Cyberterrorism: The Legal And Enforcement Issues

The Legal and Enforcement Issues

Pardis Moslemzadeh Tehrani

• Publisher: WSPC (EUROPE)
• Year: 2017
• eBook ISBN: 9781786342140
• Topic: Droit
• Subtopic: Droit pénal

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Cyberterrorism in the 21st century is now one of the greatest threats to global security and information. It transcends national borders (and by extension national legal systems), making it difficult for individual countries to formulate a cohesive defence plan against it. The world has yet to see any serious acts of cyberterrorism targeting multiple countries at once, but there's a need for countries to develop legal precedents to deal with this should it happen. This book investigates cyberterrorism in terms of the conventions and legislation developed in response to the growing need to protect the digital infrastructure and information of citizens, companies and governments. It looks at the challenges faced by international organisations in first defining then responding to and curbing cyberterrorism. Following this is analysis of legal provisions, with case studies of enforcement and of jurisdiction of these provisions.

Unique in the way that all aspects of cyberterrorism are considered, from initial infringement to eventual prosecution, this book provides recommendations and guidance to law-based post-graduates and professionals working on digital crime, and to those interested in national and international legal legislation against it.

-->0 Readership: Law-based post-graduate students and professionals working on digital crime; those interested in national and international legal action against cyberterrorism. -->
Cyberterrorism, Digital Rights, Legal Infrastructure, Digital Crime, Enforcement, Digital Security, International Law0

CHAPTER I

DEFINITIONAL ISSUES RELATING TO CYBERTERRORISM

1.1INTRODUCTION

Today, we see that traditional crime has migrated to the internet. The types of crimes that people have been committing over the years, such as fraud and extortion and crimes of a similar nature have just moved on to the internet. Therefore, where people might have taken photos of you in a compromising position before and extorted you, now they will steal your information and extort you by threatening to release that information unless they are paid, or by destroying that information unless they are paid.

Cyberterrorism is a tempting proposition for a terrorist group, as they would require less people and fewer resources. Moreover, it enables the terrorist to remain unknown, since it is carried out far away from the actual location of the terrorist. Cyber terrorists can set up anywhere and remain anonymous. It consists of physical terrorism and cyberterrorism. Cyber terrorists exploit technology via the internet to implement their terrorist purposes. The idea of a “Digital World Trade Center Attack”, possibly killing thousands and causing billions of dollars in damage, is very real.¹ It is a development of terrorist capabilities provided by new technologies and networked organisations, which allow terrorists to conduct their operations with little or no physical risks to themselves.

Cyberterrorism is a new and somewhat vague concept. However, there has been much debate over this term. The debates arise from the question of whether cyberterrorism is a separate phenomenon, or just a facet of information warfare practised by terrorists.² Scholars around the world cannot come to a consensus on the term “cyberterrorism”. The previously mentioned experts provide specific definitions from different perspectives. This conflict can be attributed to the fact that the term “cyberterrorism” has no universally accepted definition. In fact, the definition of cyberterrorism is one of the main issues in addressing cyberterrorism threats. First, the problem should be identified when an incident happens. Second, the problem should be categorised to respond to and deal with such case appropriately. Thus, future incidents can be prevented.

If the term is not defined, it might lead to misused application of a cyberterrorism definition by considering another event as being prejudicial to national security or public safety of the country. In addition, any cyber crime may be interpreted as an act of cyberterrorism. If there is no law and definition for cyberterrorism, how can it be punished since, without law there is no sin? Therefore, a precise, accurate definition of cyberterrorism is the most significant point in addressing the issues of cyberterrorism. As we know, cyberterrorism and terrorism are breaches of law for which there is no need for any special measures. Thus, to prepare a proper legal response, the definition of terrorism should be considered.

