The most significant social changes during the last decades have occurred in the sphere of new social relations - informational. The essence of transfer from the industrial to informational society is the aggregate of processes related to automated processing, search,
This has increased the need in legal regulation of relationship in the sphere telecommunication systems in order to speed up the processes of informatization of Ukrainian society and catching up to other countries.
Together with the development of global Internet network and formation of new economic technologies (trading through virtual stores, broker operations, cyber-banks, etc.) the new types of crime have appeared (cyber-crime). Cyber-crime and its sequences are the new form of anti-social behavior, which only recently has been acknowledged as phenomenon, which is dangerous for safety and normal functioning of the society. According to the domestic and foreign specialists’ assessments, the resolution of the problems of prevention and investigation of crimes of this type is rather complicated task for the law enforcement agencies, because only 10% of disclosed crimes in the sphere of computer information can be detected in time, and 90% are detected accidentally . The indicated data evidences high level of latency of such types of crimes. The state and commercial structures affected are not inclined to announce the sequences of such acts. Partially, this is confirmed by statistic data in our country. According to the data of the Department of Operative Information of MIA of Ukraine in 1997 under the article 1981 «On Violation of the Work of Automated Systems» of the Criminal Code of Ukraine (CC) 12 criminal cases were opened, and in 1998 - 15. The indicated data witnesses complication of this category of crimes investigation, as well as imperfection of organization-legal protection of information in computer systems.
Term “cyber-crime” is young and created by combination of two words: cyber and crime. The term “cyber” means the cyber-space (terms “virtual space”, “virtual world” are used more often in literature) and means (according to the definition in “New hacker vocabulary” by Eric S. Raymond) the informational space modeled through computer, in which defined types of objects or symbol images of information exist – the place where computer programs work and data is processed . The term “cyber-crime” is not by chance put in quotes and its further use requires certain explanation. The thing is, that cyber-crime is not covered by CC of Ukraine currently in force, therefore this term will be used without quotes as social phenomenon well-known all around the world.
From the moment of announcement of Ukraine state independence the national system of the laws and normative legal acts is being created for legal regulation of social informational relationship and informatization process, taking into account the speed of its development and penetration into different spheres of social activity.
In order to regulate the informational relationship on the state level it is necessary to determine the most important legal norms of its participants acts, including preventing and combating the offences, related to use of the global Internet network. In turn, this conditioned the necessity of separating and establishing the section in the national law, named today as “computer law”, which goal is to implement the state policy in the conditions of stabilization and development of the country’s informatization: creation of information resources, their turn over and distribution, consuming, storage and protection, etc.
Term “computer law” appeared in industrially developed countries in the middle of our century in connection with wide introduction of calculation machinery means and other related technical means into different spheres of social activity, private life and formation of the relationship, which appear in the production process and using of new information technologies.
The appropriate legislation is developed quite quickly, trying to take into account the development of the computer technology and telecommunication systems, but, naturally, is not catching up due to reasonable conservatism, which anticipates appearing of new legal mechanisms upon accumulation of certain “critical mass” of legal relationship requiring regulation.
In Ukraine similar legislation is named “legislation in the sphere of informatization”, which covers — according to different assessments — from 50 to 250 normative acts (including acts providing for creation of branch or specialized automated systems).
Analysis of domestic normative-legal base directed to regulation of the relationship in the sphere of informatization and endurance of information protection, allows to conclude that it is on its initial stage. The regime of legitimacy is also on the stage of establishing in this sphere of normative – legal regulation. The establishment of legitimacy regime in this case means the aggregation of socially conditioned processes related to development and adoption of legal norms as well as implementing means for its accurate and steady execution and adherence.
For further analysis of these problems, let’s consider certain legal aspects of using global Internet network. In contemporary conditions Internet is catalyst for many negative phenomenon, the social danger of which requires additional attention and research. Besides that, if consider Internet from legal point of view, we can conclude that the subjects of these new social relations face the range of legal issues, which require prompt resolution. Among basic generally theoretic issues, it is necessary to determine the problems of network jurisdiction, legal relations between the subjects, which distribute and consume information within the network, as well as the problem of determining the time and place of action within Internet.
Analyzing the mechanisms of Internet action and ways of presenting and distributing information the unique special legal problems appear, which does not have any analog. First of all, these are problems of electronic commerce regulation. They include concluding contracts through Internet, advertising, problem of Internet entrepreneurs’ taxation, etc.
The next group of legal problems is copy right problems, which appear when the issues of using information or referring to information received through the network are interpreted by different ways under Ukraine legislation and legislation’s of other foreign countries.
The trade marks issue is also disputable, including well-known dilemma: trade mark – domain name, as well as the issue of abuses upon domain registrations (cybersquatting). Currently, a lot of court cases are opened (in Western countries) on this network problem.
