Introduction
With the growing reliance on technology and the Internet, the term ‘cybercrime’ was introduced in an attempt to capture the new patterns of criminal behavior emerging from these transformations and facilitated by modern technologies. The term quickly entered the public sphere, becoming familiar within media and legislative discourse.
Despite the widespread use of the term, the precise concept of ‘cybercrime’ remains contested, subject to ongoing debate among both legal and technical experts. Divergent views persist as to whether cybercrimes constitute an entirely new category of offenses requiring a specialized legal framework, or if they are fundamentally the same crimes, with only the tools and methods of commission having changed.
In this context, this paper seeks to engage with the ongoing debate surrounding the concept of ‘cybercrime’. It presents arguments in favor of establishing a distinct classification termed “cybercrime”, as well as the counterarguments asserting that crime, in its essence, remains constant, with technology serving merely as a new instrument for the commission of traditional offenses.
The paper also discusses the practical challenges and risks associated with a broad interpretation of the concept of cybercrime. It explores alternative approaches that can adapt to evolving criminal methods without leading to an excessive expansion of criminalization under the term “cybercrime.”
Legislation in the Face of Technology
The legal system is confronted with the growing challenge of keeping pace with rapid technological advancements. Certain legislative authorities tend to respond by enacting new laws with each emerging innovation. However, such an approach risks inflating and conflicting the body of legal texts, thereby undermining the effectiveness of the legal framework and diminishing its capacity to adapt to technological change with flexibility and efficiency.
This challenge is evident across many legal systems that adopt a reactive approach, rushing to enact legislation directed at emerging technologies without undertaking a thorough analysis of their legal and societal implications. As a result, judges and lawyers are confronted with conflicting provisions, while developers and users alike harbor concerns that legal constraints may hinder their professional and everyday activities.
Addressing this challenge necessitates a reconsideration of the nature of technology-related legislation, shifting from a predominantly punitive orientation to a regulatory and procedural one. Rather than enacting separate offenses and penalties for each emerging technology, the law should be confined to establishing overarching frameworks and legal principles capable of governing the use of technology.
This shift contributes to enhancing the flexibility of the legal system and ensures its alignment with ongoing developments, while safeguarding fundamental rights and freedoms. Successful experiences in this field, such as personal data protection laws or artificial intelligence regulations, can serve as guiding examples. These frameworks establish general standards for protecting privacy without imposing excessive restrictions on developers and users.
An excessive reliance on punitive approaches reflects a vision that views technology as a constant source of crime. This leads to several negative consequences, including turning innovation into a venture fraught with legal risks, rendering legal provisions rigid and incapable of keeping pace with technological advances, and diminishing the role of judges in interpreting laws in line with evolving circumstances—ultimately undermining their ability to deliver justice.
Therefore, the legal system should adopt a flexible legislative approach that regulates the use of technology through general, updatable principles, without the need to enact new laws for every innovation. This approach relies on legal principles that judges, lawyers, and practitioners can interpret and apply in line with changing circumstances. It also enables legislators to continuously adjust standards and requirements, ensuring that regulations keep pace with technological developments without falling into legal contradictions.
The Emergence and Evolution of the Term “Cybercrime”
Before the term “cybercrime” became widespread, expressions such as “computer crimes” or “crimes by computer” were commonly used to describe the misuse of technology. These terms remained prevalent until around the year 2000. With the turn of the new millennium, however, the term “cybercrime” began to appear, coinciding with the rise of the word “cyber” in the context of offenses and other negative practices such as cyberbullying. Since then, the concept of cybercrime has become an umbrella term encompassing a wide range of offenses that share in common the use of information technology—or technology more broadly—in their commission.
Although more than two decades have passed since the term first appeared, debates over the definition of “cybercrime” are still ongoing, as no clear consensus has yet been reached on its precise meaning. The proposed definitions vary: some focus on crimes that target computer systems or networks, while others adopt a broader scope, encompassing any offense committed using a computer or technology as a tool.
