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Please find the attached question and resources. 1 reference (I will take care of the reference part) and clear APA format with abstract and conclusion. question.png reasearch_journal.pdf sample_paper.docx Unformatted Attachment Preview Vol. 6(1), pp. 1-12, August 2016 DOI 10.5897/JIIS2015.0089 Article Number: 930ADF960210 ISSN 2141-6478 Copyright © 2016 Author(s) retain the copyright of this article http://www.academicjournals.org/JIIS Journal of Internet and Information Systems Review Challenges to enforcement of cyber-crimes laws and policy Ajayi, E. F. G. School of Law, Kenyatta University, Nairobi, Kenya. Received 4 August, 2015; Accepted 25 July, 2016 Cybercrime, a concept which to date has defied a globally accepted definition, appears to be the latest scourge plaguing man and same has occupied the cynosure. The word “cybercrime” is on the lips of almost everyone involved in the use of the computer and Internet, be it individual, corporate, organization, national, multinational or international. The attention accorded cybercrimes is not farfetched; on one hand, it is partly rooted in its unavoidable nature as a result of the fact that telecommunications via the cyberspace, is the veritable means by which social interaction, global trade and commerce are transacted; and on the other, the economic losses to which all citizens are exposed whether now or in the nearest future. Aside economic losses, other consequences of cybercrimes includes but not limited to setback to the brand image and company reputation otherwise known as goodwill, loss of intellectual property and sensitive data, opportunity costs which includes but not limited to service and employment disruptions, penalties and compensatory payments to affected clienteles, contractual compensation for delays, cost of countermeasures and insurance, cost of mitigation strategies and recovery from cyber-attacks, the loss of trade and competitiveness, distortion of trade and job loss. This paper argues that it is not as if relevant laws and regulations are not in place because some advanced nations in the world have in one form or another, laws against cybercrimes, yet, the challenge of cybercrimes remains intractable and bewildering. As nations across the globe strives to curb cybercrimes through the instrumentality of the law, so are the cyber criminals devising new and sophisticated techniques to further their trade, thereby rendering impotent, the extant legal measures. This Article intends to bring to the fore, a comprehensive account of why cybercrimes remains an albatross in order showcase the enormity of the challenge faced by humanity, in the hope that, when the extent of the problem is known, may be, a global solution would timeously be fashioned out, to stem the tide of cybercrimes. Key words: Cybercrimes, cyber criminals, challenges, enforcement, economic losses. INTRODUCTION Cyber-crimes are relatively a new phenomenon but same has occupied the cynosure of global attention simply because all citizens of the world, irrespective of whether private or public, are vulnerable to it, the said vulnerability Email: ajayi.efg@gmail.com. Tel: +254 789192426. Author(s) agree that this article remain permanently open access under the terms of the Creative Commons Attribution License 4.0 International License 2 J. Internet Inf. Syst. is almost unavoidable for the fact that the world is in an information age (Encyclopedia of Library and Information Science, 1977), precisely; cyber-crimes emerged with the introduction of the Internet, thereby providing a conducive clime for crimes engendered by cyber criminals. At the outset, it is necessary to briefly distinguish between a computer crime and a cyber-crime, the rationale being that more often times than not, the two concepts are regarded as one and same, when in fact they are only similar, but are definitely different. Computer crimes, are those criminal acts perpetrated with the use of a computer; stated in other words, computer crimes includes crimes committed against the computer hardware, the materials contained or associated with the computer which includes the software and data; typical examples of computer crimes includes but not limited to embezzlement, fraud, financial scams and hacking etc. Cyber-crime is an umbrella term used to describe two distinct, but closely related criminal activities: cyberdependent and cyber-enabled crimes (McGuire and Dowling, 2013), the former are offences that can only be committed by using a computer, computer networks, or other form of ICT. These acts include the spread of viruses and other malicious software, and distributed denial of service (DDoS) attacks. Cyber-dependent crimes are primarily acts directed against computers or network resources, although there may be secondary outcomes from the attacks, such as fraud and the latter, cyber-enabled crimes, are traditional crimes that are increased in their scale or reach by the use of computers, computer networks or other