Download Legal Support of the Users` Privacy in Cyber Space

Legal Support of the Users` Privacy in Cyber Space
Aida Jafari
Ma law private of tarbiat modares university
Email : [email protected]
Abstract
Today, one of the most important problems and troubles of the users of cyber space is the issue
of support of their privacy against the illegal actions of the juridical and real people as well as
internet safety. All of the accomplished proceedings (including electronic crimes law, convention
of cyber crimes and ancestral and Vienna convention) follow a common aim which is the issue
of support. Cyber space has provided remarkable opportunities for human beings, but there are
like each nascent technology of the world. Affrication of the data (plagiary), sabotaging,
disabling and inactivating of computer systems, defraudation and espial can be named as the
destructive effects of cyber space for human life. According to the results of this study as well as
the necessity of the correction of the law of crimes of the faults of this law as the junior and upto-dated law which must accompany with dynamicity based on the exigencies and the current
needs of commercial needs and ultra-nation and international approach of the commerce, the
correction of the legal deficiencies and shortages is offered for supporting of the users because of
its necessity. Nevertheless, the ignorance of the users of this space cause misusing occasionally.
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Key Words: cyber crimes, computer, cyber space, the rights of moral and spiritual ownership
Introduction
The information and communication technology has changed the worldwide society thoroughly
and fundamentally. Also, it has affected the method and style of the human life and economical,
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cultural, social and political relations of the societies. In near future, vital infrastructures in
economical fields, cultural, social and defensive issues as well as the national security of the
countries will be connected and related to the information and communication technology. These
infrastructures are : energy ( electricity power , oil and gas) , transportation
( railway ,
aerial and marine), banking , communications , general hygiene, emergency services , water
system, defensive industries , feeding , agriculture, the affairs of lading of cargoes and etc.
Therefore, there are some problems, shortages and challenges in the investigation of the
perpetrated crimes in cyber spaces in inner and international aspects. Some crimes have been
perpetrated by the expansion of worldwide web of information
(internet) because of the
mentioned problems and juridical systems of different countries have not been able to take
actions and control them seriously. The consequence of this matter is that internet network
continues its path disregarding to the domination of the laws in the world.
The Concept of Internet Security (Safety)
Internet security (safety) means the cautions, forethoughts and the proceedings which must be
adopted for protecting of the security of the users – particularly children and teenagers- in
internet environment against the dangers which threaten the users, data and their systems 1. The
frame of these policies is determined in the laws and regulations of each country and the
1
www.ehow.com/about_6577504_definition-internet-safety.htm
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governmental, general and private parts must observe them. Also, the parents and the children
can be informed and trained about the dangers and the safety against them.
There is a dual approach in the international documents and conventions about cyber crimes.
The meaning of this is that perpetration of the mere cyber crimes such as hacking as well as
perpetration of some crimes such as traditional offences via the computer system such as
breaching of the rights of moral and spiritual ownership have been considered criminalizing. In
Iran, according to the definitions of the draft of cyber crimes, the crimes and offences have been
divided into the crimes such as computer defraudation, computer fabrication, computer espial ,
computer sabotage ( alteration , deletion , stoppage , monitoring of the communicative lines and
etc) , computer sabotage, impermissible access, illegal interception and etc . Accordingly, some
penalties and punishments have been determined for them.
Some writers such as Susan Berner –American jurist- believe that there is no necessity to the
distinctive laws and new legislation for the phenomena of the computers or internet. In fact, they
say that the correction and alteration of the traditional penal laws can be applied against the
computer- cyber crimes. These writers believe that no new law was created by invention of
telephone such as tele crime, so using of cyber space is a new technology for perpetration of the
crime merely. On the other hand, some jurists such as Don Parker believe that legislation of
independent penal law is necessary for cyber crimes for the following reasons:
1. Symbolically, cyber space is a new world which must be regulated through independent
regulation like the real world
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2. The cyber criminals are different in respect of criminology from the common and general
criminals and they need different crimes and treatments
3. The damages of the cyber crimes are much more than the general and common crimes.
Recognizing of the Cyber Space
Is cyber space a kind of environment and space or a kind of communication mean? Replying to
this question affects the answer of the hypotheses of the present study. The reason is that there is
no justification and legitimation for making challenge in juridical laws with the assumption of
being a kind of mean. On the other hand, if it is considered a kind of space, it needs a kind of
separate, legal regulation.
