Cyberterrorism and Enemy Criminal Law
Cyber War: Law and Ethics for Virtual Conflicts (edited by Jens David Ohlin, Kevin Govern and Claire Finkelstein) (OUP, 2015)
16 Pages Posted: 6 Oct 2015
Date Written: March 30, 2014
Governments are increasingly concerned with the threat of cyberterrorism. Many common law jurisdictions – including the UK, Australia, Canada and New Zealand – have expanded their statutory definitions of terrorism to also encompass cyberattacks which do not result in violence to people or property but which do seriously interfere with, or cause serious disruption to, electronic systems. The effect is to make available in such cases not only the full raft of terrorism-related investigative, procedural and sentencing provisions, but also all of the special pre-inchoate “precursor” terrorism offences. Whilst this may accord with these countries’ insistence that terrorism should be met with a criminal justice response, and that prosecution should be the preferred method of disrupting terrorist activity, it also poses challenges for theories of criminalisation.
This chapter begins by examining the compatibility of precursor offences with the leading theory of criminalisation, the harm principle. Imposing criminal liability on “remote harms” – a category which encompasses actions which do not themselves cause harm but which will result in harm if some contingency occurs, such as collecting information, training and fund-raising – can only be justified if the defendant can be shown to have had some normative involvement in the feared eventual harm. Yet many existing precursor offences exceed this constraint. The chapter argues that this may be understood using the concept of enemy criminal law. Enemy criminal law is directed against a certain class of potentially dangerous offenders, imposing disproportionate sanctions and curtailing procedural rights in order to prevent future harm. The chapter warns of the danger that enemy criminal law may seep into and contaminate our ordinary criminal law. Moreover, enemy criminal law has the potential to undermine the moral authority and fairness of the criminal law, the very reasons why many common law jurisdictions insist on criminal justice responses to terrorism in the first place.
Keywords: Terrorism, Cyberterrorsm, Criminal Law, Human Rights
JEL Classification: K00, K14
Suggested Citation: Suggested Citation