“The Good, The Bad & The Ugly”; in consideration of a Cybercrimes Act 2015

http://thekingmaker.me

“anonymity is a kind of relation between an anonymous person and others, where the former is known only through a trait or traits which are not coordinatable (sic) with other traits such as to enable identification of the person as a whole.”

Wallace, Katherine

“Having two identities for yourself is an example of a lack of integrity.”

Mark Zuckerberg as quoted in David Kirkpatrick’s The Facebook Effect

September 11th 2014 marked an highly significant day in the world of social media, with Mark Zuckerberg’s Facebook finally instituting his company’s “real name” policy forbidding users from “pretending to be anything or anyone” other than themselves and explaining that the “name you use should be your real name as it would be listed on your credit card, driver’s license or student ID” or risk having said account deleted.

Six months earlier in China, March 16th 2014 marked the Beijing imposed deadline for Sina Weibo users (China’s most popular microblog) to register their names and mobile phone details; only those so doing and subject to a “satisfactory” verification process would be able to use the website in an active capacity. This coming shortly after the Latvian based website ask.fm promised something similar in the wake of Hannah Smith’s cyber-bullying related suicide.

The very fact that such terms as “cyberbullying”, “cyberstalking”, “flaming”& “trolling” have now shifted from “urban” to “oxford” dictionaries; with charity ChildLine reporting quantum increases in reported cases of cyberbullying (4,507 in 2012/2013 as opposed to 2,410 in 2011/2012) and there are calls in Australia for a “Charlotte Law” (for tougher cyberbullying legislation) following the recent high profile suicide of TV celebrity Charlotte Dawson would suggest that we are more than ready if not long overdue, for some legislative reform in this critical area of 21st century life which essentially “has no precedent in the offline world”.

In August 2012 the New Zealand Law Commission had the following to say:

“In New Zealand, as in many other countries, there is growing and strong concern about the use of new communication technologies to cause harm. Young people are particularly vulnerable, but the problem is by no means confined to them: there are examples of the most disturbing and damaging communications between adults as well. There is a widespread desire that something be done.”

They also went on to highlight the other potential cyber-crimes of “malicious impersonation” or “hijacking of another person’s online identity”; the vast majority of these crimes taking place behind the veil of online anonymity the internet affords.

It is the aim of this essay to propose legislative reform in these areas whilst additionally giving consideration be given to the wisdom and legality of anonymity on the net in general.

Anon; just who are we protecting?

“Cyber bullies can hide behind a mask of anonymity online, and do not need direct physical access to their victims to do unimaginable harm.”

Anna Maria Chavez CEO Girl Scouts USA

Let us begin by looking at the realities and consequences of internet anonymity and the kind of debate it may engender in somewhat greater detail.

It is difficult to even imagine the terms of a debate in this area without some reference to the First Amendment for any illusion that solutions (even partial ones) can take place at an entirely national level simply serve to remind us of the behemoth the modern day world wide web has become; we may therefore do well to remind ourselves of its exactitudes:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

though not enshrined in such terms in our constitution; it nonetheless marks the tone of the discourse that would inevitably rage in the event of any anonymity related legislation.

We would also do well to remind ourselves of the fact that many (if not the majority) of the big players in the social media game (Ask.fm/Facebook/Sina Weibo/Twitter etc.) are not in fact hosted in the UK and as such are not directly affected by any homegrown legislative directives; but as with any attempt to institute &/or develop the “rule of law” it is inherent, indeed intrinsic to its very notion that such a process will be incremental and inevitably painstaking.

Internet anonymity has undoubtedly become one of the “basic fault lines in (the) political and ethical considerations of Internet regulation” and we can be grateful to Nogami (2009) amongst others for furthering our understanding of how this “privilege” (axial to this essay’s theme is the idea that anonymity is perhaps best considered a “privilege” as opposed to a right) actually affects human behaviour.

