EXAMINATION OF JURISDICTIONAL CONFLICTS IN THE CYBERSPACE
INTRODUCTION
The internet has been developing way much at a rate beyond initial expectations. It has become the medium choice for people to search for information, conduct business, and enjoy entertainment. It offers an abundance of information that is accessible to anyone with an Internet connection. Recently, with the progressive influence of social media, the information culture of many people has changed. Services such as Facebook, Twitter, and eBay increasingly determine everyday life and offer new ways of communication.
Hence, it is sometimes hard to imagine modern societies without people who spent hours on the Internet chatting with their friends, reading news, playing games, or working. This trend of transformation in online behavior will definitely hold true in many more decades to come.
Today’s technical transformation standards are available through networked technologies modems rendering earlier forms of cable broadband seem antiqued hence raising the question: Is the Internet just another form of communications medium that is equivalent to the earlier forms such as telephony or broadcasting and hence subject to similar regulatory control by states or has it become something different altogether?
Broadcasting (television, the radio, and cable), as well as telephony (fixed and mobile), have been regulated almost from their invention, rendering their use to be subject to the laws of most if not all the states. “These laws are an ultimate determinant as regards the lawful and unlawful uses of the technology by controlling their use via the administrative and judicial powers of the state. The Internet has with no doubt proven to be different.”
“Law enforcement understood in the broadest sense to encompass both public and private law is unusually problematic in the special environment of cyberspace.
Not only can it be difficult to locate an anonymous or pseudonymous internet user within any specific territorial jurisdiction, but also the global nature of the internet decreases the likelihood that the parties to online disputes will be subject to control by the same territorial law enforcement entities”
For example: Consider the difficulties faced by country B of prosecuting an individual resident in country A for material on the Internet that is illegal in country B but lawful in country A. This has in most instances advanced the legal issues relating to Conflicts of Laws.
This created a quagmire for the application of state laws for Internet transactions. Such laws applied to crimes relating to defamation, hate speech, intellectual property. As technology advances, we are seeing the evolution of the threat of cyberspace security where hackers and fraudsters are becoming more sophisticated and grouping in organized networks worldwide.
In Kenya, the Communications Association of Kenya (CAK) and the government generally have been tasked with a specific mandate to facilitate access that leads to increased use of the cyberspace… (Scroll down for the link to get the Complete Chapter One to Five Project Material)
The Cyberlibertarians
This is the legal writing on the subject of the regulation of the Internet. Much of the writing in this field is not the traditional academic legal discourse. It has been filled with metaphors as large as the outback and political /legal/cultural/social ideas rooted in various libertarian dogmas.
“Cyberlibertarians, in line with the classic libertarian thinking is marked by distaste for government and faith in the market about regulation.” Indeed the Internet is and will continue being a medium that will prove to be extremely difficult or impossible to control as the Internet has transcended geographical borders and is built-in anonymity. The internet has also proved to be a space of freedom, a bringer of the benefits of liberty, free speech, and democracy… (Scroll down for the link to get the Complete Chapter One to Five Project Material)
The main question this research seeks to answer is whether and how the challenges of data use and abuse arise and how they can be curbed, including the possibility of its trans-border use through the applicability of coercive powers in an evolving technological environment, e.g. regulating the interception of telecommunications and strengthening electronic surveillance of various information networks.
Hence, rendering illegal some material and requiring service providers to comply with critical as well as special obligations that include taking into account problems caused by particular measures of information security, such as encryption… (Scroll down for the link to get the Complete Chapter One to Five Project Material)
THE INTERNET AS A THREAT TO SOVEREIGNTY
Introduction
Cyber Crime is the latest type of crime that affects many people. It refers to the criminal activities taking place in computerized devices or computer networks.
This includes (but not limited to) intentionally accessing without permission, altering, damaging, deleting and destroying the database available on the computer or network, and unpermitted access on a database or program of a computer in order to devise or execute any unlawful scheme or intent to wrongfully control or obtain money, property or data.
Cybercrime poses one of the biggest challenges for the Police, Prosecutors, and legislators. Most of those indulging crimes of this nature are usually the young teens, recreational computer programmers, and persons having vested interest. Cybercrime practiced is virtually in the form of offenses such as tampering with the source code of a program, hacking into computer systems, the publication of information considered obscene, and misuse of digital signatures and or licenses.
The problem is multifold as it covers the crimes related to economy and social crimes such as pornography which has its basis in certain moral standards and uses parameters like indecency and obscenity… (Scroll down for the link to get the Complete Chapter One to Five Project Material)
“Terrestrial Crime” versus “Cybercrime”
Cybercrimes differ from terrestrial crimes: “They are easy to learn how to commit; they require limited resources relative to the potential damage caused; they can be committed in a jurisdiction remotely (one need not be physically present), and are often not clearly illegal.”
Until the last century, crime was at a small-scale, consisting of unlawful acts committed by an individual or a few loosely-associated individuals and directed against a single victim or an entity. Some offenders, of course, sought to make crime their profession, but their activities remained at a small-scale and limited to the repetitive commission of certain single-victim offenses.
