I am not a "learned friend" bus silence could also be because Kenya lacks a legal framework to address problems of say validity of electronic transactions, legal regime for protection of ideas, consumer privacy and protection, cyber crimes, among others. Then there is the greatest legal challenge presented by the internet; its lack of boundaries, the free flowing borderless nature of the net has revolutionised communication and commerce but also many lawsuits and its tough enough determining where the lawsuits should take place, which institutions should be mandated and tasked to regulate and govern some of these issues. The draft ICT bill 2007 (with stakeholder input) had touched on some of these issues. best alice
Brian Munyao Longwe wrote:
my experience is that our learned friends tend to "reserve comment" so that they are not "quoted out of context" or held personally liable for their remarks. Short of giving a legal opinion which would withstand the scrutiny of the entire LSK it is often very difficult to extract "feelings" out of this species without external (and sometimes internal influences).
I also heard one learned friend saying that of late it has been so cold he has actually been putting his hands in his own pockets ;-)
Anyway 'nuff said - but I would really love to hear even a simplified view of some of the issues that have been raised in this look at legal frameworks as pertain to internet, internet related technologies and more especially offenses that have had something to do with the internet.
Note this example of a cross-border engagement:
*1. Dutch Police and F.B.I. Rein in Large Botnet* By JEREMY KIRK, IDG News Service New York Times August 14, 2008
The botnet created by a teenager who was arrested by Dutch police in a sting operation is most notable for its total reliance on social engineering to spread, computer security experts said Thursday.
The 19-year-old Dutch man was caught July 29 with his 16-year-old brother trying to sell a botnet to a 35-year-old Brazilian man, according to Dutch prosecutors. All were arrested by the Dutch High-Tech Crime Unit, with assistance from the U.S. Federal Bureau of Investigation.
As is customary in the Netherlands, Dutch police have not released the names of those arrested. Few other details, such as how authorities became cued into the case, have been released. U.S. authorities are seeking the extradition of the Brazilian man.
But experts from Russian security vendor Kaspersky Lab were called on by Dutch police to write up instructions for how to remove the botnet code from infected PCs, as well as aid in the continuing investigation, said Eddy Willems, one of Kaspersky's security evangelists.
A botnet is a group of PCs that is infected with malicious code and controlled by a hacker. This particular botnet, which at one time had as many as 150,000 machines worldwide, is called "Shadow," the name bestowed on it by its creator.
The code that enabled Shadow to work was distributed on Microsoft's Windows Live Messenger instant messaging network. Victims would typically get a message from someone who appeared to be one of their contacts. The message would contain a link to another Web site, where the victim was asked to download a file.
If the file was executed on a PC, Shadow would collect other instant messaging contacts and send out more messages trying to enlarge the botnet. It appeared that Shadow was particularly successful in the Netherlands, since some messages were sent out in Dutch.
The distribution method relied entirely on victims willingly downloading the code rather than trying to exploit a software vulnerability, which could result in an infection regardless of what the user does.
It means that Internet surfers are just as susceptible to fall victim to scammy tricks. "Social engineering seems just as effective as it was 10 years ago," said Roel Schouwenberg, senior antivirus researcher.
Shadow could also download other malicious code and may have been used to download advertising software and spyware programs, Schouwenberg said. The teenager who created Shadow appears to use bits of malware code already circulating on the Internet, as well writing his own code.
The result was a fairly run-of-the-mill botnet, but one that could be considered large, Willems said. When the bust occurred, the 19-year-old was attempting to sell the botnet for €25,000 (US$37,290), a price Willems said is way too high in proportion to how botnets are currently priced.
People who control a group of computers, called botnet herders, have been known to rent time to other scammers, who use the computers to send spam or conduct other malicious activity. The use of remote computers helps disguise who is actually using those machines to carry out crime.
Dutch prosecutors could not immediately be reached for comment.
On Aug 18, 2008, at 9:00 AM, John Walubengo wrote:
Hi all,
Hpe u had a good weekend. Today is day 6 of 10, but the theme is still on legal issues. I still cant believe the learned friends have not spoken and left everything to Alex and Mike. If any of you runs into Evelyn R., Kihanya J., Omo J. or Clara R. just to mention a few, ask them if they can give us a shout without us having to 'open a file'
We have only today for this since tomorrow we move into the Economic Issues to be facilitated by a renowned IG expert to be unveiled in due course.
walu.
