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The Law of Cyber-Space THE LAW OF CYBER-SPACE AN INVITATION TO THE TABLE OF NEGOTIATIONS AHMAD KAMAL UNITAR United Nations Institute of Training and Research Published by the United Nations Institute for Training and Research Palais des Nations CH 1211 Geneva 10 Switzerland First Edition: October 2005 ISBN: 92-9182-038-8 The opinions expressed in this book are those of the author and do not necessarily reflect the views of the United Nations or of any other United Nations organs and agencies referred to in this book. © All rights reserved by the author No part of the material in this book may be reproduced without due attribution to the author. PREFACE This book is presented to the Member States of the United Nations by the United Nations Institute for Training and Research (UNITAR) as part of its programmes in the field of Information Technology. It is, as the title indicates, an invitation to consider the importance of starting negotiations in a sector which has been much ignored over the past few years. Hopefully, its importance and depth will be duly appreciated, and the material in it actually used for negotiations on a Law of Cyber-Space. Marcel Boisard United Nations Assistant Secretary-General Executive Director, UNITAR TABLE OF CONTENTS Foreword 001 Introduction 003 Chapter 01: Definitions 006 Chapter 02: The Right to Access 017 Chapter 03: Anonymity 023 Chapter 04: Data Protection 028 Chapter 05: Software, including Encryption 036 Chapter 06: Malicious Code 040 Chapter 07: Spam 044 Chapter 08: Cyber-Hooliganism 052 Chapter 09: Cyber-Stalking 055 Chapter 10: Identity Theft 061 Chapter 11: Cyber-Terrorism 066 Chapter 12: Cyber-War 076 Chapter 13: Distance Contracting 085 Chapter 14: Intellectual Property 111 Chapter 15: Obscene Publications 121 Chapter 16: Digital Signatures 128 Chapter 17: Civil Liberties 138 Chapter 18: Civil Liability 149 Chapter 19: Civil Remedies 161 Chapter 20: Criminal Liability 170 Chapter 21: Criminal Penalties 190 Chapter 22: Sovereignty and Jurisdiction 197 Chapter 23: Standards of Evidence 206 Chapter 24: Trans-National Extradition 215 Chapter 25: Telecommunications Regulation 223 Chapter 26: Regulatory and Investigatory Powers 234 Chapter 27: Dispute Resolution 244 Chapter 28: Treaty Secretariat 254 Bibliography 262 THE LAW OF CYBER-SPACE FOREWORD FOREWORD This book is a sequel to the earlier work on Information Insecurity, in which it had been argued that the absence of globally harmonized legislation was turning cyber-space into an area of ever increasing dangers and worries. In many ways, this situation is similar to the problems faced in dealing with the high seas, where the absence of consensus legislation was also creating an avoidable and acute vacuum. The international community finally woke up to the challenge, and started negotiations on the Law of the Sea. Those negotiations went on for almost a decade, but did finally succeed. The world is much better off as a result. In the case of cyber-space, the challenge is far greater. The speed of change is phenomenal, the dangers affect all countries without exception, new shoals and icebergs appear every day, and global responses are sporadic or non-existent. There can be no doubt whatsoever that a globally negotiated and comprehensive Law of Cyber-Space is essential. A complication arises from the fact that there are three distinct parties whose agreement would be necessary in any negotiations, namely, the governments, the private sector, and civil society. Each has an interest in the outcome, and each is a legitimate and absolutely essential stake-holder. Governments have the obvious power to legislate and to enforce laws. The private sector is the engine of all research and development in the sector of information technology, and knows the intimate details of the hardware and software on which its architecture is based. Civil society is the ultimate end- user, and benefits or suffers from its use and misuse. All three have somehow to be fully involved in the negotiations, in an atmosphere of mutual trust and respect, in which no one of the three tries to impose its weight on the other two. The question is where these essential negotiations can be conducted. It would appesar that only the United Nations can provide the neutral and legitimate forum for this task. It is the only truly universal multi-lateral organization that we have, and its stamp of legitimacy is unequalled. Care would have to be taken, however, to ensure that the location of the negotiation in the United Nations is not interpreted as turning it into a purely inter-government negotiation. That will just not work. All three stakeholders must be full participants in the exercise. This book is thus presented as a working manual for a tri-partite negotiation. It attempts to list the known aspects of the problem, to analyze the piece-meal manner in which