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Date: 10/25/2020
FROM: Travis Herbek
SUBJECT: Cyber Crime – The Next Critical Issue

The advancing commonplace of technology has opened a new frontier for criminals to

exploit. Nearly 20 years ago, Thomas Kubic, the Deputy Assistant Director of the Federal

Bureau of Investigation, addressed the House Committee on the Judiciary regarding the threats

posed by crimes involving a computer or ‘cybercrime’. Kubic noted the “criminal activity in the

cyber world presents a daunting challenge at all levels of law enforcement.” Kubic believed that

“the use of the Internet for criminal purposes is one of the most critical challenges facing the FBI

and law enforcement in general” (Kubic 2001). Since Kubic’s remarks, the explosion of

technology use, and with, it the occurrence of cybercrime have proven his words to be true.

The increasing popularity of the cell phone, for example, has allowed people to connect

with others in a way where the traditional limits of time and space on interpersonal

communication is practically nonexistent. In 2020, 85.8% of the total US population accessed the

Internet from any device, and this figure is projected to approach 87.2% by 2025, while nearly

274.7 million people accessed the Internet through a mobile device (Clement 2020). Chief

Justice Roberts of the United States Supreme Court candidly remarked on this phenomenon

when writing the Opinion of the Court in Riley v. California. Roberts wrote, “modern cell

phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor

from Mars might conclude that they were an important feature of human anatomy.” Similarly,

increasing access to the Internet in the home is changing the way people engage in economic

activities, such as purchasing products or participating in the workforce. In fact, US retail sales

of physical goods amounted to $343.15 billion in 2019. (Clement 2020).

These great levels of technological adoption have also, unfortunately, been reflected in

the increasing occurrences of cybercrime. Cybercrime is broadly defined as the criminal acts

committed or facilitated by use of computer technology. Cybercrimes vary greatly in their

complexity. They can simply be variants of more traditional crimes, such as theft or fraud, or

extremely sophisticated crimes, such as attacks on physical infrastructure systems perpetuated by

international terrorist organizations. McAfee and the Center for Strategic and International

Studies estimated that cybercrime likely costs the global economy $445 billion a year, with a

range between $375 billion and $557 billion (III 2020).

Fraud and identity theft are perhaps the most easily recognizable forms of cybercrime and

serve as good measuring tools to observe the effects of these crimes on the average consumer.

The Consumer Sentinel Network, which is maintained by the Federal Trade Commission, tracks

consumer fraud and identity theft complaints. The organization reported receiving 3.2 million

identity theft and fraud reports in 2019 from federal, state, local law enforcement agencies, and

private organizations (III 2020). Of these reports, 1.7 million were fraud-related with consumers

reporting losses of more than $1.9 billion which is an $293 million increase from 2018 (III

2020).

Though studies such as those presented have been conducted to attempt to measure the

frequency and impact of cybercrimes, the reliability of the data is still debated. Cybercrime

statistics are often collected at the national level, which does not capture the international scope

of the issue. Combining the data from other counties is possible but is not considered feasible

due to the varieties in legislation and reporting practices. Additionally, cybercrimes may be

significantly underreported. Victims that incur small amounts of losses in cybercrimes may

prefer not to report the crime, which they consider a time-consuming and fruitless exercise. On a
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grander scale, businesses that have been victimized by cybercrime may have an incentive to not

report their losses to maintain their reputations with consumers.

All these concepts pose challenges to law enforcement agencies who have the

responsibility of investigating and preventing cybercrimes. Law enforcement agencies are

always struggling with issues related to adequate equipment and recruiting. Cybercrime

investigations exacerbate these issues, requiring that agencies have access to specialized tools,

such as digital forensic software, which can incur significant costs. Likewise, agencies need to

commit funds to send officers to highly specialized training to become competent investigators.

As Deputy Assistant Director Kubic said, “cybercrime investigations require that new types of

questions be asked, new clues looked for, and new rules be followed”, and “in order to

successfully conduct these investigations, investigators require significantly advanced skills.”

Once trained and experienced, local law enforcement agencies struggle with the retention of

these officers, who now hold qualifications that make them highly desirable by the public sector

employers such as financial institutions or tech firms.

Further is the decentralized nature of the Internet that makes investigations so difficult to

conduct even with trained personnel and the proper resources. Originally designed as a military

network, the Internet is decentralized, which allows it to be resistant to external attempts at

control and thus not ideal for facilitating criminal investigations (Gercke 2012). The Internet also

allows criminals to conduct their activities in locations where they are not physically present. For

this reason, many cybercrimes are often transnational, and cyber criminals will deliberately avoid

countries that have developed strong cybercrime legislation.

Even those countries, such as the United States, that have prepared legislation to target

cyber criminals are experiencing the judicial growing pains related to regulating new
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technologies. There are concerns related to the Fourth Amendment searches and seizures for

evidence that may exist in no physical location or is intermingled with the data of an innocent

party. Sometimes, the very nature of how the data is transmitted has been cause for constitutional

review, which highlights the level of expertise needed in prosecuting cybercrime cases. For

example, in 2017, a New Jersey appeals court was faced with deciding whether law enforcement

access to Twitter messages should be protected by a communications data warrant because they

had already been transmitted or wiretapping warrant because they could occur in real time. In

cybercrime investigations, simple distinctions can be key to, the prosecution of the case.

Frustratingly, with the technology still in its infancy so little case law exists to guide law

enforcement in their pursuits. These issues are not limited to the Fourth Amendment, as similar

concerns have arisen regarding activities protected by the First Amendment. A broad range of

suspicious activity on the Internet from hate speech to the dissemination of 3D printed gun

blueprints, have been challenged as free speech activities.

Cybercrime represents a new frontier for law enforcement agencies to tame. The

challenges related to the investigation of cybercrime may be extensions of those traditionally

faced by law enforcement, such as recruiting and retention, or they may be new challenges all

their own, such as understanding an ever-evolving Internet and how humans interact on it.

Cybercrimes themselves may be new crimes or extensions of traditional crimes. Law

enforcement and legislative officials face a great challenge as they form enforcement strategies

and navigate the courts in their pursuits to investigate this new type of criminal.
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Clement, J. (2020, July 14). United States Online Usage Penetration 2015-2025

https://www.statista.com/statistics/590800/Internet-usage-reach-usa/

Clement, J. (2020, July 14). United States mobile Internet users 2015-2025

https://www.statista.com/statistics/275591/number-of-mobile-Internet-user-in-usa/

Clement, J. (2020, August 10). United States: retail e-commerce sales 2017-2024

https://www.statista.com/statistics/272391/us-retail-e-commerce-sales-forecast/

Gercke, Marco. (2012, September). Understanding cybercrime: Phenomena, challenges, and

legal response

http://www.itu.int/ITU-D/cyb/cybersecurity/docs/Cybercrime%20legislation%20EV6.pdf

Insurance Information Institute. (2020). Facts + Statistics: Identity theft and cybercrime

https://www.iii.org/fact-statistic/facts-statistics-identity-theft-and-cybercrime

Kubic, Thomas. (2001, June 12). The FBI’s Perspective on the Cybercrime Problem.

https://archives.fbi.gov/archives/news/testimony/the-fbis-perspective-on-the-cybercrime-problem
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US Supreme Court. (2013). Riley v. California

https://www.supremecourt.gov/opinions/13pdf/13-132_8l9c.pdf