'Intangible' Crimes Are Seeping Through the Cracks in the U.S. Legal System | Opinion

Cyber criminals can break U.S. laws from the other side of the world, and our courts are currently ill-equipped to do anything about it. As a result, digital and "intangible" crimes are seeping through the cracks in the legal system. As the world has become increasingly digitized, crime has followed suit. Gone are the days when each crime was grounded in specific places and countries.

WikiLeaks founder Julian Assange's recent extradition to the U.S. is the culmination of a legally exhausting, 10-year-long saga. Yet, as the U.S. courts continue to find themselves suffocating in a chokehold of red tape, it is clear that this case has revealed a peculiar new legal phenomenon: intangible crime.

In the aftermath of the infamous 1997 Dunbar Armored robbery in Los Angeles, no one had to ask where the crime occurred, or which country's jurisdiction applied. Now, a hacker can steal sensitive data from the U.S. while sitting in a British apartment.

Suppose the U.S. has a good relationship with the cyber-criminals' home nation. In that case, they are often eventually extradited, as in the case of Assange—but as the Gary McKinnon case highlighted, this is not always guaranteed.

The intangibility of cyber crime has made the task of establishing jurisdiction almost impossible. The U.S. has extradition treaties with several countries but notably lacks any agreement with Russia or China, which have long been painted as our cyber crime nemeses. Nevertheless, we have enjoyed some success in extraditing hackers that operate on foreign shores, such as Russian hacker Peter Levashow, who was extradited from Spain in 2018, along with another Russian hacker, Yevgeniy Nikulin, who was extradited from the Czech Republic in 2020.

But we have also faced many recurring challenges, mainly when those involved are foreign government officials. Along with the failure to have Gary McKinnon extradited for a substantial military hack, the U.S. government also struggled in trying to get Lauri Love extradited, another Brit accused of stealing confidential information from U.S. government agencies. If this can happen with one of our closest allies—Britain—then this failure of the U.S. legal system can be exposed anywhere on the planet.

For instance, someone in Argentina might steal your bank account details from your laptop, which sits in your room in Denver, Colo. The crime has been committed both in the U.S. and on foreign soil at the same time—and the Argentinian government may well refuse to extradite the hacker.

This is more than an incidental loophole that has been digitally pierced in the U.S. legal framework. It raises a host of more profound questions about our entire system of crime and punishment. Lady Justice is wafting her finger of judgment aimlessly in the dark, trying to land on something completely and wholly intangible. Digital crimes defy borders, and the current legal system is ill-equipped to handle them.

We need to admit that our legal system is defunct. A possible solution is a quasi-Marxist system inspired by President Joe Biden's recently announced global tax treaty. This unites 130 countries under the same tax rulings; a similar international legal agreement would reverse the gray areas surrounding intangible crimes.

Yet we have to ask, would this be enough? This problem has already spread deeper than we might presume as we grapple with an issue twice as thorny and complex as intangible crimes: "intangible misdemeanors."

This warped cousin of intangible crimes—intangible misdemeanors—is becoming particularly prevalent on social media platforms such as Twitter. It is one thing for the platform to ban tweets that clearly break the law, such as those telling people to commit murder, for example. But to get into the business of restricting tweets because they do not align with Twitter's ideologies and worldviews is the first step on a dangerously slippery slope toward censorship. Twitter has already banned hundreds of thousands of tweets that violate the site's policies; as a corporation, the rules of free speech technically do not apply to it.

Now Twitter is suing Elon Musk as he tries to exit his $44 billion takeover deal, and the trial is set to begin in October. This is where we get into a uniquely gray area that the intangibility of these "misdemeanors" has produced. We could spend hours dissecting the apparent benefits of limiting extremist content and whether freedom of speech is a sacred right or a 21st century myth without becoming any more precise as to what and what should not be punished.

As Friedrich Nietzsche so eloquently observed, the significance of punishment lies not in the act itself but in the meaning we attach to it. Therefore, because the intention is independent of the act of punishment, we can come to understand punishment as meaning anything we like. In today's world, where we are more concerned with acts than the intention behind them, punishment has morphed into a hollow system of rules and regulations. In many ways, these have become detached from their original purpose so that now, when we are faced with troublesome issues such as intangible crimes and misdemeanors, we cannot agree upon a solution.

Perhaps we will never find one clear-cut answer. But either way, the U.S. legal system's current approach to extradition and cyber crime is not effective. Assange's ability to run rings around it has demonstrated how much of a tangled mess it really is. Intangible crimes have left us in a situation where everywhere we look, there seem to be more and more gray areas. When fighting an enemy that is not bound by location or space, we need more than empty rules and regulations in our arsenal.

Joshua Jahani is director of Jahani and Associates (J&A), a middle market investment bank focused on cross-border transactions between North America, the Middle East and North Africa, Southeast Asia, and Latin America. The firm has offices in New York City, Abu Dhabi, and Singapore.

The views expressed in this article are the writer's own.