One of the distinguishing factors of the legal field is change. The legal profession is ruled by ever-changing regulation and sources of disputes. The threat of cybercrime is one of the most recent and big developments in a world that is becoming more and more digital. New problems are surfacing, for example, phishing e-mails, security breaches in servers, theft of confidential data and attacks on devices connected to the internet. Cyberattacks are not only carried out by tech enthusiasts and thieves with financial motives but by governments as well. Cyberspace is the 21st century’s battlefield. In 2014, five years ago already, Sony Pictures was hacked and confidential information about the company, its employees and celebrities were leaked. Suspects are, among others, North Korea and the Russians. Cybercrime is already a pressing issue and has been for years. It is not only a future concern.
In the physical wars we know, we are usually protected by our governments and the many international treaties about warfare. Cyberspace is a domain in which the rules are mainly made by private companies, which makes these companies our main protectors. They manage our access to the digital domain and control a lot of user data. Lawmakers are beginning to create legislation for the new problems that we have to face in our digital world, but the creation of laws takes time. How would legal professionals be able to help stop these newly arising issues from creating more problems? This could happen on three levels, on a legislation level, on a case law level or by the preparedness of law professionals on all levels.
Digital Geneva Conventions?
In 1949, by adding two additional treaties to the already existing ones, the Geneva conventions were finalized. After the destruction caused by the world wars, governments came together to draw up rules for the treatment of wartime prisoners, the wounded and sick and civilians in and around war zones. The conventions targeted the humanitarian treatment of all victims of war, and mainly the ones that were no longer part of the fighting. Only years later, in the Cold War era, these conventions were already found to be of smaller use than imagined. The types of warfare were drastically changing, with more internal conflicts in countries and threats of chemical and biological weapons. In the current world, these changes are even more radical. In the future, wars may be fought with other weapons, and may not be won by the biggest army, but by the party with the biggest database. Different types of warfare require different types of rules. The Geneva Convention protects those harmed by guns, there should be rules to protect those whose confidential data has leaked because of a government hack. Civilians should not only be protected in times of armed conflicts, but also in times of peace. These rules, to protect civilians, do not exist yet. The creation of sophisticated protocols for protection against cybercrime takes time because of politics and the complexity of the issue. Politicians have long lists of priorities and will usually only act fast on very pressing issues. Although cybercrime fits in this category, it is viewed by many as a problem of the future. There are a want and a need for new legislation, but this will probably take time to come into existence.
New digital courts?
Some progress is certainly being made on the fighting of cybercrime, even without a digital Geneva Convention. In several countries, including the United Kingdom, plans are being made to set up new courts specifically designed to deal with new and upcoming types of crime. For example, the new Court for Fraud and cybercrime, announced by the City of London Corporation, is planned to be finished by 2025. This court will employ judges with knowledge of new technologies to improve their understanding of complicated cases. The City of London also acknowledged the need for improvement of IT solutions in this new court. To be able to conduct cybercrime trials, new facilities will be needed. The proof for claims in the courtroom will mainly be digital and will need to be shared and protected in different ways. Plaintiffs will also, fittingly, have the possibility to enter their pleas online. A special court for cybercrime has many benefits. By having more specialized judges, a fair assessment of cases is ensured. Because of the absence of up to date laws for digital transactions and such, the development of case law could be of vital importance. A new court could help this development.
Both options discussed before are very time consuming. Creating new legislation or an entirely new court are very ambitious ideas, and though these they may be helpful in the long term, short term solutions are similarly important. For the lawyer of today, it is important and very attainable to prepare for the future. Many more cases about cybercrime will pop up, so it is in the interest of lawyers to prepare for more technologically complicated issues. They can do this by working more closely with tech experts. Not every lawyer can also be a digital specialist, but legal professionals must have some sort of base knowledge about our new normal. Without this knowledge, it will be hard to argue for clients. Cases that take place primarily in cyberspace require different types of evidence and arguments. Tech professionals, imbedded in their field, have a greater chance of foreseeing issues that may arise in the future. Law professionals should use other’s expertise to their advantage.
A new age, the age of cyberspace, is causing new kinds of disputes to arise. As always, the legal profession needs to react to this change. This is possible, as addressed before, in different ways. New legislation can be created, to protect civilians from possible damage of cybercrimes in times of peace. A second option is the creation of new courts to deal with these new types of crimes. As a third resort, law professionals can innovate themselves, by keeping up to date on changes in tech. If they can foresee new problems coming into existence, they will be able to protect their clients effectively.
In some way, civilians need to be protected from the new dangers of digital growth. The digital world brings many great advantages, but safety measures need to be in place in times of peace as well as in times of war.