Academic journal article The George Washington International Law Review

Trading Cybercrime for Jobs and Commerce or Paying Up: Using the WTO to Combat Cybercrime

Academic journal article The George Washington International Law Review

Trading Cybercrime for Jobs and Commerce or Paying Up: Using the WTO to Combat Cybercrime

Article excerpt

INTRODUCTION

The global cost of cybercrime is estimated to be between $375 billion and $575 billion annually1-greater than the 2013 Gross Domestic Product of all but thirty of the world's countries.2 While these costs may appear abstract, they fall on real companies around the world.3 Companies such as Target,4 two unnamed Persian Gulf banks,5 an unnamed U.K. firm, Sony,6 and many others have felt the effects of international cybercrime.7 Even acts of cybercrime that target individuals' personal information cost businesses large sums due to "recovery, or clean-up costs."8 A recent study found that Italy incurred $875 million in "actual hacking losses" but spent nearly ten times that amount-$8.5 billion-in cybercrime recovery costs.9 Though developed countries are often the targets of cybercriminals, the threats facing developing countries will only increase as their economies grow and Internet connectivity increases.10 This is an issue no country can afford to ignore. The current approach to dealing with cybercrime is not enough; something must change.

Cybercrime inflicts financial injury on businesses and damages national economies.11 According to Jim Lewis, Senior Fellow and Director of the Strategic Technologies Program at the Center for Strategic and International Studies (CSIS),12 "cyber crime is a tax on innovation and slows the pace of global innovation by reducing the rate of return to innovators and investors."13 Additionally, cybercrime can provide companies with unfair competitive advantages. For example, if Dell, but not Lenovo, were to suffer $100 million in damages due to a cyber attack, Lenovo would have an unfair competitive advantage over Dell.

According to Black's Law Dictionary, "a tax imposed on a commodity or transaction," is a tariff or duty.14 When governments allow cybercriminals to operate within their jurisdiction, they are effectively levying a tax and imposing trade barriers that make it more difficult for the victims of cybercrime to compete on the international stage.15 As a result, the World Trade Organization (WTO) is an ideal forum to address trade barriers such as these.

This Note will argue that the WTO members should develop an agreement known as the Competitive Fairness and Cybercrime Agreement (CFCA), establishing threshold obligations for countries to eliminate trade barriers imposed by cybercrime. Specifically, the agreement would require the country in which the cybercriminal is found (the Host State) to make a good faith effort to prosecute the individual pursuant to the threshold legislation, or extradite the offender(s) to the country where the victims are located (the Victim State) to face prosecution. If neither of these actions occur, the matter could be brought before the WTO's Dispute Settlement Body (DSB), which could compel compliance and authorize economic retaliation.16 Furthermore, the WTO members should adopt the CFCA because it will deter future cybercrimes, reduce barriers to trade, and compel member states to comply.

This Note is divided in to four sections. Section I discusses what constitutes "cybercrime" and the various multinational agreements addressing it. Section II discusses the capacities of states to attribute cybercrime to individuals and successfully prosecute those cases. Section III provides an overview of the structure of the WTO and the DSB, as well as a discussion of one the most controversial WTO agreements, the Trade-Related Aspects of Intellectual Property Rights (TRIPS).17 Section IV proposes the aforementioned model for a comprehensive, multinational agreement on cybercrime-the CFCA-and explains why the WTO is the proper forum for the CFCA.

I. WHAT ISA CYBERCRIME?

A. Defining "Cybercrime" in Multinational Agreements

Cybercrime is a term that is often used but less frequently defined.18 The Bureau of Justice Statistics describes cybercrimes as crimes involving computers,19 which would include everything from Internet-based crimes to hacking a car. …

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