Cyber Crime and Cyber Terrorism

3
 
The shape of the challenge
2004 with the same name. In the United Kingdom, a parliamentary question in 2012 
asked the Secretary of State for Justice how many prosecutions there had been for 
“e-crime” in the past 5 years. In response, the Parliamentary Under Secretary of State 
gave statistics for ss 1(4), 2 and 3(5) of the Computer Misuse Act while the correla-
tive Hansard entry uses the expression “cybercrime” in its heading.
Wherever it is, constitutional lawyers around the world have wrestled with the 
applicability of their countries’ legislation with the borderlessness of the virtual word 
of the Internet; the application of “analog” territorial laws to the indeterminable digi-
tal boundaries of the infinite global communications network is, it seems, proving to 
be too much for our conventional legal systems. Here is why.
When it comes to interpreting and applying law across our own administrative 
jurisdictional boundaries, an established body of internationally agreed principles, 
behavior, and jurisprudence has developed over time. Some attempts have been made 
to apply these legal norms to cyberspace. For example, the International Covenant on 
Civil and Political Rights sets out some key obligations of signatory states. In addi-
tion, activities executed within or via cyberspace should not be beyond the reach of 
other community protections such as those enshrined in the European Convention of 
Human Rights or the EU Charter of Fundamental Rights, particularly where issues 
such as online child sexual exploitation are involved. The first basic challenge that 
this brings however, is that of jurisdiction.
Cottim has identified five jurisdictional theories and approaches in this context, 
namely (
Cottim A. 2010
):
1. 
Territoriality theory
: The theory that jurisdiction is determined by the place 
where the offence is committed, in whole or in part. This “territoriality theory” 
has its roots in the Westphalian Peace model of state sovereignty that has been in 
place since 1684 (see 
Beaulac, 2004
, p. 181). This approach has at its heart the 
presumption that the State has sovereignty over the territory under discussion, a 
presumption that is manifestly and easily rebuttable in most “cyberspace” cases.
2. 
Nationality (or active personality) theory
: Based primarily on the nationality 
of the person who committed the offence (see United States of America v. 
Jay Cohen; Docket No. 00-1574, 260 F.3d 68 (2d Cir., July 31, 2001) where 
World Sports Exchange, together with its President, were defendants in an FBI 
prosecution for conspiracy to use communications facilities to transmit wagers 
in interstate or foreign commerce. The defendants were charged with targeting 
customers in the United States inviting them to place bets with the company by 
toll-free telephone call or over the Internet). While the Antiguan Company was 
beyond the jurisdiction of the court, the President was a US citizen and could, 
therefore, be arraigned before an American criminal court.
3. 
Passive personality theory
: While the “nationality theory” deals with the 
nationality of the offender, the “passive personality theory” is concerned with 
the nationality of the victim.
In what Cottim calls “the field of cybercriminology,” a good example of this ju-
risdiction assumption can be seen in a case where a Russian citizen who lived in 

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