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Strategies for Securing the Cyber Safety Net for Terrorists: A Multi-Disciplinary Approach (Chapter 16)

May 2009

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University of Illinois at Chicago School of Law

Cyberspace provides a potent safety net for terrorists as its under-regulated spaces allow for a variety of illegal acts in support of terrorist activities. As traditional sources for terrorist funding have come under increased scrutiny and control, terrorists and other paramilitary organizations have increasingly turned to other illegal avenues for their fund raising activities. While high level crimes, such as drug running and human trafficking, have received increased attention, the threat to global security of such “low level” crimes as digital piracy, phishing and identify theft remain largely ignored. This article explores the growing evidence that “personal” crimes such as digital piracy, counterfeiting, phishing and digital fraud are being used to fund terrorists’ activities. It examines the digital safety net in which these crimes exist, created by a mix of cultural and economic factors that have undervalued the global security threat of these crimes. After comparing current international enforcement efforts, in the United States, the European Union and India, with a focus on cyberfraud and digital piracy laws, this article suggests a multidisciplinary, transborder approach for reducing this safety net and enhancing global security within the context of broader counter-terrorist efforts. Such approach, however, must be a nuanced one to avoid having prosecution of so-called “victimless” or “personal” crimes become new methods for locking up information or violating hard fought individual rights.

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323

Strategies for Securing the Cyber Safety Net

for Terrorists: A Multi-Disciplinary Approach

(Chapter 16) in

TERRORISM AND GLOBAL

INSECURITY: A MULTIDISCIPLINARY PERSPECTIVE (ed.

Klint Alexander)(Linton Atlantic Books, Ltd.)(2009)

*Doris Estelle Long

Abstract

Cyberspace provides a potent safety net for terrorists as its under-regulated spaces

allow for a variety of illegal acts in support of terrorist activities. As traditional sources

for terrorist funding have come under increased scrutiny and control, terrorists and

other paramilitary organizations have increasingly turned to other illegal avenues for

their fund raising activities. While high level crimes, such as drug running and human

trafficking, have received increased attention, the threat to global security of such “low

level” crimes as digital piracy, phishing and identify theft remain largely ignored.

This Article explores the growing evidence that “personal” crimes such as digital

piracy, counterfeiting, phishing and digital fraud are being used to fund terrorists’

activities. It examines the digital safety net in which these crimes exist, created by a mix

of cultural and economic factors that have undervalued the global security threat of

these crimes. After comparing current international enforcement efforts, in the United

States, the European Union and India, with a focus on cyberfraud and digital piracy

laws, this Article suggests a multidisciplinary, transborder approach for reducing this

safety net and enhancing global security within the context of broader counter-terrorist

efforts. Such approach, however, must be a nuanced one to avoid having prosecution

of so-called “victimless” or “personal” crimes become new methods for locking up

information or violating hard fought individual rights.

introduction

Terrorism,1 like globalization, is not a new phenomenon of the 21st Century. Both,

This Article does not attempt to answer the question of which organizations qualify as “terrorist”

groups. The question is problematic. For example, do para military organizations such as the IRA qualify

as terrorists or criminal syndicates? See, e.g., Testimony of Timothy Trainer, Hearing on International/

Global Intellectual Property Theft: Links to Terrorism and Terrorist Organizations, House Committee

*Doris Estelle Long is a Professor of Law and Chair of the Intellectual Property, Information

Technology and Privacy Group at The John Marshall Law School in Chicago.

324

however, have been fundamentally changed with the advent of globalized digital commu-

nications, in particular, the development of the internet2 and its companion communi-

cation technologies, including wi-fi and RFID. The new world of Digital Terrorism is

composed of a wide array of new threats, some of which may well be old terrorism

in new guises. Among the most prominent of the new forms of digital terrorism are

“cyberterrorism—involving threats to infrastructure using the internet as a means of

achieving such goals3—cybernetworking—where terrorist groups use the anonymity

and encryption benefits of the internet to communicate public and private messages

and plans4— and cyberfunding—where the internet serves as a means for raising and

distributing funds for terrorist purposes.5 In the 1999 Rand Study on “Countering The

New Terrorism,”6 the authors recognized (I think correctly) that the internet served

on International Relations, Before the United States House Committee on International Relations(July

16th 2003)[hereinafter “Trainer Testimony”]. For purposes of examining the cyber safety net for

terrorist funding, the issue is largely one of statistical import (which category of illegal actors qualify as

terrorists for purposes of determining funding activities?). These statistical issues do not significantly

impact the analysis of the problem in this Article of the cyber net safety since both “terrorist organi-

zations” and “paramilitary syndicates” are using the cyber safety net to protect their illegal funding

activities. See generally 22 USC § 2656f(d)(defining “terrorism” as “premeditated, politically motivated

violence perpetrated against noncombatant targets by subnational groups or clandestine agents, usually

intended to influence an audience” and defining “terrorist group” as “any group practicing, or that has

significant subgroups that practice, international terrorism” which the act further defines as “terrorism

involving citizens or the territory of more than one country”).

Although common usage continues to use an initial capital latter to describe “the Internet,” such

usage no longer seems appropriate given the internet’s wide spread and long-standing use. Just as “the

Telephone” has become “the telephone,” so too, it is time to recognize that “the Internet” has become an

accepted and longstanding communication form that no longer needs to be treated with the exclamatory

reverence of an initial capital letter. Such special treatment, I believe, has been used in part to relieve

international law of its responsibility to resolve the legal issues surrounding intellectual property and

privacy on the internet. Capital letters subconsciously tell us all that the “Internet” is something new; so

new that we cannot yet be expected to deal with the problems it poses. The time for such complacency,

along with the initial capital letter, is long past.

This would include denial of service attacks, cyber extortion and other net-based attacks. See

generally Dan Verton, Black Ice: The Invisible Threat of Cyber-Terrorism (McGraw Hill 2003); Peter

Grabosky, Russell G. Smith, Gillian Dempsey, Electronic Theft: Unlawful Acquisition in Cyberspace

(Cambridge University Press 2001); Lawrence V. Brown, Cyberterrorismand Computer Attacks

(Novinka Books 2006); James F. Dunnigan, The Next War Zone: Confronting the Global Threat of

Cyberterrorism (Citadel 2003); Lech J. Janczweski & Andrew M. Colarik (eds), Cyberwar And Cyber

Terriorism (IGI Global 2007). .

See Eben Kaplan, Terrorists and the Internet (May 12, 2006)(available at www.cfr.org/

publciations/10005/terrorist_and_the_internet.htm0)(last visited Jnauary 4, 2009); Gabriel Weimann,

Terror Onthe Internet (USIP Press Books 2006); Gabriel Weimann, Special Report No. 116: How Modern

Terrorism Uses the Internet (March 2004)(available at www.usip.org/pubs/specialreports/sr116.html)

(last visited January 4, 2009); Maura Conway, Terrorist Uses of the Internet and Fighting Back (September

2005)(available at http://www.isn.ethz.ch/isn/Digital-Library/Publications/Detail/?ots591=0C54E3B3-

1E9C-BE1E-2C24-A6A8C7060233&lng=en&id=20642)(last visited January 4, 2009).

Id. See also T.G. Winston, The Use of the Internet for Terrorist Purposes: A Discussion of the Intel-

ligence Challenges in Tracking, Tracing, and Investigating Terrorist Fund-Raising and Fund Transfer

Activities via the Internet (available at www.allacademic.com/meta)(last visited May 31, 2007).

Ian O. Lesser, Bruce Hoffman, et al, Countering The New Terrorism (Rand 1999)[hereinafter “Rand

Study”].

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Strategies for Securing the Cyber Safety Net for Terrorists: A Multi-Disciplinary Approach

such a valuable organizational and communicative function for their activities that its

potential destruction by terrorists was exaggerated if not mistaken.7 But simply because

the internet qua internet may not itself be a target of cyberterrorism does not mean that

it cannot be used to advance terrorist aims.

Just as globalization has made every Mom and Pop store a potential global marketer,

the internet has made every local terror group a potential member of a vast global

network.8 The relationships and goals between such members may be vastly different

from prior incarnations. The “members” may no longer have the identical goals or even

perceive themselves to be members of a network or particular terrorist group per se.9 But

as participants in the newly emerging digital terrorist network, they are all beneficiaries

of the enhanced ability to communicate plans, and information much more quickly

and with potentially greater anonymity than ever before. The internet has made even

the most localized terrorist a potentially deadlier threat as he taps into information and

funding sources that were unknown at the end of the last century.10

Aside from potential new methods of terrorism that the internet provides, including

viruses designed to take down even the net itself, the internet also poses new funding

opportunities that are even more difficult to track and eliminate. Fund tracing has

always been a risky effort at best. In the 1990s when Al Qaeda first emerged into global

consciousness, many wrongly believed that its funding was derived primarily from

the individual wealth of Osama Bin Laden.11 It was only over time that these agencies

This does not mean that terrorist organizations will not target certain websites for denial of service

and other disruptive attacks. However, such attacks will be directed toward individual sites and not

bringing down the entire internet infrastructure. This does not mean that such directed attacks do not

present a serious challenge to cyber safety; merely that despite these attacks the cyber safety net will

remain secure unless steps are taken to reduce or eliminate it.

I do not mean to suggest that all terrorist groups are organized into some vast formal network.

