Tuesday, April 27, 2010

Editorial: Wild West in Cyber-Space

In the book ‘Sex, Law and Cyberspace,’ authors Jonathan Wallace and Mark Mangan bring out some of the evolution of cyber-law. As the title implies, sex tends to dominate the discussion, but then sex kind of dominates the fringes of the internet, doesn’t it?

Cyber sexual harassment is a crime that no one heard of just a few short years ago. The situation is a kind of ‘wild west’ in cyber-space, although there is some evidence that lawlessness will not be tolerated forever; and in some countries they’re quite forward about cutting off access to certain websites. In those countries, it is more for political reasons, in order to stifle dissent or even free discussion of relevant issues. This includes nations such as the People’s Republic of China; Myanmar, (Burma,) and others. More recently, there have been crackdowns in the west over file-sharing sites distributing pirated movies, music, and software.

Let’s follow a brief history of electronic communications law. In 1918; the U.S. federal government introduced the first wiretap law, at the close of the Great War. It was supposed to help federal agents to catch spies and saboteurs, the original ‘terrorists,’but it was soon used extensively to catch criminals running liquor. In 1928 came the Federal Communications Act. This prohibited the interception of radio and wireless messages. The Supreme Court held up this decision subsequently, effectively making information obtained from wiretaps inadmissible in court. When WW II intervened, President Roosevelt issued an Executive Order which permitted wiretapping for national security reasons. In the 1967 case of Katz v. The United States, the distinction that existed between planted ‘bugs,’ i.e. radio and recording devices, and wiretaps, (telephone type taps,) was erased.

“Barring reasonable suspicion and a court order, people have a right to keep private conversations private,” said Justice Louis Brandeis in a famous opinion. “The right to be let alone—the most comprehensive of rights and the most valued by civilized man.”

As the reader will no doubt agree, this seems relevant to the question of cyber-harassment.

“We have the right to be let alone.”

Sounds so simple, eh?

According to Wallace and Mangan, “The courts are faced with new questions concerning the right to privacy as new technology continues to evolve.”

“The changing medium of the internet seems to defy definition and open new gaps of interpretation.

Meanwhile, law enforcement agencies are teaming up, scrambling for position as the digital infrastructure is built…the FBI says the new telephony technology is tipping the scales in favour of the criminals…”

Now that communications are becoming fully digital, even the FBI argued it will 'Soon be incapable of performing its current level of wiretapping.'

For many years in fact, the FBI conducted about 1,000 wiretaps a year. These would be mostly organized crime figures of the classic ‘Mafia’ type, plus other criminals who entered federal jurisdiction by crossing state lines in the commission of certain offences.

Sometimes other officials get a wiretap to listen to communications between two murder suspects; one of whom has agreed to cooperate.

Canadian law differs somewhat from the U.S. In Canada if someone phones you up, and threatens you, it is oddly illegal to tape record that conversation! But even the police need a court order to get a wiretap. In Canada to possess child pornography is an offence, and the police regularly go into chat rooms online to establish contact with pedophiles; in an attempt to identify them and arrest them when it is warranted by gathered evidence.

Where does the law stand in Canada, as regards to cyber-harassment? At the very least it is a public mischief, but the penalties are such that a prosecution seems unjustified by the cost of proving it; in some professional opinions. Essentially, why spend eight, or eighty thousand dollars if the perpetrator is going to get six months probation for a first offence?

The gathering of call records, or services provided are only part of a successful prosecution. You have to prove that so-and-so actually did the crime—and sometimes a computer is used by many individuals, in some kind of public institution; or by using a stolen phone, or some other wireless communications device.

The police have to catch the person with the phone, and then prove it was in their possession at the time the call was made! This type of investigation is time-consuming, and requires a special kind of training, and effective application, and a thorough understanding of new technologies.

In a 2010 Canadian decision, an accused was not convicted due to the fact that child-porn images were not actually in their possession. They were viewed online on someone else’s host server.

In straightforward scam operations, the cyber-criminal may be harder to convict, partly 'because they don’t look like a criminal.’ It is much more sophisticated than a mugging. There is little possibility of violence, and the law has its own logic. If some ‘work,’ has been performed, it’s not fraud, and ‘civil remedies’ come into play. You have to locate someone in order to sue them. That’s not always easy on the internet; really, only law enforcement has those kinds of resources and sufficient ‘clout.’

It probably takes more ‘courage’ to swipe a pencil out of a discount store than it does to send a classmate a nasty e-mail, or whatever. Hackers costs the taxpayers and industry billions of dollars a year. To ‘out’ a classmate, whether it’s ‘true’ or not, is just a form of cruelty, and it can be extremely damaging to the victim, whose life is often endangered by this form of crime.

Other types of cyber crime include hacking to obtain personal information, online fraud, credit card theft and fraud, the creation of viral softwre and malware, and cyber terror related activities.

How to combat crime and protect the public safety at the same time as assuring privacy and preventing abuse remains to be seen. These challenges and their outcomes affects one and all.

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