Usually, the people think that cyber space is a kind of space in which there is no regulation and
law. They think that every thing is free in this space and they interpret freedom not as being
cyber but as limitless and boundless such as free marketplace, free merchants, free will, and free
election. So, it is thought that impossibility of controlling of internet is the genuine property of
the online world. The manifesto of independency of cyber space emphasized on this matter but
today this theory can not be applied. The reason is that this ideology can challenge the new
political and social system and eliminate that social order and regulation. So, we can say that the
first claimed and genuine property of this phenomenon (freedom of regulation) has been
annulled and the other property (being worldwide) has been remained in its own place and
position. So, we can say that cyber space is a kind of ultra-nation space. The movement of
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electronic rights has been created based on this. So, we can say that cyber space is not a kind of
means merely and a kind of special legal system is necessary to dominate on this space2.
The Challenges of the Users in the View of the Private Law
In the view of the private law, internet has made some troubles and challenges for all countries
such as the local competency of the courts, the law which is dominated on the case and the
opposition and contradiction of the laws of different countries. In juridical aspects, the
emergence and development of internet threats has created new crimes, offences and special
procedures and it has challenged some fields of criminal sciences.
Some times, these crimes or threats are perpetrated against the safety and security of the country.
The most distinctive ones are computer espial and computer sabotage. Some times it has had
security approach and it has challenged the national security and safety.
Penal laws have not been accompanied with the development though they are ambiguous. So, a
closed range (spectrum) of the terms is supported by them. It is in the occasion that the range
(spectrum) of political and military espial have become broadened and enlarged to industrial
commercial, economical, financial, etc. on the other hand, new forms causes the escape of some
people from the domain of the crimes. The type of perpetration has been developed during the
time and its new type occurs in digital form.
Mohammad, Bagheri & Ebrahim Noshadi. (March 2011). “The Challenges of the Legal and
Commercial Actions in Cyber Space”. Quarterly Periodical of Programming and Budget.
P.30
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The most important discussions in respect of internet crimes are the manner of hearing and
procedures in these types of crimes. This thing has made some troubles and difficulties in
juridical system about the pursuance and investigation. It is in the way that different and various
ways of penal hearings are not respondent of different aspects of these crimes in most cases and
this matter has made many troubles and difficulties in the procedure of hearing and investigation.
In the first occasion, investigation and examination of the place of perpetration of the crime and
the seizing of the instruments and tools of perpetration of the crime need the presence of special
skill and profession in the officials who investigate the crime to be able to have useful
investigation in the cyber space. As one of the other troubles and difficulties of internet crimes,
we can refer to this case that the place of the perpetration of the crime of the criminal is the place
which is different from the place of influence and effectiveness of the crime generally. Some
times it is indefinite or indiscriminate basically and this characteristic of absent (non-presence)
perpetration of the crime has made some troubles and difficulties in the researches, especially in
the field of the competencies.
Juridical and Legal Challenges
1. The current ambiguities about recognizing the rights of moral and spiritual ownership
officially: one of the most important challenges of the economy of the world is the
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feeling of non-security and non-safety in the private ownership of the people. Although
the troubles and difficulties of this field and area can be solved in regarding to the law of
the support of the authors and the researchers of the year 2005, translation law of the year
of 1973 and the law of the support of computer software which has been approved
recently . Nevertheless, we cannot consider it sufficient generally, totally and definitely
and there are some ambiguities in the performance. The information and communication
technology makes clear and transparent the list of the assets of the people by its own
development. For the purpose of accompaniment and cooperation of the people in the
path of development of this technology, initially, it is necessary that the strata of the
people be convinced about the veneration of their moral and spiritual rights.
