Cyber Gangs Aren't Afraid of Prosecution

Source: Tero Vesalainen via Alamy Stock Photo

COMMENTARY

Historically, cybercriminals have always had an edge over law enforcement. It may take a few hours to steal thousands of credit cards after exploiting a SQL injection flaw, but the subsequent investigation and prosecution of the cybercriminals can take years — and still fail.

Europol described the challenges in investigating and prosecuting cybercrime — the collection and preservation of digital evidence, difficulty tracing and identifying attackers, and legal and judicial hurdles associated with cross-border investigations — back in 2019. These challenges remain relevant in 2024.

Challenges That Law Enforcement Faces

While many countries have one or more specialized law enforcement agencies (LEAs) or police units capable of investigating cybercrime, the general trend is to commingle computer-enabled crimes (cybercrimes) with cyberattacks and send them all to a single agency.

Cybercrimes, which include online dating scams and other types of digital fraud that rely on social engineering, cause damages ranging from 100 to several thousand dollars. Compare that with cyberattacks — which require fairly advanced tech skills and resources from cyber gangs — such as ransomware attacks on critical national infrastructure and advanced persistent threats aimed at stealthily stealing valuable trade secrets from large companies or classified information from governmental agencies. When a single agency is tasked with handling all types of digital crimes, it is unsurprising that just the initial triage of incoming cases can consume virtually all agency resources.

In contrast to overwhelmed LEAs dealing with all kinds of tasks simultaneously using extremely modest resources, modern cyber gangs usually have narrow specializations, such as vulnerability research and exploit development, where they truly excel technically and financially. Cyber mercenaries may use breached LEAs as proxies to attack other systems and slow down investigations, while state-backed groups may exploit backdoored LEAs for perfidious attacks trying to frame their political enemies. On the Dark Web, the number of announcements selling access to backdoored LEA systems or networks is steadily growing.

Despite national security being a hot topic for lawmakers on both sides of the Atlantic — and the increased funding that attention brings — specialized LEAs or units dedicated to tackling cybercrime still remain underfunded compared to their highly sophisticated, extraordinarily well-prepared, and well-funded adversaries.

Insufficient funding makes it harder to attract talented individuals to work on defense. In Western countries, state agencies struggle to compete with the deep-pocketed private sector for talented cybersecurity professionals, who can be swayed by perks unavailable to most government employees, such as higher salaries, longer leaves, and working from home. The situation is even worse in other countries: Young graduates with good technical skills can earn their annual salaries in a couple of weeks working for cybercrime conglomerates that actively prospect and recruit new members. In January 2024, FBI director Christopher Wray estimated that the number of hackers in China outnumbers all available FBI cyber personnel by at least 50 to 1.

Likewise, forensic tools and special equipment designed to bypass encryption on mobile devices or acquire digital evidence from a multicloud environment are also quite expensive, oftentimes being affordable only to leading national agencies or central forensic labs that serve thousands of requests from an entire country. As a result, a backlog of cybercrime investigations is building relentlessly, undermining people’s trust in their government’s capacity to protect their privacy and property on the Internet.

Advantages for the Cyber Gangs

International collaboration and judicial assistance in cybercrime investigation has never been simple. The Budapest Convention of 2001 is probably the most important international treaty designed to combat cross-border cybercrime. But even after the enactment of the Second Additional Protocol, the convention has fallen short of its original goals for political and organizational reasons. The recently proposed UN Treaty on Cybercrime is unlikely to do much better amid the unfolding geopolitical crises and the weakening force of international law.

The problem is that some countries, even after ratifying a treaty, are very selective when complying with the underlying duties and obligations owed to other signatories. They frequently ignore or simply delay required actions to the extent that, by the time they’re finally performed, they are worthless — for instance, seizing volatile digital evidence several years after receiving a mutual legal assistance (MLAT) request from another sovereign state.

