The TT Cybercrime Bill debate continues: Critics, Opinions and Facts
I was interviewed on 23/05/15 by Kejan Haynes on TV6′s “In Conclusion” for my take on the TT cybercrime bill 2015. Within the interview I alluded to certain ‘issues’ within the bill which seemed to have crept over from the model law phase.
I subsequently wrote an article briefly detailing these ‘issues’ which was carried by the Trinidad Guardian 07/06/15 as commentary within their Business Guardian magazine. TechNewsTT also ran the piece on 08/06/15 complete with a comments section 😉
The article was primarily based on a December 2014, Council of Europe (CoE) discussion paper, authored by a barrister-at-law, which examined “Cybercrime Model Laws”. The author of the referenced paper questioned the quality of both the methodology and eventual output of the HIPCAR and EGRIP cybercrime model law exercises upon which several Caribbean territories have subsequently based their proposed cybercrime legislation. Specific to HIPCAR, the author of the referenced paper stated:
Its greatest challenge, however, stems from its deviation and attempts to improve upon the language of the Convention (Budapest Convention) whilst inserting unique new offences within the scope of cybercrime, the language of which border on technical and legal absurdities.
Ahhh the critics…
One critic of my piece, who previously served as a consultant on the HIPCAR model law exercise, questioned why I cited from only that single referenced paper for the 800 odd word article, as part of his thinly veiled assault on my credibility and “academic rigour”. In discussing my article and this critic’s comments on the Caribbean ICT forum CIVIC, I offered the following:
My article is merely a synopsis of the CoE discussion paper (to) highlight the the relevant parts to the Caribbean. Those who reviewed it pre publication know that my intent was not to murky the waters with my opinion but rather introduce the discussion paper to the local and Caribbean audiences so that they can review and form their own opinion. As well, specific to my article, I present my findings as questions. Questions which need to answered in the local and Caribbean debate on cybercrime legislation.
By the way, every time you mention HIPCAR in the CIVIC forum there is collective groan of ‘let’s not even go there’ which emerges from the Caribbean civil society and ICT professional members who previously participated in, and were not pleased with, the HIPCAR exercise. They also readily suggest a visit to the archives of CIVIC to see the various issues they previously highlighted with HIPCAR.
The critic also took a swipe at the author of the referenced discussion paper, referring to his work as:
…unqualified, unspecified OPINION of a barrister-at-law who I have not had the pleasure of meeting.
Well, it just so happens that the very TechNewsTT website, which the critic was actively using to place his comments, ran a piece on 26/05/15, from 2014, which pointed to an article entitled “Dominica considered a cybersecurity leader”. The author of the referenced CoE discussion paper, Mr. Zahil Jamil, is spoken of within this article as follows:
Meanwhile, Zahil Jamil of the Commonwealth Secretariat and the Council of Europe also congratulated Dominica for taking a leadership role in the fight against cybercrime. Jamil who also represents the Budapest Convention on Cybercrime congratulated Dominica for having taken “a very forward looking step and advanced step to having requested accession to the Council of Europe’s convention on cybercrime”.
So hopefully the critic has now been introduced, albeit virtually to Mr. Jamil. But let’s leave this critic behind and focus on the task at hand; i.e.getting cybercrime legislation right.
Commonwealth model law review
One of the things which Mr. Jamil points out in the discussion paper is that of the various model law efforts reviewed, the Commonwealth model law effort:
…received much recognition being a reasonable first effort at a model law based upon the Convention”
Additionally, while pointing out imperfections, he goes further to state:
…this is the only Model Law analyzed as part of this paper that bears any resemblance to an official inter-governmental process for negotiation and approval
However despite this model law seemingly being the best of the batch reviewed, the Commonwealth Secretariat is currently seeking a “Consultant for the Review of Commonwealth Model Law on computer and computer related crime”.
Hence, if even the best of the batch reviewed by Mr. Jamil recognizes the need for review of itself, what does that say about our legislation derived from HIPCAR model law?
As stated within the duties expected of the consultant, it is expected that he will perform review which may include areas currently absent within the current draft including:
…developments in technology such as peer-2-peer networking, revenge porn, cloud computingand user distributed information, and any practical difficulties which have been encountered in the operation of the existing model, such as delays in receiving mutual legal assistance
With respect to reviewing the area of cloud computing, if you will recall, my previously mentioned July 2014 article on the TT cybercrime bill cited the problems within the bill as treating data as if it is still stored on a single computing device rather than being stored within the all pervasive cloud:
Folks, remember where you saw the need for such inclusion of cloud computing provisions in review of a Caribbean bill first…right here!
What about Jamaica?
While I will be the first to admit that I have not reviewed the Jamaican cybercrime bill 2015, an interesting blog post has emerged from well respected US based Jamaican data privacy and security specialist, Dr. Tyrone W A Grandison, questioning aspects of this bill. Of particular interest is that he also cites a need for the explicit protection of IT / information security professionals,academics and security researchers. This need was previously highlighted in my July 2014 article on the TT cybercrime bill.
Dr. Grandison has subsequently responded to the Jamaican, Ministry of Justice, response to his blog post.
Where do we go from here?
Based on the aforementioned CoE discussion paper, the fact that a Commonwealth model law exercise is about to commence, the fact that more regional security specialist are voicing their concerns with respective cybercrime bills (based on the the same HIPCAR model law) and the opportunity presented by the closing of the parliamentary term; I believe a review of the TT cybercrime bill is warranted.