2. Non- identifying of the rights of the originative in the laws: one of the vital challenges of
the informative services is defining and recognizing the ownership rights of the
originative officially. Veneration of the rights of the moral and spiritual ownership can
motivate the originative for creating and development of new products. It is clear that the
originative will not have any motive for creating and distribution of the products
provided that the cost of copyright of the digital products is zero (none). So, recognizing
the ownership rights of the originative of the informative products of the inside of the
country officially is necessary for development of these kinds of activities and
development of the production of these kinds of products. The other aspect of this matter
is the international aspect of the matter. The reason is that the country must become the
member of the worldwide organization of the right of the originative (author) for support
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of the export of the software. Of course, determination of entrance or non-entrance and
the time of the entrance to the organization need the expertise works.
3. The comprehensive and public law of electronic commerce: according to the alteration of
the commercial environment in the case of the development of electronic commerce,
legislation and approval of the proper commercial laws is essential.
4. Infringement of the laws which are in relation to the crimes of information and
communication technology: according to the essential and natural difference of electronic
crimes with the general and common crimes, some troubles have been made in the
juridical structure of Iran in respect of the laws, the knowledge of the judges and the
executive guaranty in electronic crimes in the present circumstances.
5. International sanctions: according to the necessity of the country to the foreign countries
(especially America) in the groundwork of hardware and software technologies which are
related to information and communication, international sanctions can be a serious
threaten in the procedure of development of information and communication technology.
6. Non- recognizing of electronic signature officially: recognizing of electronic signature
officially in the related laws is one of the critical necessity for development of its
application and usage of information and communication technology in the official,
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commercial, financial and juridical affairs. Non- recognizing of electronic signature
officially is one of the critical difficulty of this technology nowadays. Non-usage of
electronic signature, in the current situation, may be because of the absence of the
necessary security and safety in the communicative networks of the country.
7. The absence of the executive guaranty for supporting of the rights of the consumer: the
possibility of transgression of the seller about the committed specifications of the
exchanged commodity increases because the development of electronic commerce causes
the decreasing of the face-to-face meeting of the parties of the commercial exchanges.
Development of the usage of this technology will be faced with problem in the occasion
that the right of the consumer has not been defined precisely or it doesn’t have necessary
executive guaranty.
8. The laws of redeployment of the foreign currency (exchange): one of the consequences of
the development of information and communication technology is the necessity of
transportation of the foreign currency (exchange) for buying of foods and services as well
as investment or withdrawal of the income of the capital. In this case we can say that the
current law of Iran is one of the most important obstacles in this way3.
2.Hassan Beigi , Ebrahim. (March 2004). “Development of the National Network of Data. The Anabatic
Challenges and the Related Threatens of National Security: History of Islamic Ideology”. No 9. P79
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The Time and Place of Signing of Electronic Contract in Iran
Determination of the time and place of signing of the contract has different consequences and
effects. The place of signing of the contract is determined according the time of its signing.
When a kind of contract is signed in a parliament – it means the necessitated and the acceptant
sign the contract in a congress- there would be no problem in determination of the time and place
of the contract. The legal problems and discussions are considered when the parties of the
contract have spatial (local) and temporal distances. Also, signing of contract in electronic
commerce occurs among the people who have spatial (local) temporal distances4.
As the stipulation 23 of Vienna convention has explained, the contract is signed when it is
accepted. In general, about the time and place of signing of electronic contract, it can be said
that, in these kinds of contracts, the parties do not sign the contract in the presence of each other
and they have spatial distance – even geographically, time distance (60) - , so, there is difference
between the time and place of the issuance of causation or acceptance and information of it by
the audience. In this respect, the situation and status of electronic contracts is similar to the
corresponsive conventions and the contracts whose causation and acceptance is done through
post. In this way of announcement of will, in respect of the time of becoming determinate of the
issuance of “acceptance”, there are some disagreements. Also, the comments have been
Ghorban Vand , Mohammad Bagher. (July 2010).” The Time and Place of Signing of Electronic
Contracts of the Periodical: Law” . Law Study. No 29. P 271
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announced, delivered, receipted, informed and presented. Also, different countries have accepted
one of these comments and views in regarding to its internal rights5.