Given this divergence, confining cybercrimes to a definitive list is difficult, as they represent a broad concept encompassing a wide spectrum of unlawful acts. With every technological advance, new methods of misuse emerge, and amid this continuous expansion and evolution, reaching a precise definition of cybercrime remains an ongoing challenge for legislators.
Arguments in Favor of Establishing the Category of ‘Cybercrime’ and Counterarguments
This section aims to analyze the arguments advanced to justify the creation of a distinct category of ‘cybercrime,’ separate from traditional criminal offenses, and to provide critical responses to these arguments.
The Emergence of Unprecedented Criminal Patterns
Proponents of establishing a distinct category of cybercrime argue that digital developments have given rise to forms of criminal conduct that did not previously exist, thereby necessitating new legal provisions to criminalize them. For example, activities such as hacking information systems, distributing malware or viruses, and launching distributed denial-of-service (DDoS) attacks represent unique offenses that emerged with the spread of networks and modern communication technologies. These cannot be easily subsumed under traditional classifications of crime, such as theft or vandalism, since they target intangible assets like information or service availability.
Accordingly, proponents contend that there is a need for special legislation criminalizing attacks targeting information systems or data, on the grounds that these represent newly recognized legal interests, such as the confidentiality, integrity, and availability of data. Many states have adopted this reasoning by introducing new provisions into their criminal codes or enacting specialized legislation on information technology crimes, including definitions of offenses such as unauthorized system access, data interception, and electronic data forgery.
On the other hand, although technology has introduced new means of committing offenses, the substance of these acts is not entirely novel. For instance, hacking into an information system can be legally likened to trespassing on another’s property or violating the sanctity of ownership (here embodied in the system or the data). The destruction or disruption of data is a digital form of the traditional offense of property damage, while stealing credit card information through phishing is an extension of fraud and deception. Even the dissemination of viruses can be viewed as a hybrid of damage and harm, but through an electronic medium.
Accordingly, most of these technology-related acts can be addressed either through a flexible interpretation of existing provisions or through limited amendments to traditional laws, without the need to create a distinct criminal classification. This approach preserves the coherence of the legal system and avoids duplicative criminalization of the same conduct. By contrast, the alternative approach adopted in some countries—where both the underlying crime and its commission through technology are separately criminalized—results in a redundant double characterization of a single act, an unnecessary repetition that risks confusing justice rather than serving it.
The Limitations of Traditional Frameworks and the Need for Specialized Deterrence
Proponents of enacting special legislation on cybercrime argue that traditional criminal law was crafted in a pre-digital environment, which renders many classical provisions ill-suited to address emerging cyber offenses. For instance, crimes such as digital identity theft or the exploitation of personal data online present challenges that were not anticipated when older penal laws were drafted. Accordingly, supporters maintain that new offenses must be introduced into the law to ensure that perpetrators do not escape punishment under the pretext of legislative gaps.
In addition, proponents argue that establishing a distinct category for cybercrime, coupled with stricter penalties, is essential to achieving deterrence—particularly given the growing severity of crimes targeting information infrastructure or national cybersecurity. They also contend that such a classification helps channel law enforcement resources more effectively. Indeed, the recognition of rising cybercrime rates in several countries has led to the creation of specialized police units, such as the “General Department of Information Technology” within Egypt’s Ministry of Interior, alongside funded training programs in digital forensics and internet-related crimes.
Nevertheless, general criminal laws, such as the Penal Code, are sufficient in most cases to punish criminal acts even when committed online. In such instances, what is required are limited procedural updates or judicial clarifications, rather than the introduction of entirely new provisions. The principle of “no crime without law” does not necessarily entail enacting a separate statute for every novel means of committing an offense; rather, existing rules—such as those on theft, fraud, or extortion—can be adapted to encompass their digital counterparts, while maintaining technical neutrality in legal texts to focus on the criminal act itself rather than the medium through which it is carried out.
