To what extent should the government respect privacy when dealing with cyber-crimes?
Daniil Tatsenko
John Jay College of Criminal Justice
ENG 201
Prof Matyakubova
May 18th, 2020
In the past years, the internet has successfully brought people close to one another, virtually creating high levels of interconnectedness and interdependence. Currently, people can accomplish many things comfortably while at home. Cellphones, computers, the internet, and other forms of technology have made almost every aspect of human life better (Brodowski, 2019). People can communicate, shop, bank, get entertained, and obtain information globally.
These technological advancements have created opportunities for offenders to commit several forms of crime. This essay explains the need for government agencies to act ethically and protect individuals’ right to privacy when dealing with cybercrime persons. This privacy includes the protection of personal data that is preserved in the digital world. Many developments have characterized the evolution of a digital world, but nothing significant has changed about threats to the users’ privacy. Though the government should remain vigilant on the threats to society, both external and internal, the individual's fundamental rights, such as the right to privacy should be of importance in any democratic society. The right should be made available to all and on an equal basis (Benjamin et al., 2019). There is a right to privacy in the United States, and that right needs to be fully respected when dealing with cyber-crime investigations. Government agencies should act ethically and follow due processes without violations of privacy. Privacy and ethics have to come before security when dealing with cybercrimes.
Cybercrime refers to online crimes that are perpetrated using specialized cyberspace knowledge. Often, cybercrime is perceived as an umbrella word that encompasses all those crimes in which computers and technology serve a supporting role, such as using cell phones or computers to send harassing messages (Michael, 2018). Cybercrime also includes computer-targeted crimes that happen as a result of computer technology and which would not exist without such computer technology such as a computer system trespassing. Cybercrime types include cyber-trespass, which involves unauthorized system access, cyber theft, which provides for online fraud and digital piracy, cyber-obscenity such as child sexual exploitation, and cyber-violence, which includes cyber-terrorism.
It is almost impossible to estimate the number of cybercrimes that have occurred in most parts of the world because there are very few valid, reliable, and official statistics, due to a lack of a standard legal definition of cybercrime. However, the rates of traditional crimes continue to decrease as the number of cybercrimes increases. Cybercrimes have attracted the attention of scholars leading to the availability of several research works on cybercrime. However, most of these research works are focused on understanding how cyberspace and cybercrime differ from physical space and traditional crimes (Michael, 2018). A substantial challenge facing cybercrime scholars currently and historically is the unavailability of accurate, reliable, and official statistics on most forms of cybercrime and how to deal with such cybercrime incidents.
The Federal Bureau of Investigations (FBI) in the United States reports that the most used sources of data on crime have no information on cybercrime and whether the technology was used to perpetrate the crime. Again, The National Incident-Based Reporting System (NIBRS) does not provide a specific type of cybercrime, but it requires agencies reporting crimes to indicate whether a computer was used in the crime (Brodowski, 2019). Below is a diagram illustrating various types of crimes, and the estimated losses suffered by the victims. It is the latest crime report released by the Federal Bureau of Investigations and obtained from their website (FBI, 2018). This chart is used in this paper to admit that cybercrime leads to a significant loss of money by the victims. However, this should not be used as an excuse by the governmental agencies, which investigate cybercrimes, to violate the individuals' right to privacy and fair trial.
The issues of servers and geographical boundaries are difficult to establish when dealing with cybercrimes. In some cases, the perpetrators are in different countries from where the crime is actually committed. Though laws have been put in place to fight cyber crimes, there are no agreed international conventions meant to fight cybercrime as a collective. An appropriate example of a convention, is found in the European Union context (Bednar et al., 2008). In 2001, the European Council adopted the Convention on cybercrime, otherwise known as the Budapest Convention. This Convention is open to adoption by other countries. Most importantly, the convention advocates for the need to protect and respect fundamental human rights and freedom as enshrined within the United Nations International Covenant on political, civil rights, and other relevant international human rights agreements. This Convention reinforces the argument of this paper that when government agencies are dealing with cybercrimes, they should not only do so ethically, but should also ensure the protection of the citizens' right to privacy (SEGER, 2011). Similar to other criminal offenses, the cybercrimes should attract due procedures from investigation to judicial hearings. The sentences given to the accused in the court of law should be determined similarly to how other criminal offenses given the same weight as cybercrimes are determined.
