Peter Swire of the Center for American Progress has a paper out called “No Cop on the Beat: Underenforcement in E‑Commerce and Cybercrime.” He identifies how local law enforcement lacks the ability and incentive to address various wrongs done on the Internet because of their complexity and their multi-jurisdictional nature.
Swire has identified a real problem. Just like everyone else, law enforcement struggles to keep up in the changing online environment. And it’s true that local law enforcement lacks incentive to expend efforts going after a distant cybercrime ring for the benefit of one local complainant and thousands of strangers.
(He calls this a “commons problem” and I understand how he means it to illustrate that law enforcement personnel and organizations are economic actors. Crime victims are a sort of public good to those organizations and they can’t enjoy the benefits of caring for most of those who would benefit from their work. I think this fits more neatly in the public choice box: local law enforcement in one jurisdiction doesn’t get any benefit — budgetary, political, or otherwise — from helping strangers, so they’re less inclined to do so.)
Swire’s conclusion is that there should be more federal law enforcement — such as by the Federal Trade Commission and the the Justice Department — or “federated” law enforcement, combining state and federal authorities: “A more federated approach recognizes the usefulness of enforcement task forces that draw on multiple jurisdictions. Federal‐state task forces, for instance, have been used widely for drug prosecutions and, more recently, in fighting terrorism.”
While these are logical conclusions, I would be reluctant to call for greater federal law enforcement. There isn’t authority for it in the Constitution, and the uses of “federated” law enforcement he identifies — in the “War on Drugs” and the “War on Terror” — have not been shining examples we ought to follow.
I suspect that Swire would class this as an objection he calls “We Don’t Want Enforcement,” of which he identifies two strains. One is the extent to which some of these “harms” are worthy of enforcement. This is a strong objection, not so much to Swire’s thesis, but to a second one that’s implicit. Swire is not just calling for federal or federated law enforcement aimed at protecting the public from violations of their rights (which manifest themselves as legally cognizable “harms”); he’s classing all kinds of mischief as “harms” to dramatically broaden the sweep of the federal law enforcement task.