It has long been known that circumstance & social pressure can drastically change the way that individuals behave (witness Milgram’s “obedience to authority” studies & Zimbardo’s Stanford Prison Experiment) but the literature on the psychological impact of anonymity is more recent, yet nonetheless equally salutary.

According to Wallace anonymity acts to “minimize accountability” & with the sole prosocial exception of donation serves to increase the incidence of anti-social, criminal/unethical and selfish/self-interested behaviour. Yet in spite of the fact that the vast majority of cybercrime is committed anonymously there is still a strong ground swell of support for it on both sides of the Atlantic.

Publishing material anonymously (regardless of purpose) is by no means a new phenomena, it is even suggested in a recent biography that our esteemed Lord Mansfield (William Murray 1st Earl of Mansfield) published a pamphlet anonymously in support of his marriage to Lady Betty Finch; but the internet has opened up new possibilities that no one could have foreseen when in March 1989 Tim Berners-Lee wrote a proposal for “a large hypertext database with typed links”.

We ought not forget the many advantages the internet has brought to our lives; from commercial possibilities, through the many positive aspects of social networking to endless educational opportunities. Indeed in the light of the 2013 Snowden/NSA revelations & some if not many recent world events it is wonderful and not surprising to hear Tim Berners-Lee himself calling for a bill of rights (making reference to an “internet version of the Magna Carta”) that would “guarantee the independence of the internet and ensure users’ privacy”.

But that does not directly equate to the “right” to post anonymously (other antonyms for “anonymous” might include: identified/known/named/public/visible) on the internet. Indeed it is quite possible to contemplate a world wide web where corporate &/or government control was minimal yet citizens were required to be in someway “accountable” in terms of their posting/s on websites. And if our psychological analysis is correct, it seems likely that if such measures (as I will be proposing) were put in place the incidence of cyber-crimes and general cyber-related discontent (the cost of which we are very far from being able to calculate) would fall precipitously.

I am not unaware of the kind of resistance that Zuckerberg’s brand of “radical transparency” or some variation thereof might engender & indeed it’s implications are potentially very far reaching but I for one would welcome the democratic debate that such a move would engender and it is in this light that I propose my potential law reforms.

For any legislation to be “desirable, practical and useful” it is essential that the problems it is intended to resolve are deeply understood, carefully targeted and it (being the legislation) is implemented in such a way that the benefits clearly outweigh the detriment. The evidence regarding anonymity and lowered standards of behaviour (both on and off the internet) is beyond persuasive. Many just use the internet’s shroud of anonymity for what might seem to be nothing other than harmless banter; but at its periphery lies a far more sinister story of which awareness is growing with alarming rapidity.

As Helen Goodman (shadow minister for culture, media and sport) recently said:

“I think it is the responsibility of legislators to do what only they can do. We don’t want another voluntary response. We need to address this gap between online and real identity… and make cyber bullying a criminal offence.”

To suggest legislative reform in this area (and calls are already underway in both England & Wales) without a careful consideration of the role anonymity plays in this process is tantamount to swatting the wasp without actually tackling the nest.

Current Climate

UK law in this area is very piecemeal; but prosecutions involving “cyberbullying”, “cyberstalking” & “online harassment” have sought to apply a number of existing laws:

•Malicious Communications Act 1988

•Criminal Justice and Public Order Act 1994

•Protection from Harassment Act 1997

•Communications Act 2003

•Breach of the Peace (Scotland)

•Racial & Religious Hatred Act 2006

• Defamation Act 2013

Under the School Standards and Framework Act 1998 (or Education (Independent Schools Standards) Regulations 2003 for independent schools) all UK schools are required to have anti-bullying policies; and though December 2012 saw the issuing of Crown Prosecution Service guidelines on “prosecuting cases involving communications sent via social media” there remains no current legal definition of “cyberbullying” within UK law.

In August 2009 Keeley Houghton became the first person in Britain to be jailed for “bullying on a social network site” (under the Protection from Harassment Act 1997) after posting:

“Keeley is going to murder the bitch. She is an actress. What a fucking liberty. Emily Fuckhead Moore.”

as her Facebook status.

