Monday, August 30, 2010

LAW AND CYBERCRIME

Cyber Defamation is a crime conducted in cyberspace, usually through the Internet, with the intention of defaming others. The cyber defamation law that the Korean government tries to make is intended to capture such criminal activities by allowing police to crack down on hateful comments without any reports from the victims. The only country where such cyber defamation law is being implemented is China, and South Korea is the first democratic country in the process of introducing the law.

There have been talks about introducing the stricter laws in cyberplace. A famous celebrity's suicide in South Korea, triggered the controversies once again as to whether such law is necessary. The law supported by the governing Grand National Party (GNP), if implemented, will allow police to investigate the cyber defamation cases without any complaints of the victims. The opposition Democratic Party (DP) has been against the introduction of such law.

The Convention on Cybercrime is the first international treaty seeking to address Computer crime and Internet crimes by harmonizing national laws, improving investigative techniques and increasing cooperation among nations. It was drawn up by the Council of Europe in Strasbourg with the active participation of the Council of Europe's observer states Canada, Japan and USA.

The Convention and its Explanatory Report was adopted by the Committee of Ministers of the Council of Europe at its 109th Session on 8 November 2001. It was opened for signature in Budapest, on 23 November 2001 and it entered into force on 1 July 2004. As of 2 September 2006, 15 states had signed, ratified and acceded to the convention, while a further 28 states had signed the convention but not ratified it.

On 1 March 2006 the Additional Protocol to the Convention on Cybercrime came into force. Those States that have ratified the additional protocol are requited to criminalize the dissemination of racist and xenophobic material through computer systems, as well as of racist and xenophobic-motivated threats and insults.

The Convention is the first international treaty on crimes committed via the Internet and other computer networks, dealing particularly with infringements of copyright, computer-related fraud, child pornography and violations of network security. It also contains a series of powers and procedures such as the search of computer networks and Lawful interception.
Its main objective, set out in the preamble, is to pursue a common criminal policy aimed at the protection of society against cybercrime, especially by adopting appropriate legislation and fostering international co-operation.

The Convention aims principally at:

harmonising the domestic criminal substantive law elements of offences and connected provisions in the area of cyber-crime

providing for domestic criminal procedural law powers necessary for the investigation and prosecution of such offences as well as other offences committed by means of a computer system or evidence in relation to which is in electronic form

setting up a fast and effective regime of international co-operation.

The following offences are defined by the Convention: illegal access, illegal interception, data interference, system interference, misuse of devices, computer-related forgery, computer-related fraud, offences related to child pornography and offences related to copyright and neighbouring rights.

It also sets out such procedural law issues as expedited preservation of stored data, expedited preservation and partial disclosure of traffic data, production order, search and seizure of computer data, real-time collection of traffic data, and interception of content data. In addition, the Convention contains a provision on a specific type of transborder access to stored computer data which does not require mutual assistance (with consent or where publicly available) and provides for the setting up of a 24/7 network for ensuring speedy assistance among the Signatory Parties.

The Convention is the product of four years of work by European and international experts. It has been supplemented by an Additional Protocol making any publication of racist and xenophobic propaganda via computer networks a criminal offence. Currently, cyber terrorism is also studied in the framework of the Convention.

Its ratification by the United States Senate in August 2006 was both praised and condemned. The U.S. became the 16th nation to ratify the convention. Forty-three nations have signed the treaty. The Convention entered into force in the USA on January 1, 2007.

"While balancing civil liberty and privacy concerns, this treaty encourages the sharing of critical electronic evidence among foreign countries so that law enforcement can more effectively investigate and combat these crimes," said Senate Majority Leader Bill Frist.

"The Convention includes a list of crimes that each signatory state must transpose into their own law. It requires the criminalization of such activities as hacking (including the production, sale, or distribution of hacking tools) and offenses relating to child pornography, and expands criminal liability for intellectual property violations. It also requires each signatory state to implement certain procedural mechanisms within their laws. For example, law enforcement authorities must be granted the power to compel an Internet Service Provider to monitor a person's activities online in real time. Finally, the Convention requires signatory states to provide international cooperation to the widest extent possible for investigations and proceedings concerning criminal offenses related to computer systems and data, or for the collection of evidence in electronic form of a criminal offense. Law enforcement agencies will have to assist police from other participating countries to cooperate with their mutual assistance requests.

Although a common legal framework would eliminate jurisdictional hurdles to facilitate the law enforcement of borderless cyber crimes, a complete realization of a common legal framework may not be possible. Transposing Convention provisions into domestic law is difficult especially if it requires the incorporation of substantive expansions that run counter to constitutional principles. For instance, the U.S. may not be able to criminalize all the offenses relating to child pornography that are stated in the Convention, specifically the ban on virtual child pornography, because of its First Amendment free speech principles. Under Article 9(2)(c) of the Convention, a ban on child pornography includes any “realistic images representing a minor engaged in sexually explicit conduct.” According to the Convention, the U.S. would have to adopt this ban on virtual child pornography as well, however, the U.S. Supreme Court, in Ashcroft v. Free Speech Coalition, struck down as unconstitutional a provision of the CPPA that prohibited "any visual depiction” that "is, or appears to be, of a minor engaging in sexually explicit conduct." In response to the rejection, the U.S. Congress enacted the PROTECT Act to amend the provision, limiting the ban to any visual depiction “that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct.” 18 U.S.C

The United States will not become a Party to the Additional Protocol to the Convention on Cybercrime.

