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section heading icon     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.

subsection heading icon     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.

subsection heading icon     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.

subsection heading icon     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.

subsection heading icon     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.

subsection heading icon     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.

subsection heading icon     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.

subsection heading icon     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

subsection heading icon     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.

subsection heading icon     terrorism and sedition

[Under Development]

A discussion of sedition in the online and offline environments is here.

subsection heading icon     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.

subsection heading icon     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.

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version of April 2007
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