In confronting the rising phenomenon of computer crime, strategies that focus solely on increasing the effectiveness of prosecution will inevitably fail. A legal framework that relies on uniform global substantive law in conjunction with increased international coordination among law enforcement organizations across the globe to battle computer crime is fatally flawed. The nature of computer crime makes the task of building international consensus and coordinating enforcement too difficult an obstacle to overcome to effectively combat the problem. Due to the international community's inevitable inability to adequately handle the problem, we must look elsewhere for an effective solution. This Note will briefly discuss the rise of computer crime, explain the shortcomings of solutions that rely on international consensus, explore several potential options for a legal framework that focuses on preventing rather than prosecuting computer crime, and argue that a framework focusing on prevention offers a better chance to stop the rising tide of computer crime.
A. Computer Crime on the Rise
The commercial seems a little odd upon first viewing. It features a black woman sitting under a hair dryer in a salon speaking to the viewer in what appears to be her best Southern California, surfer-dude voice. The woman is talking about all of the "cool things" she was able to purchase and how someone else was going to "foot the bill." The confusion dissipates when Citigroup reveals that the ad is about the growing problem of identity theft. The message that this Citigroup ad aims at consumers is not only clever, but quite serious. Identity theft is on the rise: consumers beware and be alert.
In the past five years, 27.3 million Americans have been victims of identity theft, including 9.9 million in the last year alone. (1) Businesses and financial institutions lost nearly forty-eight billion dollars while individual consumers reported five billion dollars in out-of-pocket expenses due to identity theft last year. (2)
The rise in identity theft represents a broader trend among other types of computer crimes and computer-enabled crimes that has developed since the growth of the Internet. (3) Since 1997, sixty-three thousand computer viruses have been released on the Internet, causing an estimated sixty-five billion dollars in damages. (4) In August 2003, in what was reportedly the worst month ever, computer viruses caused an estimated $3.5 billion in damage to North American companies. (5)
The scope of computer crime and computer-enabled crime touches not only our everyday consumer activity, but potentially also our national security. Terrorists may use this technology to obtain illegal money or documentation in furtherance of a terrorist act against the United States.
B. Global Nature of Computer Crime
Computer crime and computer-enabled crime present unique problems due to the truly global nature of the Internet. In fact, it is not difficult for one to imagine another voice emerging from the woman sitting in the salon, perhaps one with an Eastern European or Nigerian accent. In the realm of the Internet, where borders are meaningless, we are vulnerable to criminals from all over the world. In 2000, the "Love Bug" virus that wreaked havoc on computer systems across the United States and the world was unleashed by a student in the Philippines. (6) The Internet's disregard of national borders poses significant hurdles for law enforcement officials who must operate within national borders while attempting to solve and prosecute computer crimes.
C. Types of Computer Crime
Identity theft is only one of the threats posed by computer crime and computer-enabled crime. In general, computer crimes are crimes where a computer system itself is the target, while computer-enabled crime is a traditional crime like fraud or theft that is facilitated by a computer. …