ICT; this includes but not limited to fraud (including mass-marketing frauds, „phishing‟ e-mails and other scams; online banking and ecommerce frauds); theft (including theft of personal information and identification-related data); and sexual offending against children (including grooming, and the possession, creation and / or distribution of sexual imagery). Due to dichotomies in jurisdictions and yet addressing the same concept in legal literature, cybercrimes to date, has no globally accepted definition that could possibly encapsulate all the facets of this novel brand of crime, the definitional problem of cybercrime subsists, but one thing that is certain is that most definitions of cybercrime make reference to the Internet; for the sake overcoming the lacuna, cybercrime has been defined as crime committed over the Internet which might include hacking, defamation, copyright infringement and fraud. According to Oxford Dictionary of Law (2002), cybercrime also means any criminal or other offence that is facilitated by or involves the use of electronic communications or information systems, including any device or the Internet 1 or any one or more of them. Having in the preceding paragraphs attempted the definition of cybercrime carried on through the cyberspace, it is necessary at this juncture to earmark the notorious fact that today, unlike in the past, there is unprecedented rise in the frequency and sophistication of cyber-crimes, unfortunately, the catastrophic effects of cybercrimes in turn, has engendered a barrier to trade and commerce and by so doing, a high cost in terms of losses incurred thereby affecting intercontinental business transactions across the globe. At the global level, it is on record that cybercrime is a growth industry. The returns are great, and the risks are low. It is estimated that the likely annual cost to the global economy from cybercrime is more than USD 40 Billion, which reached USD 12 Trillion in 2012. A conservative estimate would be USD 375 Billion in losses, while the maximum could be as much as USD 575 Billion (CSIS, 2014). The cost of cybercrime includes the effect of hundreds of millions of people having their personal information stolen - incidents in the last year include more than 40 Million people in the US, 54 Million in Turkey, 20 Million in Korea, 16 Million in Germany, and more than 20 Million in China. One estimate puts the total at more than 800 Million individual records in 2013. This alone could cost as much as USD 160 2 Billion per year (Hawes, 2014). All the foregoing figures as in number of victims and the staggering figures in term of economic losses, is a testimony to the almost insurmountable hurdle of cybercrime, to which mankind is faced and which challenge, must be addressed timeously. MOTIVATIONS FOR CYBERCRIME Aside from the global financial loss as summarized in the foregoing paragraphs with respect to impact of cybercrimes, other consequences of cybercrimes includes but not limited to loss of intellectual property and sensitive data, opportunity costs, including service and employment disruptions, damage to the brand image and company reputation, penalties and compensatory payments to customers (for inconvenience or consequential loss), or contractual compensation (for delays, etc.), cost of countermeasures and insurance, cost of mitigation strategies and recovery from cyberattacks, the loss of trade and competitiveness, distortion of trade and job loss (Paganini, 2013). Having previously brought to the fore, the impact of cybercrimes in terms of financial and economic effects as well as other consequences, the apposite question that would naturally agitate the mind of a discerning person is: what are the motivations of cybercriminals? This germane question is briefly addressed as hereunder: The profit motive appears to be the first and major incentive that makes cybercriminals to persist in their 1 Electronic Communications and Transactions Amendment Bill, 2012 South Africa 2 See for detail account http://www.ponemon.org/news-2/23 Ajayi nefarious activities of infiltration or unauthorized interference with computers and network systems; profits accruing to cybercriminals are indeed huge; from the account earlier on discussed before now regarding financial losses at the global level, these losses are profits to cyber criminals, hence, a serious motivation. Closely related to the profit motive is the difficulty posed with respect to detection of cybercriminals; the Internet presents a wide range of freedom for all citizens of the world and the lack of prerequisite of identification as to who is doing what, in the use of the telecommunications via the cyberspace, continue to thwart global efforts targeted at tracking criminals and bringing them to book; stated in another way, the likelihood of identifying cybercriminals when they have perpetrated their illegal activities continue to be a motivation to them to persist in their criminal activities. Competitors provides a boost to cybercriminal activities by