Legal and Ethical Frontiers

Published Dec 12, 2003
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As Internet Crime is soaring, governments are scrambling to keep up with the perpetrators, and to find ways to effectively punish them. The key issue is how to effectively curb repeat offenders. At the same time, there is a real risk that the measures taken to prevent crime infringe on important civil rights. And as criminals grow smarter and develop better tools, the challenges faced by law enforcement agencies and legal authorities grow more difficult.

Legal and Ethical Frontiers-Link

Kevin Mitnick (Illustration: Thirud, SOGM)

Internet Ban
If a person is sent to jail for committing a crime using a computer and the Internet, how can we stop him from doing it again? Can he be barred from using the Internet after he has served his sentence? Can we deny him access to computers? These are questions raised more and more frequently in connection with Internet crime.

Courts are facing this issue as Internet Crime is skyrocketing. In the U.S., the judicial system is divided in it its views on whether denial of Internet access is constitutional; but they are also debating whether it is enforceable. The debate is a good example of how emerging technologies bring new legal frontiers and create fresh challenges for law enforcement agencies.

The story of Kevin Mitnick illuminates how authorities are struggling to keep up with Internet crime.

The Hacker
On Tuesday, January 21 this year, 39-year-old Kevin Mitnick logged on to the Internet for the first time in eight years, during the live TechTV show “Screen Savers.” Eight years without the Net might seem strange for any 39 year-old westerner, but this case is rather special. Mitnick is the world’s most notorious hacker.

One of the first so-called “cybercriminals” to be arrested and prosecuted, Mitnick was labelled a “computer terrorist,” and was chased by the FBI in a three-year manhunt, before being charged with breaking into computer systems and stealing software from companies such as Digital Equipment Corporation, Sun Microsystems, Novell, and Motorola. As these are all major players in the computer and software business, the case was highly publicized, and no expense was spared in the hunt for Mitnick. He became the most wanted cybercriminal in the world when he hacked into the Pentagon

He was released in January 2000, after spending five years in prison. But up to now, he has been denied the use of a cell phone and has been prohibited from using a computer connected to the Internet. This has made for a profoundly weird experience for a man of considerable computer skills. But the courts did not want to risk the chance of Mitnick repeating his crimes.

The U.S. Magistrate , Robert Stone, who presided over the first hearing after Mitnick’s arrest, presented the authorities’ view succinctly when he noted that while most criminals might be controlled by requiring them to remain in their homes, this was not the case with Mitnick. “This really sounds very different,” Stone said. “It sounds like the defendant could commit major crimes no matter where he is.”

The Central Issue
Even after he has been released from prison, having ostensibly paid his debt to society, Mitnick will have to endure certain restrictions. While he will be able to surf the Net and send e-mails, Mitnick will still be barred from making money off his story until 2010, a condition of his release he plans to fight.

“I believe, and some attorneys have advised me, that it raises constitutional issues,” he told Reuters. “The government can’t disadvantage anyone from exercising free speech.”
This very issue is at the heart of the dispute that is running through the American legal system. While the Republican government has brought a “tough on crime”-stance that extends to all kinds of criminal activity – especially in the aftermath of the September 11th-attacks – the courts are split on the issue of banning Internet access.

The Courts
The United States Court of Appeals for the Fifth Circuit, interpreting the law in Louisiana, Mississippi and Texas, has ruled that people on probation may be denied use of computers and the Internet. In the court’s opinion, prohibition can greatly restrict personal freedom and reduce the chances of gainful employment find, but it also protects society from criminals who use the computer as a weapon.
But other courts have taken another view. In overturning the sentence of a child pornographer last year, the Court of Appeals for the Second Circuit –which governs New York – said that the Internet was as vital to everyday existence as the telephone. The court opined that while the government could monitor an offender’s computer use, it could not stop it altogether.

The courts have noted that computers now pervade virtually every area of life, suggesting a reason they have found a complete ban excessive, Jennifer S. Granick, director of the Stanford Center for Internet and Society, told The New York Times.

“Computers are everywhere,” she said. “The A.T.M. is a computer; the car has a computer; the Palm Pilot is a computer. Without a computer in this day and age, you can’t work, you can’t communicate, you can’t function as people normally do in modern society.”

The Fundamental Rights
While Internet use has not been completely unregulated – it is, after all, governed by the same laws as other areas of human activity - Internet regulations have so far been a question of what kinds of expression are allowed, not whether it is allowed at all. This kind of limitation on personal expression has been the domain of oppressive governments, such as the Taliban, and China. The willingness to resort to such extreme measures illustrates clearly how difficult governments find the new communication regime.

In Kevin Mitnick’s case, the fears are perhaps justified. His last prison sentence was not his first, he was sentenced to on year in prison in 1989. There may very well be a real risk that he could return to doing what has made him infamous – or it seems that way, at least from their perspective.

Mitnick has had a huge amount of support from other hackers, and members of the loose community that consists of dedicated Netizens across the globe. These people advocate near-unlimited freedom of expression, and Kevin Mitnick’s Internet Ban has become a symbol of the Establishment’s fear of, and oppression against, individual expression.

Emerging technologies often create conflicts between important values and social principles. In this case crime prevention, and the protection of the citizens of a society clashes with the same citizens’ right to express themselves freely. In the end, it becomes a search for an acceptable compromise; we can’t expect unchecked freedom and complete safety from criminal activity. The dispute will not be settled for many years, not by the courts, and not on the arena of public debate.

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