Moreover, enacting special laws for every new means of committing an offense may undermine the principle of legal generality, which holds that laws should be broad and applicable to all types of crimes regardless of the method employed. According to this principle, cybercrimes are not an exception but rather offenses that can be addressed within traditional legal frameworks. Excessive proliferation of new statutes could also result in legislative duplication, complicating the legal system and undermining its stability. Accordingly, true effectiveness lies in strengthening investigative and enforcement capacities within the existing framework, rather than overloading the system with scattered provisions for each emerging technological pattern.
Facilitating Evidence Collection and Criminal Procedures
Some proponents argue that enacting specialized cybercrime laws streamlines the development of legal procedures tailored to digital evidence. Traditional procedural law emerged in the context of material evidence, such as paper documents or witness testimony, whereas electronic evidence—such as server logs, IP addresses, or communication data—possesses technical characteristics that necessitate specific procedural provisions. These may include cross-border service provider orders or rules ensuring the integrity and admissibility of digital evidence against challenges in court.
Indeed, proponents highlight that many cybercrime legislations include procedural sections that regulate mechanisms for device searches, data seizure, and communication preservation—aspects that were challenging to incorporate into traditional laws without acknowledging the unique nature of cyber offenses.
However, this objective can be achieved by updating general procedural laws, without the need to create a separate legislative framework that carries the risk of expanding criminalization or restricting fundamental rights. The issue is about developing evidentiary tools and criminal procedures to suit the digital environment, not creating a new classification of crime.
Moreover, granting law enforcement authorities exceptional powers under special legislation may open the door to practices that compromise privacy, particularly when provisions are drafted in broad terms that permit data collection beyond the scope of serious investigations or without effective judicial oversight. For example, Article no. 2 of Egypt’s Cybercrime Law requires telecommunications companies to preserve and store information system logs or any other means of information technology for 180 consecutive days. This means that all user activities become available to security agencies upon request, even without suspicion or crime.
Risks of Ill-considered Expansion of Criminalization
Creating a broad new category such as “cybercrime” entails risks of ill-considered expansion in criminalization. This classification may extend to acts that do not warrant severe criminal penalties, or even to legitimate activities. For example, Egypt’s Cybercrime Law includes a provision penalizing “infringement of Egyptian family values”, which has been used to prosecute numerous content creators on the TikTok platform. Such vague formulations risk restricting freedom of expression or violating citizens’ privacy under the pretext of combating crime.
Furthermore, the broad wording of certain legal provisions may lead to the criminalization of beneficial technical activities, such as cybersecurity research or journalistic investigations into technical matters, due to the absence of clear exceptions for these purposes. For instance, while criminalizing the creation or possession of hacking tools (such as penetration testing software or password generators) aims to prevent cybercrimes, the lack of a requirement for explicit criminal intent or the failure to exempt research-related use means that a researcher utilizing the same tools for testing purposes could potentially face criminal charges. Similarly, certain cybercrime provisions may expose investigative journalists to prosecution when analyzing leaked data or probing into technology-related offenses, as a journalist could be accused of “unauthorized access” merely for handling leaked information in the public interest.
Moreover, special cybercrime laws may create an unwarranted distinction between perpetrators of cyber offenses and their counterparts in traditional crimes, whereby penalties differ solely due to the medium employed. This runs counter to the principle of equality before the law. Accordingly, the more appropriate approach is to amend existing criminal and procedural laws to accommodate offenses of a digital nature, rather than enacting special statutes that carry risks of overcriminalization or undermining the guarantees of justice and equality.
Egypt’s Legislative Approach to the Concept of Cybercrime
Legislative efforts to enact a “Cybercrime Law” continued for nearly three years following the promulgation of the Constitution, culminating in 2018 with the issuance of the Law on Combating Information Technology Crimes. During this period, the executive authority sought to develop a proposal addressing the concept of cybercrime, resulting in three draft bills prepared by different bodies, including the Ministry of Justice and the Ministry of Communications.
These draft bills faced several challenges, most notably the lack of clarity regarding the legislative philosophy underpinning the proposed law. This was reflected in a tendency to expand the scope of criminalization without sufficient justification, as a result of conflating newly emerging offenses driven by technological developments with the new dimensions of traditional crimes already addressed in penal codes, as well as with the evolving means through which such crimes are committed. The drafts also suffered from issues such as imprecise use of technical terminology and the absence of clear legislative objectives for a number of their provisions.
