Search Engines and Privacy

Privacy in the internet is a highly debated topic. Search engines such as Google, Yahoo, AOL, MSN and others retain information as to the specific search requests made by its subscribers worldwide. According to Google and its rivals, they keep information about their users so they can learn more about them as they strive to deliver the most relevant responses.

In the United States, the U.S. Justice Department has already made use of information retained by these search engines. While gathering evidence for a case involving online pornography, it subpoenaed major search engines for lists of search requests made by their users. Yahoo, MSM and AOL complied. Google did not.
In refusing to provide a list for search requests, Google acted in behalf of their clients, protecting their right to privacy. The federal judge which ordered Google to turn over the small sampling of Web addresses contained in its search index, later on decided that the company did not have to reveal the search requests sought by the government.
In its quest to provide better privacy protection to its subscribers, Google will remove key pieces of identifying information from its system every 18 to 24 months. Not only that, Google will also wipe out eight bits of the Internet protocol, or IP, address that identifies the origin of specific search requests. It will also depersonalize computer “cookies”.

Such measures adopted by the Search Engine Giant will be appreciated by its subscribers worldwide. Privacy, being a primordial right of every individual, deserves to be protected in all manners and forms.

by bryan tan

Red Hat Linux 5: An Alternative to Windows Vista

Red Hat has just recently unveiled Red Hat Enterprise Linux 5, its latest version of its Linux operating software. Red Hat Enterprise Linux 5 is an open-source software and like its other Linux based predecessors, its products are “free” and users are allowed to view and edit the software’s code.

The new operating system supports “virtualization” which will help companies consolidate their technology into one server. It ensures that servers are used more efficiently and effectively which in turn equates to savings in energy, space and money.
Companies are not the only ones benefited by the new software. For its individual clients, the new system has advances in security to protect it from external and internal attacks. This ensures individual users that their units are safe from attacks.
The new Red Hat software will be a good alternative to the Windows Vista. Users are able to afford it at a fraction of the cost it takes. It even has an added benefit of having better “security measures” employed. The reason for the cheaper prices of the Red Hat software is that Red Hat earns its profits from the technical service it provides and not from the sale of their software.

by bryan tan

CYBERCRIME: LOCATING AND PENALIZING THE DIGITAL OFFENDER

continued

The initial legislative response to cybercrime has been an outright prohibition and criminalization of the acts which constitute the same as defined by statute. Mere prohibition, however, is insufficient. It may be well to emphasized that the fundamental territorial limitations of criminal law apply most strongly to cybercrime. Often, the offender is miles, nay jurisdictions, away from the actual site of injury. The latter is where most criminal jurisdiction is based.

One tack has been to shift the burden of liability to the manufacturer of software, on the theory that defects in its manufacture enable the perpetration of cybercrime. This, however, unduly shifts the burden because the cost of enforcement, i.e. award of damages in civil cases, is ultimately borne by consumers of digital products. In an emerging economy like the Philippines, it is ultimately unjust to undertake this type of shifting.

Ultimately, the solution lies in international cooperation between states, with respect to law enforcement. Although cybercrime may be perpetrated in cyberspace, the infrastructure which supports cyberspace remain quintessentially real, in terms of location of equipment, servers and phone lines. These elements may constitute the basis for jurisdiction. A close coordination of cybercrime statutes is also necessary in order to effectively stamp out cybercrime anywhere in the world.

Such coordination should be possible. Otherwise, what is the global village---cyberspace in techspeak---for?

by nestor gadrinab

CYBERCRIME: LOCATING AND PENALIZING THE DIGITAL OFFENDER

part 4

Several theories have been advances as to when access becomes unauthorized. Before the advent of legislation, computer crimes involving unauthorized access were essentially absorbed by other common crimes like theft and burglary. This eventually proved to be insufficient as both crimes involved actual prejudice to property interests, where such could not be proven in crimes involving computers. The net result was a body of jurisprudence where the scope of the crime became very large and where proof of the actual property loss became very difficult, a combination that severely weakened enforcement. Thus:

Although not fully articulated at the time, the harm of misuse was that it interfered with the intended function of computers by either exceeding or denying intended privileges. The intrusion itself seemed worth prohibiting, much like a burglary or a trespass. Traditional property crime laws could address computer misuse only when the misuse triggered a consequential harm, however. As a result, the existing law had no clear remedy for many instances of misuse. Although commentators did not have a specific sense of where the line should be drawn, they tended to agree that misuse alone should be a new trigger of criminal liability.

