Constitutional Challenges Associated With Investigating Cybercrimes - Term Paper Example

? Constitutional Challenges Associated With Investigating Cybercrimes of Constitutional Challenges Associated With Investigating Cybercrimes The rapid internet growth has enormously expanded the means of communications. Cyberspace has enabled people to engage in the creation of a completely diverse, chaotic, and new democracy which is free from physical and geographic constraints, as well as sharing ideas over large distances. Technological developments especially in respect to cyberspace have been inarguably beneficial to human beings and have positively impacted on how they conduct business and how they live (Ditzion, et al., 2003). However, these developments have presented the world with new types of threats that can potentially compromise security, privacy, and safety of the internet users. As a result, there have emerged modern systems of law enforcement that are aimed at providing security and order and at the same time maintaining liberty and freedom in an open society. Rapid technological developments have called for intense policing of cyberspace as these developments have threatened to cyber security not just in individual countries, but has also transcended individual countries boundaries (Walden, 2005). Cyber security has been threatened by the new methods of communications and increasing freedom and anonymity in communications. There has been increasing need to balance between providing order and security in the cyberspace and maintaining freedom and liberty in the society. Cybercrime is the term that is being in describing security challenges and threats that the cyberspace is facing in the face of rapid technological developments. In simple terms, cybercrimes are defined as any criminal acts which deal with computer networks and computers. Also, cybercrimes are defined as the criminal acts or offences which are committed against groups of individuals or individuals with a criminal intentions aimed at harming the reputation and status of the victims or to cause mental or physical harm to the victim either indirectly or directly, through the use of modern networks of telecommunications such as the mobile phones and the internet. Cybercrimes not only threatens individuals’ security, but also threatens national and international security. Issues that surround cybercrimes include copyright infringement, child grooming, financial theft, privacy, cracking, espionage, cyber terrorism and child pornography among others (Hinde, 2003). It is agreeable that cybercrimes is one of the most serious crimes that the world is facing currently as it threatens not only individuals’ security but also national and international security. The serious nature of these crimes is evident by the intense measures that have been put in place to counter them both at the national and international levels (Taylor and Morgan, 2002). There are concerted efforts among all the telecommunications players, national governments, and the international community to counter cybercrimes and the threats that such crimes present. However, whereas there is the desire to counter cyber crimes at all levels, this desire and efforts are hampered by the various challenges associated with investigation and prosecution of cybercrimes. One of the main challenges that face efforts to counter cybercrimes is constitutional challenges. In particular, constitutional challenges greatly hamper the efforts to investigate cybercrimes (Walden, 2005). In order to have a deeper understanding of how constitutional challenges affect cybercrimes investigation, this paper will seek to analyze the constitutional challenges and how they are associated with investigating cybercrimes. In the United States, just like in most countries of the world, all the laws and procedures and practices such as investigation and prosecution should be consistent with the constitution. Any process or procedure that is inconsistent with the constitution is considered violation of the provisions of constitution and is not allowed. The United States Constitution is credited as having being very fundamental in upholding the democratic principles in the country such as liberty, freedom and rationality (Mathieu and Shutt, 2006). This constitution has also been critical in balancing between the individual rights and freedom and the societal “good”. In other words, while it seeks to protect individuals’ rights and freedoms, it also seek to ensure that these rights and freedoms do not compromise societal values and morals, and does not also interfere with the rights and freedoms of other persons. Therefore, in the context of constitutionalism and democracy, investigation of cybercrimes ought to balance between the aforementioned aspects; that is, should provide security while at the same time maintain liberty. From the viewpoint of constitution and law enforcement, measures against cyber security threats often present challenges to the jurisdictional authority. Investigation of cybercrimes has in recent times raised constitutional questions especially pertaining to security and liberty (Ditzion et al, 2003). Also, since cybercrimes entails cross-border activities and threats, the place of national constitution is put into perspective as investigations of these crimes would most likely call for international cooperation and engagement of international law enforcement efforts. In the United States, cybercrimes are covered under tow legislation pieces: the National Stolen Property Act 1934 and the Economic Espionage Act of 1996. These two pieces of legislation seek to guard against intellectual property crimes which may be committed by means of the internet. The No Electronic Theft Act of 1997 broadens the criminal liability for infringement of copyrights even in circumstances when financial gain is not involved. It has been argued that the protection of cyber security by these laws are in some cases of limited value because their enforcement and application is limited to jurisdictional borders but cybercrimes are not (Mathieu and Shutt, 2006). While the No Electronic Theft Act, the Digital Millennium Copyright Act, and the