by Jeff Shantz
At present, one third of the world’s population is using the Internet (ITU World Telecommunication 2011, n.p.). ITU Telecom estimates that 45% of the worlds Internet users are below the age of twenty-five (ibid). Moffitt’s (1993) developmental theory, for example, might suggest that adolescents may therefore commit a larger portion of delinquent or cybercriminal activity. According to some, 52.4% of cybercriminals are between the ages of 18–30 (National Crime Records Bureau 2009). Aside from age, the study neither accounted for gender, ethnicity nor socioeconomic status. It also did not compare cybercrime in developing countries as compared to developed countries. This is important as opportunity for crime may be correlated to computer virtuosity and ability to access the Internet. Aside from cybercrime, we have seen a growth in cyber bullying, which can result in public harassment, alongside this cohort (Wolak 2004). It is likely that Hirschi’s (1969) social control theory would suggest that these community members fail to maintain a bond with society consisting of attachment, commitment, involvement, and belief. In spite of this, those between the ages of 18–30 are enmeshed within the virtual online community. Accordingly, a solution to combat cybercrime may be to target networks that encourage and facilitate crime in such abandoned spaces whereby little regulatory authority or traffic is observed. With an increase in both crime and technology, felonious conduct online has become an important topic for discussion. Notwithstanding that criminal opportunity exists, social phobias of online use may increase as Internet usage becomes a central element of society.
Similar to the physical world, a large portion of crime facilitated through technology remains undetected and unreported as a result of computer virtuosity. In contemporary criminology, this hidden phenomenon can be understood as the “dark figure” of crime (Biderman and Reiss 1967). In terms of offline crimes, Skogan argues that “the problem is well known: an activity which is by some criteria a crime may occur without being registered in the systems devised to count it, thus reducing the accuracy of inferences from the data” (1977, 42). In relation to specific computer crimes, such as a zero-day attack1 or acts of phishing2, the problem, however, is largely unknown and unseen for a prolonged period of time. The undetectable and deceptive nature of these cybercrimes can be sufficient to cause harm to public and private databases. Along with the widespread harms to data contained within online community, computer malware can now affect physical systems beyond the realms of cyberspace. By way of illustration, the “Stuxnet” virus successfully destroyed 1,000 centrifuges as a part of Iran’s controversial nuclear program (Williams 2012). In essence, newly developed cyber-weapons have the ability to attack physical infrastructure and have been referred to as the “digital equivalent of fire and forget missiles” (Milevski 2011, 64). Accordingly, liberal democracies need to address diverse security challenges as they are found in any large urban complex.
In the eighteenth century, precursors to the Internet materialized as the globe attained its “apotheosis in industrial modernity” (Mehta and Darier 1998, 107). Around this same period, legal regimes moved away from the cruel and capricious nature of law and punishment where people were “schooled in the lessons of justice, terror and mercy” (Hay 1975, 63). New power dynamics emerged in its place as governments moved toward increasingly administrative processes, bureaucratic procedures and scientific knowledge. With continuous change in our environmental, social and economic systems, communities are subject to new risks. Ulrich Beck argues how the world is in a period of second modernity whereby the globe is characterized through three criteria: indifference to national boundaries, space-time compression, and an increasing network-like interconnectedness between nation states (2000, 80). This understanding can be applied to the online virtual community. Accordingly, international citizens of the Internet are now able to connect across continents in real-time for a variety of purposes. This may correspond to both legal and illegal prospects. In the present climate, the skills and techniques of cybercriminals have made law enforcement an increasingly arduous task, domestic and abroad. The ability to commit crimes in one country against another sovereign state has also caused jurisdictional issues as cybercrime transcends borders. Moreover, cybercrime can be carried out with little effort. Appropriately, cybercrime should not be observed as a different phenomenon than crime opportunities that occur in everyday life (Felson 2002). By way of illustration, carrying out an illegal denial-of-service attack can be achieved with little technological skill by merely conducting an online search and downloading one of the widely available open source software. What is more, there are a plethora of services ranging from a virtual private network (VPN) to various circuits of encrypted connections, such as Tor, that make online identity anonymous. These technologies are the equivalent to wearing a balaclava for the purpose of concealing one’s identity and gloves to avoid leaving fingerprints. These applications can be both helpful and harmful to society. By example, for those who reside within oppressive legal regimes, users are able to transmit information and data out of these restrictive environments with little risk for surveillance and monitoring. On the other hand, cybercriminals may exploit these technologies that were created with pro-social and liberating aims. Nevertheless, as Felson argues, society can prevent crime by “supervis[ing] people, places, and things” (2006, 90). In spite of this, citizens of the Internet must be able to have confidence in those who monitor and conduct the supervision. The question becomes: how can society entrust those who survey and monitor online activity? In terms of services that render identity anonymous, “as a general rule, abandonment enhances crime by enabling anonymous intrusions” (ibid). Accordingly, the response should not be to criminalize users in cyberspace but rather to examine opportunities that give rise to deviancy. In sum, to render something illegal by reason of crime opportunity or misuse is unjust. The same tools that can have the potential for illicit use online also have the potential to “improve human rights across electronic media” (Oxblood Ruffin 2004). The amalgamation of our routine lives and the virtual online community, however, challenges previous conceptions of how man-made spaces can interact to provide social opportunity for crime (Newman 1972). And some Internet users, we suspect, have personal concerns and online social phobias as the information superhighway increases opportunities for crime as financial and confidential data become digitized and centralized to the web. That being the case, Foucauldian discourse analysis with focus on how controlling subjects within a territory, through mechanisms of disciplinary power and governmentality, can be applied to the online virtual community.