Statutes were later enacted to remedy the initial disparity between traditional law and computer crimes but these proved to be insufficient inasmuch as the conceptual assumptions remained grounded in the old regime of anti-theft and burglary laws, resulting in statutes that are unnecessarily broad

Any standard for the punishment of crime must necessarily be strictly drawn in order not to unduly infringe upon the rights of individuals. In this respect, the functional definition of unauthorized access must set an absolute threshold. It may be as simple as the violation of password-protected files inside a computer. This example meets both the stringent threshold for criminal legislation and the broad need for protection by ordinary computer users.

Substantially the same standards and criticism apply to any access which is expressly unauthorized. In this case, however, the criminal act is much more patent inasmuch as the express lack of authority clearly delineates the crime. The more relevant issue in this instance is evidentiary in character: whether the intrusion has been monitored electronically and whether such electronic evidence is sufficient to produce a conviction.

Responses to Cybercrime

The basic issue for dealing with cybercrime can be summarized thus:
Cybercrime presents a conundrum that taps into the larger issue of how the law handles new technologies. Occasionally, the law singles out crimes that use more efficient means as deserving of special punishment (e.g., wire and mail fraud), and other times it does not (e.g., crimes performed with an automobile). The relationship between technology and law is an ever-evolving one, where innovations that benefit consumers frequently prove a boon to offenders as well. Cybercrime forces us to confront the role of criminal law and the limitations of public enforcement, just as the criminal law forces us to rethink the role of technology and the advancement of a heretofore largely unregulated marketplace.

by nestor gadrinab

CYBERCRIME: LOCATING AND PENALIZING THE DIGITAL OFFENDER

(part 3)

An example of this is child pornography, which is proscribed in most jurisdictions. That the pornographic images are digital i.e. stored in a computer, does not alter the basic elements of the crime. The basic change in this case is merely procedural in character, whether or not digital evidence is sufficient to produce a conviction. Sec. 33 (b) of the E-Commerce Act, insofar as penalized intellectual property violations with the use of a computer, belongs to this category. In this respect, O’Neill’s observation holds, inter alia:

Cybercrime is unique only to the extent that it is often a more efficient means by which to commit certain types of offenses. In particular, the Internet fosters certain efficiencies that may make detection and subsequent prosecution considerably more difficult. Identity on the Internet, for example, is more easily cloaked, thus making detection more challenging. Computers also may increase the expected return from criminal conduct and decrease the fixed costs of undertaking the criminal activity, thereby making cybercrime more attractive to potential offenders.
It would appear, therefore, that the conceptual blur occurs between the confines of the second category, where the computer is the subject of the offense. The core criminal activity which clearly comes into the fore in this are is “hacking” or “cracking” Under Philippine law, the set of acts constitutive of either are enumerated:

a) Hacking or cracking which refers to unauthorized access into or interference in a computer system/server or information and communication system; or any access in order to corrupt, alter, steal, or destroy using a computer or other similar information and communication devices, without the knowledge and consent of the owner of the computer or information and communication system, including the introduction of computer viruses and the like, resulting in the corruption, destruction, alteration, theft or loss of electronic data messages or electronic documents shall be punished by a minimum fine of One hundred thousand pesos (P100,000.00) and a maximum commensurate to the damage incurred and a mandatory imprisonment of six (6) months to three (3) years;

Broken down into elements, two crimes are provided for under the said provision of law, i.e.: i) unauthorized access ii) any access without the knowledge or consent of the owner resulting in the specified damage or injury.

On the one hand, the phrase “unauthorized access” as it appears in Sec. 33(a) of the E-Commerce Act has been subject to much controversy. Kerr observes that:

What does it mean to "access" a computer? Under what circumstances does access become "unauthorized?" The few courts that have reached these questions have offered inconsistent interpretations. Commentators have ignored these questions entirely. The result is an odd situation in which nearly every Anglo-American jurisdiction has an unauthorized access statute that carries serious felony penalties, but no one seems to know what these new laws cover. (emphasis supplied)


One might as well include Philippine jurisdiction in the latter category. No formal definition has been provided in the E-Commerce Act itself. The hiatus cannot be filled with “persuasive” American jurisprudence, since the state decisions have themselves been the source of much confusion.

