Honorary Doctorate’s speech at the Fall 2019 Entrance CeremonyThu, Oct 24, 2019
Prof. Dr. Ulrich Sieber
The Changing Face of Crime and Crime Control:
Paradigm Shifts in the Global Risk and Information Society
Waseda University Entrance Ceremony 21/09/2019
Distinguished representatives of Waseda University, President Professor Tanaka, Former President Professor Nishihara, Vice Presidents, Executive Directors, Deans and Colleagues, Dear students and guests,
It is a special honour to participate in today’s Entrance Ceremony and to receive the Honorary Doctorate of your university. This distinction is something special for me because it comes from the Japanese scientific community, which I esteem highly and with which I have been collaborating for four decades. This cooperation started with my unforgotten friend late Professor Nishida and with Professor Yamaguchi who translated and published in Japanese my dissertation on cybercrime already in the nineteen hundred and seventies.
Receiving an Honorary Doctorate from your university is, above all, a great honour because Waseda is one of the world’s leading global universities. I am proud to have had the privilege of cooperating with Waseda for three decades, especially with former President Professor Nishihara, Vice President Professor Kai, Professor Taguchi and other colleagues in outstanding research projects.
I would like to warmly thank President Tanaka and all his colleagues for the Honorary Doctorate of Waseda and for our long-lasting cooperation. It was and continues to be a great pleasure for me.I am overwhelmed by this award!
Knowing Waseda’s excellence from personal experience, I congratulate you on most promising start to your academic career. From today, you will not only be studying at the very famous Waseda University in preparation for later professional work. You can also benefit from the outstanding research of one of the world’s leading research institutions. This research-oriented aspect is essential for you because today’s knowledge is changing rapidly. It is no longer sufficient to “learn” the wisdom of today; you must also acquire the methods of future-oriented research to master tomorrow’s challenges. Our present age’s unprecedented progress in science makes this vitally important. You can see the change and progress I speak of in many of the traditional and new disciplines that are explored and taught at Waseda.
In the following, I will illustrate this change and the fascination of research in my own discipline of criminal law. Criminal law is often considered to be traditional, static, and based on dead letters. But as you will see: This is not the case.
Since most of you are not lawyers, I shall begin with a short note on what criminal law is: Criminal law contains the main rules relating to crime. Its basic concept for dealing with crime is to impose serious harm and ethical blame on persons that have culpably committed a crime. By imposing punishment for past crimes it seeks to prevent and deter perpetrators and the general public from committing future crimes. However, the aim of criminal law is not only to prosecute the culpable perpetrators, but also to protect innocent citizens from infringement of their rights by applying special criminal law guarantees. Thus, balancing security and liberty is one of the most crucial challenges of criminal law policy.
At present, we are facing important shifts in this traditional area of law. My research hypothesis is that these changes are caused by the technological, economic, and societal changes in our society. These changes are: (1.) globalization, (2.) risk society, and (3.) information society. In the following, I will illustrate how these three fundamental shifts are changing crime and criminal law and how we can use our basic knowledge of these changes to develop better legal policies.
2. Globalization and the Need for Transnationally Effective Criminal Law
- Let me start with the first main change in today’s society: the increasing globalization. Globalization entails not only increased interaction with foreign persons including students (of which I see so many here in this hall); nor is it limited to the cross-border exchange of goods, services, and data.
- Globalization also enhances transnational crime. This can be witnessed, for example, in complex forms of international economic crime, with perpetrators acting in multiple countries. It becomes even more obvious in flourishing global crime markets, especially those dealing with drugs, weapons, or the trade in human organs.
- The investigation of these global crimes requires simultaneous activities by different national authorities in a multitude of states, as well as mechanisms for collecting evidence and catching perpetrators abroad. However, this creates fundamental problems for our traditional criminal law systems: They are national systems and their decisions are only valid on the territory of their own countries. A Japanese arrest warrant, for example, cannot be executed on the sovereign territory of Germany without a process of recognition in that state.
This leads to a discrepancy: While perpetrators can move freely around the world, judicial decisions cannot cross national borders without recognition procedures. These procedures take on different forms, but the underlying problem they seek to solve is essentially the same: The various national criminal laws differ from state to state, and recognition procedures are used to safeguard the integrity of the national legal orders: We want to avoid violating our human rights standards by supporting foreign procedures contradicting these standards and for that reason we are checking the foreign decisions before their recognition.
3) The only way to avoid these recognition procedures is therefore to harmonize our national criminal laws, especially with respect to the scope of criminalization and the guarantees of criminal law.
Based on this idea, the European Union now enables smoother cooperation in criminal matters by providing similar human rights standards and by improving mutual trust in the European criminal justice systems. This forms the basis for a “direct recognition” of foreign decisions without checks. The so-called “European Arrest Warrant” is an impressive example: It has shortened delays in investigating transnational crime considerably. The conclusions of this analysis are clear: Due to increasing globalization we need more comparative legal research, more international harmonization of criminal laws, improved procedures for international cooperation, and in some areas even supranational criminal law. This leads to a fundamental change in criminal law: Criminal law, which for a long time has been a national domain, is becoming more and more international. The legal researchers of Waseda University have therefore rightly contributed considerably to legal comparative work.