Indeed, some countries are considered safe harbors for cyber gangs that cooperate with, or work for, the government. These barons enjoy a luxurious lifestyle, safe in the knowledge that they will never be prosecuted domestically, let alone extradited, for cybercrimes that do not conflict with state public policy. Such cybercrime havens create a strong feeling of impunity among perpetrators, who believe — usually accurately — that they are above the law. Even if they are apprehended, cybercriminals usually get lenient punishments for the financial damage caused, compared to the decades-long and even life sentences for leaders of drug cartels or masterminds of Ponzi schemes.

Alarmingly, as the World Economic Forum reports, cybercrime has started to merge with organized and violent crime — for example, exploiting forced labor to staff large-scale online fraud and extortion campaigns.

How Law Enforcement Can Make Up Ground

To win against the seemingly invincible cybercrime hydra, governments should better organize their national cybercrime LEAs. Here’s what they need to do:

• Create specialization and internal segmentation.

• Allocate additional funding to these agencies.

• Form more public-private partnerships to jointly trace and dismantle cyber gangs.

• Revise national legislation, including sentencing guidelines, for cybercrimes to boost the deterrence effect.

Otherwise, in a few years, the Internet may become an uncontrollable zone of lawlessness and chaos, co-managed by rival cyber gangs.

For a longer version of this article, please contact the author.

About the Author

Partner, Platt Law

Dr. Ilia Kolochenko is a Swiss expert in cybersecurity, cybercrime investigation, and cyber law. He is also a lawyer admitted to the DC Bar in Washington, DC. His legal practice is mainly focused on data protection, privacy, and cybersecurity law. Dr. Ilia Kolochenko currently serves as a Chief Architect and CEO at ImmuniWeb, a global application security company headquartered in Geneva, Switzerland. He is also a Partner & Cybersecurity Practice Lead at a US law firm with offices in New York and Washington. As part of his academic activities, Dr. Kolochenko is an Adjunct Professor of Cybersecurity Practice & Cyber Law at Capitol Technology University in Maryland, and a Faculty Member at the DC Bar Continuous Legal Education (CLE) Program, where he teaches a cybersecurity and privacy course for lawyers and other legal and judicial professionals.

Dr. Ilia Kolochenko has an LL.M. (Master of Laws) degree in Information Technology Law from the University of Edinburgh Law School, an M.Sc. in Criminal Justice (Cybercrime Investigations & Cybersecurity) from Boston University, and a Ph.D. in Computer Science from Capitol Technology University. He currently completes an advanced LL.M. in Cyber, Information and National Security (CINS) at George Mason University, Antonin Scalia Law School.

He is a Fellow of Information Privacy (FIP) and a Privacy Law Specialist (PLS) at the International Association of Privacy Professionals (IAPP), two most advanced credentials in privacy practice and privacy law by the IAPP, respectively, while also holding AIGP, CIPP/A, CIPP/C, CIPP/E, CIPP/US, CIPM, and CIPT privacy certifications. Additionally, he earned numerous offensive and defensive security certifications by the Global Information Assurance Certification (GIAC) after ongoing training in advanced cloud security, cyber operations, and investigations at SANS Institute.

Dr. Ilia Kolochenko currently serves a Vice-Chair of the Information Security Committee at the American Bar Association (ABA), also being a Fellow at the European Law Institute (ELI) and a Member of the Cybercrime Investigation & Cybersecurity (CIC) Center at Boston University. Additionally, Dr. Kolochenko is part of the Europol’s Data Protection Experts Network (EDEN), INTERPOL’s Digital Forensics Expert Group (DFEG), National Association of Criminal Defense Lawyers (NACDL), SANS CISO Network, and the EU CyberNet.

Dr. Ilia Kolochenko has authored over 75 articles on cybersecurity, computer crime investigations, cyber law, and artificial intelligence. His interviews and expert comments have been published in over 250 media across Europe and the US; he is also a frequent lecturer at cybersecurity, law enforcement, and legal conferences around the globe.