different countries have addressed some of its component parts so far, and to offer some solutions for further work. An effort has been made to identify the different known legal problems and to classify them under twenty-eight specific chapters. Chapters 01 to 16 form one part which describes what are the subjects of the criminal conduit 1 THE LAW OF CYBER-SPACE FOREWORD in cyber-space, while chapters 17 to 28 explain where, why and how these misconducts can fit into the present legal framework. The classification is rather arbitrary, and is only meant to help in slicing the overall problem into some component elements. Thre are overlaps and inter-linkages, which future negotiators would have to unravel. The pattern followed for each of these chapters is identical. A first part attempts to identify the parameters of the problem, a second part brings together most of the existing texts on the subject, a third part tries to spot the loopholes that still remain to be plugged, and a final and fourth part suggests some possible solutions. The latter are merely suggestions, as it will be for the negotiators to agree on and determine the actual content of a comprehensive Law of Cyber-Space. This analysis is, unfortunately, seriously constrained by the fact that technological advances in cyber-space are hurtling forward at break-neck speed. In fact not a day passes without the discovery of new facts, new dangers, new insecurities. That makes for a highly dynamic situation. As opposed to that, the book being presented is static, because it is being written and published at a specific point of time. Due note has thus to be taken of the need to compensate for the gap that will inevitably exist between this publication and all new developments. A number of individuals have to be thanked for the enormous effort that has been expended in preparing this book. In the first place stand Professor Ehab Al-Shaer of the School of Computer Science, Telecommunications and Information Systems, Professor Katherine Strandberg of the College of Law, and Professor Patricia Szczerba of the School for New Learning, all from DePaul University in Chicago, and a large group of their students, who first researched the laws and regulations adopted by different countries. Then come two young students from Fairleigh Dickinson University in New Jersey, Kate Dumont and Max Burkey, who helped sift and classify the vast amount of material that had been gathered. Finally, my deepest and most grateful acknowledgement of the assistance received from Mr. Florin Butunoi, a young lawyer from Romania, currently, undergoing advanced studies at Seton Hall University in New Jersey, whose inputs have been invaluable. The manuscript was reviewed by Professor Ehab Al-Shaer, Professor Katherine Strandberg, and Professor Barry Kellman, as also by Ambassador Henning Wegener, the Chairman of the Permanent Monitoring Panel on Information Security of the World Federation of Scientists. All gave valuable suggestions for improvement and I am most grateful to them for their time and effort. 2 THE LAW OF CYBER-SPACE INTRODUCTION INTRODUCTION By any reckoning, the phenomenal growth of the global information technology infra-structure has been one of the most decisive events which distinguishes our contemporary times. In just over the past five years, the number of Internet users has sky-rocketed from 0.5 million to 6.5 million – a thirteen fold increase1. In the process, an entirely new universe has been created – the World of Cyber-Space. In many ways, this new frontier parallels the Wild West, with very few laws or norms to regulate human behavior, and innumerable outlaws only too willing to exploit the virgin territory of this vacuum. It is increasingly clear that the benefits of this World of Cyber-Space cannot be enjoyed without drafting a comprehensive legislation, or without harmonizing the isolated laws which exist here and there. Here are some reasons why it is necessary more than ever before to start work on this Law of Cyber-Space: · Every day, more than 30,000 personal computers are being recruited into secret networks that spread spam and viruses2. · With the help of computers and access to the Internet, intellectual property continues to face high levels of piracy in key markets throughout the world. Economic damage is estimated at $25-$30 billion globally3. · Data on 50 million credit cards and personal information has been stolen in just the first half of 2005 in the USA alone. · Twenty percent of people responding to a 2004 survey in the USA reported that they have personally been victims of identity fraud or theft. If this data is projected, the results suggest that close to 50 million individuals have already been victims of identity fraud or theft in this one country alone. · An innovative and burgeoning sector of the economy – eCommerce – is now endangered.
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