Very important Internet problem is to define the liability of providers and site owners for content of information, located on their servers. Several countries have already adopted certain specific normative acts regulating such relationship, and law enforcement practice has obvious national differentiation, which is contradictory to international character of the Internet.
Another group of legal relationship reflecting peculiarity of the problem is many-sided issues of information protection, which include coding, data access protection, privacy protection. This group is related to issues of moral and censorship (of private and network social groups, as well as state and organizations).
Of course, the objects of legal regulation of Internet are, first of all, social relationships related to copy right, patent right, trade marks and personal non-property rights, to the extent to which the information, located in the Internet can affect it, then, the objects of legal regulation are other property relationship, realized through Internet (for instance, those, related to international contracts conclusion or settlements of international disputes through Internet) — all of it, to our opinion, can be determined as information, which use is regulated by the law. The detailed description of the objects of legal regulation in the Internet is the same as list of all types of social relationship realized through Internet.
Nowadays, when people realize the importance of possession of accurate and actual information for the work in any sphere, the information industry related to modern information technologies is coming foreground. Using Internet now it is possible to get access to official as well as scientific resources through official sites. The Organization of United Nations and European Union provide direct access to officially published documents of these organizations, information notes and bulletins, not depending on where the user is located. Teleconferences open absolutely new opportunities to exchange opinions and obtain information directly from the source in the regime of real time. There is now new branch of production – information industry, which is developed according to general rules, but also has certain peculiarities. Besides that, generally accepted human rights and freedoms, which do not depend on pertaining to certain country, are becoming more important as well as endurance of these human rights.
As practice shows, in Ukraine there is lack of attention to the issues of legal regulation of using the telecommunication systems in general and the Internet related law in particular. This is conditioned by low level of development of technical communication means, telecommunication infrastructure and enterprises of this sphere. However, the interest to this branch of the law is continuously increasing together with willing to implement and use new information technologies.
The legal relationship in the sphere of telecommunication is new and quite wide term. This sphere is regulated by the state law as well as international norms. Upon development of technique, the information systems of different states start to contact each other and, therefore, the part of international legal regulation should increase, so the international cooperation is necessary in the sphere of transmission and distribution of information.
The issue of legal regulation of telecommunication systems using occupies one of the important places abroad. As an example, let’s consider the Internet pages (as of today they are the most accessible object for research) the general, popular, as well as specific legal resources, always contain telecommunication section.
Article 19 of the General Declaration of Human Rights  provides for freedom of search, obtaining and distribution of information and ideas by any means and not depending on state borders. Meaning of this provision is difficult to overestimate. Recently, when information technologies provide more opportunities, the people’s need in information becomes as much important as need in property and other benefits. That is why the provisions of Declaration should be considered as starting point for international regulation of relationship, connected to transmission of the information between the states. The main task of the international legal regulation in this sphere is organization of cooperation between the states and coordination of their efforts in global information exchange.
In order to resolve many issues of the international legal regulation in this sphere, it is necessary to conduct the scientific research of the telecommunication systems international law problems when as an aggregate of legal principles, norms and rules regulating the relationship between the states and international organizations. The issue of the international legal regulation of telecommunications in its nature and content is an integral part of the international law. It is created by the subjects of the international law in accordance to general rules of creation of international law norms taking into account the peculiarities of the new information technologies and information exchange needs of the society.
Legal regulation of telecommunications is quite wide term, which is used in different scientific spheres, sometimes in different meanings. However, for international legal regulation it is necessary to give general meaning of telecommunication systems.
On our opinion, the definition given in the Law of Ukraine “On the National Informatization Program” is appropriate: information – telecommunication system includes high-speed and ordinary communication channels, distributed and local networks of different level and purpose, which gives the possibility to realize wide range of information technologies, provides for operative and reliable cooperation of all levels of management in resolution of interagency level issues, as well as provides wide range of information services to population, state and commercial organizations, foreign users. .
With development of the international law the discussions about systemizing always occur, touching the grounds of separation of branches of the law and their precise frames and characteristics. Within the branch framework the sub-sections and legal institutions are separated. In this respect there is an issue arising about the place of telecommunication international law in the international law system in general. At present moment it is, perhaps, necessary to describe the telecommunication international law as legal institution, which includes the norms of different branches of the international law: international space law, international sea law, international air law (related to joint use of the resources); international economic law, regulation of scientific-technical progress (related to international cooperation on economic and technical development). However, in the future, taking into consideration the development of technical progress and cooperation in communication sphere, it is absolutely possible that telecommunication international law will be separated as independent branch of the law.
