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Journal of National Security Law & Policy VOLUME 10 2020 NUMBER 3 ARTICLES Countering the Cyber Enforcement Gap: Strengthening Global Capacity on Cybercrime Allison Peters & Amy Jordan Persistent Enforcement: Criminal Charges as a Response to Nation-State Malicious Cyber Activity Garrett Hinck & Tim Maurer Challenges and Opportunities in State and Local Cybercrime Enforcement Maggie Brunner Full Count?: Crime Rate Swings, Cybercrime Misses and Why We Don't Really Know the Score Eileen Decker Advancing Accurate and Objective Cybercrime Metrics Stephen Cobb Defining the Scope of ªPossession, Custody, or Controlº for Privacy Issues and the CLOUD Act Justin Hemmings, Sreenidhi Srinivasan & Peter Swire Transnational Government Hacking Jennifer Daskal Journal of National Security Law & Policy Cite this issue: 10 J. NAT’L SECURITY L. & POL’Y —— (2020) The Journal of National Security Law & Policy (ISSN 1553-3158) is a peer-reviewed journal published three times per year jointly by the Georgetown University Law Center and the Institute National Security and Counterterrorism (INSCT) of the Maxwell School of Citizenship & Public Affairs and College of Law of Syracuse University. The views expressed in this issue are those of the authors, and do not necessarily reflect the policies or opinions of the Journal, its editors and staff, Georgetown University Law Center, or SPL. Subscriptions: Subscriptions are $35.00 per year, or $15.00 per issue, payable in advance to: Journal of National Security Law & Policy, Subscriptions, 600 New Jersey Ave., N.W., Washington, D.C. 20001. Tel.: (202) 662-9423, fax: (202) 347-2570, email: lawojasubscrip- [email protected]. Subscriptions are renewed automatically upon expiration unless the subscriber sends timely notice of termination. All notifications of change of address should include both old and new address. Please notify one month in advance to ensure prompt deliv- ery. POSTMASTER: Send address changes to Journal of National Security Law & Policy, Office of Journal Administration, 600 New Jersey Ave., N.W., Washington, D.C. 20001. Submissions: To submit an article to the Journal, visit www.jnslp.com. Unsolicited manuscripts for publication are welcome. Correspondence: Please address all correspondence to: Journal of National Security Law & Policy, Williams Institute Suite, 600 New Jersey Ave., N.W., Washington, D.C. 20001. Tel: (202) 662-4072, email: [email protected]. Copyright: All articles copyright © 2020 by the Journal of National Security Law & Policy except when otherwise expressly indicated. For all articles in which it holds copyright, the Journal permits copies to be made for classroom use, under the following provisions: (1) the user notifies the Office of Journal Administration of having made such copies, (2) the author and the Journal are identified, and (3) the proper notice of copyright is affixed to each copy. Except when otherwise expressly provided, the copyright holder for every article in this issue for which the Journal does not hold the copyright grants permis- sion for copies of that article for classroom use, provided that the user notifies the author and the Office of Journal Administration of having made such copies and the author and the Journal are identified, and that the proper notice of copyright is affixed to each copy. For reprint permission for purposes other than classroom use, please contact the Office of Journal Administration at the above address or by e-mail at [email protected]. Please allow at least one business week for processing. Notice of Non-Discrimination In accordance with the requirements of Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, section 504 of the Rehabilitation Act of 1973, Title VII of the Civil Rights Act of 1964 as amended, Section 503 of the Rehabilitation Act of 1973 and DC Human Rights Act of 1977, and the implementing regulations promulgated under each of these federal statutes, Georgetown University does not discriminate in its pro- grams, activities, or employment practices on the basis of race, color, national origin, sex, age, disability, religion, sexual orientation, gender identity and expression and other catego- ries covered by the DC Human Rights Act of 1977. The University’s compliance program under these statutes and regulations is supervised by Rosemary Kilkenny, Vice President, Institutional Diversity & Equity programs. Her office is located in Darnall Hall, Georgetown University, and her telephone number is (202) 687-4798. JOURNAL OF NATIONAL SECURITY LAW & POLICY Volume 10 2020 Number 3 EDITOR-IN-CHIEF William C. Banks FORMER EDITORS-IN-CHIEF John Cary Sims Stephen Dycus MANAGING EDITOR Todd Huntley EDITORIAL BOARD James E. Baker Kate Martin Aditya Bamzai Mary-Rose Papandrea William C. Banks Deborah