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Use_of_Internet_for_Terrorist_Purposes.pdf

Use_of_Internet_for_Terrorist_Purposes.pdf

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74. In order to provide effective criminal justice responses to threats presented by
terrorists using the Internet, States require clear national policies and legislative frame-
works. Broadly speaking, such policies and laws will focus on:

(a) Criminalization of unlawful acts carried out by terrorists over the Internet or
related services;

(b) Provision of investigative powers for law enforcement agencies engaged in
terrorism-related investigations;

(c) Regulation of Internet-related services (e.g. ISPs) and content control;

(d) Facilitation of international cooperation;

(e) Development of specialized judicial or evidential procedures;

(f) Maintenance of international human rights standards.

Policy approaches

75. In its 2011 publication, Countering the Use of the Internet for Terrorist Purposes: Legal
and Technical Aspects,78

the Working Group on Countering the Use of Internet for

78

See United Nations, Counter-Terrorism Implementation Task Force, Working Group on Countering the Use of
Internet for Terrorist Purposes, Countering the Use of the Internet for Terrorist Purposes: Legal and Technical Aspects (New York,
2011).

THE USE OF THE INTERNET FOR TERRORIST PURPOSES

28

Terrorist Purposes of the Counter-Terrorism Implementation Task Force identifed three
broad strategic approaches by which States might counter terrorist activities over the
Internet; involving the use of:

(a) General cybercrime legislation;

(b) General (non-Internet-specifc) counter-terrorism legislation;

(c) Internet-specifc counter-terrorism legislation.

76. It is noted that in approach (a), in addition to the use of general cybercrime
legislation, other inchoate criminal offences such as solicitation and criminal association
might also be used when dealing with terrorism cases involving some aspect of Internet
use, particularly when dealing with alleged acts aimed at inciting acts of terrorism.

77. The Working Group’s broad classifcation system is a useful conceptual frame-
work to guide the work of policymakers and legislators when considering appropriate
policy and legislative approaches for their particular States.

78. Another useful resource for policymakers and legislators, referred to in Countering
the Use of the Internet for Terrorist Purposes79

is the Toolkit for Cybercrime Legislation,
developed under the auspices of ITU. In addition to other model criminal provisions,
the Toolkit contains several specifc terrorist-related offences, including section 3 (f),
which deals with unauthorized access to, or acquiring computer programs for, the
purpose of developing, formulating, planning, facilitating, assisting in the commission
of, conspiring to commit or committing acts of terrorism.

79. Within the broad framework provided by universal counter-terrorism instruments
and relevant international human rights standards, Governments have considerable fex-
ibility in their preferred approach; inevitably, these vary between States. The present
chapter merely highlights examples of approaches adopted by some States that might
be helpful to policymakers and legislators.

80. Currently, few States have developed counter-terrorism legislation specifcally
targeting the use of the Internet itself by terrorists, but there are some, including the
United Kingdom, where, after the 2005 bombings in London the Government enacted
the Terrorism Act 2006, Part 1 of which includes provisions specifcally dealing with
Internet-based activity that is likely to encourage or assist in the commission of acts of
terrorism. The Act supplements the Computer Misuse Act 1990, which addresses
computer-based crime and cybercrime more generally.

81. In 2007, the United Arab Emirates passed federal cyberlaws that, in addition to
criminalizing hacking and other Internet-related activity, criminalized the establishment
of a website or the publication of information for terrorist groups under false names
with intent to facilitate contact with their leadership or promote their ideologies, fnance

79

Ibid., para. 20.

CHAPTER III. POlICy AND lEGISlATIvE FRAMEwORKS

29

their activities or publish information on how to make explosives or other substances
for use in terrorist attacks.80

82. In 2008, the Government of Saudi Arabia implemented new technology-related
laws, including one that established as a criminal offence, punishable by fnes and up
to 10 years of imprisonment, owning a website that advocates or supports
terrorism.81

83. Also in 2008, the Government of Pakistan enacted the Prevention of Electronic
Crimes Ordinance, 2008, which made specifc provision for offences connected to cyber-
terrorism. The law is no longer in force, however.82

84. Finally, the same year saw the Government of India amend the Information
Technology Act, 2000, to provide for the offence of “cyber terrorism” (section 66F)
and other Internet-related issues.

85. Nevertheless, internationally, with some exceptions, in the absence of any universal
instrument imposing an express obligation to enact legislation specifcally targeting
terrorist activity over the Internet, most Governments have elected to deal with such
threats by using a mixed approach, utilizing a combination of general criminal laws, as
well as cybercrime and counter-terrorism legislation. In some States, for example,
criminal laws focus on substantive criminal acts without differentiating among the
specifc means by which they are committed. Under this approach, the Internet is
regarded as merely a tool by which terrorists commit a substantive crime, often contained
within the provisions of the national penal code.

