5. Lessons learnt from European Union and USA
5.1 European Union
In the European Union Cyber-crime law is primarily based on the Council of Europe’s Convention on Cyber-crime (November 2001). South Africa has signed but did not ratify the Convention. South Africa has complied with the first part of the Convention (Van der Merwe, 2008, p.101) in terms of which member states are obliged to:
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criminalise the illegal access to computer system,
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illegal interception of data to a computer system,
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interfering with computer system without right, intentional interference with computer data without right,
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use of inauthentic data with intend to put it across as authentic (data forgery),
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infringement of copyright related rights online,
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interference with data or functioning of computer system,
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child pornography related offences (possession/distribution/procuring/producing of child pornography).
The first part which is also known as the substantive part of the treaty has been dealt with in ECT Act in Section 86-87 as well as the Copyright Act and The Films and Publications Act. The Convention’s broad coverage of offences has drawn extensive criticism. Critics argue that it should limit itself to protecting the global information infrastructure by criminalizing ‘pure’ cyber crimes. Fraud and forgery, they argue, are already covered in existing international agreements and should not be included in the Convention as ‘computer-related fraud’ and ‘computer-related forgery’ (Jones).
As far as enforcement mechanisms are concerned, the parties to the convention are obliged to co-operate with each other in order to facilitate the investigation of a computer system-related offence (Van der Merwe, 2008, p.101). There may also be insufficient international consensus on whether and how to criminalize ‘content-related offences’ like child pornography and copyright infringement- as well as the additional protocol on racist and xenophobic acts committed ‘by means of a computer system’ (Jones). Any measures taken by the parties to the convention should not infringe on fundamental human rights. These measures must include authorising authorities to access, search and seize computer systems as well as empowering authorities to order the production of computer data in a person's possession or control that has bearing on an investigation. Parties may also authorise the interception or collection of data reasonably believed to be related to the commission of an offence (Van der Merwe, 2008, p.101).
Parties to the convention shall be required to establish jurisdiction over Convention offences committed within their territory, on board a ship flying its flag by one of its nationals, if the offence is punishable where it was committed. Due to the borderless nature of Cyberspace it is necessary to have international co-operation if law relating to cyber crime enforcement is to get much success. Extradition is also possible as contained in Chapter 3 of the convention if an offence is punishable under the laws of both parties to the convention (ibid).
5.2 The United States of America
In principle, USA regulation and law enforcement of Cyber crime is similar to that of the EU. In the mid 1980 two important statutes were passed by UC Congress to combat computer-related crime in which federal interests are involved (Van der Merwe, 2008, p.90), the Counterfeit Access Device and Computer Fraud and Abuse Act (18USC § 1030-1984) as well as the Electronic Communication Privacy Act (18USC §§ 2500-2711-1986). Cyber fraud and making intentional false representations online, (that victims rely on) is a federal offence. Identity theft which happens in the form of unauthorised use of another person’s social security number, driver's licence, work ID or credit card online is also a federal cyber-crime. In recent times there was a radical upward departure from sentencing guidelines in conviction for identity theft and obtaining of prescriptions among other things. Online gambling is generally prohibited; Nevada State is one of the states that approves of online gambling.
Federal law which targets senders of spam is limited to fraudulent telephonic solicitations or by means of electronic form, but this is currently being revised. The Federal Trade Commission is not empowered to stop spamming, but it may stop fraudulent and/or deceptive marketing practices. However the state of Virginia has taken an initiative to specifically outlaw Spam.
The unlicensed sale of controlled items online is a cyber-crime in the USA. Non-prescriptive and prescriptive drugs (e.g. Viagra & Cipro), firearms, explosives, cigarettes, alcohol and even visas for sale on the internet should conform to the terms of the licensing. However this is very much an unsettled area of law. A Federal judge rejected New York’s ban on online cigarette sales as it violates the Federal Commerce Clause.
Child pornography, in its various forms, is a federal crime. The offences include possession, production, procurement, or distribution or related materials. It is interesting to note the decision of Ashcroft v. Free Speech Coalition (2002) 535 U.S. 234 (2002) in which the Supreme Court judges were split over whether virtual pornographic images of children fell afoul of anti-child pornography provisions.
Under US law, Cyber-Stalking and Cyber-Harassment has also been outlawed. Reinhardt Buys quoted an example of how an offender assumed the identity of a woman in cyberspace and ‘solicitated’ rape on her behalf by stating online, ‘how much she fantasised of being raped’ and was guilty of accessory to rape due to his involvement in the rape. Crimes such as hate crimes, murder and murder threats are also punishable if certain of their elements are carried out online. The use of password sniffers, distribution and creation of worm programs as well as writing of virus programs and Trojan horses, website defacements, and web-spoofing are also well known federal offences.
The No Electronic Theft Act, in terms of which it is an offence to swap more than $2,500 in software, regulates normal copyright offences and copyright management offences. The Digital Millennium Copyright Act makes it a crime to traffic in devices primarily designed for purpose of circumventing technology protection measures (anti-piracy devices). Various trademark offences, economic extortion, money laundering which is carried out online is also regarded as cyber crime and means are currently being developed to create legislation that can sufficiently deal with these offences.
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