Surfing While Muslim: Privacy, Freedom of Speech and the Unintended Consequences of Cybercrime Legislation
By: Jason Young
A Critical Analysis of the Council of Europe Convention on Cyber-crime and the Canadian Lawful Access Proposal
Jason M. Young, "Surfing While Muslim: Privacy, Freedom of Expression & the Unintended Consequences of Cybercrime Legislation" Int. J. of Comm. L. & Pol’y, No. 9, December 2004, online: SSRN http://ssrn.com/abstract=653962
ABSTRACT: The history of investigatory detentions under highway safety legislation shows that subjectively-based assessments can too easily mask discriminatory conduct by law enforcement. Contrary to popular use, discrimination is a corollary of discretion, not a synonym for racism. Diluted judicial oversight in the context of cybercrime investigations expands law enforcement and third party discretion to discriminate and could lead to the de facto offences of, for example, 'surfing while Muslim', or belonging to any negatively-stereotyped group in cyberspace.
Applying traditional rules of lawful access to the persistent, pervasive and permanent information realm of cyberspace introduces new and unique implications for privacy and freedom of expression. The efficacy of electronic surveillance is such that it has the potential to annihilate any expectation that our communications will remain private. A society which exposes us, at the whim of the state, to the risk of having a permanent electronic recording made of our words every time we send an email or visit a web site might be superbly equipped to fight crime, but would be one in which privacy no longer had any meaning. Consequently, proposed legal solutions to what are often technological or administrative dilemmas may not be the most equitable approach for extending effective policing and intelligence authority to cyberspace. To the extent that governments choose legal tools to investigate and prosecute 'cybercrimes', great care must be taken that they do not abrogate existing constitutional protections.
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