86. This is the approach in China, where the Criminal Law of the People’s Republic
of China contains an article dealing with the criminalization of all illegal activities
involving the use of the Internet. Article 287 of the Criminal Law makes it an offence
to use a computer in the commission of an offence, which will be prosecuted and
sentenced in accordance with the relevant criminalization and sentencing provisions in
that law. In this way, under Chinese criminal law, the use of Internet is regarded as a
medium or tool through which a criminal act may be committed, rather than an inde-
pendent constituent element of the crime, and is therefore criminalized within the
substantive provisions of the criminal law.

87. In the terrorism context, in China there are provisions criminalizing different forms
of terrorist activities, including article 120 of the Criminal Law, which criminalizes
activities related to organizing, leading and participating in terrorist organizations. This
broad criminalization provision covers a wide range of terrorism-related activities,
including those carried out over the Internet.

80

Federal Law No. (2) of 2006 on the Prevention of Information Technology Crimes, Offcial Gazette of the United
Arab Emirates, vol. 442, 36th year, Muharam 1427 H/January 2006 (unoffcial English translation available from
www.aecert.ae/pdfs/Prevention_of_Information_Technology_Crimes_English.pdf).

81

David Westley, “Saudi tightens grip on Internet use”, Arabian Business, 26 January 2008.

82

“Pakistan lacks laws to combat cyber terrorism”, The New New Internet, available from www.thenewnewInternet.
com/2010/09/01/pakistan-lacks-laws-to-combat-cyber-terrorism.

THE USE OF THE INTERNET FOR TERRORIST PURPOSES

30

88. In the Republic of Korea, two types of criminal law can be applied to terrorist
acts involving some use of the Internet. One is the general criminal code and the other
is a special criminal code, established in 1986, relating to criminal acts involving infor-
mation/communication. Article 90 of the Criminal Code deals with the preparation of
such acts, as well as conspiracy, incitement or propaganda and provides that any person
who prepares or plots for the purpose of committing crimes under article 87 of the
Criminal Code (public riots, revolts or disturbances) or article 88 (homicides commit-
ted for the purpose of acts under article 87) is liable to imprisonment of three years
or more. Under article 101 of the Criminal Code, any person who prepares or conspires
to commit offences under articles 92 to 99 of the Criminal Code is guilty of a crime
and liable to two years or more imprisonment. Article 114 of the Criminal Code relates
to organizing a criminal group. Also under the special criminal code, the Government
established a range of criminal offences specifcally criminalizing unlawful acts targeting
information-communication networks and personal information.

89. In practice, regardless of the policy approach taken, experience shows that most
States adopt a multifaceted approach when dealing with the investigation and prosecu-
tion of terrorist acts, including those involving some use of the Internet. Law enforce-
ment and prosecution agencies use whatever legislative provisions best suit the particular
circumstances of the case.

90. The powers required by law enforcement agencies to effectively investigate terror-
ism cases are broadly similar regardless of the particular jurisdiction involved, with
differences in national policies and legislation refecting the diversity in legal systems,
constitutional arrangements and other factors (e.g. cultures).

91. The area of Internet regulation and content control leaves considerable room for
variations in national approaches. While the Universal Declaration of Human Rights
and the International Covenant on Civil and Political Rights provide international stand-
ards pertaining to the regulation of the expression and communication of ideas, there
is no comprehensive internationally binding instrument setting defnitive, binding norms
on what is considered appropriate Internet content or how each State should regulate
Internet-related activity within its own territory. Currently, child pornography is the
one area where, even in the absence of a universally binding instrument or defnition,
States invariably prohibit such activities.83

In the terrorism context, however, the absence
of a universally agreed defnition of terrorism presents an ongoing obstacle to any
internationally agreed approach to the appropriate regulation of terrorism-related activ-
ity and content over the Internet.

92. In terms of specialized judicial or evidential procedures in the terrorism feld,
some States have adopted specifc judicial and case management procedures for terror-
ism cases that might apply to cases involving the use of the Internet by terrorists. When
this approach is adopted, it is important that any specialized mechanisms conform fully
with relevant international human rights obligations, including those related to the right
to liberty and a fair trial.

83

Maura Conway, “Terrorism and Internet governance: core issues”, Disarmament Forum, vol. 3 (2007), p. 27.

CHAPTER III. POlICy AND lEGISlATIvE FRAMEwORKS

31

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