This concept allowed for defining the regulatory and policy domain responsible for defence and the applicable legal regime in the case of war. However, nowadays, because of the anonymity of the Internet and the blurring borders between state and non-state actors, it is much more difficult to make a clear distinction both for the purpose of prevention of and reaction to the cybersecurity threats. States can initiate cybercrimes and cyber-espionage, politically motivated individuals can launch cyberattacks that cannot be attributed to any foreign governments and organised crime groups can tackle businesses to the degree that make it a threat to economic well-being of the nation.
The questions that rise in this regard still remain unanswered. How to attribute the cyber-espionage to a particular state? How to distinguish prevention of hacker attacks, which are not backed by state parties hacktivism or from state-organised cyber-aggression? Does cross-border surveillance or breaking into the networks carried out by a foreign government constitute a crime or an act of aggression or is there no legal regime applicable to this kind of behaviour? Theoretically, the domains can be distinguished based on the nature of threats and approaches to addressing them.
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His research differentiates two international on the level of the UN approaches to the cybersecurity issues: the politico-military stream and the economic stream. The former refers to the use of information technologies for undermining international stability, and the latter includes the criminal misuse of information technologies [ 13 ]. This distinction is further supported by Jang and Lim [ 14 ], who discuss two main common approaches to the cyber-threats: security-oriented approach that considers cyberattacks as a threat to national security and law enforcement approach that brings the issue of attacks to the domain of criminal justice.
The former relates to the efforts to deter and prevent, and the latter focuses on investigation, attribution and prosecution. For example, while economic espionage can be attributed to cybercrime [ 14 ] when it is profit-driven, there are growing concerns that this type of spying on companies can threaten national security, especially when committed by state-sponsored actors [ 15 ]. It is outside of the scope of this chapter to make political or legal judgements of this case. Another example of the efforts to bring national security case to the domain of criminal justice is the investigation into electronic mass surveillance of EU citizens carried out by the Committee on Civil Liberties, Justice and Home Affairs of the EU Parliament.
At one of the hearings on the allegations of NSA tapping into the SWIFT database, issues were raised with regard to the involvement of Europol in investigation of the NSA activities and the mandate of Europol in cybercrime investigations.
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Answering the questions, the Director of Europol, Rob Wainwright, stated that, firstly, no EU member state had made a request to investigate NSA activities, and, secondly, Europol has no mandate to investigate any state espionage allegations. Some of the experts even say that the distinction is not relevant anymore because the focus should be put on the methodology of the attacks, targets and consequences [ 12 ].
This assertion can, to some extent, be true concerning the tools and consequences of the attacks, especially for the private sector in relation to damage control and risk mitigation [ 3 ]. One of the possible options to make a relevant distinction is a criminal attribution. However, attribution also represents a certain challenge due to anonymity of the Internet.
Evidently, it is only attribution that can provide the information on whether the source of attack is a criminal or a state actor and define the domain of criminal justice and national security according to the nature of the threat [ 3 ]. Yet there is one factor that is difficult to find out, namely motivation of the criminal. Motivation plays an important role: a person behind the cyberattack might be stand-alone criminal backed up by the government or politically motivated hacktivist, or someone with terrorist motives. Does attribution help to separate domains for the purpose of providing cybersecurity?
On the other hand, attribution itself is in many cases difficult, if not impossible because of the anonymity of the Internet and its transborder nature. Furthermore, attribution requires some efforts of investigating the attack. It means that in order to be attributed and to fall within one of the domains, be it national security or law enforcement, the attack should be investigated first, but it is unclear whether law enforcement or national security entities have to carry out the investigation.
Thus, the question of attribution, though being very important for practical purposes—from investigation and prosecution of cybercrime to identifying the risk trends and developing adequate responses in the national security area—can be only of theoretical importance when it comes to drawing a clear distinction between different domains. It is evident that, despite all the attempts to draw distinction between security mandates using the concepts of criminal law, law of armed conflict and public international law, the whole concept of cybersecurity does not fit traditional concepts used for this distinction [ 6 ].
There is a complex set of factors, which assigns a particular problem to the law enforcement or to the agencies responsible for the national security: seriousness of the threat, possible consequences and the scale of the particular problem, just to name a few.
