increasing need to collect cyber evidence.” The searching of homes and physical property was regulated by the Fourth Amendment and there were clear rules for entering and retrieving evidence. The Fourth Amendment states: “The right of the people to be secure in their persons, houses, papers and effect, against unreasonable searches and seizures, shall not be violated…”.
The question of what constitutes a search can be equivocated by both parties on each side of the law to mean one thing or another thing. Debates continue with the questions of what becomes a ‘search’ and whether the search is ‘reasonable.’ The stop and frisking that a police officer performs on a citizen is just one example of this confusing concept in play; a law enforcement officer conducts a weapons frisk on a citizen and finds a phone but there is no justification to analyze the information on the device; in fact, the officer cannot open the phone and check for data.
Checking for data constitutes a ‘search’ but what does it mean to ‘search’ the device? Home searches are done by physically entering and observing the home, they occur at a suspects residence, and involve a limited amount of property, while a ‘search’ of a computer involves using electric currents and the processing of data offsite and includes entire amounts of information in the virtual realm. This proves very challenging for investigators intent on dealing with cybercriminals.
The National Cyber Security Alliance, Bank of America and the IC3 internet fraud crime report from the Federal Trade Commission noted that,”87 percent of respondents felt extremely or somewhat confident in their ability to recognize a fake email. In practice, however, 61 percent failed to correctly identify a legitimate email”. This information tells us the consumer cannot properly manipulate the technology tool at the level they believe they are capable. E-commerce is expected to grow in sophistication and speed in that any user will be able to create an online business because the world is filled with aspiring economies. However, who is minding the store?
Can these economies create a sustainable infrastructure to meet the demands of the growing populace, some of whom do not know how to use it? What reassurances can a lesser developed nation give their own consumers when a technologically superior nation such as the United States is already having difficulty with policing the web? There is availability and accessibility of modern technology for emerging nations and however the skill base necessary for manipulation must be groomed into users. There is a growing acceptance by users to have corporations outsource their operations in developing countries with cheaper labor costs.
Outsourcing is a key driver of growing IT operations globally but this can create more problems for law enforcement. Failure to report attacks means those responsible are not prosecuted. A failure to upgrade their security systems means a data compromise such as when sensitive information is stolen and sold to foreign thieves. There is also the loss of rights because some countries have an inadequate legal system for protecting information. All of this brings challenges to the law enforcement community. An increasing appetite for digitizing information means greater dissemination capabilities for criminals and the question asked is, “what can law enforcement do about it?”
The federal government and its law enforcement component agencies has a history of failing in coordinating and cooperating during inter-agency assignments in order to catch criminals. An information blockade between them was common and in fact, not until the occurrence of September 11, 2001 and its aftermath, was the Department of Homeland Security created in order to remove the chokepoint of information that wasn’t flowing.
There are a multiplicity of reasons for this; many agencies are created in reaction to prevailing circumstances in the world, and it is also due to a reluctance on the part of agencies to share necessary information that could help capture these criminals. To fight back, the new breed of crime-fighters needs to be tech savvy, share authority internationally and coordinate their efforts to catch ‘invisible crooks.”
Former FBI Robert Mueller once told the Senate Judiciary Committee, “The structure of the FBI does not lend itself to easily addressing cyber crime”. He noted that the FBI has a cyber division, but cyber crime cuts across many other areas like organized crime and narcotics. Their cyber crime operations are flawed but improving.
Law enforcement can take a few lesson from the criminals on coordination. First, legislators must outpace rather than struggle to keep pace with technological advancements and exploitation which comes by using it to circumvent rules. Currently, there are widespread efforts to enact legislation and regulations that will close the gaps, especially with medical and financial records, and keep people protected; glitches in Obamacare is one area that is most currently noted in the news.
Many of these are reactions to cyber crime, while some are created because they are predictors of what lawmakers believe might occur by way of future crimes. The Child Protection Act of 2012, Children’s Online Privacy Protection Act of 1998 (COPPA), Electronic Communications Privacy Act, the GPs Act, Cyber Intelligence Sharing and Protection Act Health Information Technology for Economic and Clinical Health Act, Cyber Due Process are all areas that have been created to help stifle cyber crime but with regards to cyber-terrorism it is the Patriot Act that is most notable.
Congress enacted this Act to arm law enforcement with the tools to detect and deter terrorism. Many may feel it becomes an infringement upon their rights but it affects terrorism in many ways; The Patriot Act allows investigators to use the tools that were already available to investigate organized crime and drug trafficking, facilitates information sharing and cooperation among government agencies, updates the law to reflect new technologies and new threats and lastly increases the penalty for those who commit terror crimes.