The “crimes,” were generally consistent across societies, and fell into standards, and clearly-defined categories that reflected the basic categories of anti-social motivations: crime was murder, robbery, and rape. Criminal tendencies were more personal; if the offender(s) and the victim were not familiar with each other, they were likely to share community ties that put offenses into a manageable and knowable context. This not only facilitated the apprehension process of offenders-who stood a good chance of being identified by the victim or by reputation but it also gave citizens the illusion of some security.
The conceit that they could avoid victimization if they avoided certain activities or certain associations. Law enforcement locally dealt effectively with this type of crime as its parochial character meant a limited scope of investigations and the fact that crime incidences stood in relatively modest proportion to the local populace size. Law enforcement’s effectiveness in this regard contributed to a popular perception that a form of social order was being maintained and that crime did not go unsolved or unpunished… (Scroll down for the link to get the Complete Chapter One to Five Project Material)
What Measures Are Being Taken to Combat Cybercrime at the National and International Levels?
Since the 1970s, there has been a consensus growth in existing criminal laws covering the variety of computer-related crimes . . . either they do not cover some computer abuses or are not strong and clear enough to discourage computer crimes and allow expeditious prosecution.
The recognition of the inherently transborder nature of cybercrime by various international and supranational organizations, has led to the ensuing limitations of unilateral approaches, and the need for international harmonization of legal, technical, and other solutions.
In particular, the Organization for Economic Co-operation and Development (OECD), the Council of Europe, the European Union, the United Nations, and Interpol have played leading and important roles in building international awareness and cooperation in this regard… (Scroll down for the link to get the Complete Chapter One to Five Project Material)
Harmonization of Conventional State Regulations
“It is generally accepted that some degree of harmonization between countries is vital if effective regulation of cybercrimes is to be achieved”. Although many offenses are transnational in nature — for instance, human trafficking, weapons and drugs, money laundering, and terrorism but cybercrime presents unique challenges due to the inherently transnational nature of the underlying technology. No other type of crime can become transnational so effortlessly.
The Bredolab Botnet, for example, was estimated to have infected 30 million computers at its peak, generating 3 billion infected emails per day. At a more fundamental level, the nature of modern communications is such that even where offender and victim are in the same jurisdiction, evidence of the offending is almost certain to have passed through, or to be stored in, other jurisdictions.
In a recent United Nations study, over half of responding countries reported that ‘between 50 and 100 percent of cybercrime acts encountered by police involved a “transnational element”… (Scroll down for the link to get the Complete Chapter One to Five Project Material)
To date, the focus of cybercrime laws around the world has largely been on the aspect of criminalization — creating new offenses or adapting existing offenses to address the challenges of cybercrime. However, this is merely one aspect and from its inception the Convention sought to provide a comprehensive response, addressing issues of substantive offenses, procedural laws, and international cooperation. Aside from provisions concerned with ancillary and corporate liability and sanctions the Convention provides for four broad categories of substantive offense: (1) offenses against the confidentiality, integrity, and availability of computer data and systems; (2) computer-related offenses (computer-related fraud and forgery); (Scroll down for the link to get the Complete Chapter One to Five Project Material)
The goal of harmonization, particularly across such a broad spectrum of laws, will inevitably come into conflict with differences in national principles, whether legal or cultural. This is most apparent in the protection of individual rights, where the tension between the need to improve law enforcement capabilities whilst protecting individual freedoms and privacy has been recognized for some time.
Recent revelations concerning ‘almost-Orwellian’ government programs for the bulk collection of metadata have dramatically underscored the need to ensure due process and effective rights protection in the digital environment. This has recently prompted the United Nations to state that it is deeply concerned at the negative impact that surveillance and/or interception of communications … as well as the collection of personal data, in particular when carried out on a mass scale, may have on the exercise and enjoyment of human rights’… (Scroll down for the link to get the Complete Chapter One to Five Project Material)
CONCLUSION AND RECOMMENDATIONS
To see harmonization as a destination is unrealistic; it is a process. As the technology evolves and changes so too our responses will need to evolve and change. Each country has the obligation to determine what it considers necessary to effectively combat cybercrime, looking to national, regional, and international standards in enacting laws that best suit its national circumstances.
About 3,000 cybercrime-related incidences are reported in Kenya every month according to a tally released by an organization tracking internet security… (Scroll down for the link to get the Complete Chapter One to Five Project Material)
Cyberspace is the fifth common domain – after land, sea, air, and outer space. This calls for a greater need for national and international coordination, cooperation, and legal measures. A cyberspace treaty or a set of treaties should be the global framework for peace, security, and justice in cyberspace.
As part of the progressive development of international law, it is important to note that, despite the binary debate about the Convention versus a United Nations Convention in some way presents a false dichotomy. Each country should be able to determine what it considers necessary to effectively combat cybercrime, looking to the national, regional, and international standards in enacting laws that best suit its national circumstances.