-by Nestor Gadrinab

CYBERCRIME: LOCATING AND PENALIZING THE DIGITAL OFFENDER

part 2

Cybercrime: Conceptual Problems

An conceptual stumbling block in the legal analysis of cybercrime is the absence of any definition which commands consensus. Domestically, Congress has not adopted a formal definition for cybercrime. Instead, it has opted for an enumeration of acts constitutive of cybercrime. The enumeration is found in the penal provisions of the E-commerce Act.

Elsewhere, the US Department of Justice broadly defines computer crime as "any violations of criminal law that involve a knowledge of computer technology for their perpetration, investigation, or prosecution." A narrower definition has not been found feasible. On the contrary, it has been observed that:

Because of the diversity of computer-related offenses, a narrower definition would not be adequate. While the term "computer crime" includes traditional crimes committed with the use of a computer, the rapid emergence of computer technologies and the exponential expansion of the Internet have spawned a variety of new, technology-specific criminal behaviors that must also be included in the category of "computer crimes." As a result, there has been a dramatic increase in specialized legislation to combat these new criminal behaviors.
O’Neill makes a rather graphic characterization:

Although the fundamental nature of offenses being committed in this manner are really no different from garden variety thefts, copyright violations, securities frauds, or invasions of privacy, what makes cybercrime unique is that the means of undertaking the criminal conduct is substantially different from dropping into the local liquor store, hitting the proprietor over the head, and running away with the till…

In lieu of a formal definition, three distinct categories have been adopted to classify acts which constitute cybercrime. These categories either treat the computer as the object of a crime, the subject of a crime or an instrumentality to commit a crime.
In the first category, the computer’s hardware or software is the subject of the offense. In most instances, it involves the theft of the unit itself or the data stored within the unit. Under Philippine law, the actual taking of the unit may either be robbery or theft depending upon the circumstances surrounding the taking. Thus, it comes outside the purview of cybercrime and is properly a felony under the Revised Penal Code. This aspect fits the traditional notion of crime and presents few new issues for criminal law.
The same line of analysis could very well be applied to the third category, where the computer is used as an instrumentality of a crime. The issues remain basically the same and it readily appears to be immaterial that the crime was committed using a computer.

posted by n. gadrinab

CYBERCRIME: LOCATING AND PENALIZING THE DIGITAL OFFENDER

(the following is an article written by Nestor Gadrinab, to be published in parts)

Introduction:

The growth of technology, particularly computers, has altered the very face of and conception of reality. It is a wave of change that goes well beyond technological innovation. Computers, in particular, have made information the veritable new medium of exchange. Such phenomenon encompasses the social, economic, political and cultural spheres. Its pervasiveness and impact upon everyday life inevitably makes its encounter with the law a difficult one. For one, technological change is characterized by extraordinary speed. In less than two decades, it has managed to reduce the world into a “global village”, emphasizing connectivity. On the other hand, legal development has always been, to put matters lightly, slow. This has often been justified on the ground of stability and the relatively slow pace of the agricultural and industrial eras has made it a virtue on the part of the law. In the information age, however, this stability has made the law lag behind. The growing disparity between the law and technological development makes the former unresponsive. This disparity shall be explored in this paper in the area of penal legislation vis-à-vis cyberspace, an area which for the nonce shall be designated as cybercrime.

Criminal Law, Realspace and Cyberspace

Philippine criminal law has three main characteristics: general, territorial and prospective. Of the three attributes, two are pertinent viz cybercrime. One is generality and the other, territoriality. Generality is defined in relation to the Civil Law in that Philippine Criminal Law is binding on all persons who live or sojourn in Philippine territory. Territoriality is expressed in the Revised Penal Code, where the provisions of the said code shall be enforced within the Philippine Archipelago, including its atmosphere, its interior waters and its maritime zone.

The traditional scope of criminal law occurs in realspace as opposed to the criminal acts perpetrated in cyberspace typically designated as cyberspace. The designation, however, appears to be arbitrary inasmuch as the operative acts constituting cybercrime can occur in either category. In the context of this paper, locating the offender is both conceptual and real. In the former sense, the offender must be formally defined under the law. This will entail the identification of conceptual blurs and its clarification. In the latter sense, the effectivity of criminal legislation would depend upon whether the offender could be actually apprehended: essentially a matter of criminal procedure.