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Investigating and Prosecuting Cyber Crime: Forensic Dependencies and Barriers to Justice

Abstract

The primary goal of this paper is to raise awareness regarding legal loopholes and enabling technologies, which facilitate acts of cyber crime. In perusing these avenues of inquiry, the author seeks to identify systemic impediments which obstruct police investigations, prosecutions, and digital forensics interrogations. Existing academic research on this topic has tended to highlight theoretical perspectives when attempting to explain technology aided crime, rather than presenting practical insights from those actually tasked with working cyber crime cases. The author offers a grounded, pragmatic approach based on the in-depth experience gained serving with police task-forces, government agencies, private sector, and international organizations. The secondary objective of this research encourages policy makers to reevaluate strategies for combating the ubiquitous and evolving threat posed by cybercriminality. Research in this paper has been guided by the firsthand global accounts via the author’s core involvement in the preparation of the Comprehensive Study on Cybercrime (United Nations Office on Drugs and Crime, 2013) and is keenly focused on core issues of concern, as voiced by the international community. Further, a fictional case study is used as a vehicle to stimulate thinking and exemplify key points of reference. In this way, the author invites the reader to contemplate the reality of a cyber crime inquiry and the practical limits of the criminal justice process.

Introduction

With escalations in reports of serious cyber crime, one would expect to see a corresponding increase in conviction rates (Broadhurst, Grabosky, Alazab, Chon, 2014; Kaspersky Lab, 2015; Ponemon Institute, 2015). However, this has not been the case with many investigations and prosecutions failing to get off the ground (Frolova, 2011; Onyshikiv & Bondarev, 2012; Zavrsnik, 2010). The chief causes of this outcome may be attributed to trans-jurisdictional barriers, subterfuge, and the inability of key stakeholders in criminal justice systems to grasp fundamental aspects of technology aided crime. In the same way that science influences the utility of forensic inquiry, the capacity of investigators, prosecutors, judges and jurors to understand illicit use of technology also directly impacts conviction rates (Dubord, 2008; Leibolt, 2010). The ease with which cyber crime crosses national borders, irreconcilable differences between national legal frameworks, and deceptions employed by cyber criminals impedes attribution, and prevents crime fighters from interrogating suspects and apprehending offenders.

Cyber crime offending can be technically complex and legally intricate. Rapid advancements in the functionality of information communication technologies (ICTs) and innate disparities between systems of law globally are stark challenges for first responders, investigating authorities, forensic interrogators, prosecuting agencies, and administrators of criminal justice. It is critically important to explore factors impeding investigation and prosecution of cyber crime offending to raise awareness and expose these barriers to justice. This paper examines criminal justice responses to cyber crime under the common law model. The capacity of criminal justice actors to perform their core function is analyzed and discussed. The author contends that the investigation and prosecution of cyber crime offending, including forensic services in support of inquiries, is hampered by a confluence of factors that influence the criminal justice process. This thesis is illustrated with aid of a case study examining the criminal justice lifecycle throughout a cyber crime inquiry. Based on notorious instances of cyber crime offending, Mary’s Case charts the initial commission of criminal activity through until the ultimate determination of culpability at trial.

This paper proposes a practical definition of cyber crime, which is linked to the impact of technology on modes of criminal offending. Victimology and impediments to cyber crime reporting are outlined. The common law model of criminal justice is surveyed, with a focus on the effect of both law and technology on policing cyber crime globally. Investigative techniques and operational challenges are discussed in detail. Evidentiary issues surrounding collection and presentation of electronically stored information (ESI) in criminal trials are evaluated. The key elements that coalesce to constitute serious criminal offending are deduced and contrasted with defenses to criminal capacity and culpability. The author also highlights issues concerning evidence admissibility, roles performed by lawyers, experts, and adjudicators during legal proceedings, and the media’s influence upon public perceptions of forensic science. Finally, recommendations for removing barriers to the effectiveness of cyber crime inquiry are considered, including new strategies for streamlining the administration of criminal justice.

The complete article is freely available at: http://www.cybercrimejournal.com/Brown2015vol9issue1.pdf

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About Cameron Brown

Information systems specialist and cyber crime defence consultant, lawyer and forensic investigator who has worked in government and commerce

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