Below is a diagram illustrating the Budapest Convention. In this paper, this chart serves to clearly explain the need to protect human rights when investigating cybercrimes. The professional tasked with collecting, compiling, and convicting the accused should act in an ethical manner and be accountable for their actions (SEGER, 2011).
Just like other forms of crimes, cybercrime is equally essential, and its effects cannot be assumed. These crimes cause both financial and psychological harm to the victims. It is necessary to find ways of dealing with cybercrimes. However, when dealing with cybercrimes, the government should respect the rights of its citizens.
An interesting perspective to consider in cybercrime is the violations that occur when the governmental agencies are dealing with cybercrimes. In a move to track down criminals and hunt them down, the government agencies are violating many internet rights. One of these significant rights is the right to privacy (Smith, 2007). To explain this violation, consider the failure to secure search warrants by a government agency when investigating a cybercrime. The government of the United States attempted to enact the Stop Online Piracy Act that aimed at initiating a mass surveillance system. This act attracted a lot of criticism from the citizens because the U.S—in the name of fighting piracy—will be undermining personal information. The interest of privacy should come first when devising ways of dealing with cybercrime. Another unethical practice perpetrated by the American agencies dealing with cybercrime is incitement. In this case, individuals predisposed to committing a particular cybercrime offense are baited by the government agencies actually to commit the crime in the exchange of money. An excellent example to consider in this case is when the government officials dealing with cybercrime deceives a hacker to hack a particular computer system in the exchange of money and arrest the same individual afterward (Benjamin et al., 2019). From these unethical practices, it is observed that had it not been for the state, the offense would not have been committed in the first place. Emmanuel Kant, a philosopher, suggested that moral behavior is measured on the outcomes of the action. Based on Emanuel Kant's arguments, it is undeniable that this practice is unethical because the result is convicting the deceived person in a court of law.
Referring to California v. Riley, the court maintained that government agencies investigating cybercrimes, including those committed using mobile phones, should first obtain a search warrant before carrying out the searching process (Bednar et al., 2008). Usually, a mobile phone contains vast information concerning the accused compared to the information contained in physical objects about the accused. It is possible that when searching, the police officers could easily access cloud services. In some countries such as China, countries dealing with the provision of online services were instructed by the government to install a government “spyware” to monitor their operations. Failure to comply with the requirements, the licenses of the companies are to be withdrawn. This incidence emphasizes the argument that governments are not primarily concerned about citizens’ right to privacy in a move to attempt ending cybercrime.
The nature of rulings given to the accused in the United States is also of interest. The rights of cybercrime persons have not been given due consideration. Most of the people presented to the court of law in the United States being accused of internet offenses have not been given the procedure of due process. Every citizen in the United States, including those caught in an offense, is legally entitled to the due procedural ruling. Another essential aspect to note is that most of the sentences given to the accused are not directly proportional to the crime committed. For example, Duke Cao has received an eight-year sentence in jail for promoting democracy online (Bednar et al., 2008). This reinforces the idea that the procedures of investigating and convicting cybercrime should take into consideration the right to privacy and should be ethical as well.
Every citizen has a right to privacy for sensitive personal matters, including religious practices, political activities, sexual habits and preferences, and general internet privacy, whether in public or private (Smith, 2007). This information is available on personal computers and cellphones. When carrying out cybercrime investigations, criminal investigations agencies have access to this personal data. Before conducting the cybercrime investigations, the professionals should secure a search warrant to validate the exercise. The information obtained from the search should be used for the primary purpose for which the investigation was meant to achieve, and not for any auxiliary agenda. It is very unethical to use the collected information for other purposes other than the one intended, such as victimizing the accused based on his/her behavior.
Individuals have the right to communicate with various forms of media without frequent monitoring of their communications by the government. When conducting cybercrime investigations, the government should show commitment to respecting this right by acting ethically in making decisions about the collected communications. The obtained information that is not useful to the investigation should not be disclosed either to other people or to the public. This will help in ensuring the right is granted to all people and on an equal basis.
