T&T Cybercrime bill demands multi-stakeholder input (July 2014)

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***This article was originally published in July 2014 via TechnewsTT and is being republished given the reading of the Cybercrime Bill, 2017, into Parliament on 5th May 2017.***  

The case for Multi-stakeholder engagement in reviewing the Trinidad & Tobago Cybercrime Bill, 2014

Summary

The Cybercrime Bill 2014 was read into Parliament by the Minister of National Security, Gary Griffith, on 21/03/14 and subsequent debate occurred in the Lower House of Parliament on 13/06/14.   An alarm has been raised by media workers over certain clauses (21 and 23) in the Bill which they deem to be oppressive to their profession.  Similar dissatisfaction has been expressed by other media workers in other Caribbean territories where attempts to introduce similar legislation have been made. Additionally, questions have arisen over the extent of stakeholder engagement practiced to review and produce the Bill.

This paper presents a historical context of the development of this legislation and presents a review of certain clauses (12, 21, 23, 26, 27, 28 and 31) or aspects within, from an ICT and Information Security perspective, so as to illustrate why a review of the Bill by a wider set of stakeholders may be required at this point. 

Introduction

There has been recent outcry by the Trinidad and Tobago Publishers and Broadcasters Association (TTPBA) against the proposed Cybercrime Bill 2014.

“It is evident that the media can be muzzled and the profession of investigative journalism can be undermined if this law is passed.  The government has shown its willingness to discuss such issues before and we ask that they engage the TTPBA and other stakeholders again in order to work in the best interest of our democracy.  In reviewing this Bill, it would seem that no thought was given to the repercussions of a free media nor to the role of the media as watchdogs of our nation.”

Additionally, the Trinidad Guardian editorial, dated 17/06/14, cited concerns with clauses 21 and 23 of the bill and went further to cite lack of proper stakeholder engagement in the consultative process leading up to the laying of the bill in Parliament.  Amongst the “interest groups” cited as requiring time to “weigh in” on the bill was the Law Association, which raises the question as to if the legal fraternity has provided sufficient input on the bill. 

In his contributions to the debate on the Cybercrime Bill as reported by the Trinidad Newsday, dated 16/06/14, Member of Parliament for St. Joseph, Terrence Deyalsingh raised an interesting question of the relevance of the proposed bill in relation to existing laws such as the Telecommunications Act, Electronic Monitoring Act and Interception of Communications Act.  These are all interesting points which lead to the following questions: Where did this bill come from?  Who were the stakeholders consulted?  Does it unfairly target certain groups?  Is the current outcry justified?  How does it integrate into our existing set of laws? The response to these questions should lead to the position that greater stakeholder engagement is required at this point.

Historical Context

The bill is derived from the HIPCAR project which commenced in 2008 and was designed to provide “harmonization of ICT policies and legislation across the Caribbean”.  This project was 95% funded by the European Commission with the International Telecommunications Union (ITU) as the executing agency and the Caribbean Telecommunications Union (CTU) as its project advisor.   The fifteen (15) beneficiary countries were identified as Antigua and Barbuda, the Bahamas, Barbados, Belize, Dominica, the Dominican Republic, Grenada, Guyana, Haiti, Jamaica, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Suriname, and Trinidad and Tobago. 

As part of its deliverables, it produced “Model Policy Guidelines & Legislation texts” across nine (9) different areas where “Cybercrimes and cybersecurity” was one of the areas.  Supplementing these “model law” deliverables, technical assistance made available to tailor these deliverables to the unique scenario of individual beneficiary countries.  Trinidad and Tobago benefitted from at least two (2) “Stakeholder Validation Consultation and Capacity Building Workshop to review the Legislative Framework on Cybercrime (e-Crimes)” as of June 2012.  In 2009, Dominica, Grenada and St. Lucia also commenced another effort around ICT harmonization called the Electronic Government for Regional Integration Project (EGRIP).

Clearly, significant effort went into the HIPCAR project; however there has been some dissent amongst Caribbean ICT professionals as to the effectiveness of the deliverables in meeting the needs of the individual beneficiary states.  At the “Caribbean Stakeholders’ Meeting: The Importance of ICTs and their Impact on Regional Development”, which was attended by several regional ICT Ministers, held in  Trinidad over the period 26th to 28th May 2014, the Caribbean Area Representative to the International Telecommunications Union (ITU), Mr. Cleveland Thomas, acknowledged this dissent but attempted to place it in the context of the significance of the work accomplished given some of the constraints which presented as an externally funded project. 

My own impressions from this meeting on issues of Caribbean cybercrime and cyber secuirty development can be found in my Slideshare folder.  As to if the root of the dissent originates from the model law phase or the tailoring phase, this is up for debate.  However, the fact that questions are now arising over the extent of consultations performed in the production of the Cybercrime Bill, seems to indicate, that the tailoring phase and/or subsequent necessary follow-up consultative processes between June 2012 and June 2014, were not executed properly or did not adequately address the concerns of relevant stakeholders.

