Distributed Denial-of-Service Attacks Under Public International Law: State Responsibility in Cyberwar

-- Stefan Kirchner

Distributed Denial-of-Service (DDOS) Attacks are a major weapon of cyberwarfare and are now also used during or before major political and military conflicts, such as the 2008 Russo-Georgian War, the Russian-Estonian political tensions as well as in the Middle East conflict. International Law is based on consensus and therefore naturally slow to react to new developments including this new tool of warfare. The same is true of many states. This raises the question of how to qualify DDoS Attacks under the existing rules of Public International Law. After investigating the legal nature of DDoS Attacks, the question needs to be asked which rules cover such attacks and who can be held responsible for DDoS Attacks, in particular such attacks which are conducted by (potentially paid and/or foreign) hackers on behalf of states.

© 2009 IUP. All Rights Reserved.

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Governing Virtual Worlds: To What Extent is it Possible to Empower Players and Preserve Their Rights in Virtual Worlds, and What is the Best Method of Doing So?

-- Darryl Woodford

In this paper the author considers the possibilities for establishing democratic governance in virtual worlds. He looks at the freedoms currently available to players in "Second Life", contrasting these to those established in Raph Koster's "A Declaration of the Rights of Avatars", and assess whether some restrictions are more necessary in game spaces than social spaces. The author looks at the early implementations of self-governance in online spaces, and consider what lessons can be taken from these, investigating what a contemporary democratic space looks like, in the form of"A Tale in the Desert", and finally considers how else we may think of giving players more rights in these developing social spaces.

© 2009 IUP. All Rights Reserved.

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Internet Governance and the Jurisdiction of States: Justification of the Need for an International Regulation of Cyberspace

-- Joanna Kulesza

The structure of international and social relations in the fast emerging internet technologies has a significant role in the determination of the territorial jurisdiction and powers of the States in dealing with various legal issues associated with cyber disputes. State competences and their influence over other States are evidently observed as their interests and jurisdictional activities cannot be confined to a particular region in the modern age of internet usage. The established norms and principles at the global level help the States to exercise their jurisdiction even in other countries in the event of any disputes or cyber acts. This paper discusses the different types of principles such as territoriality, effects and personality and their applicability in the execution of jurisdictional rights by the States. The scope of jurisdictional activities is pertinent to the interests of the State as well as its citizens which prove to be more effective through bilateral or multilateral agreements between the States. The regulation of internet usage and consensus among the member nations to implement cyber laws are considered as an apt solution to restrict and curb the cybercrimes to the possible extent without affecting rights of the citizens and security of the States. The development of internet governance in the direction of stability and safety of internet secures the interests of the cyber community against the cybercrimes at regional and international level.

© 2009 Joanna Kulesza. This paper was presented at the III Global Internet Governance Academic Network (GigaNet) Symposium held on December 02, 2008 in Hyderabad. Reprinted with permission.

Global Internet Privacy Rights: A Pragmatic Approach

-- Tim Wafa

The lack of consistency in the existing global privacy rights framework in countries has affected the interests of the business communities. The differences in the policy matters and guidelines related to the practice of privacy rights have led to the development of different legal system. For example, in the US the privacy rights are governed by a legal framework representing common law, federal, and state statutory law forms. In the European Union (EU) and in Asian countries they constitute highly localized regulatory mechanism that aim to protect privacy rights. The growth of technology, acceptance and usage of internet and online business transactions across the world has drawn the attention of many countries to revive their polices and rules for stricter enforcement of privacy rights. Since internet is a global platform for business expansion, any improper enforcement of privacy rights would only lead to decrease in financial investments and overall number of participants carrying out online business transactions also falls to a greater level. The paper throws light on the implementation of a proper regulatory mechanism ensuring privacy and cultural practices with high degree of efficiency which could be possible through top-down regulation, aggressive enforcement and innovative auditing procedures.

© 2009 Tim Wafa. This paper was earlier published in the University of San Francisco Intellectual Property Law Bulletin, Vol. 13, No. 2, pp. 131-158. Reprinted with permission.