One of these attempts took place in May 2016, when the Defense and National Security Committee submitted a draft cybercrime law consisting of 29 articles. Later, in September of the same year, the Supreme Committee for Legislative Reform approved a new draft law on information technology crimes, prioritizing those related to terrorism.
The proposal submitted to the Council of Ministers comprised 59 articles. These provisions stipulated penalties for anyone who created, administered, or used a website, private account, or email with the purpose of establishing a terrorist entity or group, promoting its ideas, exchanging messages or issuing directives among terrorist organizations or their affiliates, as well as for making available or publishing data, information, or movements of the Armed Forces or security agencies, or of any of their personnel, or members of any state authorities, with the intent of committing or facilitating the commission of a terrorist crime.
With the issuance of the final draft of the bill, the legislator sought to avoid the shortcomings of the previous drafts. According to the report of the joint committee composed of the Committee on Communications and Information Technology and the Bureaus of the Committees on Constitutional and Legislative Affairs, and on Defense and National Security, the philosophy and purpose of the bill were stated as follows:
- Combating the unlawful use of computers, information networks, and information technologies, and the crimes associated therewith, while ensuring accuracy in defining the punishable acts, avoiding vague expressions by providing precise definitions, carefully specifying the constituent elements of the criminalized acts, and taking into account the personal circumstances of the victims.
- Regulating the provisions governing the collection of electronic evidence and determining its probative value in legal proceedings.
- Establishing the rules, provisions, and measures that service providers must follow to secure the provision of user communication services via information technology, and defining their obligations in this regard.
- Safeguarding government data and information, as well as the information systems and networks of the State or any public legal entity, from interception, intrusion, tampering, damage, or disruption in any form.
- Safeguarding personal data and information from exploitation that harms their owners, particularly given the inadequacy of traditional criminal provisions related to protecting individual privacy and the sanctity of private life against emerging threats and risks arising from the use of information technology.
- Establishing precise procedural regulations governing arrest, investigation, and trial processes, in addition to defining the cases and procedures for reconciliation, organizing the work of specialized experts in the field of combating information technology crimes, and regulating the criminal decisions and orders related to the enforcement of the provisions of the law.
It is evident from the report that the primary objective of the law is the protection of individuals’ privacy and the inviolability of their private lives. Nevertheless, the law, in its final form, was issued with flaws, burdened with substantive and procedural defects that directly undermine the guarantees stipulated in the Egyptian Constitution. Moreover, it contains offenses that are neither clear nor well-defined—an approach long cautioned against by critics of enacting a separate law under the title of “cybercrime”.
The Egyptian legislative experience in drafting the Anti-Cyber and Information Technology Crimes Law exemplifies the absence of clarity in legislative philosophy. The early drafts were marked by a conspicuous conflation between expanding criminalization by creating new offenses without sufficient justification and addressing the technical dimensions of existing traditional crimes.
This conflation led to the inclusion of overly broad and unnecessary provisions, ultimately resulting in the absence of a coherent philosophical framework that defines the identity of the legislation: is the objective to deter cybercrimes through strict penalties, or to manage the digital sphere through comprehensive regulatory rules? The clarity of the legislative philosophy from the outset is a decisive condition for the precision of definitions and terminology, the scope of criminalization or regulation, and the determination of the competent authorities responsible for enforcement and oversight.
Punitive Legislation vs. Regulatory Legislation
The challenge of cybercrime laws lies in how legislation responds to technological developments. This paper adopts an alternative approach to addressing technology-related crimes, focusing on law enforcement tools and procedures rather than enacting additional punitive laws. The core challenge posed by technology does not lie in the emergence of entirely new crimes, but rather in the need for innovative mechanisms for investigation and evidence-gathering, alongside improving the quality of regulatory laws that set out the general rules governing technological activities.