To the contrary, current evidence seems to indicate that such wide-ranging hierarchical organizations,

such as were believed to have existed at the end of the Twentieth Century between disparate groups

such as Al Qaeda and Hezbollah, may have been greatly exaggerated. Instead, the current network is

more like a loosely connected group of chat room users who share interests, ideas and information. See

generally Eli Karnon, Coalitions Between Terrorist Organizations: Revolutionaries, Nationalists and

Islamists (Brill 2005). See also Marc Spenser, Understanding Terror Networks (U. Penn. Press 2004);

Richard Rothberg, From Whole Cloth: Making Up the Terrorist Network, Connections (Vol 24, Issue

3)(available at http://www.insna.org/pubs/connections/v24.html )(last visited January 4, 2009); Center

for Defense Information, The Business of Terror: Conceptualizing Terrorist Organizations As Cellular

Businesses (May 23, 2005)(available at www.cdi.org/pdfs/terror-business-model.pdf)(last visited

January 4, 2009); E. Rothstein, Lacking a Center, terrorist networks are hard to find let alone fight, New

York Times (October 20, 2001).

Id.

10.

See, e.g., Rand Study supra note 2 (describing changes in new brand of terrorism at the end

of the 20th Century); Matthew Carr, The infernal Machine: A History of Terrorism (New Press 2007);

Walter Lacqueur, A History of Terrorism (Transaction Publishers 2001): Albert Parry, Terrorism: From

Robespierre to the Weather underground (Dover Publications 2006); Donatella della Porta, Social

Movements, Political Violence and the State: A Comparative Analysis of Italy and Germany (Cambridge

2004).

11.

This belief was so prevalent that the National Commission on Terrorist Attacks upon the

United States, in their report on the 9/11 attacks directly addressed the issue and announced that no

such evidence had been found to support this belief. See National Commission on Terrorist Attacks

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terrorism and global insecurity: a multidisciplinary perspective

gradually began to focus on other sources, including the social and charitable umbrellas

for Hezbollah and other recognized terrorist organizations.12

Just as the earlier focus on personal wealth of acknowledged leaders delayed

the tracking of actual funding through “charitable foundations,” the focus on these

organizations today may well delay action against the new, growing source of terrorist

funds—the internet, and the relatively low tech crimes it supports. Although the

diaspora and private funding of terrorist organizations through front organizations

posing as charitable or service organizations remain significant sources for terrorist

funds,13 law enforcement has become more adept at finding and tracking such funds.14

Yet as traditional sources for terrorist funding have come under increased scrutiny and

control, terrorists have increasingly turned to other illegal avenues for their fund raising

activities, including piracy, phishing and identity theft.

This Article explores the burgeoning role that cyberspace plays in supporting

funding activities that are increasingly being used to support diverse terrorist groups

and activities. It explores the potential for cyberspace to serve as a potent safety net for

terrorists due to its largely unregulated nature. This unregulated nature is only partially

caused by the diaphanous, temporary nature of the net and is instead largely supported

by public and law enforcement indifference which perceives many internet based crimes

as victimless and largely either insignificant or unstoppable. Neither assumption is

correct. To the contrary, given the transborder nature of many of these underground

activities, without a well developed multidisciplinary, international approach, these

“victimless” crimes will continue to develop as part of the underground economy that

supports organized crime and terrorist activities.

In Part I, I provide a brief overview of “low level” digital crimes, including digital

piracy, phishing and identify theft, and examine the growing evidence that such crimes

are increasingly being used to fund terrorist activities. I also explore some of the reasons

why the prosecution of such crimes has remained largely non-existent. In Part II, I

examine some of the current international efforts to combat these low level, victimless

Upon the United States, Monograph on 9/11 and Terrorist Travel 20 – 21 (2004)(available at www.9-11-

commission.gov/staff_statements/index.htm)(last viewed January 4, 2009).

12.

See, e.g. National Commission on Terrorist Attacks Upon the United States, Monogram on

Terrorist Funding (2004)(available at www.9-11commission.gov/staff_statements/index.htm)(last

viewed January 4, 2009)[“hereinafter National Commission on Funding”]; Victor Couras, Al Qaeda

Finances and Funding to Affiliated Groups, Strategic Integrity (Vol. 4, Issue 1)(January 2005); Eben

Kaplan, Tracking Down Terrorist Financing (April 4, 2006)(available at www.cfr.org/publication/10356)

(last visited January 4, 2009); Jeremy Scott-Joynt, US terror fund drive stalls (September 3, 2002)

(available at http://news.bbc.co.uk/1/hi/business/2225967.stm )(last visited January 4, 2009).

13.

See generally Testimony of Ronald K. Noble, Secretary General of INTERPO, “The links between

intellectual property crime and terrorist financing,” Before the United States House Committee on

International Relations (July 16th 2003)[hereinafter “Noble Testimony”]; Kaplan, supra note 13; Elaine

Landau, Osama Bin Laden: A War Against the West (21st Century Books 2002); National Commission

on Funding, supra note 13;

14.

See generally Noble Testimony; Eben Kaplan, Rethinking Terrorist Financing (January 31, 2007)

(available at www.cfr.org/publication/12523/rethinking_terrorist_funding.html)(last visited January 4,

2009).

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Strategies for Securing the Cyber Safety Net for Terrorists: A Multi-Disciplinary Approach

crimes and discuss why such efforts are currently unavailing. In Part III, I propose a

multidisciplinary approach to taking back cyberspace and securing it from becoming

a safety net for terrorists. This requires a nuanced approach, however, to avoid having

prosecution of “victimless” crimes become new methods for locking up information or

violating hard fought individual rights.

cybercrimes and the hidden funding bonanza

The use of criminal activities to fund radical or terrorist activities is not a new devel-

opment. Anarchists of the 19th century robbed banks to obtain funding.15 So too did the

Bader Meinhoff gang of the 20th Century in West Germany.16 Kidnapping has helped

fund various guerrilla movements in Latin America and South East Asia.17 But at least

the crimes of bank robbery and kidnapping are considered significantly wrongful so

that law enforcement will devote substantial resources to investigate and stop such

activities. Current “victimless” crimes in the Digital Era, however, remain low on the

enforcement radar screen and, consequently, are becoming increasingly profitable

sources for terrorist funding.

Perceived as low level, individual impact crimes, with infrequent prosecutions,

and largely non-existent criminal penalties, the “victimless” crimes of digital piracy,18

identity theft19 and phishing20 are becoming cash cows for growing numbers of terrorist

and paramilitary groups. Lax enforcement has created a safety net for terrorist funding

activities, enabled in part by public apathy.

Digital Piracy21—The Secret Cash Cow

The illicit reproduction and sale of copyrighted books, films, albums, and software

15.

See generally Carr, supra note 11; Lacqueur, supra note 11; Parry, supra note 11; Walter Reich and

Walter Lacqueur, Origins of Terrorism: Psychologies, Idealogies, Theologies, States of Mind (Woodrow

Wilson Press Center); Paul Avrich, The Haymarket Tragedy (Princeton U Press 1986); Paul Avrich,

Sacco & Vanzetti (Princeton U Press 1996).

16.

Id. See also Della Porta, supra note 11. Hijacking has also been used in connection with diverse

terrorist activities through the years, with particular prominence in the 1970s.

17.

See texts cited note 16 supra. See also Gerard Chaliand & Arnaud Blin (eds), The History of

Terrorism From Antiquity to Al Queda (U. Cal. Press 2007).

18.

For a definition and further discussion of the nature of digital piracy, see text infra at Part I.A.

19.

For a definition and further discussion of the nature of identity theft, see text infra at Part I.D.

20.

For a definition and further discussion of the nature of phishing, see text infra at Part I.C. While

phishing is a form of identity theft using internet based sources, its unique use of digital technology

makes it worthy of separate consideration because, like digital piracy, it is tainted by the assumption

that illegal conduct on the internet is virtually incapable of control.

21.

Basically, digital piracy is the unauthorized reproduction and distribution of virtual copies of

Rights [hereinafter “Trips”], Art.52, Note 14 (defining “pirated copyright goods” as “any goods which

are copies made without the consent of the right holder or person duly authorized by the right holder

in the country of production and which are made directly or indirectly from an article where making of

that copy would have constituted an infringement of a copyright or related right…”). By contrast, digital

counterfeiting is the unauthorized production and distribution of goods bearing “spurious” or virtually

identical versions of another’s trademark or service mark. See, e.g., 15 USC § 1127 (defining counterfeit

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terrorism and global insecurity: a multidisciplinary perspective

has been a problem since the invention of the printing press in the 14th Century and

the enactment of the first licensing acts for printers.22 With the development of digital

technologies for reproduction (such as reproducing music into digital format for burning

onto CDs), and more specifically for digital distribution (including illegal distribution

of digital downloads of music and motion pictures through peer to peer software23),

piracy rates have skyrocketed. The amount of money lost through such illicit activities is

always difficult to measure. It is even more difficult in the instance of copyright piracy,

where criminals are notoriously poor accountants, and the value of pirated works is

subject to dispute.24 Even in light of these limitations, the amount of lost sales to digital

piracy on a global basis is staggering. According to a recent report on global software

piracy, 35% of all installed software in 2004 was pirated, resulting in over $33 billion

dollars in lost revenue for US industries alone.25 By 2007 global software piracy rates had

grown to 38% with over one half of the studied countries posting a piracy rate of 61% or

higher.26Estimates by the US Department of Commerce place global piracy losses by US

industries at approximately $250 billion in lost sales.27 Even if such figures are halved,

digital piracy poses a potentially lucrative source of virtually untraceable funds.

