Online Alternatives to Criminalization
Abstract
Just as physical space features forms of conduct which bring harm to society, so does cyberspace. One traditional way for society to combat these harmful conducts is criminalization: proclaiming these conducts as crimes, punishable by potentially harsh legal sanctions, including the deprivation of human liberties. This method of regulation is also available for online conduct (this does not suggest, however, that it undergoes no changes; for that question see: Is Criminal Law Enforcement Different Online?). But its availability does not mean it is necessarily the only or even the best regulative option. Alternative to criminalization are available offline, and they are also available online.
The search for alternatives to criminalization, I argue elsewhere (see: A Taxonomy of Criminalization), revolves around causation: what comes before the harmful conduct, what comes between conduct and its harm, and what comes after the harmful conduct. In order to severe conduct's harm we can take three roads, each aimed at a different causal stage: "pre-behavioral causation interference" (removing necessary preconditions that allow a certain form of conduct, or removing positive incentives that encourage that conduct); "behavioral causation interference" (interfering with intermediate phases, if exist, between conduct and harm); and "post-behavioral causation interference" (creating negative incentives to a form of conduct or its entailed harm).
How can we address the issue of online alternatives to criminalization in a methodical way? I utilize Lawrence Lessig's four modalities: architecture, social norms, the market and the law. Each modality deals with a certain arena, involving certain characteristics and certain dominant actors. Architecture, social norms, and the market – I take each separately, attempting to portray harm's way and suggest ways to interrupt it, severe its causation in three possible stages of interference ("behavioral causation interference" and so on). I then search for legal mechanisms to motivate the relevant actors in the relevant arena (the architectural, the social, and the financial) to bring about the desired outcomes of harm prevention. I briefly wonder whether the law is indeed needed for that purpose, or perhaps other actors would independently act to prevent harm; and briefly discuss some of the disadvantages involved in the various solutions.
This interdisciplinary article, then, involves two analytical steps. The question, what solutions are there in each arena to the problem of cyber harm, requires stepping out of the legal realms and into diverse fields of research: the technological (architecture), the sociological and psychological (social norms), the economical (the market) and the criminological (insights that are relevant for many sub-questions). The second analytical step involves the expertise of jurists: how to wield the law in order to bring about the desired changes in the other arenas. This two-steps plan allows for methodically showing diverse ways (other than criminalization) for the state to prevent harm. These ways are not perfect, obviously; but they may be quite efficient.