[ISN] Cybercrime treaty, protective principle and cyberwar

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Forwarded from: Jei <jeiat_private>

---------- Forwarded message ----------
Date: Wed, 28 Nov 2001 18:03:37 -0600
From: Aimee Farr <aimee.farrat_private>
Reply-To: Law & Policy of Computer Communications <CYBERIA-Lat_private>
To: CYBERIA-Lat_private
Subject: Cybercrime treaty, protective principle and cyberwar

http://www.theregister.co.uk/content/6/23036.html

US assumes global cyber-police authority
By Mark Rasch
Posted: 27/11/2001 at 10:32 GMT
...
Nevertheless, these cases demonstrate an important principle of
international law -- the so-called "protective principle."
...

Interesting article, courtesy of Hettinga's list.

Q: Can the lawyers here square the "protective principle" of the law of
nations with the reach of the cybercrime treaty, given that we've
traditionally invoked it where an extraterritorial crime directly affects
its nationals with a fairly strong connection? (i.e., an agent is shot in a
foreign country.)

I support criminal prosecution for extraterritorial acts where appropriate,
but the seminal cases involving extraordinary rendition (forcible abduction)
often offend my sense of justice, and do not give me great confidence that
we will abstain from over-reaching.

For example, in Yunis, the hijacker had already spent seven years in a Malta
prison when we lured him to international waters to bring him to the U.S.
for prosecution. United States v. Yunis, 924 F.2d 1086. The Toscanio
exception (500/F2d/267) to the Ker-Frisbie Doctrine of "kidnapping is okay"
seems to only apply in gross situations, such as those involving torture.
See also United States v. Alvarez-Machain (who just recovered civil damages
in September), 504 U.S. 655 (1992). We got Noriega by military invasion.

A means upon which to base a refusal to a demand for extradition is the
"political offense" exception. Cyberwarfare won't qualify under some current
court interpretations unless it's for a recognized "uniform-wearing"
military organization conducting itself under the "laws of war," and the act
meets territorial limitations (i.e., the act happens in the country of the
uprising). See Quinn v. Robinson, 783/F2d/776. Legally, it doesn't sound
like a "political uprising" could be dispersed and virtual.

If a political hacker ring messed with "EVIL Country X" somehow, and fled to
the U.S., my reading of current case law doesn't make it sound like we have
grounds to refuse extradition unless they wore uniforms, had a chain of
command, were involved in a realspace violent rebellion of CNN-caliber with
some measure of critical mass, acted from within the target country, and
their act didn't mess with notions of "international terrorism" or
"cybercrime."

With the "freedom fighter" or "terrorist" question extended to cyberspace, I
hope we haven't foreclosed the question. If so, I can envision a
circumstance where I would find that difficult to square with our democratic
principles and support of human rights. Targets in cyberspace are varied --
it's not a "universality" blood-crime like hijacking.

Q: Can some of you cyberwizards give me your thoughts (privately) on what a
"virtual rebellion," or "virtual insurgency" might look like, and how it
might come about? What book best examines concepts of cyber-rebellion in
nation states?

Sounds like it could be more effective, require fewer people, and be less
blood-letting than traditional resistance -- so people would use it. I note
some countries are backpeddling on democracy and taking extreme isolationist
positions. They obviously fear we could empower some sort of virtual
insurgency, which smacks of something beyond mere ideological subversion.

~Aimee

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