sponsoring attacks on one another, either by way of espionage to steal critical information relating to trade secrets or paralysis of competitor‟s service through distributed denial of service (DDoS). It should be added that some cybercriminals are motivated not for pecuniary advantage, but purely for satisfaction or pleasure they derive in gaining unauthorized access into computers and computer networks; the mere fact that cybercriminals are able to gain access into computer systems believed to be safe and secure by the owners and operators thereby revealing vulnerability gives the cybercriminals, under this head, the motivation. Finally, another variant of motivation for cybercriminals is a challenge or protest against computer systems which is the outward manifestation of registration of disagreement or disapproval against owners or operators, this form or motivation is also more often than not aimed at getting profit out cybercriminal activities. CYBERCRIME STATUTES Cybercrimes seems to be well known to an average person who is Internet savvy wherever he is situate in the globe, unfortunately, the concept of cybercrime has no one definition that is world widely accepted. But the commonality of agreement is that cybercrime involves the use of computer having Internet connection to commit online crimes. In view of the above, this paper adopts the succinct definition of cybercrime as illegal internet-mediated activities that often take place in global electronic networks (Chang et al., 2003). There are many forms of cybercrimes and for ease of reference, it includes but not limited to 419 emails and letters, advance fee fraud, online auction fraud, online betting fraud, botnet-related fraud, child pornography and related offences, computer hacking, computer related 3 forgery, computer related fraud, cracking, credit card fraud, cyber-laundering, cyber-smearing, cyber piracy, cybersquatting, cyber-stalking, cyber-terrorism, cyberwar, online dating fraud, denial of service attacks, domain name scams, identity theft, impersonation, intellectual property fraud, malware, viruses, misuse of devices, phishing, proxy servers, racist and xenophobic offences, smishing, spamming, spoofing, Trojan horse, spyware, system interference and vishing. With respect to preventing, monitoring, criminalization, investigation and punishment of cybercrimes, many sovereign countries of the world have in place extant laws and those that do not, are striving to enact legislations, to tackle the challenge posed by cybercrime. It is on record that the following countries have laws on computer or cybercrimes: Antigua and Barbuda, Argentina, Australia, Belgium, Bermuda, Cameroon, Chile, European Union, India, Ireland, Italy, Japan, Kenya, Malaysia, Mauritius, Pakistan, Portugal, Romania, Saint Vincent and the Grenadines, Singapore, South Africa, Spain, Sri Lanka, Thailand, Tonga, Turkey, United Arab Emirate, United Kingdom, United States, Uruguay, Venezuela and Zambia (Ajayi, 2015). Hereunder is a summary of measures embarked upon at international and regional levels to address cybercrimes: The G8 made public in 1997, a Ministers Communiqué with action plan and principles to combat cybercrime and protect data and systems from unauthorized impairment; it further mandated all law enforcement personnel must be trained and equipped to address cybercrime, and designates all member countries to have a point of contact on a 24 hours a day and 7 days a week basis (Chang, 2003). The United Nations (UN) General Assembly in 1990 the adopted a resolution dealing with computer crime legislation. In 2000 it also adopted a resolution on combating the criminal misuse of information technology while in 2002; it adopted a second resolution on the criminal misuse of information technology (Nicholas, 2008). The International Telecommunication Union (ITU), saddled with telecommunications and cyber security issues in the United Nations released in 2003, Geneva Declaration of Principles and the Geneva Plan of Action highlighting the importance of measures in the fight against cybercrime and in 2005, adopted the Tunis Commitment and the Tunis Agenda for the Information Society. The Council of Europe (CoE) comprising 47 European member states in 2001 took the lead by putting in place the first international Convention on Cybercrime, drafted in conjunction with USA, Canada, and Japan and signed by its 46 member states but ratified by only 25 countries (Ahamad et al., 2008). The Convention alternatively referred to as Budapest Convention is the first 4 J. Internet Inf. Syst. transnational treaty on crimes committed via the Internet and other computer networks, dealing particularly with infringements of copyright, computer-related fraud, child pornography and violations of network security. It also contains a series of powers and procedures such as the search of computer networks and interception. The main objective of the European Convention, set out in the preamble, is to pursue a common criminal policy aimed at the protection of