The Corrective Solutions
The close relation of police and the people has been resulted in creation of the sense of trust .The
result of more inclination of people to the police is that the people can follow their problems and
challenges in cyber space. Combating with the crimes of the cyber space - in different fields such
as security, political, cultural, social and economical- is one of the most important missions of
cyber police. Also, the absence of knowledge of the users in the use of this space can cause
misusing.
The rule which is regulated for investigation of the cyber crimes must be in the way that protects
the rights of the people. Also, disciplinary force must be able to oppose the criminal in the
manner which is proper to his own crime. Currently, the efficiency, presentation and offering of
our legal laws is very limited against the development of cyber space and its crimes and don’t
have any congruency with each other.
Education or training is one of the proper methods of increasing of the level of knowledge of the
people such as the training of the methods through which the cyber terrorists attack.
Alsan , Mostafa. (Sept 2005). “Signing of the Electronic Contracts of the Periodical: Economy”.
Commercial Research Paper. no 36 . p 145
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Conclusion
The aim of this study is to create safety for the internet networks and internet environments and
prohibit these crimes. The critical and vital point in internet crimes is elimination of the place
and space in the realm of physical place and the limitation of political reign. It is possible that the
crime is perpetrated in the limitation and realm which is out of geography and the realm of the
reign of the county and criminalization is the requirement of ignoring of the principle of regional
(local) competency and development of the geographical boundaries.
Although there have been much effort in worldwide level for approval of the proper regulations
in this case, the discussion about the place and time of the signing of the contract and the
antitypes of the cyber crimes and the legal effects of the automatic contracts have not been
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analyzed precisely and some times, some faults have been mentioned about these contracts.
Assigning of special, penal courts and competent judges in this field is inevitable according to
the increasing of the occurrences of these kinds of crimes. Electronic commercial law of Iran – in
spite of its elevated heading- has not solved the legal problems and ambiguities which is the
result of emergence and development of electronic signatures. In addition, it has enkindled some
incompetency and inadequacies by regulation of absolute, abstract and imperfect rules- some of
them have been mentioned in the recent discussion- .
No country can be successful in combating with cyber criminals in its own. All countries must be
united for protecting of the users` privacy in the cyber space and consider the best solutions for
prohibition of the crime. The cyber crimes have universal nature and opposing them needs the
similar, international actions. If these crimes don’t be defined similarly in the juridical systems of
different countries, the efforts of the executive regulators will be complicated for hormonal
opposing with these crimes. International police, European convention of cyber crimes and the
advices of the United Nations are seeking for a similar literature in this field. It seems that some
rules must be regulated to be able to determine the responsibility of investigation of these crimes
in international level. Although we can not deny the effectiveness of the governments and the
extraordinary and huge management of the region, it must be accepted that prohibition of cyber
terrorism is different from the other crimes because the mere training and education can not be
sufficient for decreasing of the crime. Using of the new technologies, familiarity of law with new
and changing methods of cyber crimes and cooperation of the countries with each other are the
other necessities which must be considered in combating with cyber crimes.
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Sources
1. Mellat Newspaper. (27 sept 2012). “The absence of legal and judicial infrastructures in
cyber space”.
2. Hassan Beigi , Ebrahim. (March 2004). “Development of the National Network of Data.
The Anabatic Challenges and the Related Threatens of National Security: History of
Islamic Ideology”. No 9. P79
3. Mohammad, Bagheri & Ebrahim Noshadi. (March 2011). “The Challenges of the Legal
and Commercial Actions in Cyber Space”. Quarterly Periodical of Programming and
Budget
4. Alsan , Mostafa. (Sept 2005). “Signing of the Electronic Contracts of the Periodical:
Economy”. Commercial Research Paper. no 36 . pp 30-178
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5. Ghorban Vand , Mohammad Bagher. (July 2010).” The Time and Place of Signing of
Electronic Contracts of the Periodical: Law” . Law Study. No 29. P 271
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