Criminal Law in Cyberspace should be regulated the same way as other acts in realspace. The U.S. Department of Justice(Doj recent report on cybercrime typifies this approach. I contend that neither view is correct, and that each camp slights important features that make cybercrime both different from and similar to traditional crime Underlying the"cybercrime is not different position is a worry about a unique form of geographic substitution. The concern is that disproportionately punishing activity in either realspace or cyberspace will induce criminals to shift their activities to that sphere in which the expected punishment is lower. For example, if the electronic theft of $1 million warrants five years'imprisonment, and the physical theft of Sl million warrants ten years' imprisonment, criminals are likely to opt for the electronic theft. Such analysis is, however, incomplete. Beccaria and Becker have observed that the expected penalty for criminal activity is not only the sentence in the criminal code, it is also a function of See, e. g, Christopher M. Kelly, The Cyberspace Separatism Fallacy, 34 TEX INT'L L.J. 413(1999)(book review); Catherine T Clarke, From CrimiNet to Cyber-perp: Toward an Inclusive Approach to Policing the Evolving Criminal Mens Rea on the Internet, 75 OR. L REv. 191, 204-05 (1996)(discussing informal surveys of lawyers revealing that"most lawyers consider criminals on the'net to be exactly the same as those outside the 'net); Jack L Goldsmith, Against Cyberanarchy, 65 U CHI. L REv. 1199(1998)(arguing that cyberspace can be regulated in many traditional ways). An important middle approach is Larry Lessig's, who contends that cyberspace can be regulated hrough law and programming code. See LAWRENCE LESSIG, CODE AND OTHER LAWS OF CYBERSPACE 52-60(1999) Some courts have also suggested that crimes might be different in cy berspace because there is a lack of ngible media, such as a briefcase that may be"stolen. "See, e. g, United States v. Carlin Commun., Inc, 815 F2d 1367, 1371(10th Cir. 1987). Others have disagreed. See United States v. Thomas, 74 F. 3d 701, 707(6th Cir. 1996) United States v Gilboe, 684 F2d 235 (2d Cir 1982) The Justice Department believes that"substantive regulation of unlawful conduct. should, as a rule, apply in the same way to conduct in the cyberworld as it does to conduct in the physical world. If an activity is prohibited the physical world but not on the Internet, then the Internet becomes a safe haven for that unlawful activity. UNITED STATES DEPARTMENT OF JUSTICE. THE FLECTRONIC FRONTIER: THE CHALLENGE OF UNLAWFUL CONDUCT INVOLVING THE USE OF THE INTERNET 11(2000)[hereinafter DOJ REPORTI Current federal law, in general, embraces the view that there are no differences. See id at vi("Existing substantive federal laws generally do not distinguish between unlawful conduct committed through the use of the Internet and the same conduct committed through the use of other, more traditional means of communication.Criminal Law in Cyberspace Page 3 4 See, e.g., Christopher M. Kelly, The Cyberspace Separatism Fallacy, 34 TEX INT’L L.J. 413 (1999) (book review); Catherine T. Clarke, From CrimiNet to Cyber-perp: Toward an Inclusive Approach to Policing the Evolving Criminal Mens Rea on the Internet, 75 OR. L. REV. 191, 204-05 (1996) (discussing informal surveys of lawyers revealing that “most lawyers consider criminals on the 'net to be exactly the same as those outside the 'net”); Jack L. Goldsmith, Against Cyberanarchy, 65 U. CHI. L. REV. 1199 (1998) (arguing that cyberspace can be regulated in many traditional ways). An important middle approach is Larry Lessig’s, who contends that cyberspace can be regulated through law and programming code. See LAWRENCE LESSIG, CODE AND OTHER LAWS OF CYBERSPACE 52-60 (1999). Some courts have also suggested that crimes might be different in cyberspace because there is a lack of tangible media, such as a briefcase that may be “stolen.” See, e.g., United States v. Carlin Commun., Inc., 815 F.2d 1367, 1371 (10th Cir. 1987). Others have disagreed. See United States v. Thomas, 74 F. 3d 701, 707 (6th Cir. 1996); United States v. Gilboe, 684 F.2d 235 (2d Cir. 1982). 5 The Justice Department believes that “substantive regulation of unlawful conduct. . .should, as a rule, apply in the same way to conduct in the cyberworld as it does to conduct in the physical world. If an activity is prohibited in the physical world but not on the Internet, then the Internet becomes a safe haven for that unlawful activity.” UNITED STATES DEPARTMENT OF JUSTICE, THE ELECTRONIC FRONTIER: THE CHALLENGE OF UNLAWFUL CONDUCT INVOLVING THE USE OF THE INTERNET 11 (2000) [hereinafter DOJ REPORT]. Current federal law, in general, embraces the view that there are no differences. See id. at vi (“Existing substantive federal laws generally do not distinguish between unlawful conduct committed through the use of the Internet and the same conduct committed through the use of other, more traditional means of communication.”) should be regulated the same way as other acts in realspace.4 The U.S. Department of Justice (DOJ) recent report on cybercrime typifies this approach.5 I contend that neither view is correct, and that each camp slights important features that make cybercrime both different from and similar to traditional crime. Underlying the “cybercrime is not different” position is a worry about a unique form of geographic substitution. The concern is that disproportionately punishing activity in either realspace or cyberspace will induce criminals to shift their activities to that sphere in which the expected punishment is lower. For example, if the electronic theft of $1 million warrants five years’ imprisonment, and the physical theft of $1 million warrants ten years’ imprisonment, criminals are likely to opt for the electronic theft. Such analysis is, however, incomplete. Beccaria and Becker have observed that the expected penalty for criminal activity is not only the sentence in the criminal code, it is also a function of