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Legal Challenges in the Age of New Media

by Valentina Gurney


Image is courtesy of www.oldrecipebook.com
Image is courtesy of www.oldrecipebook.com
New media -- namely the Internet -- was introduced to the world in a rapid, chaotic manner. Recent statistics indicate that worldwide Internet use mushroomed by some 305.5 % between 2000 and 2008. This growth was most notable in Africa and the Middle East, soaring by 1,176.8% and 1,031.2% respectively. Of course, Internet penetration is still relatively low in these countries, with as few as 0.1% of the population in the case of Democratic Republic of Congo. Still, we cannot deny that Internet is a global phenomenon, taking the world by surprise, and evolving faster than the local and global infrastructures and legal systems that are responsible for regulating it and enforcing the rules. The growth in Internet use is of special concern in the developing world, where it is most prominent. Valerie McNiven, advisor to the U.S. Treasury on cyber-crime, has pointed outthat these countries are more vulnerable to cyber crime, due to the absence of virtual financial systems that are available elsewhere. In addition, information systems in such countries are easily compromised.

These shortfalls have paved new avenues for violence and abuse. New media has been turned into a weapon by vicious parties who have found protection under the veil of the Internet. Existing privacy and anonymity acts, such as Electronic Communications Privacy Act, render them invincible and invisible in a global society where laws have been too slow to cover the continents and the growing subject matter at hand.

Currently, the term cyber crime encompasses (but is not limited to) the following: terrorism, online fraud, espionage, child pornography, stock manipulation, extortion, piracy and personal attacks. Tracking the growth of these crimes is a difficult task for law enforcement agencies, since much of the illegal internet activity worldwide goes unreported, but the instances continue to multiply.

The following are the statistics for 2007 in the United States alone, as reported by the FBI's Internet Crime Complaint Center (IC3).

Complaints_received_2007_IC3Report.jpg

Despite a slight decline in the number of received complaints, the yearly dollar loss from certain types of cyber crimes, predominantly online fraud, is still escalating:

Complaints_2007_IC3Report.jpg

One statistic that IC3 fails to report is the number of successfully resolved cases, stating that "only one in seven incidents of fraud ever make their way to the attention of enforcement or regulatory agencies" and painting a grim picture of a still inadequate system.

In the United States, however, terrorism is the category of cyber crime that is responsible for most of the ongoing efforts in securitization of information policy.

In a briefing given in late September 2001, Ronald Dick, assistant director of the FBI and head of the United States National Infrastructure Protection Center (NIPC), told reporters that the hijackers of 9/11 had used the Internet and "used it well." Since 9/11, terrorists have only sharpened their Internet skills and increased their web presence.

Back in 1998, fifteen groups listed as "Foreign Terrorist Organizations" under the U.S. Antiterrorism and Effective Death Penalty Act of 1996 maintained websites. By 2000, over 40 terrorist groups had established their presence on the Internet. In addition, by 2003, hundreds of websites serving terrorists and their supporters were popping up in searches. This growth is not surprising, as the process of registering a website is extremely easy. The sites are readily available and cost as little as $10 a year to maintain.

In recent years the Internet has only strengthened its position as a powerful new form of pull media; a one- stop shop for all human needs, increasing exposure of those on the web and penetrating the society much more effectively than any media before it. This success is precisely due to the appeal of freedom of choice and active public participation. Any individual can make a conscious personal choice on the basis of information disseminated over the Internet, and support the cause that speaks to them.

These features of pull media increase the efficiency of tools used by terrorist groups to not only to establish a presence, but also to actively carry out their mission. The tools include psychological warfare that distributes disinformation to represent the terrorists as freedom fighters who simply have no other choice. The Internet also allows groups to issue threats and spread propaganda for highly instrumental uses, such as fundraising, recruitment, coordinating logistics of the attacks and data mining. The latter is especially dangerous, since it can jeopardize national security, provide access to potential victims and be used for hacking into accounts containing sensitive information.

The challenge of addressing cyber terrorism (as well as other cyber crimes) begins with the preliminary step of establishing the conflicting sides. On the victim’s side there could be a physical person, an enterprise or a government. However, it is much harder to establish the identity and the location or locations of the perpetrator in order to bring the said side to justice. In the absence of territory, upon which the local laws can be enforced, International Law should apply. Yet, International Law still does not have the capacity to resolve the complex issues surrounding cyber crimes, as both sides may not have a legal personality as subjects of international jurisdiction, since the field is mostly reserved for resolving inter-state disputes. Thus, only localized cyber crimes can be investigated and brought to justice by the national authorities at the federal, state and local levels.

Given these restrictions, what can the government do to protect itself and its citizens from terrorism and unlawful use of new media? United States Institute of Peace senior fellow Gabriel Weimann outlined the following measures in his Special Report "Terror on the Internet: The New Arena, The New Challenges":

The above recommendations are optimistic and could provide solutions to cyber terrorism in the long term. But the Patriot Act, which enables the government to scrutinize and control the flow of information through wiretapping and eavesdropping, has become the key tool for intelligence collection and protection of its information systems in the United States. Weiman reports that since 9/11, the US government increased the use of wiretapping devices or "sniffers" such as Carnivore and Magic Lantern, “which can search for certain information or keywords. In addition, there have been efforts to remove material from web sites or even remove entire web sites.” It seems that increased transparency in this area is counterproductive to the current policy and might not be achievable. At the same time, such tight control of communications raises a threat to civil liberties. We are aware of the instances when the governments were trying to meddle in free flow of information online causing waves of violent protests, as in Indonesia, when the government blocked You Tube over anti-Koran film.

What is even more disturbing, modern-day wiretapping, when applied to new technologies such as the Internet, is very different from what it was years ago, when the term referred to telephone communications only. The mode of interaction with the Internet is far more intimate and time-intensive, ranging from work to social networking to storing personal tastes and habits. At the same time, wiretapping laws aimed at strengthening national security failed to address this evolution. While national security and security of information flow are all valid concerns, privacy remains no less of an issue, as demonstrated in a recent poll:

In the current national security environment, a CNN (2006) sampling of Americans appeared relatively divided — 47 percent for and 50 percent against — in their beliefs regarding whether secret wiretapping was right or wrong. Among those more involved in the politics of the Internet, in a 2004 survey of members of the Internet Society an overwhelming majority — 80 percent — indicated that their organization, “should actively oppose government’s efforts to wiretap the Internet.” A majority of respondents to that same survey — 68 percent — also considered themselves “concerned” or “very concerned” about terrorism (Internet Society, 2004).(Bronk, 2008)
It seems that law enforcement in the area of cyber crimes will create a double bind, stopping at the question of how much we are willing to reveal about ourselves, especially when the precedent of anonymous use of the media has been set. Would it be possible for every Internet user in the world to have a traceable identity? Given the growth rate of cyber crimes, will the society and individual states ever have the capacity to address them? The technology responsible for the appearance of the New Media is quite capable of surprising us. In the meantime, what is our best bet when it comes to cyber crime protection? Presently, it is not international law. Nor does a local government -- even a government of a developed country -- have the capacity to protect its citizens while safeguarding their civil liberties. The solution for now lies in awareness and prevention, as outlined in the Internet Crime Complaint Center’s prevention tips. Vigilance and caution go a long way, and freedom of information is always a precondition for the best judgment.

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