All of this will be necessary for law enforcement to stop criminals. But there are many issues that must be changed looked to fight cyber crime and cyber terrorism. Promoting the exchange of information such as technology sharing/intelligence sharing, training courses on maintaining professional standards among competitive agencies, coordination and assistance with international efforts, strategic partnerships are all methods that must be undertaken to stop the convenience that anonymity has given criminals for a very long time. The financial services may not have a choice in the matter of trying to avoid trouble. Terrorists are funded through the use of more improved technology.
In the end, for our critic to understand the artist, he will need to decipher all media, this means the materials used by the artists. The artist, engaged in one or more broad spectrums of activities can cause havoc as he practices his craft and tries to avoid criticism. The critic tries to capture what the artist does by weighing a combination of factors. The person(s) that gets ahead has a goal and knows what to avoid, doesn’t repeat the same mistake, stays adaptable to the technology and can wield it.
But what of Snowden? Was Snowden a critic, a detective who discovered the NSA was spying on Americans and then raised concerns about? Snowden’s defenders like to portray him as someone that uncovered a massive crime and therefore was justified in taking his last job as an NSA contractor in order to gain access to more documents. Snowden stated, “I want to spark a worldwide debate about privacy, internet freedom and the dangers of the surveillance state,” That may have been his intention but damage has been done; Snowden’s disclosures provided valuable insights to terrorist groups and nation-state adversaries, including China and Russia, according to the CIA’s ex number 2, Mike Morrell.
We already know that terrorist groups have shifted their communications to more “secure” platforms, are using encryption, or “are avoiding electronic communications altogether. Make up your own mind, do the research, and avoid newspapers with biased agendas. My article here only illuminates the many fronts we are fighting cybercrime. The Snowden story is just one of many stories in an enormous tome of stories and reading each ending is only the beginning in asking ourselves, “how much is too much technology for any man or society to wield?”
References
Choo, K. R. & Smith, R. & McCusker, R. Australian Institute of Criminology. (AIC). Australian Government, Australian Institute of Criminology. Future Directions in Technology Enabled Crime: 2007-2009. Retrieved from http://www.aic.gov.au/documents/9/3/6/%7B936C8901-37B3-4175-B3EE-97EF27103D69%7Drpp78.pdf.
Finklea, Kristin: FAS.org (2014. May) Congressional Research Service for Congress. The Interplay of Borders, Turf, Cyberspace, and Jurisdiction: Issues confronting U.S. Law Enforcement. Retrieved from http://www.fas.org/sgp/crs/misc/R41927.pdf.
Kunz, M & Wilson, P. (2004). Computer Crime and Computer Fraud: University of Maryland. Department of Criminology and Criminal Justice. Report to the Montgomery County Criminal Justice Coordinating Commission. Retrieved from http://www6.montgomerycountymd.gov/content/cjcc/pdf/computer_crime_study.pdf
McGuires, M. & Dowling, S. (2013). Cyber Crime: A Review of the Evidence. Research Report 75. Summary of Key Findings and Implications. New Forms of Criminal Activity. University of Surrey and Home Office of Science. Retrieved from http://www.gov.uk/government/uploads/system/uploads/attachment_data/file/246749/horr75-summary.pdf.
Orin, K.: Harvard Law Review.Org. Addressing the Harm of Total Surveillance: A Reply to Professor Neil Richard. Responding to Neil M. Richards, The Dangers of Surveillance, 126 HARV. L. REV. 1934 (2013) Retrieved from http://harvardlawreview.org/2013/06/addressing-the-harm-of-total-surveillance-a-reply-to-professor-neil-richards/
the United States Department of Justice. Child Exploitation & Obscenity Section. November 13, 2013. http://www.justice.gov/criminal/ceos/citizensguide/citizensguide_obscenity.html
Taylor, R. W, Fritsch, E. J. (2011a). Digital Crime and Digital Terrorism. Second Edition. New York, NY: McGraw-Hill Companies.
Zittrain, J. (2006) Searches and seizures in a networked world. Replying to Orin S. Kerr, Searches and Seizures in a Digital World, 119 HARV. L. REV. 531 (2005). http://dash.harvard.edu/bitstream/handle/1/10876013/Zittrain_Searches%20and%20Seizures.pdf?sequence=1
http://www.thedailybeast.com/articles/2015/05/06/cia-s-ex-no-2-says-isis-learned-from-snowden.html
http://en.wikipedia.org/wiki/Blade_Runner
http://www.google.com/#q=critic
picture from http://gizmodo.com/tag/edward-snowden
Video from YouTube, Official Website Open Road Films