Consequently, most countries do not have a particular definition for cyberterrorism. Thus, according to the norms of international treaty law, two approaches exist. First, conventions must expand to cover new circumstances, either implicitly or explicitly. Second, according to Part III of the Vienna Convention on the Law of Treaties, a new treaty can be concluded to adjust the legal changes to the legal reality.³ Similarly, some parts of international law norms may be conveyed to national laws and utilised. A country which does not have cyberterrorism legislation may apply terrorist attack and cyber-crime legislation to a terrorist cyber attack. Therefore, that legislation and its definitions are also important.

1.1.1Objective of the Chapter

No consensus among cyberterrorism scholars exists regarding the universal definition of cyberterrorism. Therefore, the present study aims to define cyberterrorism and its related terms. This definition can be used to identify offenses, investigate cases, and prosecute offenders. The objectives of this chapter are:

(i)To establish a proper definition of cyberterrorism this can be used as a basis to prosecute cyberterrorism offenses.

(ii)To delineate the differences between cyberterrorism offenses and other related cyber crime.

1.2THE DEFINITIONS OF IMPORTANT TERMINOLOGIES

This chapter deals with definitions of technologies that are important to the book as a whole. It begins with the definitions of cyber and cyber space and is followed by definitions of terrorism and cyberterrorism. The discussion is mainly based on the dictionary, technical, and legal definitions which attempt to look at the technologies from different perspectives.

1.2.1Cyber and Cyber Space

“Cyberterrorism” is closely related to the act of terrorism. Therefore, the terms cyber, terrorism, and cyberterrorism are all important to be defined.

A. Dictionary definition

i. Cyber

Webopedia is an online dictionary and search engine for internet-related terms and technical support. This website defines cyber as “a prefix used in a growing number of terms to describe new things that are being made possible by the spread of computers”.⁴ The common elements of all these definitions are a set of interconnected information systems and the human users that interact with these systems. The human factor is the most significant part of the term “cyber” because anything cyber is created by humans.

ii. Cyber space

‘Cyber space’ is defined in Webopedia as “A metaphor for describing the non-physical terrain created by computer systems. Online systems, for example, create a cyber space within which people can communicate with one another (via e-mail), do research, or simply window shop. Like physical space, cyber space contains objects (files, mail messages, graphics, etc.), and different modes of transportation and delivery”.⁵ Even with the fantastic growth in cyber space and Information Technology (IT) experienced to date, “we have travelled only up the initial and shallow part of the exponential curve”.⁶

The term cyber space was first coined in a science-fiction novel that was written by William Gibson. He described cyber space as a “consensual hallucination experienced daily by billions of legitimate operators, in every nation, by children being taught mathematical concepts. A graphic representation of data abstracted from banks of every computer in the human system. Unthinkable complexity”.⁷ There are special programs creating specific cyber spaces, which are mostly used in computer games.⁸ In order to explore cyber space, it is not necessary to perform any physical movements; shaking a mouse or touching any key on a keyboard is enough.

B. Technical definition

i. Cyber

Technically the term ‘cyber’ is defined as “A prefix taken from the word cybernetics (Greek kybernan, to steer or govern), and attached to other words having to do with computers and communication”.⁹ It is a prefix used to describe a person, thing, or idea as part of the computer and information age.¹⁰

C. Legal perspective

i. Cyber space

Cyber space is relatively new, and attempts to apply the rule of ordinary space to this new space have failed to address its unique problems.¹¹ This section aims to define cyber space using legal approaches related to cyber attacks. Defining cyber space is a substantial issue in cyber legal conflicts, since once it is defined explicitly, legal cases that occur in cyber space can be settled in a better way, because, it can give decision makers the proper means to analyse every case in different fields.¹² Defining cyber space in a proper way may lead to the resolution of many legal problems.¹³ Cyber space is different from real space. Some scholars argue that the uncritical adoption of cyber space produces political consequences, as if divergent approaches indicate that cyber space is separate from other spaces, however, it is connected to real space by the consequences that are produced.¹⁴

