Deterring Cybercrime: Focus on Intermediaries

41 Pages Posted: 17 May 2018

See all articles by Aniket Kesari

Aniket Kesari

University of California, Berkeley - Jurisprudence and Social Policy Program

Chris Jay Hoofnagle

University of California, Berkeley - School of Information; University of California, Berkeley - School of Law

Damon McCoy

New York University (NYU) - NYU Tandon School of Engineering

Date Written: December 1, 2017

Abstract

This Article discusses how governments, intellectual property owners, and technology companies use the law to disrupt access to intermediaries used by financially-motivated cybercriminals. Just like licit businesses, illicit firms rely on intermediaries to advertise, sell and deliver products, collect payments, and maintain a reputation. Recognizing these needs, law enforcers use the courts, administrative procedures, and self-regulatory frameworks to execute a deterrence by denial strategy. Enforcers of the law seize the financial rewards and infrastructures necessary for the operation of illicit firms to deter their presence.

Policing illicit actors through their intermediaries raises due process and fairness concerns because service-providing companies may not be aware of the criminal activity, and because enforcement actions have consequences for consumers and other, licit firms. Yet, achieving direct deterrence by punishment suffers from jurisdictional and resource constraints, leaving enforcers with few other options for remedy. This Article integrates literature from the computer science and legal fields to explain enforcers' interventions, explore their efficacy, and evaluate the merits and demerits of enforcement efforts focused on the intermediaries used by financially-motivated cybercriminals.

Keywords: FOSTA, SESTA, deterrence theory, Backpage, FRCP 65, luxury goods, counterfeiting, private remediation, CDA, DMCA, platform, utility, specialization, security economics, Botnet sinkholes, bulletproof services, public-private cybersecurity,

JEL Classification: K14, K41, K42

Suggested Citation

Kesari, Aniket and Hoofnagle, Chris Jay and McCoy, Damon, Deterring Cybercrime: Focus on Intermediaries (December 1, 2017). 32(3) Berkeley Technology Law Journal 1093 (2017); UC Berkeley Public Law Research Paper. Available at SSRN: https://ssrn.com/abstract=3179652

Aniket Kesari

University of California, Berkeley - Jurisprudence and Social Policy Program ( email )

Berkeley, CA
United States

HOME PAGE: http://https://www.law.berkeley.edu/php-programs/jsp/viewProfile.php?id=328

Chris Jay Hoofnagle (Contact Author)

University of California, Berkeley - School of Information ( email )

212 South Hall
Berkeley, CA 94720-4600
United States
510-643-0213 (Phone)

HOME PAGE: http://hoofnagle.berkeley.edu

University of California, Berkeley - School of Law ( email )

344 Boalt Hall
Berkeley, CA 94720-7200
United States
510-643-0213 (Phone)

HOME PAGE: http://hoofnagle.berkeley.edu

Damon McCoy

New York University (NYU) - NYU Tandon School of Engineering ( email )

6 MetroTech Center
Brooklyn, NY 11201
United States

HOME PAGE: http://new.engineering.nyu.edu/faculty/damon-mccoy

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