Part of the appeal of piracy as a source of illicit funds is the growing underground

marks as “spurious” marks). See also TRIPS, Art.52, Note 14(defining “counterfeit trademark goods”

as “goods, including packagings, bearing without authorization a trademark which is identical to the

trademark validly registered in respect of such goods or which cannot be distinguished in its essential

aspects from such a trademark….”) In popular press discussions the two terms are often used inter-

changeably. Both qualify as an intellectual property crime. See TRIPS, Art. 61. See also Noble Testimony,

supra note 14. Moreover, pirated goods are often sold with counterfeit marks, thus intertwining the two

activities even further. Hence, digital pirates are also generally counterfeiters as well.

22.

See, e.g. Mark Rose, Authors and Owners: The Invention of Copyright (Harv. U. Press. 1993).

(discussing the development of the Stationers’ Guilds in England); Carla Hesse, Publishing and Cultural

Politics in Revolutionary Paris, 1789-1810 (Berkeley: UC Press, 1991)(discussing the development of

pirated and scatological works during the Ancien Regime in France).

23.

For some reason, while the piracy of electronic works has occasionally been reported, including

most notoriously pirated copies of Stephen King’s on-line novel Riding the Bullet, widespread piracy of

electronic books remains under analyzed. Piracy of hard copies of books, including textbooks, however,

remains a serious concern. Thus, for example, in 2006, the Association of American Publishers reported

losses from textbook sales in China (excluding digital piracy) of over $52 million. See, e.g, Statement of

Patricia Schroeder, President Association of American Publishers, Testimony before the Subcommittee

on Trade of the House Committee on Ways and Means (February 15, 2007) (available at http://waysand-

means.house.gov/hearings.asp?formmode=printfriendly&id=5457)(last visited January 4, 2009).

24.

At its heart is a dispute over whether the value of the pirated work should be the retail price of the

work, or the price charged for the pirated work, which is always substantially lower. See note 33 infra.

25.

BSA Global Piracy Study for 2004 (available at http://www.bsa.org/globalstudy) (last visited

January 4, 2009).

26.

BSA Global Piracy Study for 2007 (available at http://global.bsa.org/idcglobalstudy2007/

studies/2007_global_piracy_study.pdf)(last visited January 4, 2009).

27.

Bush creates new post to fight global piracy, http://findarticles.com/p/articles/mi_kmafp/

is_200507/ai_n14800278 (July 22, 2005)(last visited January 4, 2009). This figure presumably does not

include lost tax revenues, or lost business and employment opportunities. It also does not include lost

income opportunities for local distributors and manufacturers who might be employed to create and

distribute non-pirated goods. See, e.g., Movie Piracy Costing Cinemas by Box Office Losses, The Jamaica

Observer (July 10, 2005)[hereinafter “Jamaica Movie Piracy”].

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Strategies for Securing the Cyber Safety Net for Terrorists: A Multi-Disciplinary Approach

market in copyrighted works that has mushroomed since the development of easy

reproductive technologies.28 While shoplifting is generally perceived as wrongful, the

purchaseofpiratedandcounterfeitgoodsisoftenromanticized. Piratesareswashbuckling

heroes who sail the seven seas. Jack Sparrow, Blackbeard, Captain Blood. The loss of

life and property caused by real life pirates, including today’s modern equivalents,29 is

often lost in the fictionalized romance of the high seas. Pirates are often portrayed as

modern day freedom fighters, combating the tyranny, bigotry and close mindedness

of traditional society. Thus, for example, in the most recent installment of the highly

successful Pirates of the Caribbean franchise, the “villain” is the governor of the island of

Jamaica and the head of the perceived 18th Century equivalent of today’s film and music

industry—the Dutch East India company.30 Digital pirates have been blessed with the

same romanticized images. YouTube videos are broadcast on network news. Net groups

advocate the illegal file trading in music as a way to wreak “vengeance” on a greedy and

overreaching industry, with no regard to the harm to individual artists the lack of any

royalty may cause.31 When the piracy is occurring in the developing countries additional

“romantic” excuses for such piracy include the poverty of purchasers combined with the

inevitably higher prices of legitimate products.32

28.

See, e.g., Rohan Gunaratna, The Terror Market: Networks and Enforcement in the West, Harvard

International Review, Vol 27/4 (2004); Doris Estelle Long, Practical Tips For Combating The Scourge Of

Global Piracy, Intellectual Property Law Committee Newsletter (Fall 2005)(ABA Section on Torts, Trial

and Insurance).

29.

See Antipiracy Drive in Malacca Straits (July 20, 2004)(available at http://news.bbc.co.uk/2/

hi/asia-pacific/3908821.stm)(last visited January 4, 2009): ICC Commerical Crime Services, Reported

Incidents of Piracy Rise Sharply in 2007 (January 8, 2008)(available at http://www.icc-ccs.org/index.

php?option=com_content&view=article&id=148:reported-piracy-incidents-rise-sharply-in-2007-

&catid=60:news&Itemid=51 )(last visited January 4, 2009).

30.

Pirates of the Caribbean: Deadman’s Chest (Walt Disney 2006).

31.

See, e.g, Katie Hafner, Is it Wrong to Share Your Music?, New York Times (September 18, 2003)

(reporting on diverse views among junior high students regarding their right or intention to continue

downloading illegal music); Laura M. Holson, Studios Moving to Block Piracy of Films Online, New

York Times (September 24, 2003)(reporting on focus group meeting with college and high school

students where participants indicated an intent to continue illegally downloading films regardless of

legal prohibitions). See also Doris Estelle Long, Written Testimony, “Privacy & Piracy: The Paradox

of Illegal File Sharing on Peer-to-Peer Networks and the Impact of Technology on the Entertainment

Industry,” Submitted to the Senate Committee on Governmental Affairs (September 30, 2003),

reprinted in John Marshall Center for Intellectual Property Law News Source (Spring 2004)[Long

Written Testimony]. Interestingly, the use of the term “piracy” to refer to the illegal downloading and

file trading of copyrighted works has been questioned as a term that is inappropriate to the use of

works which do not result in “harm” to the original work. See, e.g., Richard A Posner, The Little Book of

Plagiarism (Pantheon 2007). Given its romantic connotations, I agree, but for entirely different reasons.

Moreover those who claim that illegal copying of copyrighted works is not the equivalent of “theft” or

“shoplifting” because it does not result in “harm” to the original version misperceive the nature of the

act. While Judge Posner in his recent book Plagiarism referred to illegal file trading as “joy riding,” such

“joy riding” undoubtedly causes economic harm not only to the owner of the stolen “car” but to the

people who earn their living from its rental. If unauthorized P2P file trading is similar to joy riding,

then it is the joy riding in the cab of a working cab driver and not the mere inconvenience of borrowing

Mom and Dad’s car without permission.

32.

Such prices are inevitably higher because the pirate never has to advertise the product, promote

the artist of pay any of the costs involving in actually producing the work in question. Where the pirated

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terrorism and global insecurity: a multidisciplinary perspective

In the early part of the 21st century most of the evidence of the use of digital piracy

as a source of terrorist funding was based on largely anecdotal evidence—stories of

evidence secured in raids on terrorist bases, offices or the homes of terrorist members

that consisted of illicit master disks, information on how to raise money through digital

piracy, or stashed of pirated films and software33 In testimony before the Committee of

International Relations, at a hearing on the International/Global Intellectual Property

Theft: Links to Terrorism and Terrorist Organizations in the US House of Representatives,

Timothy Trainer, then-President of the International Anti-Counterfeiting Coalition

(IACC), described numerous instances when private investigators, seeking evidence of

trademark counterfeiting, came across flight manuals in Arabic and bridge construction

documents which were turned over to the FBI for further investigation.34 In 2002 the

BBC reported the seizure in Denmark of counterfeit shampoos, creams and other

consumer goods bound for the UK from Dubai which were ultimately traced to an

Al Qaeda member.35 In 1996 the FBI confiscated 100,000 t-shirts bearing counterfeit

marks and determined that the ring behind the operation was run by Sheik Omar Abdel

Rahman, later sentenced for plotting to bomb various New York City landmarks.36

Aggregation of such scattered anecdotal evidence, however, has gradually led to

a growing recognition that digital piracy increasingly serves as a potent source for

terrorist funding. In July 2003, Interpol Secretary General Ronald K. Noble testified

before the US House Committee on International Relations regarding the link between

terrorism and provided examples of the way in which piracy and counterfeiting have

been used to fund extremist organizations. He warned: “Law enforcement agencies

have to recognize that Intellectual Property Crime is not a victimless crime. Because

of the growing evidence that terrorist groups sometimes fund their activities using the

proceeds, it must be seen as a very serious crime with important implications for public

safety and security.”37 Noble went on to describe the various links between terrorist

product is created through intensive research and development such as software or pharmaceuticals,

pirates of course never have to absorb the costs of such R&D.

33.

See generally Noble Testimony, supra note 14; Trainer Testimony, supra note 2: Eben Kaplan,

Tracking Down Terrorist Financing (April 4, 2006)(available at www.cfr.org/publication/10356)(last

visited January 4, 2009); Reuters, Counterfeit goods are linked to terror groups, International Herald

Tribune (February 2, 2007); Jeffrey Williams, Counterfeiting of Goods: the risks And Links to Terrorist

Funding (available at http://www.osi-philippines.com/articles/counterfeiting-of-goods.html (last

visited January 4, 2009); Testimony of John Stedman, County of Los Angeles, Sheriff ’s Department, Before

the Committee on Homeland Security and Governmental Affairs (May 25, 2005); Susan Rinkunas, The

Hidden Cost of Counterfeit Goods, The Review (February 27, 2007); Chris Stewart, Counterfeit Goods A

Genuine Problem in US? (available at http://www.nam.org/~/media/Files/s_nam/docs/233400/233394.

pdf.ashx)(last visited January 4, 2009); Tony Thompson, Ulster Terror Gangs link up with mafia:

Loyalists and republicans in global counterfeit scams, Observer News (Guardian Newspapers Limited)

at p. 13 (June 15, 2003).

