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law, disorder, policing
and borders
This page looks at law, policing and online crime.
It covers -
Particular
issues such as site defacement and piracy are dealt with
in more detail elsewhere on this site.
cybercrime and crime in cyberspace
Our security guide points
to the range of enforcement bodies, in Australia and overseas,
and to writings about cybercrime.
Reports by the OECD, G8, Council of Europe and individual
government agencies provide a useful starting point for
thinking about national and transborder crime involving
information networks. One of the better examples is the
US Department of Justice's report
on The Electronic Frontier: The Challenge of Unlawful
Conduct Involving the Use of the Internet.
The collection of essays in Cybercrime: Law Enforcement,
Security & Surveillance In The Information Age
(London: Routledge 2000) edited by Douglas Thomas &
Brian Loader and Crime in the Digital Age:
Controlling Telecommunications & Cyberspace Illegalities
(New Brunswick: Transaction 1998) by Peter Grabosky &
Russell Smith are also recommended.
There is a more succinct statement in Grabosky's paper
on Computer Crime: A Criminological Overview. Background
material to the US National Information Infrastructure
Protection Act 1996 (NIIPA)
may also be of interest.
For a discussion of global frameworks see International
Criminal Law (London: Cavendish 2001) by Ilias Bantekas,
Susan Nash & Mark Mackarel and International Criminal
Law (Ardsley: Transnational 1998) by M. Cherif Bassiouni.
Claire De Than's International Criminal Law & Human
Rights (London: Sweet & Maxwell 2001) highlights human
rights issues; there are other pointers in the Human Rights
profile on this site.
For basic agreements and national statutes see International
Criminal Law: A Collection of International & European
Instruments (Boston: Kluwer 2000) edited by Christine
Van den Wyngaert. The UN Convention against Transnational
Organized Crime is here;
the 1988 UN Convention Against Illicit Traffic in Narcotic
Drugs & Psychotropic Substances is here.
responses
As we have suggested throughout this site, there are
essentially three responses to online crime.
The first is to declare that online activity is 'virtual'
and thus victimless, or something that we should all take
in our stride. We find that as unconvincing as proposals
to insert a police presence into every ISP or criminalize
what is licit offline.
The second, more effectively, is to update existing law
- local and international - with new legislation where
necessary and attention to codes of practice and enhanced
community awareness, emphasising responsibilities along
with rights.
The third, as one might expect, is for government agencies
and businesses to grab for a piece of the digital pie,
identifying new revenue opportunities (the proliferation
of flawed content filters is one example) or new areas
for bureaucratic conquest.
We'll be discussing those responses shortly. In the interim
a starting point is the interesting overview in David
Post's 1998 paper
on The "Unsettled Paradox": The Internet,
the State, and the Consent of the Governed. Craig
Rutenberg's 1998 paper
Limiting Self-Help in Article 2B: Enforcing Traditional
Boundaries in Cyberspace examines some remedies and
jurisdictional questions.
The
Commonwealth government's 2000 discussion paper
on computer-related offences as part of the Model Criminal
Code project that seeks to encourage uniform treatment
of offences across Australia's state, territory and national
jurisdictions.
In one of the sillier passages of his 1995 tract Being
Digital, Nicholas Negroponte proclaimed the imminent
death of the nation state, which would evaporate like
a mothball. That is an image offered by Lenin in the 1917
State & Revolution: obviously they just don't
make mothballs the way they used to.
John Perry Barlow's A Declaration of the Independence
of Cyberspace (DIC) simply
declared that cyberspace - and its citizens - had seceded
to a technolibertarian never-never-land:
Cyberspace,
the new home of Mind .... naturally independent of the
tyrannies you seek to impose on us. You have no moral
right to rule us nor do you possess any methods of enforcement
we have true reason to fear.
US
legislators seem to have disagreed with those pundits:
the paper
by Susan Brenner on State Cybercrime Legislation in
the United States of America: A Survey offers a map
of parochial responses.
Surveillance and identification issues are considered
in a more detailed profile
that looks at technologies and at issues such as conspiracy
theory.
policing
David Wall's Crime & the Internet (London:
Routledge 2001) comments that cyberspace is currently
being policed through a multi-tiered governance structure
that is similar to mechanisms offline and increasingly
reflects transnational protocols, agencies and agreements.
His five levels are
internet
users, such as the problematical CyberAngels and Ethical
Hackers Against Porn (EHAP).
In practice we'd suggest that 'policing' at the user
level involves ordinary citizens being responsible for
their activity online (this site includes some suggestions)
and alerting authorities, rather than vigilante groups
internet service providers and content hosts, under
ongoing government pressure in Australia and overseas
to act as agents of government and as surrogates for
user responsibility
'corporate security organisations', a category that
presumably encompasses organisations such as the Business
Software Alliance (BSA)
that are concerned with online piracy of intellectual
property and specialists such as the US Computer Security
Institute (CSI)
state-funded non-public police agencies, such as the
US National Infrastructure Protection Center (NIPC),
the Computer Emergency Response Team (CERT) at Carnegie
Mellon University and presumably entities such as the
Australian Competition & Consumer Commission (ACCC),
the the US Federal Trade Commission (FTC)
and Securities & Exchange Commission and the Australian
Securities & Investment Commission (ASIC)
state-funded public police agencies, such as the Australian
Federal Police, New South Wales state police, US Federal
Bureau of Investigation and Australian Security Intelligence
Organisation - some of which are highlighted here.