--- On Sat, 8/16/08, Alex Gakuru <alex.gakuru@yahoo.com <mailto:alex.gakuru@yahoo.com>> wrote:
From: Alex Gakuru <alex.gakuru@yahoo.com <mailto:alex.gakuru@yahoo.com>> Subject: Re: [kictanet] Day 5 of 10: IG Discussions, Legal Issues To: jwalu@yahoo.com <mailto:jwalu@yahoo.com> Cc: "KICTAnet ICT Policy Discussions" <kictanet@lists.kictanet.or.ke <mailto:kictanet@lists.kictanet.or.ke>> Date: Saturday, August 16, 2008, 11:17 AM G8 links!
The introduction to this topic was on the presumption that consumers were the criminals proceeding to outline law enforcement challenges. The most convenient and common form of misrepresenting cyber crimes and law -- first take away all their rights then they struggle to regain one after the other... It is good that Mike presents both sides of the story. Telecommunication companies hold massive data on all individuals and they ensure that their on their "Terms of Use" and contracts users are "guilty until proven innocent" and the companies are at liberty to do whatever they please with our personal data. Consider below extract from a local telecommunication company's Terms of Use: - ------------ 5. Use of your information
(The Company) may hold and use information provided by you for a number of purposes, which may include:
(a) Carrying out any activity in connection with a legal, governmental or regulatory requirement on (The Company) in connection with legal proceedings or in respect of crime or fraud prevention, detection or prosecution.
(b) Monitoring or recording of your communications for (The Company)’s business purposes such as marketing, quality control and training, prevention of unauthorised use of (The Company)’s telecommunications system and ensuring effective systems operation in order to prevent or detect crime. ---------
"May include" does not mean "limited to" - implying that they are allowed, for example, to share, sell, etc private data to their partners... Exactly what Mike points out to on the Business Week link. Framed in ways suggestive of company "law enforcer" (illegal roles) onto "guilty" users. Notice how "Intellectual Property" is conveniently repeated. Or is it be assumed that consumers do not have any "intellectual property" they would wish protected? the companies should abide to also protect. BTW, There is an IGF Dynamic Coalition movement calling for a balance between Intellectual Property and development which includes Access to Knwoledge (A2K).<http://www.ipjustice.org>. Very resourceful!
Supposing earlier proposed M-Medicine went ahead in East Africa? Sold ailments data to pharmaceutical companies, that would hike medicines prices in outbreak zones at selected locations... You go to a bank with a water-tight business proposals and all bank turn you down. Reason? They have shared your medical history and they think you will soon "sleep in the shamba" your excellent business proposals notwithstanding.
In summary, unless Data Protection and Privacy Laws are enacted, the default should be to deny all telecommunication companies legal loophole to trade with personal information. And it should be seen to be enforced.
On a lighter note, should I sue a WiFi company for trespassing when their signals enter my laptop, or should they sue me for illegally access of their signal? Over to Ben Shihanya. Thanks again Mike!
--- On Fri, 8/15/08, Mike Theuri <mike.theuri@gmail.com <mailto:mike.theuri@gmail.com>> wrote:
From: Mike Theuri <mike.theuri@gmail.com <mailto:mike.theuri@gmail.com>> Subject: Re: [kictanet] Day 5 of 10: IG Discussions, Legal Issues To: alex.gakuru@yahoo.com <mailto:alex.gakuru@yahoo.com> Cc: "KICTAnet ICT Policy Discussions" <kictanet@lists.kictanet.or.ke <mailto:kictanet@lists.kictanet.or.ke>> Date: Friday, August 15, 2008, 2:11 PM Not a legal opinion: It would be very difficult to apply existing common law (analogous to jurisprudence) to electronic crimes committed in a new era, atleast within the local context.
For these reasons it is necessary to define the crimes under distinct and separate legislation. Due to the borderless nature of the Internet (see shared link), it is necessary for such legislation to take a broad approach into account.
For instance there ought to be provisions that allow local authorities to seek the arrest and extradition of foreign based suspects from other jurisdictions for electronic crimes committed against citizens or local infrastructure owned by individuals or entities even though the suspects at the time of commission of the crime were present in other jurisdictions.