34.

Id.

35.

International Anti-Counterfeiting Coalition, Facts on Fakes (available at http://www.iacc.org/

resources/Facts_on_fakes.pdf )(last visited January 4, 2009).

36.

John Mintz & Douglas Farah, Small Scams Probed for Terror Ties, Washington Post, at A1 (August

23, 2002).

37.

Noble Testimony, supra note 14 at 5.

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Strategies for Securing the Cyber Safety Net for Terrorists: A Multi-Disciplinary Approach

groups and counterfeiting. These included “direct links” where the group is implicated

in the production, distribution and sale of counterfeit goods38 and “indirect” links where

“sympathizers or militants are involved in intellectual property crime and remit some of

the funds, knowingly to terrorist groups via third parties.”39 In fact, the acceptance that

piracy plays a role in terrorist funding has even reached the level of the general public

where articles in 2005 in popular news magazines including Time and US News and

Weekly Report included this link as part of their reporting on terrorist funding.40 The

recent terrorist attacks in Mumbai in December 2008 have revived popular discussions

of the issue.41

Unfortunately the empirical evidence regarding the scope of such funding remains

problematic, much as the scope of other funding sources remains shadowy. Even in the

absence of hard, if slight, evidence that terrorists are beginning to realize what organized

crime realized long ago—there is easy money to be had in piracy, common sense would

indicate that piracy is a highly lucrative source for illicit funding. Given the potentially

high returns on investment, the ease of reproduction in the face of digital reprography,

and the high customer demand, digital piracy has long served as a source for funding,

and money laundering by organized criminal groups.42 It makes sense that terrorist

groups would similarly use such sources, particularly since on a global level copyright

piracy remains under-enforced. In fact, part of its appeal for criminal organizations has

been that such crimes are rarely prosecuted. It is not due to lack of evidence, or lack of

criminal activity. It is largely due to lack of will on the part of law enforcement to spend

enforcement dollars on what is perceived to be an “economic crime” whose only victims

are wealthy intellectual property owners.

When Consumers Are the Enemy

Fueling the lack of enforcement for this emerging source of terrorist funding is the

increasingly entrenched “disconnect” in end users’ minds between physical theft and

the purchase of pirated works. People who would never engage in shoplifting have

no apparent compunction in making and distributing illegal copies of copyrighted

songs, movies and software.43 In fact, as opposed to recognizing that such activities are

38.

According to Noble: “Terrorist organizations with direct involvement include groups who

resemble or behave more like organized criminal groups than traditional terrorist organizations.” Id.

He cited paramilitary groups in Northern Ireland as an example. Id.

39.

Id. Noble cited Hezbollah as a group that fits within this category. He also provided specific

examples of terrorist funding by groups as diverse as the Chechen separatists, Hizbullah, Al-Qaeda,

paramilitary groups in Ireland and North African radical fundamentalists in Europe. Id.

40.

See, e.g., Kate Betts, The Purse Party Blues, Time Magazine (August 2, 2004).

41.

See, e.g., This New Year, Bollywood Stars Protest Against Piracy (December 29, 2008)(available at

http://www.realbollywood.com/news/2008/12/stars-piracy.html)(last visited January 4, 2009).

42.

See generally note 34 and sources cited therein.

43.

See, e.g., Is it Wrong to Share Your Music?, The New York Times (September 18, 2003));. Studios

Moving to Block Piracy of Films Online, the New York Times (September 24, 2003); US is Only Tip of

Pirated Music Iceberg, The New York Times, (September 25, 2003). See also Long Written Testimony

supra note 32.

332

terrorism and global insecurity: a multidisciplinary perspective

unlawful, there appears to be a growing consensus that piracy is almost a right granted

to consumers because the cost of a copyrighted work is so high. A common refrain,

regardless of the region of the world I am in, is that consumers buy pirated works because

the originals are too expensive. The unspoken corollary is that if the price of a work were

lower, piracy would disappear. Unfortunately, no one can agree on what that “cheaper”

price should be. As a result, there is little, if any, demand by local populations for greater

enforcement, and little recognition of the need to prosecute such lucrative crimes.44 This

disconnect has grown even more entrenched with the development of peer to peer (P2P)

software which allows end users to “share” copyrighted files regardless of whether the

posting or distribution of such materials has been authorized by the copyright holder.

From its notorious early days as a web-based distribution system under Napster,45 to

current incarnations of truly end user driven systems such as Morpheus, BitTorrent

and Donkey, peer to peer software has enabled end users to rapidly distribute over the

internet digital files, including files containing copyrighted works. Most P2P software

is distributed without charge to end users, who then communicate directly with one

another to seek and obtain digital files, primarily of copyrighted songs and films. Losses

due to digital piracy on the internet are virtually incalculable given the untraceable nature

of such end user based activities. Current estimates by the Motion Picture Association

of America, for example, place losses due to internet piracy at approximately $2.3 billion

for 2006 alone, which can only be a guess at best. 46

Since much of the copyrighted material is distributed without charge by the users of

a given system, there appears little opportunity for P2P systems to serve as a source of

illicit funds. Such a view, however, may be as narrow and misguided as the early view

that Al Qaida was funded by the personal wealth of Osama Bin Laden. While most P2P

software providers charge no fees for providing their software to end users, they do earn

substantial fees from advertising. Every click on the website to download the software

or provide updated information about software modifications or other news, results in

substantial revenues for the operator of the “free site.” Thus, for example, despite the fact

that Grokster charged no fees for its P2P software, its alleged earnings in 2003 exceeded

$80 million. Such monies were earned from activities that have been deemed potentially

illegal by the Supreme Court of the United States, which recently upheld a suit against

Grokster for contributory copyright infringement based on its offering of P2P software

used primarily for the illegal distribution of pirated music.47

44.

The exception is the local owner who is the authorized dealer of legitimate goods and can trace

business loss directly to lack of enforcement. See, e.g., Jamaica Movie Piracy, supra note 34.

45.

See A&M Records, Inc. v. Napster, Inc., 239 F3d 1004 (9th Cir. 2001). See also Joseph Menn, All

the Rave: The Rise and Fall of Shawn Fanning’s Napster (Crown Business 2003).

46.

See, e.g., MPAA, The Cost of Movie Piracy (2006)(available at http://www.mpaa.org/leksumma-

ryMPA%20revised.pdf)(last visited January 4, 2009); Copy Culture, New York Times C8 (March 28,

2005); Ipoque, P2P Survey 2006 (October 2006)(available at http://www.ipoque.com/userfiles/file/

P2P-Survey-2006.pdf)(last visited January 4, 2009).

47.

See Metro-Goldwyn Mayer Studios, Inc. v. Grokster Ltd, 545 US 913 (2005). AS a result of the

Surpeme Court’s decision, the site has been taken down, ending Grokster’s income stream from the

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Strategies for Securing the Cyber Safety Net for Terrorists: A Multi-Disciplinary Approach

In addition to potential advertising fees, many P2P websites also provide a potentially

more lucrative funding source in the form of stealth advertising programs (often

referred to as “adware” or “gatorware” programs) These programs are often downloaded

simultaneously with the “free” P2P software.48 They place software on the end users

computers that allow the software provider virtually unfettered access. While some

programs are used to place pop-up advertisements on the end users’ screens when s/

he keys in certain phrases, other programs may include spyware that can be used to

support identity theft (providing access to passwords, bank accounts and any other

information the end user may keep on his computer), as well as any number of crimes

based on illicit access to information stored or transmitted over the end user’s computer.

Even licit uses of pop-up advertising programs can be a potent source for funding.

Gator Corporation, a US corporation which is one of the most successful marketers

of this parallel adware software (called “Gator”), downloaded with such well-known

P2P programs as Groskter, and Morpheus reportedly earned $90 million in advertising

related activities in 2003.49 Although there is as yet no direct link to these types of quasi

legal software programs and terrorist funding activities, it is only a matter of time before

front organizations begin to utilize the global legal loopholes governing such activities

to increase their coffers.

Blogs regarding a recent seizure of counterfeit goods illustrates the potential public

relations issues law enforcement faces when it seeks to spend limited enforcement dollars

on controlling counterfeiting. According to posted reports on the Los Angeles Police

Department blog the Los Angeles police, conducting a two day raid on a swap meet and

a street market, seized $18.4 million worth of counterfeit designer brand merchandise,

including handbags, clothes, sunglasses, shoes and wallets.50 Even though one of the

citizen bloggers mentioned the possible support of terrorism in the discussion board,

others questioned the importance of spending any money on counterfeiting, stating:

“This is a perfect example of the LAPD’s wrong-headed thinking. Knockoff handbags

and sunglasses aren’t a threat to public safety; there are civil remedies to deal with this

problem.” 51 Another blogger insisted that those who were buying the counterfeit goods

were actually supporting American jobs: “[I]f you’re worried about lost jobs, then why

are you supporting designer goods? Gucci, Prada and other designer leather goods are

site. See www.grokster.com.

