Legal Research Methods for Cybercrime

‘The extent to which criminals are exploiting digital technology to commit offences has accelerated… The internet is also used by gangs to trade a wide range of commodities online, for example, drugs, firearms, indecent images of children. Cybercrime can take place in conjunction with a variety of related criminal activity, and cyber techniques have proliferated to the more traditional criminal community, for example, urban gang members buying compromised data online.’

                        (CPS, ‘Cybercrime – prosecution guidance’)

Between 1 April 2016 and 31 March 2017 65,659 reports of fraud or cybercrime were referred to the police in England, Wales and Northern Ireland. Of these 8214 resulted in a ‘judicial outcome’.

                        (Action Fraud statistics, www.actionfraud.police.uk)

It is easy to recognise that the extent to which criminals are exploiting digital technology to commit criminal offences has accelerated but it is hard to narrow that down to which crimes exactly. The internet is easily accessible and available for anyone, which is good for the common man but this also means it is available to the criminal community. This widens the range from gangs and more traditional criminal networks, for instance the drugs/firearms trade, to the more modern single ‘cyber-criminal’ who relies solely on the internet/digital technology to commit their crime, for example fraud and identity theft. In relation to the research problem one would wish to ask the question of whether the current law is adequate enough to deal with the advancement in digital technology and a modern society, and if not how the current law could be reformed. This report will attempt to locate the research problem in relevant research methodologies by critically analysing which one(s) would be best used if the research was to be carried out.

Changes in definitions and figures, as well as the reductions or spikes in crime statistics, can be due to offences being reclassified and the actual recording of the offences. Therefore, it is hard to come to a conclusion based simply on empirical research alone. For this reason, one may wish to weigh up the strengths and weaknesses of each of the three main research methods in order to locate the research problem within the relevant research methodologies. This process is mentioned by Felicity Bell, “The idea of choosing a method implies an understanding of other potential methods, their strengths and drawbacks. It is necessary to think carefully about whether the research question posed are answerable by the method chosen.”[1]For this reason, this report will take into account the three different potential research methods, empirical, doctrinal and comparative, in order to distinguish which would be best used and most relevant to the research problem in question.

Empirical legal research was introduced by Oliver Wendell Holmes (1897, 496)[2] as being the future of legal research. He stated that although the black letter approach may be the approach of the present, statistics are going to be the method of the future.[3] Empirical legal research is multidisciplinary, it derives from economics, psychology, and sociology and focuses on the roles of legislation, regulation and legal policies.[4] The data gathered normally comes in the form of qualitative (non-numerical) and quantitative (numerical) data and can be obtained through interviews, observations, surveys, statistics and document analysis.[5] The study La Porta et al. does just this by translating the information found from looking into cases and court systems into numbers which can then later be analyzed using statistical tools.[6]  Keeping this in mind, in order to incorporate empirical legal research into this research problem, one may first decide to analyse documents or databases – for example; the Office for National Statistics where you can find the crime survey for England and Wales.[7] According to this survey[8], fraud has ‘accelerated’ significantly from march 2011 where there was 1041 recorded offences compared to the year ending march 2018 where this figure had risen to 1942.[9] This increase is much greater that the 2% increase in recorded offences involving firearms in the last year.[10] These figures portray that criminal offences, such as fraud and identity theft, are on a much more accelerated rise compared to other criminal offences.

In order to answer the research question, one may chose to build on the already found data and information by conducting their own surveys to discover how individuals feel the accelerated increase in cyber related crimes should be dealt with. The first ONS crime survey[11] (1982) predates the advent of the internet, so the only worry many citizens had at the time was of more conventional crimes alike theft or burglaries, a direct contrast to the present where cyber based crimes, such as online trading of drugs and firearms or fraud, are now the most common offences to be committed.[12] Surveys, alike the ONS crime survey[13], targets a large population which as a result offers an accurate representation of the nation as a whole making the data effective when drawing conclusions.[14] Empirical research methods, such as surveys, are also inexpensive and are very flexible because they can be done online, on paper, face to face, anonymous or even on the telephone.[15] However, the weakness of conducting such research through surveys is that it relies on the participants being honest and reliable and if used with closed-ended questions the findings may have a lower validity rate than other 0question types.[16]

Having said that, doctrinal legal research, also known as ‘black letter law’, which looks at the law within itself[17] would be best to in relation to this research problem because it allows for a comparison of how the law was, how is and how it might be evolving. As a research method, doctrinal legal research is concerned with the formation of legal doctrine through the analysis of legal rules, cases and statutes.[18] Doctrinal legal research is a good starting point for most legal research but is often needed before answering other legal questions. With that being said, it can be disconnected from reality because doctrinal legal research can often be contextually unaware and as a result it is often named as being a backward way of researching.[19] This is especially shown in the view of Roger Cotterell where he challenges doctrinal legal research; “All the centuries of purely doctrinal writing on law have produced less valuable knowledge about what law is, as a social phenomenon, and what it does than the relatively few decades of work in sophisticated modern empirical socio-legal studies”.[20] As a method of research, it does not question or challenge the way the law is applied, but analyses the law only in the terms of internal consistency, which can be seen as a huge limitation of using this as a method of research.

