B. Maintaining Public Confidence One of the principal purposes of the law is to provide an objective, predictable, transparent and universally-applicable set of rules that governs conduct and maintains order.23 A key element to order is public confidence,24 which is bolstered through laws supported by principles of transparency, accountability and participation. It is well understood that “trust” in the use of the internet and ICTs will engender use, and that part of building this trust environment in cyberspace involves striking a balance between establishing the security of networks, devices and data, and ensuring that fundamental rights such as privacy (including data protection) and freedom of expression are observed.25 The evolution of cyberspace, and the ever-increasingly easy means of accessing it, have resulted in a new range of living and coexisting, which society—and the law—are grappling to understand.26 These new, exciting possibilities should not be either unnecessarily or disproportionately stifled in the name of security and combating criminality. Nature abhorring a vacuum,27 and the path of least resistance being preferred,28 society at large— individuals, financial institutions, private industry and governments—have increasingly exploited, and subsequently come to rely on technology in order to function: cyber networks have become essential to everyday operations, with power grids, air traffic control, urban utilities and much more dependent upon cyber technology.29 Consequentially, the potential threat posed by cybercriminals has grown dramatically and afforded significant opportunities for terrorist groups and extremist organizations. Public confidence in the secure functioning of ICT systems and of cyberspace has become necessary to maintaining social order.30 Several legal systems stress the need to protect the functioning of ICT systems through criminal laws.31 The principal protected interests are the confidentiality, integrity and availability of information systems and electronic data.32 In pursuit of the urgency to criminalize certain behavior, the challenge in terms of law reform is to avoid overreaching in order not to violate fundamental rights.33 C. Cybercrime’s Physical & Virtual Nature While this Toolkit expands in more detail in subsequent chapters both the working definition of cybercrime (see section 2 A, below) as well as what sort of acts constitute cybercrime (see section 2 B, below), in many cases, cybercrime can be understood as digital versions of well-known, “traditional” offenses only with a virtual or cyberspatial dimension in addition or in lieu of.34 For instance, identity theft, which can happen in both the physical and electronic worlds, fits an adaptive conception of cybercrime perfectly well. The factor differentiating identity theft in the physical and virtual worlds is the crime’s “how”. In both instances, the criminal intent (namely, to obtain a benefit) and the result (namely, fraudulent misrepresentation) are the same.35 The “how” differs in that, in the physical version, the impersonation is done with a physical item (e.g., a stolen identity card, mail, statement), while, in the virtual version, the crime is committed through the Page 18 | Chapter 1 | § B. Phenomenon & Dimensions of Cybercrime Table of Contents