48.

See, e.g., Thomas Mennecke, Grokster Goes From Bad to Worse (December 16, 2004)(available at

http://www.slyck.com/story607_Grokster_Goes_From_Bad_to_Worse)(last visited January 4, 2009).

49.

See, e.g., Guess What?- You Asked For Those Pop-Up Ads (June 28, 2004)(available at http://www.

businessweek.com/magazine/content/04_26/b3889095_mz063.htm)(last visited January 4, 2009).

Gator Corporation is now Claria Corporation, and ceased distributing the Gator pop up advertising

software in late 2006. Present spyware and adware programs include INF/Autorun, Virtumonde, and

Toolbar.MyWebSearch.

50.

The designer goods in question were generally Tiffany, Louis Vuitton, Prada, Coach, Bebe,

Oakley and Gucci. Police Seized Counterfeit Merchandise (May 31, 2006)(available at http://lapdblog.

typepad.com/lapd_blog/2006/05/police_seized_c.html )(last visited Januaary 4, 2009).

51.

Id.

334

terrorism and global insecurity: a multidisciplinary perspective

all made in Pakistan and China. The knockoffs are made here in the USA… in fact

knockoffs are seized in customs, so that’s how you know they have to be made here in

the US.”52

Phishing,53

Identity Theft54

and other “Low Impact” Crimes

Similar to digital piracy, identity theft and phishing have also proven to be terrorist

funding bonanzas, largely for the same reasons that piracy has proven so lucrative.55

Like digital pirates, successful identity thieves do not need a great deal of technological

expertise to succeed. In fact, given the largely unregulated nature of cyberspace on a

global basis, identity theft has become big business as foreign criminals use spyware

and other stealth programs to obtain personal identifying information from unsus-

pecting end users. This information is then sold to criminals who actually engage in

the fraudulent use of the identities, or terrorist cells who use such fake identities to hide

otherwise damaging purchase trails. Thus, the first cell to attack the World Trade Center

in New York City in 1995 used fake identities to purchase the fertilizer used to make the

explosives in the vans that damaged the towers.56 Similarly, the terrorists identified as

being involved in the attacks of September 11, 2001, had opened 14 bank accounts using

several different names, all of which were fake or stolen.57 According to Dennis Lormel,

Chief of the Terrorist Financial Review Group at the Federal Bureau of Investigation,

the 2002 bombings in Bali nightclubs was partially financed through on-line credit card

fraud.58 Imam Samudra who was convicted of organizing the bombings later wrote a

book in which he included a chapter with instructions on how to commit credit card

52.

Id.

53.

Phishing is generally defined as using spam, shadow websites and other internet or digital based

methods for enticing consumers to disclose personal identifying information, often financial in nature,

that is then used for illegal or fraudulent purposes.

54.

Identity theft is generally defined as using stolen or fraudulently obtained personal identifying

information, often financial in nature, in order to obtain funds and other benefits. Phishing is a type

of identity theft which uses digital media as the almost exclusive method for obtaining the personal

identifying information in question.

55.

I do not mean to suggest that digital piracy, identity theft and phishing are the only sources of

terrorist funding using the internet. To the contrary, the use of threatened denial of service attacks as

a form of internet blackmail has been well-documented as a lucrative source of illicit funds, some of

which may be practiced by more technologically sufficient terrorist cells and organizations. I do not

mean to denigrate the importance of such crimes. Yet generally, these types of crimes have already

attracted the attention of law enforcement. By contrast, the “victimless” crimes I am discussing remain

largely under acknowledged and/or underenforced.

56.

Brian Koerner, Terrorist Groups Relying on Identity Theft for Funding and Operations,(available at

http://idtheft.about.com/od/useofstolenidentity/p/IDTheftTerror.htm)(last visited December 5, 2008);

See also Bob Sullivan, 9/11 Report Light on ID Theft Issues, msnbc.com (August 4, 2004)(available at

http://www.msnbc.msn.com/id/5594385)((last visited January 4, 2009);

57.

Id.

58.

Testimony of Dennis Lormel, Chief, Terrorist Financial Review Group, Federal Bureau of

Information, before the Senate Judiciary Committee, Subcommittee on Technology, Terrorism and

Government Information Hearing on S 2541, “The Identity Theft Penalty Enhancement Act ( July 9,

2002)[hereinafter “Lormel Testimony”].

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Strategies for Securing the Cyber Safety Net for Terrorists: A Multi-Disciplinary Approach

fraud. 59 More recently, US and British investigators revealed a funding trail in which

three British terrorists use stolen credit cards to set up a network of communication

forums and websites that hosted computer hacking and bomb making tutorials as well

as videos of beheadings and suicide bombings in Iraq.60

Like the estimates of the losses caused by piracy, estimates based on identity theft

are problematic to say the least. Yet even examining such figures with a healthy dose

of skepticism leads to the undeniable conclusion that unchecked identity theft remains

one of the most potent sources of economic losses today for the average consumer, and

for the financial institutions that are held liable for such losses. According to the US

Postal Service, losses in 2006 due to identity theft in the United States alone equaled

more than $5billion.61 This figure does not even include victims’ lost time in trying to

correct the financial ruin left behind of their personal financial reputations and credit

histories. In October 2004, a year-long investigation by the US. Secret Service revealed

a group who created an online hub for identity thieves to buy and sell stolen identity

information and stolen credit and debit card numbers. The website, shadowcrew.com,

also provided information about how to hack into computers and make fraudulent

identity documents. Police estimated that the group, composed of 27 US and foreign

members trafficked in at least 1.5 million stolen cards with estimated victim losses in

excess of $40 million. 62

Evidence of terrorist use of identity theft as a funding source, like piracy, is largely

anecdotal, but inescapable.63 A recent study on the relationship between identity theft

and terrorism conducted by the Michigan State University Identity Theft, Crime and

Research Lab indicates that 5% of all identity thieves in the US are connected to terrorism

and 2% were specifically linked to al Qaida.64 .

Phishing, is a new technological version of identity theft which has gained increasing

prominence, both as a source of illegal earnings and as a potential terrorist treasure

house. Phishing has been generally defined as “a method of identity theft that uses fake

emails and bogus websites to entice unwary consumers to disclose financial information.

This data is captured and used in financial fraud.” 65 Generally the target of a phishing

59.

Id.

60.

Brian Krebs, Three Worked the Web to Help Terrorists, Washington Post (July 6, 2007)(available

at http://www.washingtonpost.com/wp-dyn/content/article/2007/07/05/AR2007070501945_pf.html )

(last visited January 4, 2009). See also Fundraising for Terrorism: Does Phishing Finance Terrorist?,

60-Second Window (July 8, 2007)(available at http://www.60-seconds.com/2007/07/fundraising_for_

terrorism.html)(last visited January 4, 2009).

61.

Identity Theft Losses in the United States (2006)(available at www.usps.com/postalinspectors/

idthft_ncpw.htm)(last visited January 4, 2009).

62.

Statement of Laura Parsky, Deputy Assistant Attorney General , US House of Representatives,

Committee on the Judiciary, Subcommittee on Crime, Terrorism and Homeland Security, Legislative

Hearing on HR 5318, The Cybersecurity Enhancement and Consumer Date Protection Act of 2006.

63.

See notes 5, 57, 59 & 61 supra.

64.

See note 57 supra.

65.

The Guerrilla Bazaar: Lessons from Phishing Networks (November 15, 2005)(available at

http://globalguerrillas.typepad.com/globalguerrillas/2005/11/global_guerrill.html)(last visited January

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terrorism and global insecurity: a multidisciplinary perspective

scheme receives a fraudulent email that directs the recipient to a website where they

are requested to provide sensitive personal information (social security numbers,

credit card and bank account numbers, passwords etc). While bogus websites generally

purport to be from banks and other lawful companies, recent schemes have included

claims that the information is being sought by a government agency to assist in the fight

against terrorism.66 With the increased anonymity of the internet, the general inability

to effectively combat spam through filtering technologies, and the increased ability to

create websites that mirror legitimate websites in appearance, phishing is rapidly being

acknowledged as a lucrative funding source for terrorists.67 Furthermore, because of the

generally decentralized self-organization of phishing networks, they make the detection

of such networks, and the ability to trace them back to the ultimate beneficiaries of the

funding efforts, difficult, if not impossible, to trace.68 Worse, they have proven readily

adaptable, altering their approaches to take advantage of the latest information on

corporate vulnerabilities and others’ successful exploits.69

Despite the growing recognition, even in the trade press, of the use of identity theft,

including phishing, by terrorist organizations as a funding methodology, laws governing

such crimes remain a patchwork at best. Even in the United States, prosecution for

identity theft per se remains limited. No single law governs the crime of identity theft.70

Instead, such theft is governed by a panoply of state and federal laws, including fraud

and consumer deception.71 Similarly, the investigation of identity theft is left in the hands

5, 2009)[hereinafter “Guerilla Bazaar”].

66.

See, e.g., Statement from Wayne A Abernathy, Assistant Secretary of the Treasury from Financial

Institutions, Warning About Recent Fraudulent E-Mail Schemes (January 30, 2004)(available at http://

www.treas.gov/press/releases/js1130.htm)(last viewed January 5, 2009).

67.