Admissibility of Electronic Evidence in Criminal Proceedings: An Outline of the South African Legal Position

-- Murdoch Watney

Criminal courts the world over are on a daily basis faced with the question whether electronic evidence presented in criminal proceedings is admissible in evidence or not. In this discussion, the attention will focus on the rules governing admissibility of electronic evidence within the legal framework of the South African law of evidence. It will be argued that admissibility centers on establishing the type of electronic evidence, namely whether it is documentary or real evidence. Once the type of evidence is established, a two-phased procedure is applied, namely determining the admissibility of the electronic evidence and if admissible, establishing the evidential weight thereof. The South African common and statutory law governs admissibility of electronic law. The Electronic Communications and Transactions Act 25 of 2002 provides specifically for admissibility and evidential weight of electronic evidence. In the discussion, admissibility of electronic evidence is the functional equivalent of traditional evidence. No special rules of evidence govern electronic evidence. The South African law relating to electronic evidence is however, hampered by the lack of procedures governing the collection, storage and presentation of electronic evidence for purposes of criminal proceedings. Only once the latter is addressed, the environment relating to electronic evidence will successfully meet the challenges of the 21^st century and fulfill its important role in proving crimes committed within an electronic medium.

© 2009 Murdoch Watney. This paper was earlier published in the Journal of Information, Law & Technology (JILT), Vol. 1, available at http://go.warwick.ac.uk/jilt/2009_1/watney. Reprinted with permission.

Internet Governance: Why Plato is Still Relevant

-- Konstantinos Komaitis

In December 2008, the Internet Governance Forum (IGF) has successfully completed its third installment on issues pertaining to Internet Governance. The IGF promotes a multi-stakeholder environment, where protagonists engage in an extensive debate to discuss how the Internet should look in the future; with these discussions in place issues of cultural diversity and cultural relativism become more relevant than ever before. However, culture is normally followed by zealzeal to preserve it and to adhere to its historical significance. This is like a Damocles sword, since tradition and its relative customcan potentially prohibit progress and pose threats to social structures; more precisely, in international environments, like the Internet, certain traditions can be mistakenly considered as more valuable and exhibited thereon as more `exclusive' than others. This being the case, it is undeniable that custom not only will play a significant role in the governance of the Internet, but this role will, in turn, be able to determine the dynamics within its structure. This paper discusses the influential role of custom and its effects within the society of Internet Governance; it then proceeds to discuss an interpretation of justice, which demonstrates the way custom might be enforced and imposed upon various subjects. Finally, this paper shows that these conflicting customs should not necessarily annihilate multi-participatory governance structures, rather assist in their progress.

© 2009 Konstantinos Komaitis. This paper was earlier published in the International Journal of Communications Law & Policy, Vol. 13, Winter 2009. Reprinted with permission.

Australia's Internet Filtering Proposal in the International Context

-- Alana Maurushat and Renée Watt

Cybersafety program, popularly referred to as `Cleanfeed', compels the Internet Service Providers (ISPs) in Australia to filter selected websites for protecting the interests of the children. Cleanfeed typically includes two-tier filtering such as blacklist filtering and content filtering. Blacklist filtering of websites is related to areas of pornography, gambling and abortion which is mandatory for all ISPs as per the guidelines of Australian Communications and Media Authority (ACMA). The content filtering, on the other hand, will block materials that are legal but potentially unwanted. In Australia internet filtering is carried out as per the guidelines of the legislation whereas in countries like Canada, the UK, Sweden and France, it is the informal government pressure that directs the major ISPs to `voluntarily' institute internet filtering. Authors view that cybercrime is constantly evolving but the assessment of such crimes in terms of real damages is difficult to estimate. To overcome such negative activities research has to be undertaken by the concerned organizations to make the filtering process a big success.

© 2009 Alana Maurushat and Renèe Watt. This paper was first published in the University of New South Wales Faculty of Law Research Series (UNSWLRS), No. 7, available at www.austlii.edu.ac/ac/journals/UNSWLRS/2009/7.html. Reprinted with permission.