Beyond the general challenges faced in combatting cybercrime, there are challenges in (A) adapting current legal frameworks and (B) developing new, cybercrime-specific aspects and legal frameworks, while also (C) respecting constitutional limits. A. Adapting Current Legal Frameworks Developing cybercrime countermeasures requires building a sufficiently robust and flexible legal framework through legislative and regulatory action. That framework needs to provide law enforcement agencies with both procedural means and actual resources to fight cybercrime.3 Adapting pre-existing legislation that has not been specifically intended to deal with cybercrime often may be an option, even if not ideal. For example, in the United States anti-money-laundering (AML) and identity theft laws are being applied to their cyberspace analogs.4 Many other countries have adapted existing legislation by introducing provisions that extend existing laws to include criminal activity conducted on the internet or facilitated by the use of ICT. Short of legislative activity, the application of existing laws5 and concepts6 to cyberspace is dependent upon judicial interpretation of creative prosecutions; just how the prosecutors and the judiciary act, and interact, will be shaped by a country’s legal system, especially whether it is in the civil or common law approach, in the determination of essential values and overall policy.7 Technological developments present perennial challenge for combatting cybercrime. One that, though only nascent at best, deserves raising is the development of AI as combined with the creation of autonomous systems. It is not all that far in the future that one could foresee such systems being on such a level of sophistication that they are less “tools” and more as cognitive “minds”. For the purposes of the Toolkit, such advances have a particular potential bearing on understandings of criminal liability. As discussed further on, criminal liability requires two criminal components be satisfied: first, an objective, fact-based showing of an action, or actus reas, and, second, the accompanying, requisite mental state, or mens rea (“guilty mind”), which requires a subjective determination (see sections 1 D and 4 A, below). It is not inconceivable that AI could “commit” crimes in their own right, therein complicating mens rea assessments.8 Although AI is not presently subject to criminal liability, considering how it might be addressed should be borne in mind by governments—indeed, one model for doing as much might, for instance, be borrowed, from criminal liability of corporations. Case 1.4: United States v. Liberty Reserve (USA)9 Incorporated in 2006 in Costa Rica, Liberty Reserve was a centralized, digital currency service that operated its own currency exchange using a digital currency, commonly called the “LR”. The exchange allowed the anonymous transfer of client funds between third party payment exchange merchants and bank accounts. Liberty Reserve allowed clients to create Page 29 | Chapter 1 | § C. Challenges to Fighting Cybercrime Table of Contents