Botnet attacks are proliferating at an alarming rate. Whether the issue is terrorism, organized crime or integrity of government, botnets play an increasingly important role. Challenges faced in combating botnets are exacerbated by the fact that like other cybercrimes they often transcend national boarders and the lines between public and private spheres. Law makers and law enforcement agencies alike should employ a multi-faceted strategy that considers the interplay between the technology and the crime. For this reason, one must begin with asking a very simple question: how is combating botnet attacks, and, more generally, combating cybercrime, different than combating other types of crime?  

The paper will examine whether cybercrimes are substantively different from real space crimes and whether this requires a re-thinking of traditional means for dealing with crime. To shed light on this inquiry, the paper will look at the sufficiency of current Canadian laws in handling cybercrimes and, specifically, botnet attacks. It will include a discussion of the legal and privacy concerns related to intelligence gathering associated with proactive defence measures against Botnet attacks. The paper will also look more broadly at how regulatory modalities such as law, market forces and architecture function in cyberspace and how these may be applied to combating cybercrimes.  The paper will suggest that law makers need to draft laws that anticipate the technology used to commit crimes. It will also suggest that a well-crafted proactive cyber defence against botnets will see a centralized, coordinated effort among a variety of players necessitating a heavy reliance on public-private partnerships.