3. Risk Society and the New Architecture of Security Law
- The second main change in today’s society is the emergence of “risk society”. On the objective level, this catchword describes the emergence of new threats, including new risks of crime. Such risks can be seen in the field of terrorism. Other examples include risks in the financial market as revealed by the manipulations of the American bank Lehman Brothers. On the subjective level, these risks lead to an increase in the population’s fear of crime. People are therefore demanding not only the imposition of retrospective punishment for past crimes but also more future-oriented security and risk prevention measures. This fear of crime is taken up by politicians seeking (re)election by promising security.
- This has led to a paradigm shift in crime control: In many areas, public criminal policy is today no longer dominated by traditional backward-looking questions of culpability and punishment but by the future-oriented notions of risk and danger. This paradigm change can be seen within and outside criminal law: Within criminal law, many states are intensifying the criminalization of preparatory acts, such as collecting chemicals for a terrorist attack or leaving the country with the aim of receiving terrorist training. It is, however, questionable whether and to what extent such combinations of neutral acts with criminal intentions should be classified as crimes.
Outside criminal law, we see an increasing use of alternative preventive legal regimes for the control of crime, such as police law, administrative criminal law, intelligence law, or even the laws of war (in the “war” on terror or the “war” against drugs). As a consequence, criminal law is becoming part of a new preventive architecture of security law. This new security law can be quite effective. However, many of these new preventive legal regimes lack the safeguards which we have developed in criminal law since the Enlightenment.
- For legal policy this means: Considering the changes of risk society, we should use these new preventive systems of crime control. The development of this new architecture of security law, however, must be complemented by a new “architecture of civil liberties”
4. Information Society and the Need for a New Information Law
The problems of crime control caused by globalization and risk society are merging and compounded by the third mentioned change: the emergence of information society with its dominant role of information, information technology and – in the future – artificial intelligence.
1) Regarding the special globalization of crime in the information society: The internet allows perpetrators to access millions of inadequately protected computer systems around the globe and to manipulate high value-targets on other continents within milliseconds – all from the safety of their homes. Perpetrators can even hide their location by using anonymity networks (like TOR), virtual private networks, darknet services, and encryption, so the police don’t even know where to investigate in the global cyberspace or in which country to ask for legal assistance.
2) This globalization in cyberspace is accompanied by new special threats of the risk society in the IT environment:
- The first reason for this risk increase in cyberspace is the dependency of our information society on the security of IT systems. We entrust our most important assets and processes to computer systems: For example, money transfer systems, credit card transactions, business secrets, air traffic control, hospital computers, and military defence systems – they are all administered by computers and accessible via – often insecure – data lines. Attacks on these elementary infrastructures can have disastrous consequences – just imagine criminals hacking a nuclear power station.
- The second reason for the increasing risks in the information society is the power which information can give its “owner”. This can not only be seen in the powerful mass distribution of information, for example by botnets. Even more interesting is the power based on the collection and analysis of mass personal data which enables its owner to predict and influence the behaviour of people.
The resulting potential for financial gains with the help of mass data analysis can be seen daily in the form of targeted online business promotion based on a person’s previously accessed websites.
This power based on data is especially dangerous if mass personal data are used to influence political elections, which form the heart of our democratic systems; such issues arose in the US in the aftermath of the Trump election with regard to Cambridge Analytica. Nowadays, elections can be influenced in more ways than just by mailing political advertisements to carefully selected voters. Knowing, for example, that a certain voter is critical of immigration, one can flood him with an abundance of – even true – news about criminal migrants. In the end, he will be convinced of the serious risks posed by immigration and cast his vote accordingly.
This problem of privacy protection will increase considerably with the advance of artificial intelligence. Already, the pool of personal data available for analysis – with or without artificial intelligence – is enormous. Sources include telephone data, mail-content analysis, banking and credit card data, recordings of travel through public video surveillance, to name just a few. Many people are not fully aware of this recording of their data: For example, if you use the voice assistant of your iPhone, all conversations near the phone are recorded and analysed, possibly also for advertising purposes or for the next elections.
3) For responding to these new challenges of the information society, we can first refer to the general solutions already developed with respect to globalization and the new threats in the risk society.
Furthermore, we need additional solutions for the specific problems of information and information technology. In many areas this requires a new “information law”. Two examples: The nature of incorporeal data and information differs greatly from the traditional corporeal objects which our legal system was designed for in the last century. And consent to infringements of privacy could be defined and especially enforced in a special way to ensure better protection of personal data on the internet. Thus, the decisive question is: How can we deal with these issues and find the best solutions for all these new challenges?
My answer is: By conducting more research which is oriented towards the relevant basic problems but which can also be applied in practice! The German engineer Robert Bosch once said: There is nothing more practical than a good theory. Similarly, the Nobel Prize winner Max Planck, urged: “Knowledge must precede application“.
For these reasons I want to encourage especially the students assembled here today: Please do not limit your studies to memorizing the knowledge of today. In the later stages of your studies you should also get acquainted with research methods for gaining new knowledge, and you should discover the fascination of scientific research! The university which you are entering today provides an ideal basis for such an approach. I wish you good luck and success in setting forth to these new horizons offered by your university!
Dōmo arigatō gosai mas!