Pearlstein Emily Berman Samuel J. Rascoff Phillip Carter Elizabeth Rindskopf Parker Gary Corn Milton Regan Rebecca Crootof Paul Rosenzweig Jennifer C. Daskal Marc Rotenberg Ashley Deeks Dakota Rudesill Mary DeRosa Margo Schlanger Laura Dickenson Michael N. Schmitt Laura K. Donohue Sudha Setty Eugene Fidell Shirin Sinnar David E. Graham Robert Taylor Peter Raven-Hansen Rachel VanLandingham Margaret Hu Matthew Waxman Rebecca Ingber Leah West Martin S. Lederman FACULTY JOURNAL ADVISORS Laura K. Donohue David Koplow David Luban JOURNAL ADVISOR Todd Huntley STUDENT EDITOR-IN-CHIEF Matthew W. Harden MANAGING EDITORS James Gulliksen Jonathan Greengarden Guy Mentel John Troutman EXECUTIVE NOTES EDITOR Kayla Svihovec ADMINISTRATIVE EDITOR Nicholas Kennedy LLM PEER REVIEWERS Patrick Alban Matthew Miller William Friedman Vince Romano Gary Khalil Brendan Sullivan Tarun Krishnakumar Laura West SENIOR SYMPOSIUM CO-EDITORS Gina Acevedo Paul Moe Ingrid Schulz JUNIOR SYMPOSIUM CO-EDITORS Rachel Schumacher Kyle Yoerg STAFF EDITORS Rachel Bayer Madeline Moran Michael Crowley Kristen Pappas Robert Hogan Alling Remsen Alexander Gershen Monty Roberson Carl Grif®n Jennifer Sawicki Michael Ingram Lucas Scarasso Laila Khan Adam Silow Katie Meili Sara Skutch Bryan R. Mendiola-Pla Sanaya Tamboli Nicole Molinaro This Issue has been produced in collaboration with Third Way. The Journal of National Security Law & Policy thanks Third Way for their scholarship and contributions to national security. Introduction to the Special Issue We are honored to bring you this special issue on cybercrime enforcement. All too often in the cybersecurity debate, we do not talk about the human behind the malicious cyber attacks, and what can be done to hold them accountable. We know that the impact of their crimes is widespread. We have seen cybercriminals target our cities, critical infrastructure, ®nancial sector, healthcare systems, and our election systems. Cybercrime is estimated to cost the United States between $57 billion and $108 billion annually. The Federal Bureau of Investigation (FBI), received over 450,000 cyber- crime complaints in 2019 alone. Unfortunately, in most of these incidents, the person behind them is never brought to justice. Third Way estimates that for every 1000 inci- dents reported to law enforcement, only three ever see an enforcement action. Over the past year, we set out to try and understand this enforcement gap, why it exists, and what kind of policies are required to narrow it. We recognize that this is hard, there are many challenges to investigating cybercrime and arresting cybercri- minals. Cybercriminals use technologies that help obscure their identity. They are often in countries outside the United States, some of which do not readily cooperate with us. But, it is possible. There have been successes in high pro®le cases, where law enforcement has been able to arrest cybercriminals. However, it happens far too infrequently to deter cybercriminals, and we believe that should change. To that end, Third Way has partnered with the Journal of National Security Law and Policy to bring to you a special issue on developing policy and legal reforms to improve cybercrime enforcement. This special issue includes a diverse array of viewpoints and is a ®rst step in demonstrating that there are ways to improve gov- ernments' ability to catch identify, stop, and punish cybercriminals. It is also a plat- form for a robust conversation to inspire further policy development and broader thinking about how to solve this problem, while balancing competing challenges. Over seven articles, the ®rst special issue on cybercrime enforcement covers a range of topics, from a variety of viewpoints. The issue includes both a study of the challenges to build capacity for state and local law enforcement to an in-depth examination of the global developments in cybercrime and the major challenges to international cooperation among countries. It includes a review of the use of criminal charges as a response to nation-state hacking, as well two different per- spectives, one from the public sector, and one from the private sector, on cyber- crime metrics. Finally, it includes examination of existing domestic and international juris prudence on interpreting legal terms around the CLOUD Act, and implications from the Act on transnational government hacking. We hope you enjoy reading this special issue as much as we have enjoyed producing it. Sincerely, Mieke Eoyang Vice President of the National Security Program, Third Way William Banks Editor-in-Chief, Journal of National Security Law & Policy ARTICLES Countering the Cyber Enforcement Gap: Strengthening Global Capacity on Cybercrime Allison Peters & Amy Jordan*² In March 2018, Europol, the European Union's
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