We
have highlighted particular activity in the Security &
Infocrime guide on this
site.
rights and responsibilities
Cyberspace & the Law: Your Rights and Duties
in the Online World (Cambridge: MIT Press 1994) by
Edward Cavazos & Gavino Morin is more positive than
Peter Huber's challenging - but to us unconvincing - Law
& Disorder in Cyberspace (Oxford: Oxford Uni
1997).
Edward Valauskas' paper
Lex Networkia: Understanding the Internet Community
claims that the "Internet community" has created
an uppermost layer of social or cyber-etiquette protocol
which "occurs on top of all of the technical standards
and protocols that keep the Internet humming." That's
questioned in High Noon on the Electronic Frontier:
Conceptual Issues In Cyberspace (Cambridge: MIT Press
1996 and here)
and Crypto Anarchy, Cyberstates, and Pirate Utopias
(Cambridge: MIT Press 1999), both edited by Peter
Ludlow.
liability, mediation & redress
The Canadian report
by Michel Racicot, Mark Hayes, Alec Szibbo & Pierre
Trudel on The Cyberspace Is Not A "No-Law"
Land: Internet Content-Related Liability Study offers
a useful introduction to content liability questions.
For an e-commerce perspective we suggest that you consult
the reports and legislation highlighted in our Consumers
guide.
Australia’s National Electronic Authentication Council
(NEAC)
has published two reports - Legal liability and e-transactions
and E-commerce security - that include recommendations
for developing B2B ecommerce.
There's a large literature on the liability of internet
service providers and internet content hosts. A landmark
case in the US is Prodigy;
we'll be adding further pointers in the near future. For
US perspectives see Henry Perritt's paper
on 1995 Computer Crimes & Torts in the Global Information
Infrastructure: Intermediaries & Jurisdiction
and David Post's 1996 paper
on Pooling Intellectual Capital: Thoughts on Anonymity,
Pseudonymity, and Limited Liability in Cyberspace.
property and piracy
For an Australian overview we recommend Electronic
Theft: Unlawful Acquisition in Cyberspace (Cambridge:
Cambridge Uni Press 2001) by Peter Grabosky, Russell Smith
& Gillian Dempsey.
The debate about fair use and appropriation of online
music or other content is explored in our Intellectual
Property guide. Two examples
are Dan Burk's provocative Muddy Rules in Cyberspace
paper
and The New World Trade Organization Agreements: Globalizing
Law Through Services & Intellectual Property (Cambridge:
Cambridge Uni Press 2000), by Australia's Christopher
Arup.
defamation and hatespeech
National and international law about online defamation
- discussed in more detail in a separate profile
- is still evolving. In 1994, in a landmark case, the
Western Australian Supreme Court ruled
that defamation could indeed take place in cyberspace
- whether through electronic mail or publication on a
web site.
That ruling has been matched in other jurisdictions (for
example in Canada, the US,
UK and NZ)
and despite the laments of some infolibertarians seems
to be entrenched in judicial thinking about cyberspace.
As Matthew Collins notes in The Law of Defamation &
the Internet (Oxford: Oxford Uni Press 2001) there's
less agreement about specifics, in particular which jurisdiction
should deal with alleged offences - a concern since the
identification of defamation and penalties vary widely
and litigants thus have an incentive to go 'forum shopping'.
To supplement the Collins study we recommend Russell Weaver's
cogent paper
Defamation Law in Turmoil: The Challenges Presented
by the Internet, Lilian Edwards 1997 paper
Defamation & the Internet: Name Calling in Cyberspace
and Marty Sutcliffe's paper
Defamation on the Internet: Searching for Community,
Identity & Statutory Solutions. For us they are
more convincing than Defamation Havens, a somewhat
utopian analysis
by Brian Martin of Australian cases, or Mike Godwin's
brave 1996 article
Libel Law: Let It Die.
Mark Feldman's 2000 Internet Defamation: A Market-Based
Analysis (PDF)
highlights some philosophical questions.
Practical issues are examined in the brief Internet
Defamation: Pursuing Defendants in Cyberspace article
by Patrick Clendenen & Joseph Lipchitz
and
Tim Arnold-Moore's 1994 paper
Legal Pitfalls in Cyberspace: Defamation on Computer
Networks.
This site also highlights legislation, litigation and
writing regarding hate
sites
offensive content
Questions
of online content regulation are considered in more detail
in the separate Censorship & Free Speech guide.
Although there is now a very large literature on free
speech and censorship, much of it is overly one-sided.
Existing legislation in many jurisdictions (for example
Australia) covers the creation and distribution of child
pornography and other 'extreme' content. From a governance
perspective the key issues are jurisdiction and enforcement:
how to address images or other content that is published
in another country and how to address the exchange of
such content via email and news groups.
As a starting point we recommend Peter Grabosky's 1997
paper
on Child Pornography in the Digital Age. Sex, Laws
& Cyberspace: Freedom & Censorship on the Frontiers
of the Online Revolution (New York: Owl/Holt 1997)
by Jonathan Wallace & Mark Mangan offer a view from
the left, as does Cyber Rights: Defending Free
Speech in the Digital Age (New York: Times 1998),
a memoir by the Electronic Frontier Foundation's Mike
Godwin.
terrorism and sedition
[Under Development]
A discussion of sedition in the online and offline environments
is here.
borders and barriers
Questions about borders,
about passports in the
digital environment and traveller surveillance schemes
such as the United States CAPPS are explored in a supplementary
note.
incidence
We'll shortly be providing pointers to figures on
the incidence of theft of services, information piracy
and forgery, online extortion, digital vandalism, telemarketing
fraud, illegal interception and other offences.
next part (the lex
mercatoria)
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