CYBERTERRORISM AND COMPUTER CRIMES: ISSUES SURROUNDING THE ESTABLISHMENT OF AN INTERNATIONAL LEGAL REGIME
Richard W. Aldrich INSS Occasional Paper 32 Information Operations Series April 2000 USAF Institute for National Security Studies USAF Academy, Colorado
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TABLE OF CONTENTS
Foreword Executive Summary Introduction World Situation Potential Impact Generally Russia's Draft Resolution Information Terrorism and Computer Crimes Introduction Vulnerability of the United States Impact Overhyped? Definitional Issues Computer Crime 1. OECD Proposed List of Computer Crimes 2. COE Proposed List of Computer Crimes 3. Draft Convention on Computer Crime Information Terrorism Jurisdictional Issues Prescriptive 1. Universal a. International Law b. Domestic Implementation 2. Territorial Jurisdiction a. Subjective (1) The Criminal Act (2) Territorial Limits b. Objective (1) The Act (a) Agency 36 (b) Continuing Act (2) The Intent (3) The effects 3. Passive Personality 4. Nationality 5. Protective Principle 6. Consensual 7. Concurrent Jurisdiction 8. Domestic 9. General Considerations a. Mutual Assistance v vii ix 1 1 3 4 6 6 7 8 8 9 9 11 15 19 27 31 31 31 31 33 34 34 34 35 35 35 36 38 38 39 40 41 41 43 44 44 45
b. Recognition of Judgements c. Extradition d. Evidentiary Problems Enforcement 47 1. Transborder Searches via Electronic Access a. Without Authorization b. Tracing 2. Data Collection and Preservation Constitutional Issues First Amendment Fourth Amendment Fifth Amendment Statutory Concerns Privacy Other What Do Existing Treaties Already Cover Conclusion Endnotes
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We are pleased to publish this thirtieth-second volume in the Occasional Paper series of the US Air Force Institute for National Security Studies (INSS). This paper, along with Occasional Paper 33, Steven Rinaldi's Sharing the Knowledge: Government-Private Sector Partnerships t0 Enhance Information Security, address the context surrounding the question of how the U.S. military responds to the cyber threat facing the American military and society today. Rinaldi examines the issues of partnering and sharing sensitive information across private and governmental sectors as a central requirement of a national risk reduction and management effort in the face of the threat of cyber attack. In this paper, Richard Aldrich examines definitional and jurisdictional issues, Constitutional and statutory concerns, and both the necessity and desirability of an international treaty addressing cyberterrorism and computer crime. Together these two papers provide fresh thinking and critical perspective on a security threat arena that increasingly captivates the headlines. About the Institute INSS is primarily sponsored by the National Security Policy Division, Nuclear and Counterproliferation Directorate, Headquarters US Air Force (HQ USAF/XONP) and the Dean of the Faculty, USAF Academy. Our other sponsors currently include the Air Staff’s Intelligence, Surveillance, and Reconnaissance Directorate (XOI) and the Air Force's 39th Information Operations Squadron; the Secretary of Defense’s Office of Net Assessment (OSD/NA); the Defense Threat Reduction Agency (incorporating the sponsorship of the Defense Special Weapons Agency and the On-Site Inspection...
Cited: United States v. Bowman, 260 U.S. 94 (1922).
Id. at 98. Courts may also look to congressional intent, express or implied, to determine whether a given statute should have extraterritorial application. United States v. Bowman, 260 U.S. 94, 98 (1922); Chua Han Mow, 730 F.2d 1308, 1311 (9th Cir. 1984).
Personal interview of Marty Stansell-Gamm, Deputy Chief, Computer Crime and Intellectual Property Branch, Mar. 16, 1999.
E.g. Treaty on Mutual Assistance between Canada and the United States (Mar. 18, 1985), Treaty on Mutual Assistance between the United States and the Netherlands (Jun. 12, 1981), etc. Draft Convention, supra note 85, at art. 8(4).
See David Icove, Karl Seger & William VonStorch, Computer Crime: A Crimefighter’s Handbook (1995).
Ethan A. Nadlemann, Cops Across Borders: The Internationalization of U.S. Criminal Law Enforcement 1 (1993). Id. at Appendix A.
See Center for Democracy & Technology press release, Feb. 26, 1999, available at http://www.cdt.org/press/022699press.shtml. 84
IBM, Gateway, Dell Computer, and Compaq Computer are among the companies shipping the Pentium III so configured
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