Deterring Cybercrime: Focus on Intermediaries

Privacy and Security, Intellectual Property and Copyright and Trademark

Article Snapshot

Author(s)

Chris Hoofnagle, Aniket Kesari and Damon McCoy

Source

Berkeley Technology Law Journal, Vol. 32, No. 3, pp. 1093-1133, 2017; UC Berkeley Public Law Research Paper

Summary

Cybercriminals rely on intermediary firms such as banks, and shippers to sell products and collect payments. Governments, intellectual property owners, and technology companies can police cybercriminals by policing these intermediaries, but this raises due process and fairness concerns.

Policy Relevance

Targeting intermediaries is effective in controlling cybercrime. But some legal methods do not give intermediaries a fair chance to defend themselves and may harm innocent parties.

Main Points

  • Law enforcement efforts against cybercriminals are of limited effectiveness, because the criminals operate sophisticated networks that cross borders; enforcers often focus their efforts on intermediary firms such as providers of domain names, banks, and shipping companies, which provide services to cybercriminals.
     
  • Some key enforcement efforts support Internet security by disrupting botnets, networks of infected computers used to run illegal operations; technologically sophisticated companies like Microsoft can use legal processes to seize control of the botnets and disrupt their operations.
     
  • Another key category of enforcement efforts addresses the illegal sale of products protected by intellectual property (IP) rights.
     
  • Enforcers can use Rule 65 of the Federal Rules of Civil Procedure (FRCP) to obtain a temporary restraining order to stop an intermediary from serving a certain suspect, without giving defendants an opportunity to appear in court.
     
  • Coreflood was a botnet based in Russia used by hackers to discover credit card numbers and bank login information; the Department of Justice used a temporary restraining order to gain control of some servers, enabling Microsoft to patch the Coreflood-infected machines.
     
  • Critics argue that the power to obtain temporary restraining orders is too broad, affecting systems with non-infringing purposes and innocent users; one scholar proposes that enforcers be required to prove that the target intermediary agreed to support illegal activity, but this would make FRCP Rule 65 useless.
     
  • The government and private intellectual property owners can also use domain name seizures under the PRO-IP Act to take control of websites that host or link to illegal content; this power is also broad and subject to abuse.
     
  • President Obama’s Executive Order 13694 allows the Treasury to block cybercriminal’s access to bank accounts and other property; such financial interference tends to be more effective than domain name seizures.
     
  • Some private firms like eBay and Visa, have their own procedures for blocking the use of their networks by criminals.
     

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