Nevertheless, doctrinal research may be used to research this problem through the following two ways. Firstly, one may wish to look into the states attempt to deal with such exploitation of digital technology through the implementation of different statutes and statutory instruments, such as Computer Misuse Act of 1990[21] and secondly, one may wish to look into the different case law available which has had to deal with this issue or one similar. For example the American case[22] of a Russian defendant who was sentenced to 27 Years in prison for digital related criminal offences of hacking and fraud, in this case credit card fraud.[23] Within this case, the Acting Assistant Attorney General Blanco stated “And we will not tolerate the existence of safe havens for these crimes – we will identify cybercriminals from the dark corners of the Internet and bring them to justice”.[24] This case portrays just how serious cyber-crime is being treated currently in the US today and could be used to push the idea that maybe the law in the UK should be reformed in order to follow suit and become harsher on such crimes.

This takes me to the third legal research technique this research problem may incorporate; comparative legal research. Legrand defined comparative research as the method which “presents a new perspective, allowing one critically to illuminate a legal system… much in the same way as, say, critical legal studies….”.[25] Comparative legal research allows one to broaden their research by identifying primary legal materials from a different jurisdiction and comparing to those of another, for example diversity in the judgements of case with similar facts.[26]  Taking this into consideration, in relation to this research problem/question one may wish to examine two legal jurisdictions and analyse whether their way of dealing with the problem in question, through case law and/or statutes/legislation, is different or the same as one’s own jurisdiction. For example, on the topic of cyber crime one may wish to look at the variation of statutes/legislation on cyber related criminal offences in the UK (the Computer Misuse Act of 1990[27]) compared to that in the USA (the Computer Fraud and Abuse Act 1984).[28] A strength of using this research method is that comparative research does more than just offer a different perspective, as Yves Chevrel says “to compare is indispensable to the progress of knowledge”[29], it aids legal reform because it allows one to evaluate the effectiveness of our own system. However there are some limitations to this form of research, for example by its very nature as a interdisciplinary research method it can become very complex and therefore one must be aware of the differing cultural view points and differences in the legal systems and structure.[30] One must also be sure to chose the correct countries/jurisdictions to compare. Therefore for the purpose of this research, it would be more beneficial to use empirical legal research methods and to focus on a more theoretical approach by using doctrinal legal research methods.

In conclusion, in order to conduct successful legal research all legal research techniques must be taken into consideration. Empirical research methods such as surveys are inexpensive, flexible and can represent the population as a whole[31], however still has its weaknesses as it relies on the participants being honest and dependable. With that in consideration, doctrinal research is always reliable. It involves one to research the already in place statutes, available case law and briefing papers.[32] However it can be disconnected from reality and therefore will require the researcher to be more critical. Lastly, comparative legal research allows one to broaden their research by identifying primary legal materials from a different jurisdiction and comparing to those of another.[33] This allows you to interpret ways in which to approach your research question or problem because there is a high chance another jurisdiction is also dealing with the same, if not similar, issue.[34]

References

Legislation

• The Computer Fraud and Abuse Act 1984
• The Computer Misuse Act of 1990

Secondary Sources

• Alan Bryman, Social Research Methods (5th edn, OUP 2016)
• BBC News, Cybercrime and fraud scale revealed in annual figures (BBC News, 19 January 2017)             <https://www.bbc.co.uk/news/uk-38675683> accessed 10th November 2018
• Dawn Watkins and Mandy Burton, Research Methods in Law (Routledge 2013)
• Felicity Bell, Empirical Research in Law (2016) 25(2) Griffith Law Review 266-267
• Frans L. Leeuw and Hans Schmeets, Empirical Legal Research: A Guidance Book for Lawyers, Legislators and Regulators (Edward Elgar Publishing 2016)
• Lee Epstein and Andrew D. Martin, An introduction to Empirical Legal Research (OUP 2014)
• Michael Salter and Julie Mason, Writing Law Dissertations: An Introduction and Guide to the Conduct of Legal Research (Pearson Education Limited 2007)
• Office for National Statistics, Crime in England and Wales: Additional tables on Fraud and Cybercrime (18th October 2018)<https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/datasets/crimeinen            glandandwalesexperimentaltables> accessed 10th November 2018
• Roger Cotterell, Law’s Community: Legal Theory in Social Perspective (1995) 296
• The United States Department of Justice, Russian Cyber-Criminal Sentenced to 27 Years in Prison for Hacking and Credit Card Fraud Scheme (Friday April 21st 2017, Press Release Number: 17-439)<https://www.justice.gov/opa/pr/russian-cyber-criminal-sentenced-27-years prison-hacking-and-credit-card-fraud-scheme>  accessed 10th November 2018