Furthermore, for cyber space to be defined, this definition must be viewed from the angle of attacks that are attributed to cyber space. In defining cyber space, many factors must be taken into account, since it is a new medium which is capable of receiving threats and attacks that differ from traditional ones. The first factor is the speed with which an attack can take place in cyber space. A second factor is the result of a cyber space attack that is similar to that of weapons of mass destruction. The other factors are the cost of and the party responsible for the attack. In contrast with conventional methods of threats, the cost of conducting a cyber attack is low.¹⁵ As the terrain of cyber space differs from physical space, the threats therein fundamentally differ from threats in physical space since the attack merely needs to be implemented from one computer to another computer. The result of such an attack is not kinetic and mostly involves manipulation of data or disruption of service. Even if not constrained to physical borders, the result may be the same as that of weapons of mass destruction. In fact, generally, a cyber space attack is much more destructive than the traditional method.

The European Convention on Cybercrime is the only substantial international legal document that addresses cyber space. The approach of the Convention in addressing such attacks occurring in cyber space is via criminal law. Furthermore, according to Article 51 of the United Nations (UN) Charter, parties have the right to act in self-defence.¹⁶ The domain of cyber space is evidently not as physically transparent as the domains of air and space. If one were to try and “fire” 1 million volts at a cyber space target, an excessive number of information nodes (such as routers and switches) along the internet pathway would become the unintended recipient of the “electromagnetic missile”.

The 1 million volt “electromagnetic missile” would cause collateral damage to these nodes and would be worn down long before it reaches its intended target. Cyber space attacks, similar to criminal hacks, are designed to affect electromagnetic data in various ways, consequently affecting the adversary’s cyber space to create an operational advantage for the attacker. Thus, the basic legal framework of the Cybercrime Convention is beneficial in the context of military operations in cyber space.¹⁷ The Dictionary of Military and Associated Terms defines cyber space as “the notional environment in which digitized information is communicated over computer networks”. Once cyber space is defined, legal problems in several fields can then be better handled by adding two new factors to the otherwise ordinary analysis in whichever field is implicated: nature and place of use.¹⁸

D. Perspective in international documentation

i. Cyberspace

In solving the conflicts that occur in cyber space, international law seems to be the best medium to address issues relate to cyber space. However, applying international law to attacks from cyber space to resolve conflicts and international disputes is a most difficult job, since it is hard to attribute old terms and norms to new technologies such as cyber space.¹⁹

Graham H. Todd, Chief of Operations Law at Eighth Air Force, Barksdale Air Force Base, Louisiana, as an international scholar in the US, defines cyber space as “an evolving man-made domain for the organization and transfer of data using various wavelengths of the electromagnetic spectrum. The domain is a combination of private and public property governed by technical rule sets designed primarily to facilitate the flow of information”.²⁰ The European Commission provides a vague definition for cyber space as “the virtual space in which the electronic data of worldwide PCs circulate”.²¹

As a result, most of the definitions that are provided for cyber space do not mention anything about the human factor. Different viewpoints explain a variety of definitions. The common factor in all definitions is the technological part: hardware, software, and data. Although all of these information sources must be transferred using personal computers, no reference to the human factor is made. The human factor is important in premier definitions about cyber space offered by Wiener and Gibson. In fact, humans created cyber space for human purposes. Similarly, these definitions do not consider the time factor. Time is absent from most defi...

Table of contents

• Cover
• Halftitle
• Title
• Copyright
• Preface
• Contents
• About the Author
• Abstract
• List of Cases Mentioned
• List of Statutes
• List of International Instruments
• Chapter I Definitional Issues Relating to Cyberterrorism
• Chapter II The Challenges Faced By Intemational Organisations in Curbing Cyberterrorism
• Chapter III Application of Legal Provisions in the Case of Cyberterrorism
• Chapter IV Issues of Enforcement in Cyberterrorism
• Chapter V Issues of Jurisdiction for Cyberterrorism
• Chapter VI Conclusion and Recommendations
• Index