See text notes 62 & 63 supra. See also Jeremy Simon, The Credit Card Terrorism Connection:

How Terrorists Use Cards for Everyday Needs and to Fund Operations, creditcards.com (May 15, 2008)

(available at http://www.creditcards.com/credit-card-news/credit-cards-terrorism-1282.php)(last

visited January 5, 2009); Tomer Ben Air & Ron Ryan, Terror Spam and Phishing (August 17, 2007)

(available at http://www.crime-research.org/articles/Terror-Spam-and-Phishing)(last visited January 5,

2009).

68.

See Guerilla Bazaar supra note 66.

69.

Id.

70.

Diverse federal statutes currently deal with some aspect of identity theft, including Section 1028 of

Title 18, directed toward the knowing transfer, possession, use or production of stolen or false “identifi-

cation documents” or “authentication features,” which includes non-governmental issued identification

means, so long as they are “intended or commonly accepted for the purposes of identification of an

individual…” 18 USC §1028(d)(4). The statute was amended in 2000 specifically to prohibit electronic

transfers of such false documents or document making facilities. See Internet False Identification Act

of 2000, codified at 18 USC 1028 (a)(1)&(2). Efforts to enact a federal law governing phishing remain

ongoing. Most recently, SR 2661 was introduced in February 2008. Referred to as the Anti-Phishing

Consumer Protection Act of 2008, SR2661 would establish jurisdiction for bringing federal suits for

phishing in the Federal Trade Commission and would also authorize state authorities to bring local

civil suits as well. It is too soon to tell whether the bill will ultimately be enacted, or what its final terms

will be.

71.

Thus, for example, the thief may be prosecuted for misrepresenting himself to his financial victims

under state criminal fraud statutes. Such prosecutions generally would not be based on the illegal acts

undertaken to assume the stolen identity, but on the use or attempted use of the identity in question.

337

Strategies for Securing the Cyber Safety Net for Terrorists: A Multi-Disciplinary Approach

of state and local police who generally prefer to spend their resources investigating and

prosecuting economic crimes of a perceived greater magnitude, such as burglaries and

bank robberies. Like piracy, identity theft is perceived to be an economic nuisance for

credit card companies and others who extend credit based on the false information.

Until recently, it was generally perceived as being a relatively low impact crime whose

victims bore part of the blame for their own victimization. While phishing enterprises

may earn large amounts of money with relatively little capital,72 the loss per victim

remains relatively small. Unlike digital piracy, however, the simple nuisance impact of

phishing, particularly since it is tied to spam, may explain recent increasing attention by

law enforcement, at least in the form of greater efforts to provide the legal infrastructure

necessary to begin to combat the problem.73

ii.

fixing the legal void

The internet, by its very nature, is an international communication medium. Yet the

identified problems of digital piracy and identity theft remain largely unaffected by

international treaty regimes. The premiere agreement on the international enforcement

of intellectual property rights—the Agreement on Trade Related Aspects of Intellectual

Property Rights (TRIPS)—was created at a time when the internet was largely perceived

as a pure communications medium. Thus, despite its lengthy provisions regarding the

“effective enforcement” of intellectual property rights, including “fair and equitable”

procedures which all signatories must apply,74 TRIPS did not directly address the

problems of enforcing intellectual property rights on the internet. While Article 61

requires that signatories prosecute willful copyright violations (piracy) with “effective”

laws that include criminal penalties which are deterrent,75 the reality is that even those

countries who are signatories to TRIPS provide relatively slight penalties for even hard

goods piracy. Even those penalties are infrequently applied so that piracy becomes a

“safe” harbor for illegal fund raising. 76 Moreover, while the WIPO Copyright Treaty

requires that technological protection measures (“TPMs”) applied by copyright owners

be protected under a legal framework that allows for both civil and criminal penalties

72.

According to a report issued by Garnter Inc in 2007 alone approximately 3,500,000 computer

users were victims of phishing with aggregate losses totaling approximately $3.2 billion. See Gartner

Survey Shows Phishing Attacks Escalated in 2007 (December 17, 2002)(available at http://www.gartner.

com/it/page.jsp?id=565125)(last visited January 4, 2009). This study was relied as part of the impetus

for the present attempt to enact a federal law designed to attack the problem of phishing directly. See

The Anti-Phishing Consumer Protection Act of 2008, SR2661, Section 2(4).

73.

While no federal statute directed specifically to phishing has been enacted as of the writing of this

article, numerous states have begun to enact local statutes to fill the gap. For a survey of the most recent

state statutes, see National Conference of State Legislatures. 2007 State Legislation Relating to Phishing

(available at http://www.ncsl.org/programs/lis/phishing07.htm)(last visited January 4, 2009).

74.

Trips, Art. 41.

75.

Trips, Art. 61.

76.

See Special 301 Reports for diverse years (available at www.ustr.gov)(last visited January 4, 2009)

(detailing the lack of effective enforcement of copyright laws in diverse countries).

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terrorism and global insecurity: a multidisciplinary perspective

for those who violate such TPMs,77 the treaty itself has only attracted 68 signatories to

date.78

If piracy at least has a potential international legal framework on which a harmonized

standard of enforcement might be achieved, phishing and identity theft are completely

lacking in any such international standard. No international treaty even provides the

framework for combating such crimes. Instead, we are left with a patchwork of domestic

laws which have been adopted by relatively few countries.79

The United States

Because of the perceived greater impact that counterfeiting and piracy have on US

industries—including its music, film and software industries, the United States has

strong civil and criminal federal laws prohibiting hard goods and digital piracy.80 Recent

efforts by the US to strengthen its enforcement efforts include the adoption of new

governmental methods to combat piracy and counterfeiting through such interagency

efforts as STOP, which includes increased coordination between Customs and police to

stop illegal goods at the border and the creation of an “Intellectual Property Enforcement

Coordinator” serving in the Executive Branch who will head a multiagency strategic task

force with regard to both domestic and international intellectual property enforcement

issues.81 These efforts are largely directed to the hard goods world.82 While the laws

are in place, federal prosecution of piracy has been relatively sporadic. DOJ website

review of cybercrimes prosecuted by US attorneys indicate relatively few piracy cases

are brought and those usually involve additional crimes such as pornography which has

gained the DOJ’s attention.83

77.

WIPO Copyright Treaty, Art. 12.

78.

The efficacy of TPMs as protective devices for combating digital piracy remains doubtful. See,

e.g., Doris Estelle Long, Is a Global Solution Possible to the Technology/Privacy Conundrum,?, 4.

Marshall Rev. Intell. Prop. L. 6 (2005)

79.

I chose US, India and the United Kingdom for comparison purposes because (1) they are English

speaking countries for whom access to materials is easier; (2) they have a level of technological devel-

opment that makes phishing and digital piracy relatively potentially accessible crimes, and (3) all three

countries have faced terrorism and should therefore be considered more sensitive or at least interested

in discovering and stopping funding of terrorist activities.

80.

See, e.g., 18 USC §2319 (providing strong criminal penalties for copyright piracy without

requiring commercial advantage or financial gain); §2319A(providing strong criminal penalties for

creating, reproducing or transmitting bootleg recordings);§2319B(providing criminal penalties for

unauthorized reproduction of audiovisual works being performed in a motion picture exhibition

facility) & §2320 (providing strong criminal penalties for trademark counterfeiting).

81.

See PRO IP Act of 2008, Section 301.

82.

While the responsibilities of the new Intellectual Property Enforcement Coordinator is not

limited to the hard goods world, given the agencies involved in the multi-agency task force, including

those of the Food and Drug Administration, the Department of Agriculture and the US Trade Repre-

sentative, it appears that most efforts will be directed toward the problems of hard goods protection, at

least initially. See PRO IP Act of 2008, Section 301(3).

83.

See generally www.usdoj.gov/criminal/cybercrime/reporting.htm (last visited January 4, 2009).

See also www.stopfakes.gov (last visited January 5, 2009). With the increased attention paid to piracy

and counterfeiting as demonstrated by the recently enacted PRO IP Act of 2008, see notes 82 – 83 supra,

it is likely that federal prosecutions for piracy will increase in the future.

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Strategies for Securing the Cyber Safety Net for Terrorists: A Multi-Disciplinary Approach

By contrast, there is currently no federal law which punishes phishing, per se,84

although the federal Can Spam Act can be used to attack the fraudulent spam that lies

at the heart of most phishing schemes.85 In addition, federal trademark law has been

used successfully to challenge spam on the grounds of its failure to adequately disclose

the source of the email in question. Thus, in the use of a false return email address by an

email “spam” operation qualified as a false designation of origin and dilution of Hotmail’s

trademark.86 Most identity theft, however, is prosecuted at the state level so that state

criminal statutes against fraud may be applied and are usually based on individual filed

complaints. Unfortunately, prosecutions remain infrequent. Post 9/11, however, federal

laws concerning the knowing possession, use or transfer of false federal identification

documentation, including social security numbers, in various illegal and fraudulent

schemes, including wire transfers, have been enacted which provide for substantial

criminal penalties. For example, under the Identity Theft Enhancement Act of 2004

penalties for the use of such illegal documentation were enhanced in connection with

a broad panoply of federal crimes, including the use of false documentation to commit

state felonies.87 Under the Identity Theft and Assumption Deterrence Act, knowing

transfer or use of a means of identification of another person with the intent to commit,

or aid or abet any unlawful activity that constitutes a violation of federal law…includes

obtaining anything of value totaling $1,000 or more during a one year time period.88

Strong penalties include potential prison terms up to 15 years, and, if committed to

facilitate an action of international terrorism, up to 25 years.89

The European Union

There is currently no European Union Directive or regulation regarding criminal piracy

enforcement even though piracy remains a concern throughout much of the EU. While

the EU has recently enacted an IP Enforcement Directive establishing civil procedures

for the prosecution of intellectual property infringements, including those involving

address the critical problem of criminal piracy enforcement. Efforts to create any Union

84.

