Beyond Law: Protecting victims through engineering and design

Children groomed by online predators, revenge porn victims extorted by unscrupulous internet entrepreneurs, Muslim community members targeted for racialised cyberhate…. Many of the contributors to this book have painted a grim picture of the various ways victims of cybercrimes are suffering, and the multiple ways law is failing to assist. Clearly something is not right here. However, while it is one thing to identify new problems, it is quite another to figure out what to do. Especially when the domains in which these problems are playing out are novel, complex, and extremely volatile.
It could be argued that those victimised online are currently being neglected because insufficient attention is being paid to their plight. Yet the existence of this book is testimony to the fact that – while victims of crime and other problems online may not be receiving as much recognition as they need and deserve – they are not entirely invisible. Continued awareness-raising is essential for bringing attention to the plight of victims in online spaces. This might help address the relative lack of knowledgeability on the part of front-line respondents such as police and prosecutors (Citron, 2014, pp. 83–91), as well as the sorts of victim-blaming outlined in Chapter 3. But sensitisation and education strategies alone will not constitute a remedy.
Others might make the case that it is legislators who are dropping the ball, and that what is urgently needed are new or revised laws. We are not so sure. Implicit in Chapter 1 is a provocative question. Namely: are the sorts of social problems outlined in this collection best understood as having come about as a result of deficits in law, or are they more to do with a surplus of unrealistic expectations of law? Our view is that both the first and second part of this question can be answered in the affirmative. That is, we agree that some new and improved legislation is required to better reflect the realities of the cybersphere (laws relating to horse-drawn carts only retaining utility for so long after a dirt track becomes a six-lane highway). But we also suspect there is overconfidence in exactly how much can be achieved by law – particularly when it comes to meeting the needs of victims.
Given that the focus of this collection is international, we will not here be offering specific suggestions about which laws in which nations are deficient or non-existent, and therefore require attention from policy makers. Neither will we be providing precise details about exactly how these laws should be written or revised. While we acknowledge that law reform is important, the staggeringly large number of jurisdictions and legislative contexts involved in cybercrime scenes means that meaningful research, critique, and recommendations must be situated at the local level (even if what are ultimately required are inter-jurisdictional responses). Attempting to sketch all the cybercrime-related legislative change that might be beneficial for all people in all nations of the world is beyond the scope not only of this single text, but, we would argue, of any single text. Instead, we urge our colleagues to prioritise research in this area, and to communicate with and lobby policy makers as a matter of urgency. By the same token, we urge policy makers to take these matters seriously and begin the processes necessary to determine what changes might be required in law – both in terms of regulating the conduct of individuals, as well as of service providers and platform managers.
While law might offer some benefits for some victims of some crimes in some jurisdictions, however, our overall argument is that these must be supplemented by a multitude of non-legislative responses in order to truly make a difference. In this final section of the book, therefore, we return to the two harsh, legislative realities detailed in Chapter 1. First, that criminal law – by its very nature – does not make a good ally for victims of any crimes. And, second, that the special features of online environments present yet another set of obstacles to the prosecution of those who have committed cybercrimes (these relating to jurisdictional issues, the identification of offenders, and the high standards of proof required to secure criminal convictions).
While we do acknowledge that the legislative odds are stacked against the victims of cybercrime, we also explain why this does not mean we should give up in despair. Specifically, we outline a non-legislative approach which shifts the focus away from the slow-moving mechanisms and blunt instrumentality of the criminal justice system, and towards a focus on – among other strategies – designing technology in a way that ‘nudges’ people towards better behaviour online.
In a nut shell, our proposal is that criminologists, social scientists, and ethicists work alongside engineers and technology experts in designing, deploying, testing, and engaging in the ongoing re-evaluation of information communication technologies so as to produce better ‘moral technologies’ – that is, devices, platforms, and systems that encourage ethical conduct and provide fewer opportunities for unethical behaviour. Such approaches are guided by work in political philosophy, philosophy of technology, and ethics of technology, and have a number of advantages. Unlike changes in criminal law, for instance, technological interventions can be devised and implemented swiftly. Technology-based approaches are also unconstrained by state borders which greatly inhibit legislative responses. As such, rather than being a runner-up or second-best to legislative responses, we argue that such approaches are as or even more important than legal responses for assisting the victims of cybercrime in a timely, sensitive, and effective manner. Further, they are approaches which are likely to be extremely useful for many other social problems stemming from technological innovation.
INTRODUCTION TO ONE OF MY CHAPTERS CO-AUTHORED WITH EMMA A. JANE, IN THE FORTHCOMING VOLUME “CYBERCRIME AND ITS VICTIMS” EDITED BY ELENA MARTELLOZZO & EMMA A. JANE

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