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[1] Felicity Bell, Empirical Research in Law (2016) 25(2) Griffith Law Review 266-267

[2] Lee Epstein and Andrew D. Martin, An introduction to Empirical Legal Research (OUP 2014) viii

[3] Lee Epstein and Andrew D. Martin, An introduction to Empirical Legal Research (OUP 2014)

[4] Frans L. Leeuw and Hans Schmeets, Empirical Legal Research: A Guidance Book for Lawyers, Legislators and Regulators (Edward Elgar Publishing 2016)

[5] Lee Epstein and Andrew D. Martin, An introduction to Empirical Legal Research (OUP 2014)

[6] Lee Epstein and Andrew D. Martin, An introduction to Empirical Legal Research (OUP 2014)

[7] Office for National Statistics, Crime in England and Wales: Additional tables on Fraud and Cybercrime (18th October 2018)

[8] Office for National Statistics, Crime in England and Wales: Additional tables on Fraud and Cybercrime (18th October 2018)

[9] Office for National Statistics, Crime in England and Wales: Additional tables on Fraud and Cybercrime (18th October 2018)

[10] Office for National Statistics, Crime in England and Wales: Additional tables on Fraud and Cybercrime (18th October 2018)

[11] Office for National Statistics

[12] BBC News, Cybercrime and fraud scale revealed in annual figures (BBC News, 19 January 2017)

[13] Office for National Statistics

[14] Dawn Watkins and Mandy Burton, Research Methods in Law (Routledge 2013)

[15] Alan Bryman, Social Research Methods (5th edn, OUP 2016)

[16] Alan Bryman, Social Research Methods (5th edn, OUP 2016)

[17] Michael Salter and Julie Mason, Writing Law Dissertations: An Introduction and Guide to the Conduct of Legal Research (Pearson Education Limited 2007)

[18] Michael Salter and Julie Mason, Writing Law Dissertations: An Introduction and Guide to the Conduct of Legal Research (Pearson Education Limited 2007)

[19] Lee Epstein and Andrew D. Martin, An introduction to Empirical Legal Research (OUP 2014)

[20] Roger Cotterell, Law’s Community: Legal Theory in Social Perspective (1995) 296

[21] The Computer Misuse Act of 1990

[22] The United States Department of Justice, Russian Cyber-Criminal Sentenced to 27 Years in Prison for Hacking and Credit Card Fraud Scheme (Friday April 21st 2017, Press Release Number: 17-439)

[23] The United States Department of Justice, Russian Cyber-Criminal Sentenced to 27 Years in Prison for Hacking and Credit Card Fraud Scheme (Friday April 21st 2017, Press Release Number: 17-439)

[24] The United States Department of Justice, Russian Cyber-Criminal Sentenced to 27 Years in Prison for Hacking and Credit Card Fraud Scheme (Friday April 21st 2017, Press Release Number: 17-439)

[25] Dawn Watkins and Mandy Burton, Research Methods in Law (Routledge 2013) 100

[26] Michael Salter and Julie Mason, Writing Law Dissertations: An Introduction and Guide to the Conduct of Legal Research (Pearson Education Limited 2007)

[27] The Computer Misuse Act of 1990

[28] The Computer Fraud and Abuse Act 1984

[29] Dawn Watkins and Mandy Burton, Research Methods in Law (Routledge 2013) 101

[30] Dawn Watkins and Mandy Burton, Research Methods in Law (Routledge 2013)

[31] Alan Bryman, Social Research Methods (5th edn, OUP 2016)

[32] Michael Salter and Julie Mason, Writing Law Dissertations: An Introduction and Guide to the Conduct of Legal Research (Pearson Education Limited 2007)

[33] Michael Salter and Julie Mason, Writing Law Dissertations: An Introduction and Guide to the Conduct of Legal Research (Pearson Education Limited 2007)

[34] Michael Salter and Julie Mason, Writing Law Dissertations: An Introduction and Guide to the Conduct of Legal Research (Pearson Education Limited 2007)