Nonetheless, the Convention provides a crucial benchmark against which such efforts can be measured, providing an internationally recognized framework for the harmonization of cybercrime laws… (Scroll down for the link to get the Complete Chapter One to Five Project Material)
BIBLIOGRAPHY
BOOKS
Adomi E & Igun S E Combating Cybercrime in Nigeria (2008) p.718-719 Johnson and Post, ‘Civic Virtue’ 1998
Pawlak, P. (ed.), Riding the digital wave: The impact of cyber capacity building on human development.
Salifu A The impact of internet crime on development (2008) p.438
Solove D J The Digital Person: Technology and Privacy in the Digital Age, (2004) New York University Press, New York and London pp.1-17 at p.
Susan W Brenner, ‘The Council of Europe’s Convention on Cybercrime’ in Jack M Balkin et al (eds), Cybercrime: Digital Cops in a Networked Environment (New York University Press, 2007) 207, t 210–12.
JOURNAL ARTICLES
(Bomse, 2001). (. For an interesting and rather scathing polemic the ideology driving cyberlibertarians,; read the California Ideology http://media.wmin.ac.uk/HRC/ci/calif5.html (the author makes no claim to being unbiased.) UCLA Journal of Law and Technology.
“Love bug” Prompts New Philippine Law, US Today (June 14, 2000), available at http://www.usatoday.com/life/cyber/tech/cti095.html
< http://www.eff.org//Publications/John_Perry_Barlow/barlow_0296.declaration>
Alana Maurushat, ‘Australia’s Accession to the Cybercrime Convention: Is the Convention Still Relevant in Combating Cybercrime in the Era of Botnets and Obfuscation Crime Tools?’ (2010) 33 University of New South Wales Law Journal 431, 432
Alisdair A Gillespie, ‘Child Protection on the Internet — Challenges for Criminal Law’ (2002) 14Child and Family Law Quarterly 411, 411–12.
REPORTS
Australian Law Reform Commission, Classification — Content Regulation and Convergent Media, Report No 118 (2012). (Jurisdictional Conflict)(Jurisdictional Conflict)(Jurisdictional Conflict)(Jurisdictional Conflict)
Brigitte Acoca, ‘Scoping Paper on Online Identity Theft’ (Ministerial Background Report No DSTI/CP(2007)3/FINAL, Organisation for Economic Co-operation and Development, 2008) 16–24; Model Criminal Law Officers’ Committee of the Standing Committee of Attorney’s-General, ‘Identity Crime’(Final Report, March 2008). (Jurisdictional Conflict)(Jurisdictional Conflict)(Jurisdictional Conflict)(Jurisdictional Conflict)
Broadband Commission for Digital Development, ‘The State of Broadband 2012: Achieving Digital Inclusion For All’(Report, International Telecommunication Union, September 2012). Convention Explanatory Report.(Jurisdictional Conflict)(Jurisdictional Conflict)(Jurisdictional Conflict)
Council of Europe, Committee of Ministers, Recommendation No R (89) 9 of the Committee of Ministers to Member States on Computer-Related Crime (adopted 13 September 1989). (Jurisdictional Conflict)(Jurisdictional Conflict)
Explanatory Report, Council of Europe, Convention on Cybercrime, 171 (November 8, 2001), http://conventions.coe.int/Treaty/EN/CadreListeTraites.htm (Jurisdictional Conflict) (Jurisdictional Conflict)
NEWSPAPER ARTICLES
DAILY NATION By Lilian Ochieng’ on Tuesday January 28, 2014 (Jurisdictional Conflict)(Jurisdictional Conflict)
STANDARD DIGITAL By Linah Benyawa on Tuesday June 7, 2016 (Jurisdictional Conflict) (Jurisdictional Conflict)
INTERNET SOURCES
‘Putin Defi es Convention on Cybercrime’, CNews (online), 27 March 2008 <http://eng.cnews.ru/news/ top/indexEn.shtml?2008/03/27/293913>. (Jurisdictional Conflict) (Jurisdictional Conflict) (Jurisdictional Conflict)
Australia, Belgium, France, Japan, the United Kingdom and the United States: see Council of Europe, List of Declarations Made with Respect to Treaty No 185 http://conventions.coe.int/Treaty/Commun/ ListeDeclarations.asp?NT=185&CM=8&DF=&CL=ENG&VL=1 (Jurisdictional Conflict)
Balancing Act News Update Africa’s policies forces begin to gear up to fight cybercrime http://www.balancingactafrica.com/news/back/balancing_act_184.html (Jurisdictional Conflict) (Jurisdictional Conflict)
Caller ID Traced “Love Bug” Virus, APBNEWS.COM, (May 15, 2000), at http://www.apbnews.com/newscenter/internetcrime/2000/05/15/lovebugid0515_01.html (Jurisdictional Conflict)
Charges Dropped Against Love Bug Suspect, USA TODAY, (Aug. 21, 2000), available at http://www.usatoday.com/life/cyber/tech/cti418.html