Computer crime, or cybercrime, refers to any crime that involves a computer and a network, where the computers may or may not have played an instrumental part in the commission of a crime. Netcrime refers, more precisely, to criminal exploitation of the Internet. Issues surrounding this type of crime have become high-profile, particularly those surrounding hacking, copyright infringement, child pornography, and child grooming. There are also problems of privacy when confidential information is lost or intercepted, lawfully or otherwise.

On the global level, both governments and non-state actors continue to grow in importance, with the ability to engage in such activities as espionage, financial theft, and other cross-border crimes sometimes referred to as cyber warfare. The international legal system is attempting to hold actors accountable for their actions, with the International Criminal Court among the few addressing this threat

Computer crime encompasses a broad range of potentially illegal activities. Generally, however, it may be divided into one of two types of categories: (1) crimes that target computer networks or devices directly; (2) crimes facilitated by computer networks or devices, the primary target of which is independent of the computer network or device.

Examples of crimes that primarily target computer networks or devices would include:

• Computer viruses
• Denial-of-service attacks
• Malware (malicious code)

Examples of crimes that merely use computer networks or devices would include:

• Cyber stalking
• Fraud and identity theft
• Information warfare
• Phishing scams

A computer can be a source of evidence. Even though the computer is not directly used for criminal purposes, it is an excellent device for record keeping, particularly given the power to encrypt the data. If this evidence can be obtained and decrypted, it can be of great value to criminal investigators.

Spam, or the unsolicited sending of bulk email for commercial purposes, is unlawful to varying degrees. As applied to email, specific anti-spam laws are relatively new, however limits on unsolicited electronic communications have existed in some forms for some time

Computer fraud is any dishonest misrepresentation of fact intended to let another to do or refrain from doing something which causes loss. In this context, the fraud will result in obtaining a benefit by:

Altering computer input in an unauthorized way. This requires little technical expertise and is not an uncommon form of theft by employees altering the data before entry or entering false data, or by entering unauthorized instructions or using unauthorized processes.

Altering, destroying, suppressing, or stealing output, usually to conceal unauthorized transactions: this is difficult to detect.

Altering or deleting stored data.

Altering or misusing existing system tools or software packages, or altering or writing code for fraudulent purposes.

Other forms of fraud may be facilitated using computer systems, including bank fraud, identity theft, extortion, and theft of classified information.
A variety of Internet scams target consumers direct.

The content of websites and other electronic communications may be distasteful, obscene or offensive for a variety of reasons. In some instances these communications may be illegal.
Many jurisdictions place limits on certain speech and ban racist, blasphemous, politically subversive, libelous or slanderous, seditious, or inflammatory material that tends to incite hate crimes.
The extent to which these communications are unlawful varies greatly between countries, and even within nations. It is a sensitive area in which the courts can become involved in arbitrating between groups with entrenched beliefs.
One area of Internet pornography that has been the target of the strongest efforts at curtailment is child pornography.

Whereas content may be offensive in a non-specific way, harassment directs obscenities and derogatory comments at specific individuals focusing for example on gender, race, religion, nationality, sexual orientation. This often occurs in chat rooms, through newsgroups, and by sending hate e-mail to interested parties (see cyber bullying, cyber stalking, harassment by computer, hate crime, Online predator, and stalking). Any comment that may be found derogatory or offensive is considered harassment.

Drug traffickers are increasingly taking advantage of the Internet to sell their illegal substances through encrypted e-mail and other Internet Technology. Some drug traffickers arrange deals at internet cafes, use courier Web sites to track illegal packages of pills, and swap recipes for amphetamines in restricted-access chat rooms.

The rise in Internet drug trades could also be attributed to the lack of face-to-face communication. These virtual exchanges allow more intimidated individuals to more comfortably purchase illegal drugs. The sketchy effects that are often associated with drug trades are severely minimized and the filtering process that comes with physical interaction fades away. Furthermore, traditional drug recipes were carefully kept secrets. But with modern computer technology, this information is now being made available to anyone with computer access.

Government officials and Information Technology security specialists have documented a significant increase in Internet problems and server scans since early 2001. But there is a growing concern among federal officials that such intrusions are part of an organized effort by cyberterrorists, foreign intelligence services, or other groups to map potential security holes in critical systems. A cyberterrorist is someone who intimidates or coerces a government or organization to advance his or her political or social objectives by launching computer-based attack against computers, network, and the information stored on them.

Cyberterrorism in general, can be defined as an act of terrorism committed through the use of cyberspace or computer resources (Parker 1983). As such, a simple propaganda in the Internet, that there will be bomb attacks during the holidays can be considered cyberterrorism. As well there are also hacking activities directed towards individuals, families, organised by groups within networks, tending to cause fear among people, demonstrate power, collecting information relevant for ruining peoples' lives, robberies, blackmailing etc.

The U.S. Department of Defense (DoD) notes that cyberspace has emerged as a national-level concern through several recent events of geo-strategic significance. Among those are included the attack on Estonia's infrastructure in 2007, allegedly by Russian hackers. "In August 2008, Russia again allegedly conducted cyber attacks, this time in a coordinated and synchronized kinetic and non-kinetic campaign against the country of Georgia. Fearing that such attacks may become the norm in future warfare among nation-states, the concept of cyberspace operations impacts and will be adapted by warfighting military commanders in the future.

No comments:

Post a Comment