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The Challenge of Legislating Moral and Civil Wrongs in the Cyberspace: a Theory for Internet Regulatory Policy

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The Challenge of Legislating Moral and Civil Wrongs in the Cyberspace: a Theory for Internet Regulatory Policy THE CHALLENGE OF LEGISLATING MORAL AND CIVIL WRONGS IN THE CYBERSPACE: A THEORY FOR INTERNET REGULATORY POLICY Submitted in partial fulfillment of the requirements of the Bachelor of Laws Degree, Strathmore University Law School By Lynda Kinya Kaimenyi 078157 Prepared under the supervision of Mr. Humphrey Sipalla January 2017 i Table of Contents Acknowledgments .................................................................................................................................... iv Declaration ................................................................................................................................................ v Abstract .................................................................................................................................................... vi List of Abbreviations .............................................................................................................................. vii List of Statutes and Instruments ............................................................................................................. viii List of Cases ............................................................................................................................................. ix CHAPTER ONE ......................................................................................................................................... 10 Introduction ................................................................................................................................................. 10 1.1 Statement of the Problem .................................................................................................................. 14 1.2 Justification of the Study .................................................................................................................. 14 1.3 Statement of Objectives .................................................................................................................... 15 1.4 Research Questions ........................................................................................................................... 15 1.5 Literature Review .............................................................................................................................. 16 1.6 Theoretical Framework ..................................................................................................................... 20 1.7 Hypothesis......................................................................................................................................... 21 1.8 Research methodology ...................................................................................................................... 22 CHAPTER TWO ........................................................................................................................................ 23 Theoretical Framework ............................................................................................................................... 23 2.0 Introduction ....................................................................................................................................... 23 2.1 Origin of Government ....................................................................................................................... 24 2.2 The Extent of Legislative Power ....................................................................................................... 27 CHAPTER THREE .................................................................................................................................... 30 The Challenge of Legislating Civil and Moral Wrongs in the Cyberspace ................................................ 30 3.0 Introduction ....................................................................................................................................... 30 3.1 Features of the Cyberspace/ Global Information Infrastructure ....................................................... 31 3.2 Disintegration of Traditional National Borders ................................................................................ 31 3.2.1 Permeable National Borders ...................................................................................................... 31 3.3 Emergence of Network Sovereignty ............................................................................................. 33 3.4 Cyber Libertarianism and Cyber Paternalism/Collectivism ............................................................. 36 CHAPTER FOUR ....................................................................................................................................... 38 International Legal Framework ................................................................................................................... 38 4.0 Introduction ....................................................................................................................................... 38 ii 4.1 Budapest Convention on Cybercrime ............................................................................................... 41 4.2 Internet Bodies .................................................................................................................................. 42 4.2.1 Internet Engineering Task Force (IETF) ........................................................................................ 42 4.2.2 Internet Corporation for Assigned Names and Numbers (ICANN) ............................................... 43 4.2.3 Internet Governance Forum (IGF) ................................................................................................. 43 4.2.4 Internet Research Task Force (IRTF) ............................................................................................ 44 4.3 Formulating Effective Cyber laws .................................................................................................... 44 CHAPTER FIVE ........................................................................................................................................ 46 Regional and National Legal Framework ................................................................................................... 46 5.0 Introduction ....................................................................................................................................... 46 5.1 African Union Convention on Cyber security and Data Protection .................................................. 47 5.2 The Kenya Cyber security and Protection Bill ................................................................................. 47 5.3 Canada............................................................................................................................................... 48 5.4 South Africa ...................................................................................................................................... 50 CHAPTER SIX ........................................................................................................................................... 54 Conclusion and Recommendations ............................................................................................................. 54 6.0 Conclusion ............................................................................................................................................ 54 6.1 Recommendations ................................................................................................................................. 55 Bibliography ............................................................................................................................................... 59 iii Acknowledgments My sincerest gratitude goes to Mr. Humphrey Sipalla for his guidance throughout this work, Professor Nii Quaynor whose insight was invaluable in the writing of this paper. iv Declaration I, LYNDA KINYA KAIMENYI, do hereby declare that this research is my original work and that to the best of my knowledge and belief, it has not been previously, in its entirety or in part, been submitted to any other university for a degree or diploma. Other works cited or referred to are accordingly acknowledged. Signed: ....................................................................... Date: .......................................................................... This dissertation has been submitted for examination with my approval as University Supervisor. Signed: ......................................................................... Mr. Humphrey Sipalla v Abstract The internet’s meteoric rise has provided vast areas of new opportunity and potential sources of efficiency for organizations of all sizes. It has however, also transformed the behaviour of the criminal element within that society. These new opportunities come saddled with unprecedented threats. Ranging from attacks on the system; unauthorised access, denial of service, malware to data breaches; that affect the integrity and confidentiality of data as well as child pornography, hate speech, cyber bullying, theft, fraud etc. This paper’s objective is to come up with a theory for internet regulatory policy. By taking into consideration the unique challenges posed to legislation, the different models of laws and incorporating the merits of various philosophies. This theory is aimed at guiding the creation of effective cyber legislation and guiding any new developments
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