Considering this problem, it should be mentioned that there are different – traditional and new, revolutionary for us, as well – approaches to this branch abroad. Example of such approach is the work of Darrell Mente , where he considers the result of telecommunication development as new reality, which should influence development of the law system, including international law. We consider, that such research deserve attention, first of all, because they come beyond practice and take into account new achievements of industrially developed countries technology. The essence of approach described in Darrel Mente’s work is the following: as the result of creation of telecommunication network and their active use the unified global information space will be created. Significant problems appear in connection with determination of states’ jurisdiction within this information space. In order to overcome these problems the international legal regulation of this telecommunication space is necessary. Discussing these problems there is made parallel with legal regime of Arctic and Antarctic, which do not belong to any country, with other international resources. Therefore, it is impossible to mention only one general problem, which is reflected by international law.
Considering criminal – legal aspects of using the Internet, related to appearing and expansion of the new types of crimes, it is necessary to note, that their analysis allows to divide them into two groups. First of which is related to participation of the employees of most affected organizations in criminal activity.
The second group includes attempts of unauthorized access to telecommunication systems from outside, using remote attacks and other methods. In these cases, cyber – criminals can attack the system only from generally accessible global networks and use methods which are difficult to combat without their knowledge. However, neither in domestic nor in foreign literature available for public, the analysis of concrete cases of penetration into computer systems, unfortunately, was not properly described. The reasons of that are: organizations which face the thief of means, damage or disclosure of their data, and cases of blocking their services as the result of cyber – criminal acts, are not interested in disclosing or publication of such reports.
Cyber – crimes that became transnational, force the research of adequate ways of combating. The increase of these negative phenomenon is, on our opinion, conditioned by the following unsettled issues:
· vulnerability and dependence of computer systems within global Internet network. With increased dependence of the society on computer technique and telecommunications systems, the risk of damage of the new technology as the result of criminal acts is significantly increasing. The expansion of computer viruses and program bookmarks once more underlining this danger. However, these cases are just symptoms of serious disease;
· transnational character of cyber - crimes, effective means, directed to endurance the integrity of computer systems became vitally important for economic and social interests of developing countries as well as industrial countries;
· absence of liability. Many aspects cyber – crime in most cases is rather the sequence of week information protection than offenders acts. Therefore, it is necessary to give more information about vulnerability of computer systems and necessity of effective protection means;
· ineffectiveness of the Civil Code. Criminal laws should be supplemented with appropriate civil sanctions, because court cases on cyber – crime are the most responsible procedure due to difficulty of proving and may not fall within traditional legal frames;
· imperfection of the legislation and absence of international cooperation. Great use of Internet significantly surpass the level of development of the national and international social and legal norms, which regulate the sphere of information protection;
· enforcement of criminal sanctions does not ensure the success in combating the cyber - crime, because the laws currently in force does not have precise classification and difficulty of interpretation and application of articles restrict the law enforcement agencies activity. The necessary mechanism of ensuring activities and cooperation of the law enforcement agencies for proper detection and punishment of cyber – crime is not yet developed.
The absence of certain international agreements affects the normal functioning of the law enforcement agencies, taking into consideration the following:
- criminal cases related to cyber – crime may fall within several jurisdiction. Proving that the crime has been committed stays the most difficult component of investigation, since experienced offenders cover their tracks, going through the justice system, especially in those countries which refuse to cooperate while collecting evidences;
- even if quite reliable elements of crime where detected in separate country, i.e. evidence exists, this country may not have the necessary jurisdiction to prosecute the offender;
- the country having jurisdiction may appear not properly authorized in prosecution of the offender, if s/he lives in the other country, which does not have legislation which provides for extradition of offenders in such cases;
- even there, where prosecution of offenders succeeded, the courts makes nominal sentences.
Complex resolution of the indicated problems is current urgent need, their resolution will allow to overcome most risks, and will condition the prevention, detection and criminal prosecution of virtual offenders.
Notwithstanding the fact that in our country there are many other urgent problems necessary to resolve, the problem of combating the cyber – crime can not be put out of attention. It is necessary to develop methodological, theoretical and practical basis for information protection within global Internet network. Almost all relationship between the subjects of the information society will base on consuming and exchange of information. In this case the issue of information protection will became priority. Development of the legal regulation of using Internet in our country must be directed to foreign experience as well as national interests of Ukraine in informational sphere. Special attention should be attracted to detection and research of defects in order to avoid them further in law-making and law enforcement activity and to prevent negative sequences of informatization. This should be realized by way of scientific approach, involving wide circle of domestic specialists, who possess knowledge of legal theory and practice of Ukraine and foreign countries as well having certain background in the sphere of information technology and information protection.
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3. Human Rights Declaration of 10.12.48 // Collection of agreements and conventions currently in force, concluded by USSR and foreign states.— Ed. .XIV.— Ì., 1957.
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