The same provision can allow private parties to pursue civil remedies in a similar matter and give them the basis where possible to enforce the judgement in the defendant's jurisdiction.
This for example would close the possible jurisdictional loophole of individuals crossing borders so as to commit electronic crimes from a country that lacks electronic crime laws. Current law is ill equipped in ensuring civil remedies, prosecution or arrest of local or international cyber criminals, 419ers, lurers of minors, harassers, electronically transmitted or created threats (threats to a person, threats to infrastructure by way of viruses, malaware, DoS etc) etc neither is it likely to be in a position to ensure serious consequences or deterents for the same or allow for the definition of crimes as distinguished here for an international gang of culprits:
http://www.secretservice.gov/press/GPA15-08_CyberIndictments_Final.pdf
It was recently reported that a bill or regulations to protect the data of consumers would be brought about as a means of
the CRBs. This could be model legislation/regulations to adopt to ensure that the public has a say in the manner in which their private information is used.
At the same time consumers ought to be able to instruct companies with whom they have business relationships with not to share
regulating that
same information with 3rd parties without their prior consent (ie opt-in/out). This is only effective if there are laws or regulations to provide for consequences when businesses violate the same.
As CRBs take root, there will be a likelihood that similar bureaus or entities will eventually start sharing information in real time, for example an underwriter of an insurance policy might want to check an individual's claim history across the industry to determine the level of risk the insured poses in determining policy premiums. Similarly an organization may want to conduct background checks for prospective employees in privately maintained electronic databases.
It is important that instead of regulations or laws being formed for sectors of the economy, that national data privacy laws and regulations be defined (or ammended) and on that basis refinement of specific regulations/laws could be made for sectors that require specific data requirements. Such regulatory foresight can reduce or avert the occurence of issues such as those seen here:
http://www.businessweek.com/magazine/content/08_31/b4094000643943.htm?campai...
On Fri, Aug 15, 2008 at 12:21 AM, John Walubengo <jwalu@yahoo.com <mailto:jwalu@yahoo.com>> wrote:
Mornings,
Today and next Monday, we intend to thrash out
Internet Governance. The typical issues revolve around: -Jurisdiction & Arbitration (who resolves e-disputes) -Copyright & IPR (are they pro or anti-development?) -Privacy and Data Protection (how is the e-Citizens data abused/protected?)
I do hope the 'learned' friends will chip in since I cannot pretend to be an expert here as I introduce the general legal
dispute resolutions can be done through, · Legislation; · Social norms (customs); · Self-regulation; · Regulation through code (software solution); · Jurisprudence (court decisions); · International law.
There is however two broad conflicting schools of
resolving disputes occasioned by the Internet. One group claims that whatever happens online does have an equivalent 'off-line' characteristics and as such existing laws can easily be applied. E.g stealing money electronically is no different from stealing money
charges and subsequent jurisdictional procedures could apply. However, the second group feels that electronic crimes have a totally different context and must have a separate and totally new set of legislation or methodologies for resolutions.
The borderless nature of the Internet brings to fore
legal dimensions of principals. Basically, thought when it comes to physically and so Robbery the Challenges of
Jurisdiction and Arbitration as in yesterday's example, where content in one country may be illegal but is legal in another. Copyright and Intellectual Property Rights issues are also explosive as demonstrated by the Napster Case, where some young software engineers created software that facilitated sharing of (SONY) Music files across the Internet. Also related was the case of Amazon.com trying to Patent the 'single-click' method of buying goods online.
Other cases touch on Data Privacy where Business Companies have been known to sell customer records to Marketing firms without express authority from the Customers. Other times customer data is simply hacked into and Businesses are unable to own up (going public) to
the the
detriment of the
Customer.
Most of these issues are under discussion internationally at the Internet Governance Forum (IGF), World Intellectual Property Organization (WIPO) amongst other fora. They present emerging legal challenges and it would be interesting to know if stakeholders in the East African region are/should be involved in shaping the outcomes of any of these issues.
2days on this one, today and next Monday and feel free to belatedly respond to Day 1 through Day 5 issues.
References: http://www.diplomacy.edu/ISL/IG/ http://en.wikipedia.org/wiki/Napster
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