Illustration Susanne Gold / Dr. Thomas-Gabriel Rüdiger
Digital crime transparency – Or how the digital space breaks through the concept of the preventive effect of not knowing
“Confirm your data under the following link! Last reminder – invoice enclosed! I hacked your webcam and filmed you masturbating! or “My late husband has a large fortune tied up in insurance, I only need 5,000 euros to pay a lawyer.”
Who does not know them, such or similar messages that flush into our spam folder every day or as social media inquiries in our inbox?
Almost always annoying, not infrequently criminal: For many people, spam mails have become an annoying normality, almost a side effect of the digital age.
At the beginning of the decade, it was estimated that spam and phishing messages accounted for around 80 percent of all e-mail traffic, compared to an estimated 60 percent today. Considering that around 280 billion households worldwide send e-mails every day – including around two billion in Germany – this is a considerable amount. These mails are often not only annoying, but in many cases they are also an act of criminal activity, ranging from fraud, threats, sexual and extortion offences.
Let us imagine briefly that in our real – physical – life you would be confronted with crimes with the same frequency: What effect would that have on our understanding of the law?
What would our social understanding of law and the acceptance of standards be like if we were confronted with at least three attempts at blackmail and fraud on our way to work?
Heinrich Popitz devoted himself to this topic in 1968 with his publication “Preventive effect of not knowing”. In doing so, he explored the question of how our understanding of criminal law and crime would function if everyone did not receive the just punishment they actually deserved.
Behind this is the idea that every human being ultimately breaks norms or has already broken them in his life.
If now every person were to experience in an absolute transparency of behaviour what others have already committed in terms of transgressions of norms up to criminal offences and – this is important here, at the same time – for which they were not punished by it – the entire regulation of norms in society would lose its stability.
This “preventive effect of not knowing” can be described with a simple example: If, in a board game, we always knew who had cheated while playing and got away with it, hardly anyone would openly follow the rules. Consequently, it is precisely the fact that we do not know about the cheating of others that leads us to stick to the rules as far as possible.
Another point is important here: The formal control of norms, i.e. the monitoring that laws – “societal rules of the game” – are observed, – i.e. the work of the police, the public prosecutor’s office and the courts – are staffed and structurally equipped in such a way that they can only control fluctuations in the bright field (bright field means offences reported to the prosecution authorities).
If the entire dark field (the offences actually committed) were known, the legal system would collapse and – if at all – only selected offences would be prosecuted.
Many people would then probably lose confidence in the control of norms (punishment of crimes) and perceive the entire system as a legal vacuum.
The question would be, who determines which offences would be prosecuted for all the crimes? This explains why the legal system actually benefits from the “preventive effect of not knowing”.
On the other hand, everyone is aware of the transgressions of norms on the Net. What does this mean for the “preventive effect of not knowing”.
Let us return to the board game example – Example
In this analogy, the cheating of others is commonplace on the net. The principle of the protection of not knowing seems to have been broken for a long time. This is also reflected in the constantly repeated political mantra that “the Internet is not a lawless space”. Rather, the Internet appears to be what I call a “broken web“, an anomic space as Durkheim would call it: spam, phishing mails or fraudulent requests in social media are a mass phenomenon. They embody in a special way the visible breakthrough of this Popish principle of the “preventive effect of not knowing”.
The Internet appears like a digital window or burning glass, which shows us all every day: Crime is normal on the net, it is not worth reporting it.
This is already due to the pure mass of crimes there. The risk of a crime on the net seems to be very low for the perpetrators, because otherwise there would not be so many and regular spam.
What effects this daily confrontation with crime on the net has on people, we do not know yet, because there is a lack of studies.
It can be assumed, however, that the elimination of the norm-stabilizing functions, i.e. the willingness to abide by social rules and laws, will have an influence on how people experience the digital and global interaction space of the Internet: No ignorance has a preventive effect; cheating and fraud are part of the agenda there.
It is therefore all the more important that action be taken against these new forms of crime, especially by further developing AI-based filtering mechanisms to prevent people from being confronted with them at all.