See note 71 supra. While there is no federal phishing statute, several states have recently enacted

laws directed specifically to the problem of phishing. See generally National Conference of State Legis-

latures. 2007 State Legislation Relating to Phishing (available at http://www.ncsl.org/programs/lis/

phishing07.htm)(last visited January 4, 2009).

85. Can Spam Act, 15 USC §§7701 – 7713 & 18 USC §1037.

86. Hot Mail Corp. v. Vans Money Pie Inc.), 47 U.S.P.Q. 2d 1020 (N.D.Cal. 1998). See also America

Online, Inc. v. IMS, (E.D.Va. 1998) (improper spam mailing held to tarnish plaintiff ’s mark because of

use of “aol.com” on the header led to 50,000 subscribers’ complaints)(available at http://legal.web.aol.

com/decisions/dljunk/imsopin.html)(last visited January 5, 2009). Spam can also be challenged under

various state statutes, see e.g., Cal. Bus & Prof. Code § 17538.4. See also Can Spam Act, supra note 86.

87. 18 USC §1028.

88.

Id.

89.

Id.

90.

EU Directive on measures and procedures to ensure enforcement of intellectual property rights,

2004 OJC 63 (February16, 2004)(available at http://eu.europa.org)(last visited January 5, 2009).

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terrorism and global insecurity: a multidisciplinary perspective

wide directive on criminal IPR enforcement remain problematic.91

There is also no current European Union directive or regulation which expressly

addresses identity theft or phishing.92 There are, however, several directives and

regulations that have proven helpful in combating identity theft, based on consumer

protection concerns. Thus, for example, the Consumer Protection Cooperation

Regulation establishes a useful model for the sharing of information and enforcement

efforts to combat “intra-Community infringement.”93 The Regulation defines covered

infringements as “any act or omission contrary to the law that protect consumers’

interests” when the act or omission, the seller or supplier, or “evidence of assets

pertaining to the act or commission” are found in more than one Member State.94 An

Appendix which is periodically updated lists the relevant consumer protection statutes

which are covered by the Cooperation Regulation. These directives cover such diverse

subjects as misleading advertising, unfair terms in consumer contracts, e-commerce and

the distance marketing of consumer financial services. Unfortunately this cooperation

directive is limited to cooperation among EU member countries.95

The United Kingdom

In 2006 the UK enacted The Fraud Act of 2006, which entered into force on January

15, 2007.96 The Act was specifically designed to provide the tools necessary to combat

phishing. Itcovers diverse types of criminal fraud, including fraudby false representation,

by failing to disclose information, and by abuse of position.97 Section 2, dealing with

fraud by false representation, specifically provides “a representation may be regarded

as made if it (or anything implying it) is submitted in any form to any system or device

designed to receive, convey or respond to communications (with or without human

intervention).”98 It is too soon to tell whether the new act will be strongly enforced or

will lead to a reduction in phishing activities but it may serve as a model for other EU

91.

Report on the amended proposal for a directive of the European Parliament and of the

Council on criminal measures aimed at ensuring the enforcement of intellectualproperty rights

(March 3, 2007) (available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//

NONSGML+REPORT+A6-2007-0073+0+DOC+PDF+V0//EN)(last visited January 5, 2009).

92.

The European Commission has established a working group and is currently working on

proposed draft directives to deal with both identity theft and phishing. As of the date of this Article, no

draft laws have yet been publicly circulated. See Tim Ferguson, The EU Wages War on Cybercrime (May

24, 2007)(available at http://news.cnet.com/EU-wages-war-on-cybercrime/2100-7348_3-6186464.

html?tag=nw.1)(last visited January 5, 2009); Nicole van der Meulen, The Spread of Identity Theft:

Developments and Initiatives within the European Union (May 2007)(available at http://policechief-

magazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=1190&issue_id=52007)(last

visited January 5, 2009).

93.

Consumer Protection Cooperation Regulation, Art.3(b)(available at http://eur-lex.europa.eu/

LexUriServ/LexUriServ.do?uri=CELEX:32004R2006:EN:NOT (last visited January 5, 2009).

94.

Id.

95.

Id.

96.

The UK Fraud Act of 2006 reprinted in Blackwell’s Statutes (Oxford University Press 2007).

97.

See Fraud Act 2006 at Sections 1-3.

98.

Id at Section 2(5).

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Strategies for Securing the Cyber Safety Net for Terrorists: A Multi-Disciplinary Approach

and/or common law countries.

India

India has consistently been cited for failing to have strong IPR enforcement efforts

against pirated and counterfeit goods. Although it has recently revised its copyright

laws to provide for longer potential terms of imprisonment in the face of a piracy

conviction,99 enforcement efforts remain woefully inadequate. Such inadequacy includes

a failure to protect the works of local film producers, despite the undeniable economic

impact on “Bollywood” of such failures. In discussions with directors and producers of

Telagu films during a recent trip to India, I was advised that the lack of adequate sales

through legitimate marketing channels has slowly reduced the number of films being

produced. The reasons given for inadequate enforcement include the same issues that

are generally raised: lack of funds, lack of training, too many other crimes to police;

and, occasionally, lack of consumer harm because they can get goods more cheaply than

through the legitimate goods market.

As internet penetration has increased in India so too has the use of the internet in

identity theft activities. In 2005, despite the absence of any nation-wide or province-

wide laws directed specifically to phishing the Delhi High Court upheld a civil judgment

against a phishing network based on fraud and misrepresentation. The decision

in National Association of Software and Services Companies v Ajay Sood & Others

was heralded as a significant achievement. In the case, defendants were purportedly

operating a job placement service and used spam in NASSCOM’s name to elicit personal

information for fraudulent purposes. Ultimately the defendants settled the case by

admitting liability and paying damages of Rs 1.6 million (approximately $35,556) to the

plaintiffs.100 While the case has been touted as a victory in the fight against spam and

phishing in India,101 and clearly held that use of another’s name to secure information

was illegal, its reasoning was based on passing off and source confusion analysis and

not on the illegality per se of obtaining or using falsely obtained information.102 It is

not clear to what extent other courts may consider themselves bound by the Delhi

High Court or may follow its willingness to find phishing illegal despite the absence

of specific legislation. Efforts to update India’s 2000 Information and Technology Act

99.

India Copyright Statute, Art. 63A (available at http://copyright.gov.in/cpract.doc )(last visited

January 5, 2009).

100.

National Association of Software and Services Companies v. Sood (available at cybercrimes.

blogspot.com/2007/02/nascom_sood.htm)(last visited May 31, 2007). See also Talwant Singh, Cyberlaw

and Information Technology (2007)(discussing the NASCOM v. Sood decision)(available at http://

delhicourts.nic.in/CYBER%20LAW.pdf)(last visited January 5, 2009).

101.

See, e.g. Dijeet Titus & Sumit Roy, Phising on the Net (available at Asialaw.com)(last visited

December 30, 2008).

102.

This reliance on trademark based principles to combat spam has also been used successfully in

the United States. See, e.g., American On Line v. IMS, supra note 87. Such source confusion principles

are useful in challenging the spam used in phishing schemes and should be applicable to shadow sites

created in furtherance of such schemes. They do not however reach the harm caused to those whose

identities have been used without their knowledge or consent.

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terrorism and global insecurity: a multidisciplinary perspective

continue with the hopes of improving the legal infrastructure for phishing prosecutions.

Yet the most recent amendments to Section 66 (involving computer related offenses) do

not appear to cover acts relating to misrepresentation, which is at the core of the Delhi’s

courts decision.

The Information and Technology Act of 2000 prohibits diverse computer related

activity, including tampering with computer source code, 103 hacking,104 and the

electronic publication or transmission of obscene materials.105 It provides for criminal

penalties, including “confiscation of the computers, computer system, floppies, compact

disks, tape drivers or any other accessories related thereto, in respect of which any

provision of this Act, rules, orders or regulations made there under has been or is

being contravened.”106 The Act does not expressly reach spam, unauthorized computer

systems intrusions, shadow websites, or even fraudulent activity using computers or

computer systems. Amendments to the Act were passed by the Parliament in its last

session in December 2008. Included among the amended passages is a new Section

66C which provides criminal penalties against anyone who “ fraudulently or dishonestly

make[s] use of the electronic signature, password or any other unique identification

feature of any other person..”107 Section 66C provides criminal penalties for “cheating by

personation” “by means of any communication device or computer resource.”108 These

amendments should provide the necessary statutory basis for identity theft prosecutions

that were previously lacking in the 2000 Act.

Most phishing activities in India currently involve fraud involving Indian and

multinational banks. Like other countries, the figures on phishing are increasing in

India. Figures released by Computer Emergency Response Team indicated an increase

from 86 incidents in 2005 to 200 incidents in 2006. Moreover, the attacks are not all

launched in India. To the contrary, most phishing attacks were launched from other

countries. 109 Given the new provisions that provide a statutory basis for identity theft

and phishing challenges,110 the 2000 Information and Technology Act has the potential

to reach these activities so long as the impacted computer is located within India. Section

1(1) of the Act provides: “It [the Act] shall extend to the whole of India and, save as

103.

The Information and Technology Act of 2000, Art. 65 (available at http://www.naavi.org/impor-

tantlaws/itbill2000)(last visited January 5, 2009).

