technology outmoded, prompting the development of “unbreakable” encryption.30 While the ramifications of these concerns are, in their concreteness, beyond the scope of the Toolkit, it bears noting that anticipated technological advances promise to simultaneously revolutionize cybersecuritization and to facilitate more sophisticated cybercrime. This dramatic redefining of society at all levels makes the readying of systems’ interoperability among states today, not tomorrow, all the more important. C. Locating the Crime The borders and physicality of the “real”, physical world are nonexistent in the “virtual”, digital world of cyberspace. Cyberspace enables criminals to impudently disregard borders and jurisdictions, to target large number of victims, and to do so both simultaneously and instantaneously. Although law-making and law-enforcing authorities, threatened by the new environment of cyberspace,31 attempt to impose or imprint a Westphalian nation-state conception of sovereignty and jurisdiction upon cyberspace, the idea of a “border” is vague at best, and largely defies definition.32 That said, physical elements do play a mediating role between the physical and the virtual world, giving cybercrime a “location” that has underlying physical qualities to the more easily discernible virtual ones.33 Recently, and increasingly, the physicality mediating access to cyberspace has moved beyond use of a computer or some other directive piece of ICT to integrative networking of smart devices, including cars, home utilities and wearable technology.34 Indeed, smart cities35—and even networked cities36—are already becoming a reality. While cyberspace “radically subverts a system of rule-making based on borders between physical spaces”,37 these physical elements have been central to tying cybercrime into traditional legal understandings. Although the complexities of jurisdictional issues is discussed in greater depth further on (see section 2 E, below), several points are worth raising here briefly. States typically exercise both their jurisdictional power and apply their laws to offenses committed on their territory. Cyberspace, however, transcends geographical frontiers, enabling perpetrators to act illegally in one state while being physically located in another state. In cases where the crime is enacted from abroad, jurisdiction is asserted on the basis that the committed offense negatively impacted the state (or its citizen). However, while such harm might be used as a means of establishing jurisdiction, the typical baseline for a custodial state to recognize, validate and accept the jurisdictional exercise of the requesting state is instead that of “double criminality” (or “dual criminality”), meaning that the perpetrator’s comportment is punishable in both states.38 This approach both respects the maxim of nulla poena sine lege (“no punishment without law”), as well as typically raising fewer jurisdictional concerns.39 This mutuality is generally the basis, for example, of extradition law.40 Alternatively, jurisdiction might be asserted on the basis that the instrumentality enabling the offense—be it bank, money services or other instrument—was located in the state intending to prosecute. In such an instance, a form of what is often called “long-arm” jurisdiction is being Page 69 | Chapter 2 | § A. Working Definition of Cybercrime Table of Contents