June 2012 saw Nicola Brookes (after a series of over 3,000 abusive messages falsely representing her as a drug dealer and paedophile were anonymously posted online) win a landmark High Court judgement securing a Norwich Pharmacal order against social media giant Facebook requiring them to hand over the names & IP addresses of the alleged abusers.

Meanwhile in New Zealand; following the Law Commission review (quoted above) Justice Minister Judith Collins fast-tracked legislation to create two new offences:

Inciting suicide – up to 3 years jail
Using a communications device to cause harm – $2000 fine/up to 3 months jail

Additionally “courts will also get powers to order individuals, internet service providers and social media sites such as Facebook to remove or correct harmful material, apologise, give complainants a right of reply, and disclose the identity of anonymous sources.”

This latter decision, has not surprisingly raised a lot of First Amendment hackles in the USA where the debate concerning defamation and anonymity has long raged (attempting to balance the contrasting positions of Melvin v Doe and Ampex Corporation); Contra Costa County Superior Court Judge Judith Sanders in 2001 firmly erring on the side of internet anonymity.

Nonetheless nearly all US states have amended and passed state laws and legislation to address cyberbullying and harassment by electronic communications.

Law Reform Proposition

http://www.ibtimes.co.uk

My proposition to the Law Reform Commission is conceptually simple; with nearly one in five children suffering a “negative experience” online last year according to a NSPCC survey and a 2012 study suggesting “over half of all internet users have received abuse online” it would seem that new legislation is required and sooner rather than later. I would initially propose an (umbrella):

A. Cybercrimes Act 2015; ultimately generating a series of new crimes to include all areas of digital criminal activity:

cyberbullying
cyberhate (racial/religious/otherwise)
cyberstalking
harassment by electronic communications
hijacking of another person’s online identity
malicious impersonation

This is by no means a small task & would be required to be an highly consultative process; the bill would be required to be very carefully drafted and express a very thorough and accurate understanding of what is and isn’t possible on the world wide web much in the way that banks, governments and other financial institutions have often been required to consult with ex-hackers to fully understand how secure their systems are or are not.

B. Amendments to existing laws to ensure “fitness for purpose”

There would need to be a thorough review of all previously mentioned Acts (see Current Climate above) to ensure that they were “adequately up-to-date to be applicable to digitally mediated communications.”

C. A nationwide review of all school & workplace anti-bullying policies to ensure they were bullet proofed for the realities of a “digital age”.

D. Last but not least I would wish for the House to consider (for the reasons presented above) an Anonymity Bill; proposing that at the very least that:

the right to block anonymous messages should be legally protected
consideration should be given to legislation that enshrines the concept of “radical transparency” essentially outlawing all anonymous posting on the internet

There is little in the world that cannot be turned to purposes both positive and negative and the world wide web is proving to be no exception. Invented by a Britain, it would seem there is now the very ripe opportunity for the UK to set the standard, if not aspire to lead the way in web-related legislation. With UNICEF, the Human Rights Commission and the United Nations calling for a “coordinated approach from governments around the world”, the 2009 Unlearning Intolerance Seminar recommending “international strategies on awareness, education, family involvement and policy change in dealing with “cyber-hate” we don’t have the luxury of delay. This essay is an attempt to contribute to that process by recommending the fast-tracking of cybercrime related legislation (in which we already lag behind a whole host of other jurisdictions) but also to suggest we go one step further and at least give adequate consideration to what would be potentially groundbreaking reforms; there seems little doubt that such legislation would be controversial and so it should be, for freedom of debate is what ultimately defines a democracy.

Just tabled amendment to Criminal Justice Bill to make life just a bit harder for cyber-bullies and sex pests using texts to harass victims.