Some organizations collect and store personal information in their databases. However, these organizations have not kept their promise in ensuring the data is not automatically available to other persons, including government agencies dealing with cybercrime (Katos & Bednar, 2008). To ensure data privacy, the state should ensure instances where data is being processed by another third party, the owner of the information, has significant control over the required data and its use. Failure to have such legislation, the state itself will bring a considerable threat to data privacy much more than cybercrimes themselves.
Data Subjects should have access to data on them held by others
Data subjects should be informed, have access, and be allowed to correct, incorrect or misleading data that is held by other parties. Allowing data subjects to exercise significant control on the kind of data held by other parties will be granting citizens their privacy (Smith, 2007). The state should lead the commitment to respecting the citizens' rights to privacy even when pursuing security affairs for the nation's interests.
Government agencies processing other people's data for use in investigating cyber crimes should be accountable and willing to comply with the state's statutes on the right to privacy and ethics (Katos & Bednar, 2008). The governmental agencies should ensure they seek legal authority or the consent of the accused, when intending to use the collected information for other purposes apart from the one the information was meant to be used.
When investigating cybercrimes, the agencies should ensure they collect the necessary information, while ignoring and still maintaining the confidentiality of the unnecessary information they may have stumbled upon while conducting the investigation. Through this, there will be a substantial move towards respecting individuals’ right to privacy as well as fighting cybercrime incidences.
Advancement in technology has provided several opportunities that have not only significantly shaped human life but also accelerated nations' economic growth. Malicious people have taken advantage of the increase in technology and have used it to cause harm to other people. However, the biggest challenge is on how to fight cybercrime. The current procedures that are being used by the government agencies are presenting ethical concerns as well as violating rights to privacy. There is a right to privacy in the United States, and that right needs to be fully respected when dealing with cyber-crime investigations. Government agencies should act ethically and follow due process without violations of privacy. Privacy and ethics have to come before security when dealing with cybercrimes.
The United States government should show commitment to safeguarding and respecting human internet rights. The fact that many transactions are conducted virtually should not be used as an excuse to nullify the need to respect human internet rights. There is a need for clarity on the appropriate (and proportional) sentences for internet crimes. Similar to other criminal offenses, the cybercrimes should attract due procedures from investigation to judicial hearings. The sentences given to the accused in a court of law should be determined similarly to how other criminal offenses given the same weight as cybercrimes are determined.
References
Bednar, P. M., Katos, V., & Hennell, C. (2008). Cyber-Crime Investigations: Complex Collaborative Decision Making. 2008 Third International Annual Workshop on Digital Forensics and Incident Analysis, 3–11. doi: 10.1109/wdfia.2008.7
Benjamin, V., Valacich, J. S., & Chen, H. (2019). DICE-E: A Framework for Conducting Darknet Identification, Collection, Evaluation with Ethics. MIS Quarterly, 43(1), 1–22. doi: 10.25300/misq/2019/13808
Brodowski, D. (2019). Cybercrime, human rights and digital politics. Research Handbook on Human Rights and Digital Technology, 98–112. doi: 10.4337/9781785367724.00013
FBI (2018) Internet Crime Report Released. (2018, May 7). Retrieved from https://www.fbi.gov/news/stories/2017-internet-crime-report-released-050718
Katos, V., & Bednar, P. M. (2008). A cyber-crime investigation framework. Computer Standards & Interfaces, 30(4), 223–228. doi: 10.1016/j.csi.2007.10.003
Michael, A. (2019, September 19). ENCYCLOPEDIA BRITANNICA. Cybercrime. Retrieved from https://www.britannica.com/topic/cybercrime
Seger, A. (2011). The Budapest Convention 10 Years On Lessons Learnt. In Cyber criminality: Finding a Balance between Freedom and Security (pp. 167-168).
Smith, R. G. (2007). Crime control in the digital age: an exploration of human rights implications. International journal of cyber criminology, 1(2), 167-179.
