Although acts of cybercrime and cyberwar are different, the lines between the two have been become blurred over time. The nature of cyberspace has complicated the pre-existing doctrine for armed attacks, yet they are still being applied. Furthermore, the United States historically has responded to malicious cyber activity through a militarized lens.
This tendency to lean towards and emphasize a militarized approach has displaced the domestic law enforcement approach and left it inadequately trained, inadequately resourced, and inadequately supported to identify, deter, and punish offenders. Discussions currently neglect other existing frameworks and the development of new ones to address malicious cyber activity
Without a comprehensive international legal framework governing malicious cyber activity, Mieke Eoyang and Chimène Keitner seek to encourage greater awareness of the consequences of viewing malicious cyber activity through only an armed conflict lens.
Cyber investigations often involve devices and data that cross or are located across international borders. This raises challenges for law enforcement which often finds itself limited by enforcement jurisdiction that stops at its territorial borders.
What happens when law enforcement is seeking to access data or a device and the location is unknown? What about situations in which law enforcement has its hands on a device, but the data being accessed via that device is located in another state’s jurisdiction? What if the device itself is located overseas—in a jurisdiction unwilling or unable to aid the investigation?
While the barrage of cyberattacks around the world continues to increase, the lack of effective global cybercrime enforcement has allowed cybercriminals to operate with near impunity.
Although there have been a number of efforts to increase international cooperation on cybercrime enforcement, many of these efforts have been hindered due to the lack of capacity building among countries to provide criminal justice actors with the ability to implement and enforce these instruments.
Through an in-depth examination of the global developments in cybercrime and the major challenges to international cooperation among countries, Amy Jordan and Allison Peters provide a variety of recommendations aimed at overcoming the barriers in capacity building among nation states in order to close the global cyber enforcement gap.