104.

Id at Art. 66

105.

Id. at Art.67. It also contains provisions that protect digital signatures and other trust systems.

106.

Id. at Art. 74.

107.

The Information and Technology Act of 2000, as Amended in December 2008, Section 66C

(available at http://www.naavi.org/ita_2008/index.htm)(last visited January 5, 2009).

108.

Id. at Section 66D. The amendments were extensive and included a newly defined crime of

“cyberterrorims,” id. at Section 66F, as well as new provisions granting the government enhanced

right to intercept, monitor and decrypt “any information transmitted received or stored through any

computer resource.” Id. at Section 69.

109.

Phishing in People’s Accounts, www.cbncwatch.com (last visited December 30, 2008)). See also

Phishing Incidents in India Grow By 180% (May 2, 2007)(available at http://www.spamfighter.com/

News-7677-Phishing-Incidents-in-India-Grow-By-180.htm)(last visited January 5, 2009).

110.

See notes 108 & 109 supra.

343

Strategies for Securing the Cyber Safety Net for Terrorists: A Multi-Disciplinary Approach

otherwise provided in this Act, it applies also to any offence or contravention hereunder

committed outside India by any person.”111 It was not altered or amended.

iii.

ucing

the

saf

disciplinary approach

Pirate and phishing networks are international in nature and fact. Spam activity remains

largely unregulated around the globe, as does the sale of personal identifying information

for use in identity theft schemes. While the United States, the UK and India all evince

varying levels of conscious enforcement against such illegal activity, they are by far in

the minority. Most countries either lack the necessary legal structure to criminalize (or

at least prohibit) piracy and identity theft, including phishing, or lack the willpower

to dedicate funds to combating such problems. It is no surprise to discover that most

reported prosecutions in London and the US involving phishing networks found perpe-

trators located beyond their borders, in countries where phishing is unregulated.

To reduce the cyber safety net for terrorist funding activities a multidisciplinary,

transborder approach should be developed directed to these “victimless” and “low

impact” crimes. This approach requires more than simple transborder cooperation, It

requires a new international approach to the treatment of digital piracy, phishing and

identity theft prosecutions.

As a first step, greater empirical data is needed to demonstrate the link between

terrorist funding and the perceived low priority crimes of digital piracy and identity

theft. Such data would not only support stronger governmental intervention, it would

help raise public awareness of the need for such intervention. Enforcement cannot end

on seizure of counterfeit goods or the take down of a spooked website. Instead, efforts

must be made to trace the funds and the operators of the affected websites. Such efforts

will not only provide the necessary evidentiary support of the relationship between

these “low impact” crimes and terrorist funding, they will help dry up such funding

Public education programs must be designed to take away the glamour of piracy.

This does not mean that the terrorist link becomes the latest unproven tag line to

change social conduct regarding piracy and identity theft. Telling consumers that the

counterfeit purse they are buying funds terrorist activities does not help alter public

conduct without the hard facts to support such claims. Those hard facts must go beyond

a few anecdotes or the old adage of “crying wolf” will become a sad reality. In addition to

educating the public about the link between these crimes and terrorist funding, public

programs must also make consumers aware of the dangers of piracy and identity theft,112

as well as the steps they need to take to protect themselves.

111.

The Information and Technology Act of 2000, as Amended in December 2008, Section 1(1)

(available at http://www.naavi.org/ita_2008/index.htm)(last visited January 5, 2009).

112.

Too often pirated goods lack the quality control or security of legitimate products. Thus, pirated

software may contain viruses, while counterfeit goods often contain contaminated and sometimes

physically harmful ingredients.

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terrorism and global insecurity: a multidisciplinary perspective

Enforcement activities directed to the tracing and securing of funding obtained

from piracy and identity theft must be put on the security agenda, so that money and

will power are directed to their successful prosecution. This requires capacity building

directed toward creating the necessary infrastructure to support such activities. The

legal infrastructure, including model laws and international treaties governing identity

theft, must be created. While individual domestic efforts such as those discussed in this

Article are important, unless an international enforcement platform is created, terrorists

will be able to continue to use the cyber safety net by simply moving their criminal

activities to a home base that lacks the necessary infrastructure to stop them.

In addition to model laws prohibiting identity theft and phishing, stricter penalties for

piracy and counterfeiting are needed internationally to assure that prosecutions result in

effective deterrence. Evidentiary rules must be developed internationally that will allow

both the seizure of computer evidence as well as the use of computer forensic evidence

in prosecutions. A mechanism for providing funding and appropriate personnel must

be developed to assist in the training of enforcement personnel, not just in techniques

of investigation and prosecution, but also in the significance of the crimes at issue to

the overall goal of reducing sources for terrorist funding. Since the digital environment

is constantly changing in response to technological advances, law enforcement must

develop new information-sharing models to allow them to stay ahead of the technology

curve in this area. The information nets that permit hackers and others to share the

latest methods for breaking encryption codes (for example) must be equaled for law

enforcement or the technological arms race behind these crimes will be lost regardless

of the legal infrastructures in place.

This need for better information nets for law enforcement personnel does not stop at

technology sharing. To the contrary, in addition to the creation of the legal infrastructure

to support heightened enforcement in this area, perhaps the most critical requirement

is the development of new cooperative mechanisms for enforcement. Given the

international nature of the groups that are engaged in these crimes, domestic efforts,

no matter how well intended, will not be sufficient to close the cyber safety nets. Only

well coordinated, international efforts will be sufficient. This requires not only sharing

of information across borders, it requires the establishment of international strike forces

dedicated to these efforts. Such strike forces must include personnel to provide legal,

technical, enforcement and security support so that efforts can be coordinated with other

efforts directed to combat terrorism. Information regarding piracy and identity theft

must not simply be shared among domestic agencies. It must be shared across borders.

Unless law enforcement personnel become as effective at conveying information and

coordinating activities against these crimes as the terrorists are, the cyber safety net for

funding will remain and grow.

As a first step, in addition to creating teams to begin to coordinate efforts in this area,

mutual legal Mutual Legal Assistance Treaties (MLATs) directed to piracy and identity

theft should be created. The European Union Regulation on Consumer Protection

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Strategies for Securing the Cyber Safety Net for Terrorists: A Multi-Disciplinary Approach

Cooperation113 establishes a useful model for the sharing of information. Such ideas

should be put in place now, before more time passes, and more funds slip through the

cybersafety net.

conclusion

While the internet may continue to be viewed in popular imagination as a wild frontier

where law does not apply, it cannot continue to operate without regulation in fact.

Lack of attention has allowed a cyber safety net to develop which allows terrorists and

criminal organizations to raise funds and launder money gained through digital piracy

and identity theft with little fear of prosecution. The high yield, low threat combination

makes these potent funding sources. Securing the cyber safety net requires concerted

multinational efforts. The legal and enforcement infrastructure for closing this net

must be created on an international basis. Such efforts will not only require enhanced

levels of transborder coordination, including information networking, they will require

new modes of acting and a dedicated effort to secure public support for such activities.

It will take time to develop the necessary support system for this multidisciplinary

approach to the problem. This is not about the private harm caused by digital piracy,

identity theft or phishing, which is substantial. It is about public security. The time to

initiate the proposed multidisciplinary approach is now, before the cyber safety net

becomes so securely entrenched it cannot be breached, even for an issue as critical as

the reduction of terrorist funding. Yet while we are creating the necessary infrastructure

and mechanisms to begin to secure this safety net, we must also be mindful of the need

to craft solutions that take into consideration individual rights and information access

concerns. The need to secure the cyber safety need is real. But the efforts to combat the

crimes that support terrorism must be applied surgically and not as a blunt instrument

or public support for such activities, and the necessary will to secure the safety net will

rapidly diminish, placing public safety in an even more tenuous position than today’s

unfortunate era of under enforcement.

113.

See note 94 and text supra.

ResearchGate has not been able to resolve any citations for this publication.

The spread of identity theft: Developments and initiatives within the European Union

Article

Jan 2007

N. S. van der Meulen

It also contains provisions that protect digital signatures and other trust systems. 106. Id. at Art. 74. 107. The Information and Technology Act of

Dec 2000

Id. at Art.67. It also contains provisions that protect digital signatures and other trust systems. 106. Id. at Art. 74. 107. The Information and Technology Act of 2000, as Amended in December 2008, Section 66C (available at http://www.naavi.org/ita_2008/index.htm)(last visited January 5, 2009).

at Art.67. It also contains provisions that protect digital signatures and other trust systems. 106. Id

Id. at Art.67. It also contains provisions that protect digital signatures and other trust systems. 106. Id. at Art. 74.

id. at Section 66F, as well as new provisions granting the government enhanced right to intercept, monitor and decrypt "any information transmitted received or stored through any computer resource

Jan 2007

Id. at Section 66D. The amendments were extensive and included a newly defined crime of "cyberterrorims," id. at Section 66F, as well as new provisions granting the government enhanced right to intercept, monitor and decrypt "any information transmitted received or stored through any computer resource." Id. at Section 69. 109. Phishing in People's Accounts, www.cbncwatch.com (last visited December 30, 2008)). See also Phishing Incidents in India Grow By 180% (May 2, 2007)(available at http://www.spamfighter.com/ News-7677-Phishing-Incidents-in-India-Grow-By-180.htm)(last visited January 5, 2009). 110. See notes 108 & 109 supra.

Strategies for Securing the Cyber Safety Net for Terrorists: A Multi-Disciplinary Approach (Chapter 16)

Abstract

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