When enacting technology-related laws, legislators can adopt one of two main approaches or a combination of both: punitive legislation and regulatory or procedural legislation. Each has distinct characteristics and objectives. While the issues associated with the expansion of punitive laws have been previously addressed, it is equally necessary to examine the regulatory approach and highlight its advantages, particularly in a rapidly changing technological environment. Regulatory legislation offers high flexibility and adaptability to emerging developments, along with intrinsic advantages that make it a preferred choice in the age of digital transformation. The most prominent of these advantages can be summarized as follows:
- Flexibility and Updatability: Regulatory legislation often delegates technical details to executive regulations or administrative authorities, which makes it relatively easier to swiftly amend subsidiary rules when new developments arise. It also relies on flexible standards, “flexibility of the legal rule” rather than rigid specifications that may quickly become obsolete.
- Guiding Behavior Before Risks Materialize: By establishing ex-ante controls (such as licensing requirements, mandatory cybersecurity standards, and professional codes of conduct), regulatory legislation helps prevent problems before they occur. It functions as a preventive system that steers technological actors toward sound practices, rather than waiting for violations to take place and then imposing penalties.
- Establishing a Specialized Institutional Framework: Regulatory legislation is often accompanied by the creation of specialized regulatory and supervisory bodies with technical expertise, ensuring more effective and dynamic enforcement of the law. Such entities can issue detailed decisions and directives more swiftly than the legislative authority, thereby addressing emerging issues as they arise. Moreover, direct engagement between regulatory bodies and technology industries fosters an ongoing channel of interaction that enables regulatory policies to be updated through dialogue with stakeholders, rather than waiting for lengthy legislative cycles.
Comparing punitive legislation with its regulatory or procedural counterparts does not necessarily imply advocating for the expansion of laws; rather, it primarily aims to mitigate the effects of legislative overreach and to constrain this tendency within clearly defined and controlled frameworks as much as possible. The objective is to limit the scope of criminal legislation that typically carries custodial penalties, given the serious and often irreparable consequences of such sanctions. Accordingly, the distinctive features of this type of legislation should be understood and interpreted as narrowly as possible.
Characteristics of Effective Technology Legislation
When drafting effective legislation in the field of technology, lawmakers must consider a set of core features and principles that ensure the law’s ability to achieve its objectives in a rapidly evolving environment, while simultaneously safeguarding citizens’ constitutional rights and freedoms. The key characteristics of effective technology legislation can be summarized as follows:
Comprehensiveness and Technological Neutrality
Legal provisions should be drafted with maximum technical neutrality, avoiding bias toward a specific technology or tailoring rules to a particular status quo. Instead, they should focus on general principles and fundamental risks, regardless of changing technical details. Rather than enacting separate legislation for each new technology—such as autonomous vehicles or the Internet of Things— it is preferable to establish a broad legal framework that regulates liability for automated driving systems or the protection of smart device data in general.
This approach allows the law to apply to a wide range of technologies and extends its legislative lifespan, enabling it to accommodate successive generations of innovations without requiring frequent amendments. Moreover, maintaining technological neutrality in drafting reduces the risk of obsolescence, as the general provisions remain capable of encompassing future developments across diverse applications.
Flexibility and Adaptability
Flexibility is a core element of effective technology legislation, as it enables the law to adapt to rapid developments without undermining its fundamental principles. This can be achieved by incorporating mechanisms that allow for the relatively easy amendment of technical regulations and procedural details, either by delegating authority to competent executive or regulatory bodies to issue detailed, periodically updatable decisions, or by stipulating regular reviews of the law —e.g., every two years—to assess its suitability in light of technological advances. Flexibility also entails adopting performance standards or broad regulatory objectives—such as safeguarding personal data according to the latest standards—rather than imposing rigid technical methods that may lose their effectiveness over time.
Upholding the Protection of Fundamental Rights and Freedoms
Any technology-related legislation must be consistent with human rights and constitutional guarantees, ensuring that fundamental rights are not sacrificed in the name of regulating technology. Human rights considerations should be integrated into the legal framework governing technology, so that the development and use of technological tools do not result in violations of core rights, such as the right to privacy, freedom of expression, and the principle of non-discrimination.