society against cybercrime, especially by adopting appropriate legislation and fostering international co-operation (Convention on Cybercrime, 2001). With respect to regional efforts aimed at stemming the tide of cybercrimes, the Asia-Pacific Economic Cooperation (APEC) issued in August 2002 the Cyber security Strategy which is included in the Shanghai Declaration (Ajayi, 2016). The said Cyber security strategy deals principally with outlined six key areas for co-operation among member economies which are: legal developments, information sharing and co-operation initiative, security and technical guidelines, public awareness, training and education and wireless security. The Organization for Economic Co-operation and Development (OECD) comprising of 34 countries published in 2002 Guidelines for the Security of Information Systems and Networks: Towards a Culture of Security. The Commonwealth of Nations in 2002 presented a model law drafted in accordance with the Convention on Cybercrime (International Telecommunication Union, 2009), which provides a legal framework that harmonizes legislation within the Commonwealth and enable international cooperation. The Economic Community of West African States (ECOWAS) comprising of fifteen member states adopted in 2009, the Directive on Fighting Cybercrime in ECOWAS that provides a legal framework for the member states, which includes substantive criminal law as well as procedural law (Nicholas, 2008). CHALLENGES CYBERCRIMES TO ENFORCEMENT OF As earlier discussed, the efforts made through the instrumentality of legislations at national, international and regional levels were discussed; without prejudice to the effectiveness of the extant laws in place to combat cybercrimes, the scourge persists, nay, rather than the laws to curb, or better still, minimize cybercrimes, there is a rise in the frequency and sophistication and the reason for that development, is attributable to the fact that, as efforts are being made to stem the tide of cybercrimes, so are cybercriminals devising methods and means of thwarting global measures targeted at addressing the problem. Here, the challenges faced by mankind which makes cybercrimes intractable are discussed as follows: Identity of cybercriminals This paper is of the view, that one of the greatest impediments against global efforts towards stemming the whirlwind of cybercrimes remains the anonymous nature of the identity of cybercriminals. There is no easy means of identifying who is doing what and where is a user of the Internet is situate at any point in time; the global information system is free and there is no perquisite that needs to be fulfilled, before a user can login to connect with anywhere and anyone across the globe. Thus, the unfettered freedom of information and communication enables the cybercriminals to hide their identity using different telecommunications gadgets so as to make it impossible to trace the online Internet Protocol (IP) address of any user. Further, if the IP address of a cybercriminal were traced to a particular location, the next hurdle cannot be scaled as the identity of a cybercriminal is undisclosed to the owner or operator of Internet service provider. Several telecommunications gadgets such as Psiphon, The Onion Router (Tor) etc. are used to shield the identity of Internet users and communication are often routed via many servers which further compounds the possibility of cybercriminals being traced. In effect, if the identities of criminals are incapable of being traced, how can the laws enacted to address cybercrimes work? The 3 dictum of law Lord Denning in a celebrated case to the effect that, it is a cardinal principle of Law that “You cannot put something on nothing and expect it to stand” The point being emphasized here is that, in so far as the identities of cybercriminals remains elusive, no law, however well-crafted nor intended can work because the law does not work in vacuum; stated in another way, cybercrime laws were principally enacted to apprehend and prosecute cybercriminals, so, if the criminals are not identifiable, any law(s) put in place, is nothing but a nullity. It should be quickly added that the campaign in some quarters to end anonymity in the use of the Internet by the mandatory introduction of identification as a perquisite has been ferociously opposed by human rights activists on the ground of violation of privacy rights, with that development, cybercriminals appears to have been offered latitude to continue to operate unhindered and by so doing, the challenge of anonymity continues to render cybercrime laws, nugatory. Jurisdictional challenges Aside from the germane issue of anonymity discussed before now, one other potent challenge to enforcement of cybercrime laws is jurisdiction. Taking into cognizance the time tested principles of state independence, 3Macfoy versus United Africa Company Limited (West Africa). 1962 AC 152 Ajayi sovereignty and territorial integrity, each nation-state of the ... Purchase answer to see full attachment