U.S. Copyright Felony Act focus on computerized information, they cannot be applied in the context which is extra-jurisdictional (Hinde, 2003).. Admittedly, investigation of many cybercrimes cannot be addressed by extending national laws to extra-jurisdictional territories. Effective investigations of cybercrimes can only be addressed through some level of coordination of various national legal systems. Cross-border cooperation among nation-states can be achieved through mutual legal assistance treaties. However, legal cooperation among nations calls for countries that are participating to develop similar statutes. It is this realization that informed the development and negotiation of a Draft Convention on Cyber Crime by the United States, Japan, and the Council of Europe (Council of Europe, 2001). Constitutional issues in the investigation of cybercrimes revolve around internet regulation which is centred on rights to speech and freedom from intrusion by government or right to privacy. Investigation of cybercrimes requires that aspects of the constitution be considered in the application of internet and data interception program by the FBI and the surveillance of internet communications practices (Taylor and Morgan, 2002). Investigation techniques and the provisions of cybercrimes treaty which conflict with the United States Constitution will definitely not be given effect. This is the genesis of the constitutional issues associated with investigating cybercrimes. It should be noted that such provisions would not have effect even if such fails to excuse the United States under the international law (Walden, 2005). There are several constitutional issues that are associated with investigation of cyber crimes. To begin with is the First Amendment; this amendment protects internet communications as the Supreme Court argued in the case of Reno v American Civil Liberties Union (Ditzion et al, 2003). This amendment may pose challenges to investigation of cybercrimes, particularly to cybercrimes that are content-related. The First Amendment is comparable issue to article 19 of the Universal Declaration of Human Rights which states that there is a right to receive, impart, and seek ideas and information through any form of media and frontiers notwithstanding. This amendment seeks to protect internet communications by ensuring that the right to receive, impart, and seek information is guaranteed over the internet just like over other forms of media and regardless of the frontiers. As such, it can present problems in trying to impose regulations through a Convention or any other way that in some way is seen to infringe the rights guaranteed by the First Amendment or by international law. As a result, it may perpetuate cybercrimes since suspects of cybercrimes may use the provisions of this amendment to dispute investigation (Hinde, 2003). Additionally, the Fourth Amendment provides constitutional challenge to the investigation of cybercrimes. This amendment prohibits seizures and searches by the government that may be considered unreasonable, and therefore requires possible cause for the warrants issuance. Effective investigation of cybercrimes entails seizures and searches; therefore, constitutional prohibition for the same may present a very serious challenge to countering cybercrimes especially in regard to investigation. This amendment is made more of a challenge by the fact that its provisions cannot be overridden by treaties such as Draft Convention on Cyber Crime (Council of Europe, 2001). Besides, investigation can be hampered by the unique issues that have been created under the Fourth Amendment, many of which the courts have not authoritatively resolved. For example, there is no definite dimension that computer data takes; computer data can take numerous dimensions including chat room discussion, internet telephone calls, e-mail, and contents of stored data, newsgroup postings, and net meetings among others. Also, the ease with which data can be moved outside a particular jurisdiction, modified, or deleted further makes investigations to be more problematic. This challenge can be overcome effectively through Convention or international agreements which call for cooperation among states within the limits of a nation-state’s domestic law (Taylor and Morgan, 2002). Moreover, the Fifth Amendment presents a constitutional challenge to the investigation of cybercrimes. Fifth Amendment protects individuals’ rights against self-incrimination. This will present a challenge to the investigating authorities who are attempting to obtain evidence from files that are encrypted. It will make it difficult for investigators to request computer password from a cybercrime suspect with the aim of accessing computer data from the suspect (Ditzion et al, 2003). While it is true that this amendment does not preclude the government from compelling innocent third parties from divulging the password because it only protects against self-incrimination, the amendment can considerably hamper investigation of cybercrimes. The law also provides that a suspect can be compelled to disclose the password by being granted appropriate immunity. However, the law only provides for limited immunity which may not actually provide the suspect with sufficient reason to disclose the password to investigators. Similarly, limited liability may not be sufficient to make a cybercrime suspect to disclose a password since this issue has not been foreclosed because of certain inconsistencies in the decisions of the Supreme Court in this area. Aldesco (2002) argues that the demise of anonymity is one of the greatest constitutional challenges associated with investigation of cybercrimes. Aldesco observes that the downside of cyberspace is the possibility of individuals to reach huge number of audiences in manners that can hide their real identities. He goes further and notes that indeed, there are legitimate reasons for individuals to interact on the internet with others anonymously; this scenario allows individuals such as political activists and whistle-blowers to express opinions that are critical to their government and employers, it allows entrepreneurs to gain and share