Why Study Cybercrime Law?

I've dealt with online fraud and identity theft as a federal prosecutor for 15 years, and taught cybercrime-related courses as an adjunct professor at Georgetown Law Center and the University of Virginia Law School at various times for more than a decade.  To me, it seems intuitively obvious why law students would be interested in studying cybercrime.  But in the continuing woes of the legal job market, I can also understand why some law students might think, "Sounds fun, but a little marginal. What I need is Corporations/Securities Regulation/Tax/[etc.]"

No one can dispute that business-oriented law courses can be valuable and interesting for future practitioners.  But here are my reasons that law students should make room in their busy schedules for a cybercrime law course or seminar:

1.  As a practitioner, it's now your ethical obligation to understand the risks and benefits of technology.  No joke: The American Bar Association just amended the Model Rules of Professional Conduct to address this issue.  Model Rule 1.1 deals with an attorney's duty to provide competent representation to a client, which "requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."  The amended language of Rule 1.1 now states, "To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject."  [Emphasis supplied]  To me, that means that your competence and skill as an attorney, whether in the private or the public sector, will depend on your ability to keep up with developments in digital technology that can affect your firm's, agency's, or clients' abilities to safeguard data, as well as your clients' own information technology practices that can affect current operations.  With due respect to law professors who teach conventional business-oriented courses, you're not going to develop a working understanding of current information technology threats and risks in Sec Regs.

2.  It's more important that you get the best grades you can, regardless of what courses you take, and taking a course like Cybercrime won't affect your marketability.  Employers won't care if you loaded up on business-oriented law courses if you pulled B-s or C+s in those courses.  As one poster put it on Lawyerist.com "while law school grades aren't a good measure of lawyering skills, grades are, for better or worse, the most quantifiable measure of law school success."  Of course, a prospective employer might raise an eyebrow if she sees that you've taken lots of esoteric courses like "the Law of the Horse" (a phrase of former Stanford President and emeritus law professor Gerhard Casper that Judge Frank Easterbrook used more than 15 years ago to characterize the then-nascent field of cyberlaw).  But any course in which you were intrigued by the subject matter and did well becomes a great talking point on on-campus or callback interviews.

3.  Actually, maybe Cybercrime makes you more marketable to some.  Think about point 1 above.  Here's a possible interview scenario: "I see you took Cybercrime.  Why did you decide to take that?" "Because I think that lawyers have to understand technology, with all its risks and benefits, in order to represent their clients competently.  That course gave me a much better understanding of the risks and how lawyers need to respond to them, for prevention and mitigation of harm.  Does your firm deal with information security or data-breach issues?"  "As a matter of fact, yes. . . ."

4.  Cybercrime matters as a distinct field of law.  Just look at the past week's headlines to see how many different areas of law and public policy cybercrime touches:

• Child Exploitation and Pornography: The Louisiana-based moderator of Dreamboard, a child exploitation bulletin board, was sentenced in federal court to 38 years imprisonment for his role in an international child-pornography ring.  Seven other defendants were also sentenced for their roles in the network.  The U.S. Attorney's Office in Shreveport explained in a press release that the moderator "handl[ed] technical matters including the encryption of posts so that law enforcement could not catch participants on the board and the mentoring of members," and that to date 42 out of 72 individuals had been convicted for their participation in Dreamboard.
• Critical Infrastructure Protection: After the defeat in the U.S. Senate of proposed cybersecurity legislation, White House Homeland Security Adviser John Brennan reportedly stated, according to CNBC, that the White House "is exploring whether to issue an executive order to protect the nation's critical computer infrastructure."
• Cyberbullying: In addition to reports that British Olympic diver Tom Daley and rock singer Shirley Manson were the targets of cyberstalkers, a new study of German youth reportedly concluded that "young people who suffer from cyberbullying or cyber harassment struggle the most when fellow classmates make fun of them by distributing embarrassing photos and videos."
• Cybersecurity:  Researchers at Kaspersky Lab just issued an analysis showing that a new type of malware, as the Washington Post reported, "appears to be the creation of the same state-sponsored program that produced the viruses known as Stuxnet and Flame,"  which "were aimed at computers tied to Iran’s nuclear program."
• Cyberwarfare: The Washington Post reported that the Pentagon "proposed that military cyber-specialists be given permission to take action outside its computer networks to defend critical U.S. computer systems — a move that officials say would set a significant precedent."
• Economic Espionage:  The Manhattan District Attorney's Office charged a former Goldman Sachs programmer with state-law felonies of "unlawful use of secret scientific material and duplication of computer-related material" relating to the ex-programmer's alleged theft of secret source code from Goldman.  This same conduct was the basis of a federal prosecution that resulted, earlier this year, in reversal by the U.S. Court of Appeals for the Second Circuit (676 F.3d 71 (2d Cir. 2012)).  Also, a former Intel Corporation worker was sentenced in federal court to three years imprisonment for stealing proprietary information valued between $200 million and $400 million.
• Intellectual Property Theft:  The Chairman's staff of the Congressional Joint Economic Committee issued a report that "there has been a dramatic rise" in the number of foreign infringement of domestic intellectual property rights" in recent years, with the number of cases that the International Trade Commission is investigating increasing by 80.6 percent in 2010 and 23.2 percent in 2011.
• Internet Governance: Rebecca McKinnon of the New America Foundation wrote in Foreign Policy that "[a] number of countries, including Russia and China, have put forward proposals to regulate aspects of the Internet like 'crime' and 'security" that are currently unregulated at the 'global level due to lack of international consensus over what those terms actually mean or over how to balance enforcement with the protection of citizens' rights."  These efforts are associated with a larger effort by some countries to bring the Internet under the control of a United Nations agency, the International Telecommunications Union.
• Law Enforcement Cooperation: During her visit to South Africa, Secretary of State Hillary Rodham Clinton announced the creation of "a new cyber working group to identify the common cyber threats and national priorities to build capacity to fight cyber crime and coordinate in international forums."

In short, cybercrime touches many facets of the global economy and everyday life, and the consequences of successful cybercrime can be devastating to individuals, businesses, governments, and society as a whole.

5.  It's fun.  Not a sufficiently intellectual argument to whet your appetite?  Okay - Cybercrime law can be (1) intellectually satisfying to study because the legal and tech landscapes are in constant flux and require even tech-savvy lawyers to run very fast just to keep up, and (2) personally satisfying because in a wired world we can sense, much more than our parents' generation, that cybercrime can directly reach us -- our personal data, our relationships, our property -- through the iPhones, iPads, and other digital communications that are woven into our daily lives, and we can feel relatively more secure if we learn how best to respond to that threat.

That's why to study cybercrime.