In the absence of theory, there is only opinion (Callender 2010). In order to understand how cybercrime and regulation of cyberspace may be debated, attention is paid to Michel Foucault’s theory of disciplinary power and governmentality. Disciplinary power has its point of origin in the European Middle Ages whereby highly centralized sovereign power was exercised through law and military force. In modern society, it is manifested through a range of institutions and diverse disciplines that impact our daily lives. In essence, he argues that decision-making power has been directed away from a centralized sovereign power and toward diverse liberal democracies and their respective disciplines. Conversely, disciplinary power within the online community has been decentralized since the beginning. Although this may be subject to change as conversations surrounding the international regulation of the Internet have begun at the World Conference on International Telecommunications. This is unsurprising, as cybercrime knows no borders. Foucault (1977) argues that disciplinary power is exercised through three characteristics: hierarchical observation, normalizing judgments and examination. In regards to hierarchical observation, Foucault conceptualizes how Jeremy Bentham’s permanent visibility prison, the Panopticon, served as a mechanism to produce “homogenous effects of power” (1977, 202). It was proposed that through environmental design, institutions could “make it possible for a single gaze to see everything constantly” (1977, 173). Consequently, subjects would
self-regulate and manage their own behaviour to adhere to environmental norms. Bentham’s idea served to legitimize and decentralize power through visible but unverifiable means for “the more constant, profound and permanent are its effects” (Foucault 1977, 203). In essence, disciplinary mechanisms in previous relations of sovereign power become the relations of discipline exercised by modern institutions. Discipline, however, only represents one way that power can be exercised. Foucault’s progressive and modernist ideas were also implemented into military camps, working-class housing developments and educational institutions. His understanding can be applied to the online virtual world as “discipline works in an empty, artificial space that is completely constructed” (1978, 54).
For instance, within the context of an educational institution, use of online privileges subject’s individuals to comply with institutional policies and regulations. In this environment, users of network and computer resources are responsible to comply with specific institutional bylaws. At this juncture, users of the Internet are susceptible to the gaze of information and educational technology departments. Meanwhile, students operate online in libraries and other public areas that subject them to the peripheral gaze of others. Academics have excelled for centuries under peer review and society should ensure that these advancements continue. This is challenging in an environment where hierarchical online surveillance and monitoring exists. Beyond education systems, a users Internet traffic can be monitored in real time by website data-mining software, Internet service providers and diverse regulatory authorities with or without a warrant. In essence, online disciplinary power operates through various control techniques, such as surveillance and monitoring, vis-à-vis virtual online systems. Notwithstanding that, the concept of disciplinary power arose out of the carceral system. It can be argued that operating online is a voluntary act, whereas a prison sentence improbably is not. Accordingly, rules and techniques of control are necessary or rather embedded within both the online and offline community, such as the carceral systems. Needless to say, it is becoming increasingly difficult to elude online use in business, personal communications, and entertainment. In spite of the potentiality for hierarchical observation, it is questionable whether or not users of the Internet regulate their own behaviour online as compared to those within a Panopticon. The questions then become: Should users of the Internet be subjugated to surveillance and monitoring? What are the subjective and objective expectations of privacy online? Are users of the Internet operating within a virtual Panopticon?
The second characteristic of disciplinary power is normalizing judgments. Foucault claims, “at the heart of all disciplinary systems functions a small penal mechanism” (1977, 177). By means of procedures and routines, it is theorized that techniques of control and training can produce expectations and standards for disciplinary subjects. Within the online community, the exploration of normalizing techniques for human judgments is readily visible within social networking services, such as Facebook. For instance, the amount of “likes” that a person receives may normalize judgments and create standards by which subjects are measured. As a consequence, a users public display of self may create a standard by which others also attempt to maintain. What is more, each individual user becomes a product of the Internet whereby others can analyze and describe. This may cause social phobias for some as one may feel as though they are being judged. It is, however, ironic as users of such social networking sites voluntarily subject themselves to the observation and judgment of others. These nominal forms of power may create standardized ways of operating online through the interaction between other users of the Internet, social networking sites, and third-party applications.