technical information and ideas without their competitors knowledge, and it also permits individuals to express their views over the internet without fear of public hostility and reprisals. The aspect of anonymity in the cyberspace has come under intense scrutiny from law enforcement investigators who are faced with unique legal and technical challenges from criminals who are operating online. Primarily, similar technology that allows individuals to anonymously communicate also allows criminals to conceal their identities and to evade detection in the cyberspace (Aldesco, 2002). This explains the reason why the investigators have been attempting to search for technical solution that can help them trace the perpetuators of cybercrimes and hence expos their identities. The aspect of anonymity further presents a challenge to investigating cybercrimes based on the cybercrime’s global nature. As has been noted, cyberspace has no geographic boundaries and therefore cyber criminals are free to operate from any location in the world (Aldesco, 2002). What complicates this challenge is that the constitution allows them to be rest assured that targeted states cannot extend their jurisdictions into their countries because of the concept of sovereignty. This is what has informed the need for international cooperation which requires that there should be a universal legal framework which matches the worldwide reach of internet. A good example is the Convention on Cybercrime which is the Council of Europe which aims at responding to the unique legal and technical challenges that the individual state’s constitution present. However, such responses have received considerable opposition from certain sections in individual countries who believe that such Conventions will override the provisions of their constitutions. For example, in the United States twenty-two associations and other nations have raised their concerns that the Convention entrenches measures that are disproportionate, and are not only a threat to fundamental rights but also destructive of liberty (Aldesco, 2002).. Apart from the aforementioned constitutional challenges that are associated with investigating cybercrimes, there are also statutory challenges. It should be noted that statutes in any particular country have to be consistent with the constitution of respective countries. One of the statutory challenges is that of privacy. There are several statutes that cover the issue of privacy from different angles and which are a challenge to investigating cybercrimes. In the United States and most of the European countries privacy is of serious concern and there are contentious issues that have already arisen regarding the same. In the United States privacy is covered under the Privacy Act, Privacy Protection Act, and Electronic Communications Privacy Act (ECPA) (Taylor and Morgan, 2002). These statutes intend to protect the privacy of individuals by ensuring that no record contained in a record systems by any communication means to another agency or person. These statutes also have provided for cases in which such rights would be exempted. However, in some cases the exemptions do not seem to be strong enough to waive the privacy rights from individuals thereby compromising the effective investigation of cybercrimes. This was evident in the case of Steve Jackson Games v Secret Service where the court was supposed to decide whether the Secret Service had intercepted communications improperly when it seized e-mail messages that it had received but the recipient had not read (Mathieu and Shutt, 2006). In conclusion, from the above discussion it is evidently clear that cybercrimes poses serious threat to individual, national, and international security. As a result of the enormous threat that is presented by cybercrimes, users of the internet, national governments, investigating agents, and the international community have become more vigilant and have employed bigger protective measures. It is also undisputed fact that cyber criminals are becoming increasingly internationalized and more sophisticated. As s such, the ability of a particular state to effectively investigate and prosecute cyber criminals who attack it through and from other states has diminished. It is against this background that there has been heightened call for international cooperation through conventions and treaties to facilitate effective countering of cybercrimes. As has been noted, the fight against cybercrimes has been facing immense challenges, key among them constitutional challenges. Constitutional challenges have been associated with investigation of cybercrimes and have considerably affected the fight against cybercrimes. First Amendment, Fourth Amendment, Fifth Amendment, anonymity aspect, and statutory concerns have cited as the main constitutional challenges that are associated with investigation of cybercrimes. The provisions of these parts of the constitution are in such a way that it hampers effective investigation of cybercrimes. These provisions tend to give individuals including cyber criminals’ protection and guarantee them rights that make it difficult for investigators to effectively and efficiently conduct their duties. Similarly, these protection and rights make it hard for the investigators to sometime locate and access cyber criminals. References Aldesco, A. (2002). The Demise of Anonymity: A Constitutional Challenge to the Convention on Cybercrime. Loyola of Los Angeles Entertainment Law Review Vol. 23, Issue 1. Council of Europe. (2001). Convention on Cybercrime. Retrieved from http://conventions.coe.int/Treaty/ Ditzion, R et al. (2003). Computer Crimes. American Criminal Law Review, 40, 285–336 Hinde, S. (2003). The law, cyber crime, risk assessment and cyber protection. Computers and Security, 22, 90–95. Mathieu, D and Shutt, J. (2006). Law Enforcement and Computer Security Threats and Measures. NJ: John Wiley & Sons. Taylor, R and Morgan, D. (2002). Policing the Internet: Legal Issues on the Information Superhighway. Upper Saddle River: Prentice Hall Publishing. Walden, I. (2005). Crime and Security in Cyberspace. Cambridge Review of International Affairs, 18(1), 51-68. Read More