Computer Crime Research Center

The Council of Europe Cybercrime Convention

Date: April 26, 2004
Source: Computer Crime Research Center

... Providers (ISPs).
Such a proposal, if adopted by the Committee,
raises concerns that it may become lawful for public authorities to
obtain a vast wealth of communications data without a ministerial or
judicial warrant.
Any proposal for ISP logging or monitoring would be tantamount to
the sanctioning of mass surveillance. Such a measure,
combined with the use of sophisticated analytical techniques such as
data-mining, triangulation of data, "friendship trees", and "interest
profiling", would be another step towards a totalitarian society.

No compelling case has been made to justify
mandatory record keeping by ISPs. Instead, submissions made to the
Committee have relied on anecdotes, with no supporting data
or statistics on the prospects for improvement in crime clear-up
rates, the nature of any crimes likely to be detected, the
additional evidence expected to be obtained, or the
increased probability of successful prosecutions.

The potential for infringement of the Privacy
Act (Cth)
(as amended 2000) must also be considered, in particular
the National Privacy Principles (NPPs), Section 1 (Collection), which includes
the following principles:

It is acknowledged that the Privacy Act seeks to balance the right to
privacy with other public interests such as law enforcement objectives.
In particular, NPP 2.1(h) allows personal information to be disclosed
in defined circumstances for the secondary purpose of law enforcement.

However, it is contended that a proposal
for compulsory logging of communications traffic does not give rise
to a secondary purpose within the meaning of the Act. Rather, the primary purpose
of such record-keeping is the acquisition of mass surveillance data without consent,
in case the data is required at some future time to incriminate a particular
user. The law enforcement provisions of the Act are clearly intended only to
allow law enforcement agencies to access specific records collected by an organisation
for some other legitimate purpose.

Furthermore, it is questionable whether the disclosure of information from communications logs
for data-matching purposes is a permitted purpose under the Act if it involves disclosure
of information about large numbers of individuals who are of no interest to the
relevant agency.

We contend that any system which monitors the communications of Internet
users, without their consent and without a judicial warrant, would
be contrary to the government's intent in expanding the coverage of the
Privacy Act.

It was recently revealed, before a Senate
Estimates Committee, that almost one million disclosures of
information or documents by carriers, or carriage service providers,
under the provisions of Part 13 of the
Telecommunications Act 1997 (Cth), had been made in the 1999/00 year.This was a substantial increase over the figures for previous years.
The level of disclosure, and the rate of increase, is illustrative of
the manner in which surveillance is overused once the facility is put
in place.

Logging and monitoring of Internet communications is more invasive
than telephone records because the information can be used not only
to determine the parties to a communication but may also
be used to draw up interest profiles of users. This is clearly
an infringement of an individual's right to privacy in terms of
basic human rights.

Unlike telephone call records, most ISP logs, apart from those used to
determine customer log-in durations and traffic volumes, are not intrinsic
to the operation of the business.
E-mail and web proxy logs are an ephemeral by-product of server operations,
useful in the short term to diagnose technical problems, but otherwise
routinely discarded. It is necessary to embark on a data-mining and data matching
exercise in order to turn the raw log data into information about user
behaviour. This factor is mentioned because it increases the risk that ISPs
may hand over complete logs of all user transactions to law enforcement
authorities rather than undertake the costly exercise of extracting
and matching information about a particular individual of interest.

Measures to bring serious criminals to justice deserve widespread support.
However, a balanced approach must be used in the
sensitive area of communications interception such that law enforcement
agencies recognise the necessity of protecting fundamental human rights.

Vigilance is needed to ensure that any proposals put forward in Australia
as an outcome of current or future policy development processes take a
balanced approach, not only in respect of the creation of new offences, but
more particularly in relation to proposals for increased surveillance
of all citizens.

The author acknowledges contributions to the discussion presented here by
members of the Global Internet Liberty Campaign (GILC), in particular David Banisar
(Privacy International), Barry Steinhardt (ACLU), Mark Rotenberg (Electronic
Privacy Information Center) and Jim Dempsey (Center for Democracy and Technology).

Banisar D. Endgame for Cybercrime treaty.
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Final Activity Report, 29 June 2001.
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October 18, 2000

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Question No. 57, Managed Regulation of Telecommunications.

Senate Legal and Constitutional Legislation Committee.
Inquiry into the Provisions of the Cybercrime Bill 2001.


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