Moreover, both national security and crime control bodies may consider the same cybersecurity issue from different angles as a part of their domain. Again, one of the good examples is the risks associated with the use of botnets: they are considered to be a concern for law enforcement agencies because of being used for commission of profit-driven crimes and for national security agencies due to the role they can play in politically motivated attacks and economic espionage [ 7 ].
With blurring borders, ambiguous domains, absence of clear definitions of what crime and cyberwar are and attribution issues, it is hard to develop successful frameworks for collaboration. To understand clearly which private entities and in what way should be involved in addressing particular problem, it is necessary to have an idea which government entities are responsible for a particular issue.
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There have been attempts to distinguish domains by, for example, identifying priority areas, like it has been done by the EU Cybersecurity Strategy, which sets several priorities: achieving cyber-resilience, reducing cybercrime, developing cyber defence policy and capabilities; developing industrial and technological resources for cybersecurity and establishing a coherent international cyberspace policy.
This division is pretty much in line with the distinction made in academic literature for example, Klimburg [ 16 ] distinguishes several mandates in national cybersecurity: military cyber, countering cybercrime, intelligence and counter-intelligence, critical information infrastructure protection, cyber diplomacy and Internet governance, with each of them being addressed by different departments within the nation state. Klimburg [ 16 ] argues that despite the fact that the areas of cybersecurity represent different facets of the same problem, each of the fields has its distinct focus and lexicon.
Further difficulties arise from lack of the agreement on what constitutes cybersecurity and what this term actually encompasses. There is no internationally accepted definition of cybersecurity for example, EU Cybersecurity Strategy does not define it , so the understanding of this term differs from one nation state to another. Cybersecurity can be referred to as a broad concept, which includes security both in online and offline world, or narrowed down only to online safety [ 17 ].
Confusion might grow when the meaning of cybersecurity is limited to safeguards and actions to protect networks and information infrastructure with regard to their integrity, availability and confidentiality CIA crimes. For example, some studies [ 18 ] in this regard contend that cybersecurity should be focused on technology-based and code-based threats and should be limited to the crimes that are committed against computers CIA crimes and with exclusion of the crimes, which are merely facilitated by the use of computers.
If we apply this theory to the public—private collaboration in cybersecurity, the concept of CIA threats covers a wide range of activities related both to civilian and military fields. However, it excludes some very important forms of cooperation related to the illegal content crimes such as online child abuse images and terrorist content. Illegal content does not represent a technical cybersecurity threat since it does not interfere with networks and systems.
However, hardly anyone would debate the importance of the fight against child abuse. When cooperation in the field of cybersecurity is limited to technical threats only, a wide range of activities can be excluded and overlooked despite the fact that the initial involvement of the private industry in fighting cybercrime started with creation of hotlines for removal of child abuse content. Collaboration in the field of cybercrime does not always include technical aspects of cybersecurity and protection of networks and systems.
For example, fighting online child abuse, despite the requirement of technical knowledge and use of the technical tools for investigating crimes and detecting offenders, has different object of legal protection than technical security of the networks and vice versa, not every cybersecurity effort would be related to cybercrime.
Investigation and prosecution of crimes as a domain of law enforcement will represent just a narrow field in this complex issue of cybersecurity in addition to bringing criminal acts of committing the cyberattacks to criminal justice domain, the efforts of different stakeholders in cybersecurity ecosystem will include deterrence, network resilience, collection of information on the type of attacks, attribution to the source without prosecution, just to name a few. This book chapter approaches the issue of public—private collaboration from a broad perspective and focuses on different forms and areas of cooperation, including tackling the problem of cybercrime, protection of critical information infrastructure and national security.
For the purpose of this analysis, the first area—cybercrime—covers not only crimes committed against confidentiality, integrity and availability of computer systems, but also content crimes such as child abuse images and terrorist content and any other types of crimes committed online. Collaboration in this area is based on the criminal law and criminal procedural law, legal frameworks on the liability of the intermediaries and partially on preventive police law. The second area of cooperation is the involvement of the private sector in national security. As a distinct field from the criminal justice, it refers to collaboration between industry and governments on such security concerns as politically motivated attacks, economic espionage and serious threats.
The third field is alliances between private stakeholders and regulators on cyber-resilience and critical information infrastructure protection. The distinct feature of this area, though it can be considered as part of national security concerns, is that the threats for critical information do not necessarily involve malicious intent. Florian Skopik. David R. Peter F. Peter Eckersley. The Fallacy of Net Neutrality. Thomas W Hazlett. Online Identity Theft.
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