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Careless Whisper

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Winthrop YuIs it a crime to make recordings of private, intimate acts? Which is the greater crime, making a sex video or distributing it? What kind of crime occurred: exploitation of women and children, pornography, violations of privacy or copyright?

Courts, lawyers, and their clients will seek to answer these questions in the coming months. Meanwhile, the pervasive Internet will continue to be the focus of attention when scandal erupts. Yet the Internet is simply a means, another medium that can be used for good or ill.

If we intend to restrict and punish exploitation and pornography, then logically we should address these issues through legislation targeted at these crimes; not merely at the medium or means used to commit them.

Restricting the medium—whether Internet, TV, or print—risks suffocating basic freedoms. It’s throwing out the baby with the bathwater. The Internet is like a utility. We do not criminalize the use of electricity, do we?

That being said, we do not have a Cybercrime Law yet (at the time this is being written). That doesn’t mean no one has been working on it. After all, legislation does not emerge full-blown out of Zeus’ head. Rather, many dedicated advocates have been working quietly, sans fanfare, for nearly a decade to draft the law.

Let’s do a quick overview of what punishable acts are included in the draft consolidated house bill as of late 2008.

Offenses against the confidentiality, integrity, and availability of computer systems are commonly referred to as hacking. This includes illegal access, illegal interception, data interference, system interference, and misuse of devices. Note that under “misuse of devices” mere possession of a password with the intent to commit an offense is a punishable offense.

Then there are computer-related offenses such as forgery or fraud. Often, but not always, these acts are committed by those who already have some access to the target computer system; in other words, an inside job. While financial gain is often the motive, it could also be revenge by disgruntled or unstable employees or coworkers.

Provisions for content-related offenses are controversial. Cybersex is defined as “any operation for sexual activity or arousal with the aid of or through the use of a computer system, for a favor or consideration.” The last clause seems to indicate that only commercial activities will be punished.

The treatment for child pornography (i.e., involving a minor) is stricter. Producing, offering, or making available, distribution or transmitting, procuring or mere possession of child pornography is punishable by law. Finally, unsolicited commercial communications, commonly referred to as “spam,” is penalized.

Other offenses include aiding or abetting the commission of a cybercrime, or even the mere attempt to commit such a crime. There is also a section on “liability under other laws,” which covers the use of computer systems to commit other crimes, such as those covered by the Revised Penal Code or Intellectual Property violations.

There is also a distinct section on corporate liability, where the officers, and not just the company, are held responsible and penalized with hefty fines.

Of concern to some sectors of civil society are the law’s provisions for the real-time collection and preservation of computer data. Internet Service Providers are required to log, preserve, and make

available certain types of data that can help law enforcement agencies trace, identify, and prosecute cybercriminals.

Mitigating these concerns is the fact that the data being so preserved and used is “traffic” data, which excludes any content but instead includes “origin, destination, route, time, date, size, duration, or type of underlying service.”

There are likewise concerns over the bill’s creation of a National Cyber Security Office. While there’s certainly a need for coordination, we’re hoping it doesn’t morph into something Big Brotherish.

Finally, since cybercrimes are often transnational, there are comprehensive sections on Jurisdiction and International Cooperation. Here, cooperation is mostly provided by access to and preservation of data.

Strangely enough, this section allows the “real-time collection, recording, or interception” of content, rather than just traffic data. Though, even here, access to content is limited by the provisions of the Anti-Wiretapping and Human Security Acts. One additional safeguard is that a foreign government’s request may be refused if the request concerns a political offense.

So, will this Cybercrime Bill send the celebrities linked to the recent sex video scandal to jail? The short answer is no. Rather, the bill addresses a wide range of critical cyber issues—perhaps not as glamorous as showbiz coverage, but nonetheless important and certainly long overdue.

Print ed: 08/09


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