Note: Transnational Cyber Offenses: Overcoming Jurisdictional Challenges

The most common cyber threats today are "transnational cyber offenses"-- attacks like malware, ransomware, and distributed denial of service that ripple across borders, ignoring territorial boundaries and exploiting the decentralized, networked architecture of the Internet. Regulating cyber activity and imposing effective sanctions for cyber offenses is challenging, however. The traditional system of territorial jurisdiction, tied to a system of Westphalian nation-states, is ill-adapted to cyberspace. Yet, without accountability measures, cyberspace risks becoming a Hobbesian state of nature, in which victims engage in self-help and cyber-vigilantism. The existing literature on cyber threats focuses almost exclusively on two legal frameworks: domestic criminal law and international humanitarian law. Each of these bodies of law may be appropriate for certain cyber threats. Domestic criminal law may effectively address computer crimes like identity theft and financial fraud that target specific entities or individuals residing in the same country as the perpetrator. International humanitarian law, by contrast, may be appropriate for cyber aggressions that are carried out by one State against another and that constitute a "resort to armed force." Neither legal framework properly applies, however, to transnational cyber aggressions. This Note therefore urges scholars and policymakers to look to international institutions to develop new accountability mechanisms beyond domestic criminal law and the law of armed conflict. In particular, this Note sketches possible solutions based on international civil arbitration, transnational criminal law, and international criminal law. As the number of transnational cyber aggressions continues to escalate, and the nascent Internet of Things promises to raise the stakes of these threats, the future of cyberspace depends upon the elaboration of an effective global accountability regime.