The Ministry of Justice has apparently decided to crack down on cybercrime in Taiwan. "Illegal accessing," "illegal interception," "data interference," "system interference" and "misuse of devices" will become crimes after the legislature passes laws based on the Convention on Cybercrime passed by the Council of Europe on Nov. 23.
The proposals appear reasonable at first glance. Upon further examination, however, we find that such legislation is rather inappropriate. These actions should not be regulated by law unless they actually cause harm to Web surfers. Besides, outlawing the "misuse of devices" violates the spirit of a knowledge-based economy that upholds creativity and innovation. Once we pass the legislation and endow our law-enforcement officials with unlimited discretionary powers, they will be able to incriminate people almost arbitrarily, given the nature of today's cyberworld.
There are no alibis in the cyberworld, since no one can prove they haven't done something online. If we divide online actions into legal and illegal, there is no way to prove our innocence if we are accused of cybercrimes. Judging criminal intent is even more difficult. Accusers can easily cook up charges against others while those being accused will find it hard to prove they have no criminal intent.
Law demands evidence. In the material world, physical, chemical and biological agents leave behind traces that cannot be altered by people. These traces can serve as evidence. In the cyberworld, however, all traces are artificial and can be fabricated. Is it fair to accuse a person based on evidence that can be made up by others? Can we condemn people when it is impossible for them to produce an alibi or even find out who has fabricated evidence against them? It is impractical to use a few simple words to divide actions into legal and illegal in the cyberworld, where evidence is not reliable.
Theoretically, a computer linked to the Internet or other computer networks can send messages to and receive messages from any of the linked computers -- while the messages sent by the computer may be read or even modified by other users. Web surfers can screen or encrypt messages but they cannot prevent others from sending messages to them or seeing their messages. There is no way for a Web surfer to know whether he or she is authorized to access another computer. I am afraid all cyber activities may have to stop if Web surfers need to know whether they are authorized before accessing other computers.
The operators of all computer systems linked to the Internet or other computer networks are responsible for creating security mechanisms to prevent unauthorized access to their system. In its draft legislation, the Ministry of Justice shifts this responsibility to Web surfers, forcing them to find out whether they are authorized to access other computer systems. This move will not only scare away Web surfers but also allow system providers or law enforcement officials to bully them. Therefore, a reasonable guideline for judging whether a Web surfer is authorized to access a computer system should be this: authority to access a computer system should be assumed if the user can enter the system and read the data in it. Only then will system providers make every effort to improve their security mechanisms, making the cyberworld fairer and more reasonable.
Basically, if a user can access a computer system without the owner's authorization it is because the security mechanism is flawed. It is not necessarily a bad thing when someone breaks into the system because of system errors -- as long as this causes no material damage in the real world. It is more difficult to find system flaws than it is to fix them. People gaining access to a system without authorization can cause disturbances, but it can help system managers learn about flaws and fix them promptly. Take the Code-Red computer virus for example. The virus spread rapidly through a flaw in Microsoft Windows. Computer systems infected with the virus had to be fixed to avoid greater losses. Such a virus can be regarded as a minor fever that can build immunity to prevent a deadly disease from striking.
In her book
Computer systems in themselves are the most powerful attack weapons. As in a war, all information resources can be used as offensive or defensive weapons. If we follow the justice ministry's definition of the "misuse of devices," I'm afraid every computer program can be interpreted by malevolent lawyers and judicial officials as a "misuse of devices." This will bring unnecessary trouble for programmers. For example, password crackers, online scanners and online sniffers are useful tools for maintaining system security, but they are also the hacker's tools for invading computers. Outlawing the "misuse of devices" will smother research and development. It will have an extremely negative effect.
We must decide ourselves how best to ensure security on the Internet. We do not need to dance along with a few European countries. It is inappropriate to regulate cyber activities by law.
Tang Yaw-chung is a professor at the department of computer science and information engineering, National Taiwan University.
Translated by Eddy Chang
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