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Misunderstanding of cyberspace leads to bad cybercrime laws

Thursday May 24 2018
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An activist displays a computer keyboard during a anti-cybercrime law protest in Manila, Philippines. To regulate behaviour in cyberspace, the law is not necessarily the solution for all that occurs. PHOTO | AFP

By CHRISTOPHER ROSANA

Emerging from the collapse of the Soviet Union, we thought that the growing monster of the internet would be the death of government.

Tired of the governments of flesh and steel, we thought that this would be our salvation from the exasperating instincts of command and control. We thought boundaries would be erased, bureaucracies would collapse, and our lives would be as easy as fast download speeds.

As Prof Lawrence Lessig wrote in Code Version 2.0, code would be the new law. But as time has shown, these old instincts of command and control would be integrated in the new order. Our living hells and distant heavens would not be erased leaving us at the very place we have been — earth.

As such, governments would not collapse, bureaucracies would not disappear, and our lives would remain much the same save for a peculiar and misguided assumption in the way governments would exercise control over the new domain.

Governments would seek to control the actions of its citizenry as though it owned cyberspace. In the artificial sense, cyberspace is akin to the skies or the seas — though subject to national boundaries they cannot be “controlled” or rather “restricted” in the same manner governments exercise power over the bodies of their citizenry.

A lack of understanding of the internet’s structure leads governments to prescribe hefty penalties for “crimes” committed as though cyberspace is a certain street corner vulnerable to the boot and shout of the tyrant.

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If for the sake of argument we would concede that the crimes and hefty penalties are justified, there still exists a misguided reasoning on enforcement and deterrence.

To borrow from Jack Goldsmith and Tim Wu, there are limits to the amount of deterrence and punishment we can install in order to prevent crime. If parking illegally and bank robbery both meant 20 years in prison, then “the law would lose its ability to send a message about what citizens should not do, and what they really should not do.”

Furthermore, governments prescribe these penalties and crimes with the misapprehension that the nature of cyberspace is necessarily immutable and cannot be changed. In the traditional sense, law is an order backed by sanction.

The law seeks to affect behaviour in real space by ensuring citizens know that the state can make good its threat of violence, deprivation of liberty or fines.

To regulate behaviour in cyberspace, the law is not necessarily the solution for all that occurs. Among other factors, the law is effective in real space because the nature of real world factors cannot easily be changed — for instance, disguising that you are underage in order that you may buy alcohol.

Cyberspace, on its part, does not have a “nature.” It assumes the nature of the code baked into it and thus, the use of code is one of the ways we may regulate behaviour online rather than throwing the law at every infraction.

Would you fight sea waves with a sword? Would you fight the winds with a spear? Would you paint with a hammer? These questions should be at the fore of legislators and courts alike when considering regulation of cyberspace behaviours.

The law is a tool but is it the right tool? The law is effective, at times, but would it match up to the multijurisdictional nature of cyberspace?

To the man with a hammer every problem looks like a nail. To the man armed with the law, and the law alone, every problem must seem fitting towards force and reprisal.

The freedom of the press and free speech are victims of this kind of approach as a result of viewing cyberspace in purely physical terms.

Governments have simply not appreciated the nuances that would be appropriate in addressing this medium.

Christopher Rosana is a legal assistant with Nation Media Group. E-mail: [email protected]

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