The final characteristic that disciplinary power exhibits is examination, which encompasses both micro-penalties and rewards. This particular form of disciplinary power combines the previous two techniques of hierarchical observation and normalizing judgments. It is attached to politico-juridical models that emphasize “disciplinary technology” (1977, 227) that bring micro-penalties and rewards into existence. This is achieved through “mechanisms of objectification”, which in so doing, “we are entering the age of infinite examination” (1977, 187). Within the online community, the notion of infinite examination is ineludible as the expansion of new computing technology continues apace, and as our lives increasingly intersect with computer networking and the Internet. For instance, current increase in mobile phone use has created the circumstances to enable global positioning system (GPS) that can track location (Wiehe et al. 2008) and inertial navigation systems (INS), which enhances accuracy. Accordingly, cyber citizens and cybercriminals will respond to these new circumstances. These capabilities may also give rise to crime opportunities and exploits, although unintended and unforeseen. On the other hand, these forms of infinite examination pave the way for features that may prevent criminality or that may aid in locating people who require assistance from emergency responders, for example. Other forms of examination are visible online through Internet service providers that have the capacity to monitor and log real-time Internet traffic. As with anything web-based, there are helpful and harmful functions. For instance, such technologies may create a pathway for cybercriminals to travel to and fro, which puts users who fail to take precautionary measures at risk. Meanwhile, it also opens the door to conventions and arrangements that would allow regulatory bodies to implement forms of surveillance for unlawful online activity, such as Internet based sexual exploitation or financial and confidential data theft. To sum up, examination is inherent to the structure of the Internet given that everything is recorded and nothing is forgotten.
With the global spread of computing technology, governmentality has ascended into the realms of cyberspace. How society governs itself online is particularly important today as there are known and unknown risks associated with computer security. At present, law has been one tactic among many for reducing crime opportunity and targeting deviance. Another effect has been private industry, as software developers attempt to repel the latest cyber attacks and computer viruses. Within cyberspace, governmentality can apply to contemporary nation states targeting populations through “an explosion of numerous and diverse techniques for achieving the subjugations of bodies and the control of populations” (Foucault 1976, 140). Techniques of control online come from a variety of institutions and disciplines. For instance, online search engines are programmed to rank websites on the basis of popularity online and direct Internet traffic toward specific pathways while moving away from others. What is more, corporations may pay search engines in order to secure a more prominent position online. This mechanism is referred to as search engine optimization. Consequently, techniques of control position online nodal points that guide individual conduct that may influence “how power, knowledge, and subjects intermingle to create social forms, law, given truths, and so on” (Pavlich 2011, 139).
In 2012, a straightforward example of governmentality is illustrated by the Canadian government’s attempt to garner public support through Bill C-30, the Protecting Children from Internet Predators Act. Under the guise of governmentality, the act is virtuous: protect children online. The title in and of itself should certainly be something that the public would support. When examined more thoroughly, the act contains clauses that would allow authorities to monitor real-time Internet activity and mandate Internet service providers to keep logs of their customers’ online data. Additionally, the act does not require law enforcement or government authorities to possess a warrant. Some citizens may have confidence in the government, and Bill C-30, arguing that these are reasonable demands and circumstance in this day and age. Meanwhile, others may believe that they have nothing to hide from regulatory authority. Citizens may have every reason to trust their own government. Despite this, in the event that nation states cooperate to regulate cyberspace, the issue will be whether citizens of the Internet trust other countries with the personal data that their government may share. When at
tempting to push this bill forward, Canadian Public Safety Minister Vic Toews argued “either stand with us or with the child pornographers” (House of Commons, March 27 2012, n.p.). This example highlights the power of language within a given context to convey a particular message and to push for expansions of government online. This is also an exemplar of attempting to control a territory and the legal subjects within it via bringing online social phobias into play. This is a consequence of the ominous crime bill and the mechanics of governmentality. The modus operandi is comparable to the sovereign powers in the European Middle Ages that garnered power through legal sanctions and authoritative force; ruling the people and their property. In short, the attempt of controlling through governmentality online is to produce biopolitical entities that promote ethical conduct and to set limits to regulate Internet access. Nonetheless, Foucault notes, “where there is power, there is resistance” (1976, 95). Foucault demonstrates how power can be obtained by the powerless through the very system that perpetuate their domination. For instance, he presents a chapel—Saint-Bernard—whereby Maoists staged a hunger strike and accomplished the aim of establishing a commission to study the living conditions of prisons in France (Miller 2000, 187). Equally spirited resistance can be observed online.