Angie Bray’s Twitter account: 7:58 am 24 March 2014

Though welcome, current proposed reform does not go far enough, just serving to remind us of how the Ministry of Justice (particularly in its latest incarnation) tends to obfuscate rather than clarify, produce confusion (as if there were not already enough at common law) when we are craving pellucidity. Based on the deep understanding that these goals are not mutually exclusive; legislation in this area needs to be comprehensive, highly informed yet adequately codified and it is in such a light that I propose the Cybercrimes Act 2014.

just yesterday (28th September 2014) saw the passing of an 18 week custodial sentence for Peter Nunn after a prolonged campaign of Twitter intimidation of MP for Walthamstow Stella Creasy; her crime, campaigning to put Jane Austen on the 10 pound note, resulting in a series of rape threats: http://www.bbc.com/news/uk-england-29411031

References:

Claire Perry’s description of user-generated websites as reported: http://www.theguardian.com/technology/2014/jan/30/labour-calls-for-better-laws-to-stop-cyberbullying

Wallace Katherine “Anonymity.” Ethics and Information Technology 1 (1999): 23-35.

The Facebook Effect David Kirkpatrick ISBN-10 1439102120

http://www.facebook.com/help/112146705538576

http://www.bbc.com/news/technology-17337252

http://www.theguardian.com/society/2013/aug/19/ask-fm-cyberbully-hannah-smith-death

http://urbandictionary.com: “an online argument that becomes nasty or derisive, where insulting a party to the discussion takes precedence over the objective merits of one side or another”

http://oxforddictionaries.com: “make a deliberately offensive or provocative online posting with the aim of upsetting someone or eliciting an angry response from them.”

http://www.theguardian.com/society/2014/jan/08/cyberbullying-more-children-affected-childline

http://www.theguardian.com/world/2014/feb/22/charlotte-dawson-found-dead-sydney-home

New Zealand Law Commission August 2012 Ministerial Briefing Paper “Harmful Digital Communications: The adequacy of the current sanctions and remedies”

First Amendment to the United States Constitution (within all Council of Europe jurisdictions the reference point would be Article 10 of the ECHR)

Tom Bingham “The Rule of Law” ISBN 9780141962016

http://digitalfreedoms.idebate.org/digitalfreedoms/mtt/paper

Nogami T (2009). Reexamination of the Association between Anonymity and Self-Interested Unethical Behavior in Adults. Psychological Record, 59(2), 259–272.

Stanley Milgram “Obedience to Authority; an experimental view” ISBN 006131983X

http://www.prisonexp.org/psychology/1

Eckel C C & Grossman PJ (1996). Altruism in anonymous dictator games. Games and Economic Behavior, 16, 181–191.

Silke A (2003). Deindividuation, anonymity, and violence: Findings from Northern Ireland. The Journal of Social Psychology, 143, 493–499.

Postmes T & Spears R(1998). Deindividuation and antinormative behavior: A meta-analysis. Psychological Bulletin, 123, 238–259.

De Cremer D & Bakker M (2003). Accountability and cooperation in social dilemmas: The influence of others’ reputational concerns. Current Psychology, 22, 155–163.

http://www.theguardian.com/commentisfree/2014/jan/15/reveal-real-identity-online-anonymity

Norman S Poser Lord Mansfield Justice in the Age of Reason ISBN 9780773541832

http://www.w3.org/History/1989/proposal.html

http://mashable.com/2014/06/05/edward-snowden-revelations/

http://www.gmanetwork.com/news/story/381200/scitech/technology/inventor-of-world-wide-web-warns-of-threat-to-internet

http://www.theguardian.com/technology/2014/jan/30/labour-calls-for-better-laws-to-stop-cyberbullying

http://www.bbc.com/news/uk-wales-24525491

http://nobullying.com/anti-cyber-bullying-legislative-matters-in-the-uk/

http://www.cps.gov.uk/consultations/social_media_consultation.pdf

http://www.theguardian.com/uk/2009/aug/21/facebook-bullying-sentence-teenage-girl

http://www.localgovernmentlawyer.co.uk Information Law in the Facebook Age

http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10875273