Any technology-related legislation must align with human rights and constitutional principles to ensure that fundamental rights are not compromised under the pretext of regulating technology. Given the rapid advancement of technology, it has become essential to establish legal frameworks that strike a balance between innovation and the protection of individuals’ basic freedoms.
Furthermore, any technology-related legislation must strictly adhere to human rights principles and constitutional provisions, ensuring that fundamental rights are not sacrificed under the pretext of regulating technology or addressing its risks. International legislative experience demonstrates that laws disregarding this alignment may lead—even with good intentions—to widespread violations, such as infringing on the right to privacy through excessive surveillance systems or restricting freedom of expression via vague regulatory mechanisms. Therefore, human rights considerations must be integrated into all stages of technological regulation, from the drafting of provisions and implementation mechanisms to review and accountability processes, to ensure that technological development or its use does not become a gateway for violating these rights.
The provisions of technology-related legislation must be drafted in clear and precise language to avoid any ambiguity that could be exploited to evade compliance with the law or lead to inconsistent application. It is essential to include definitions of technical terms used in the law, such as “personal data” or “digital service provider,” to ensure a unified understanding. However, precision does not imply excessive detail; definitions should remain flexible and adaptable. Therefore, effective legislation features definitions broad enough to encompass emerging technological phenomena, yet without vague definitions that might confuse the judiciary or those involved in implementation.
Engaging Specialized Expertise and Governance Mechanisms
Technology is a rapidly evolving field that requires deep understanding from specialized experts when designing legislative frameworks. Accordingly, a hallmark of effective technology legislation is adopting a participatory approach to drafting and policymaking, involving consultation with all relevant stakeholders—including engineers, technologists, legal experts, entrepreneurs, and civil society—throughout the law’s development stages. Such participatory governance ensures that the proposed rules are practical, implementable, and effectively balance the interests of all stakeholders.
Updating Procedural Frameworks
It is frequently argued that traditional procedural frameworks are no longer adequate to address modern technological developments. While this claim is valid and important for safeguarding individuals against potential overreach by law enforcement authorities, any expansion of procedural legislation should first be preceded by an assessment of the sufficiency of existing rules.
For example, the Egyptian Criminal Procedures Law regulates the search of individuals and premises under clear conditions: the existence of a material fact constituting an offense, the necessity of the search to establish it, obtaining a reasoned judicial warrant, and the precise specification of the purpose of the search. These conditions can similarly be applied to access devices or networks, as the essence of the search remains the same. If the existing rules are sufficient, there is no justification for expansion, provided that any procedural updates—if necessary—are part of a general legislation that ensures equality between the rules governing traditional cases and their digital counterparts.
Conclusion
In light of the foregoing, it becomes clear that the debate surrounding the concept of “cybercrime” is not merely a theoretical disagreement, but rather a direct reflection of a deeper tension between differing approaches to understanding the relationship between law and technology. On one hand, some argue that digital transformations have given rise to behavioral patterns that necessitate the establishment of an entirely new legislative framework. On the other hand, others contend that these acts are nothing more than extensions of traditional crimes reproduced through modern mediums, making existing legal adaptations sufficient—provided they are updated procedurally and technologically in a thoughtful and intelligent manner.
The paper has demonstrated that the real challenge doesn’t lie in a legislative vacuum, but rather in the absence of a clear legal philosophy in many attempts to address “cybercrime,” such as the Egyptian model. A punitive approach has dominated, without being accompanied by the development of institutional regulatory structures or balanced improvements in law enforcement tools, resulting in vague provisions that threaten fundamental rights rather than safeguard them.
Therefore, it is not necessary to classify “cybercrime” as a separate legal category. Instead, the overall legislative framework should be reviewed, adopting a more structured and flexible approach. This approach focuses on updating procedures, improving the efficiency of evidence collection, enhancing transparency in the handling of digital evidence, and developing the justice system to keep pace with technological changes, while maintaining the principles of legality, justice, and equality before the law.