Cybercrime and freedom of speech – A counterproductive entanglement

This post is authored by Gene Burrus, Assistant General Counsel.

As cybercrime becomes ever more pervasive, the need for states to devote law enforcement resources to battling the problem is apparent. However, states should beware using cybercrime legislation and enforcement resources as a vehicle for restricting speech or controlling content. Doing so risks complicating essential international cooperation and will risk de-legitimizing cybercrime legislation and enforcement. With the growing need for enforcement to thwart cybercriminals, without which the economic and social opportunities of the Internet may well flounder, using “cybercrime” as a label for attacking speech and controlling content may only serve to dilute support, divert resources, and make international cooperation more difficult.

At present over 95 countries either have or are working on cybercrime legislation. This is a good thing, as the more states that have cybercrime laws, especially laws that are largely harmonized to better enable international cooperation, the better for everyone (except the criminals). Cybercrime thrives across borders and between jurisdictions, relying on the internet’s global reach and anonymity, but if cybercriminals are based in a country without adequate cybercrime laws, it becomes even harder to bring them to justice. But defining cybercrime properly is important.

Cybercrime is a word we have all encountered more of in recent years. It tends, rightly so, to bring to mind “hackers”, infiltrating computer systems and disrupting them or stealing from them. However , most cybercrime statutes are actually broader than that. They also cover a whole slew of criminal activity mediated by information communication technology (ICT). They deal with the theft of personal information, from credit card details to social security numbers, which can be used for fraud. It includes acts against property, albeit virtual property, from simple vandalism to sophisticated ransomware. (If “virtual property” sounds too abstract to be a concern, bear in mind that this is the form in which many of our most valuable ideas, from patented designs and trade secrets to copyrighted creative material, are now to be found.) It will increasingly bleed into the real world too, thanks to devices connected to the Internet (will cybercriminals soon be stealing self-drive cars through the Internet of Things?) and due to attacks on critical infrastructures such as power grids (which will also affect issues of national security).

This broad swathe of cybercrime is widely accepted to be “a bad thing” by most governments and on that basis, cooperation among and between governments in pursuing cybercriminals is possible.

However, many countries’ cybercrime legislation also categorizes publishing or transmission of illegal content in a particular country via computer networks or the internet as “cybercrime”. And on this, countries are not in wide agreement. When state’s laws criminalize content that other countries don’t recognize as criminal, and then devote cybercrime enforcement resources to chasing this kind of “crime” rather than what people generally think of as cybercrime, it complicates or prevents international cooperation, discredits cybercrime legislation and enforcement efforts, and diverts resources from solving the serious problem of cybercrime. While there is certainly content that is universally reviled, i.e. child pornography, there are many disagreements about the creation and dissemination of other content, e.g. political materials or art work. For some states, free speech is an exceptionally important principle. For others, the control of offensive or dangerous content is essential. Achieving agreement on how to approach these differences is, frankly, going to be a challenge. Once again the Budapest Convention provides a salient example. In 2006, the Convention was added to by a Protocol that criminalized acts spreading racist and xenophobic content. Even some states that signed up to and ratified the original Convention have proved reluctant to add themselves to the Protocol. This is almost certainly not because of they approve of racist or xenophobic content, it’s simply a complicated issue in the context of their own laws or their perspectives on free speech or legal sovereignty.

If these kinds of disagreements are expanded across other types of content and then brought into the heart of global cooperation against cybercrime, the whole process runs a serious risk of breaking down. States may well be unwilling to cooperate in cybercrime investigations, fearing they might expose people whose actions are in no way criminal by their own standards. And, once again, the only ones to benefit will be the cybercriminals who can play off jurisdictions against one another, ducking and diving across borders and through gaps in legal enforcement.

In many ways, the “cyber” in these “content crimes” is just about distribution and they do not have to be included in cybercrime statutes and enforcement efforts. Because states have different types of speech they want to regulate and different levels free speech they are willing to tolerate, these issues need to be kept separate from efforts to address what everyone agrees on as cybercrime: attacks on data, on property, on infrastructure. Crimes of content creation and distribution, beyond the most universally reviled such as child exploitation, should be dealt with outside of the essential cooperation on cybercrime itself. This will allow governments to work together globally to protect citizens, businesses and their own national security from cybercriminals.