Other Caribbean Cybercrime Efforts 

How have other Caribbean nations fared with their own efforts to introduce cybercrime legislation?   

In June 2013, Grenada laid in their Parliament, EGRIP based Electronic Crimes legislation much to the chagrin of local media representative bodies who expressed similar concerns of having their freedom of expression suppressed.  They were supported by international press freedom bodies such as the Paris based Reporters Without Borders (RWB) and Vienna based International Pres Institute (IPI) as well as the Association of Caribbean Media Workers (ACM).  Michelle Marius of ICT Pulse provides a good summary of the Grenada experience up to July 2013.

In April 2014, Dominica, which has been a beneficiary to both the HIPCAR and EGRIP projects, embarked upon a National Needs Assessment and Legislative Review Workshop on Cybersecurity with the direction and assistance from international bodies including; Cybersecurity Assessment and Strategy Development from the Commonwealth Secretariat (COMSEC), the Council of Europe (COE) the Inter-American Committee against Terrorism of the Organization of American States (CCITE/OAS).  The stated purpose of this workshop was to “review existing e-legislation to determine whether they are in compliance with the International Convention on Cybercrime known as the Budapest Convention on Cybercrime” towards the development of a national Cybercrime Strategy and establishing a National Cybercrime Policy.  The Dominica example must be commended as an example of tireless effort to getting the right tailored fit for Dominicans in accordance with an international recognized authoritative source.

The Case for Multi Stakeholder Review

The Minister of National Security, Gary Griffith, has heeded the calls of the media fraternity and has invited them to discuss their concerns specific to clause 21 of the Cybercrime Bill.  However, does this mean that the remainder of the Cybercrime Bill is perfectly fine and does not warrant review?  At  this juncture, I believe it would be more beneficial to employ a more encompassing approach bringing together a wide range of professionals from various stakeholder institutions and entities such as the law enforcement, the legal fraternity and of course the technical expertise represented by the ICT and Information Security fraternity.  I shall highlight a few points of concerns I have with the Cybercrime Bill which I have raised with various authorities over the past few months.  These are primarily derived from an ICT and Information Security perspective and underscore the need to solicit and engage in further discussion with others.

Clause 12 & 31: Illegal Devices & Remote Forensic Tool

The bill defines “remote forensic tools” as:

 “…investigative software or hardware installed on or attached to a computer system that is used to perform a task that includes keystroke logging or transmission of an internet protocol address”

This may be a bit misleading as the functionalities mentioned are a bare minimum of what these tools are capable of and indeed further reference to these tools in clause 31 alludes to a usage far greater than “keystroke logging or transmission of an internet protocol address”.  Additionally, such tools would undoubtedly fall under the classification of “Illegal devices” as described in clause 12.

Yet, clause 31(3) calls for internet service providers to “support the installation” of such tools.  It is my view that if competency is expected of persons outside of the police service to support the installation of such tools, explicit protection for such users of these tools for legitimate purposes, for example, academic research or professional duties should be stated within the bill

  Why is this important?  In 2010, the UK Cards Association (representative body for UK banks), attempted to compel the University of Cambridge to remove Omar Choudary’s research thesis from its website which exposed flaws in their Chip and PIN bank card technology.  

Figure 02: Omar Choudary’s specialized hardware ‘device’ used in academic research into Chip & PIN vulnerabilities

Figure 02: Omar Choudary’s specialized hardware ‘device’ used in academic research into Chip & PIN vulnerabilities

Under our Cybercrime Bill, the research performed by Mr Choudary, which required certain hardware tools and software to perform analysis of bank card transactions, could have been deemed as having utilized “illegal devices” with the intent of committing an offence against the members of the UK Cards Association.

  Ultimately the University of Cambridge defended their right to have the work published on their website and the UK Cards Association backed down, however this case still resonates with the way universities approach cybersecurity research.  Having recently completed M.Sc. Information Security studies 2012/13 at University College London, UK, I can personally attest to interactions between one of my classmates and his thesis supervisor on establishing boundaries for the scope of his research into contactless Near Field Communications (NFC) based bank card transactions for fear of how this research and published findings could be perceived.

Figure 4: Proxy and Relay NFC attack scenarios, credit C.Petridis

Figure 4: Proxy and Relay NFC attack scenarios, credit C.Petridis

How would a Caribbean based Bankers Association view a University of West Indies based researcher doing similar work?  What possible pressure could be levied to suppress such work?  Can such legitimate research be misrepresented by a powerful lobbying group as an offensive under our Cybercrime Bill?  In the US similar concerns have emerged from the security research industry with respect to the US Computer Fraud and Abuse Act (CFAA) laws being used to target security researchers conducting benign research into internet vulnerabilities

The United Nations Office on Drugs and Crime has produced a “Comprehensive Study on Cybercrime” which presents some of the issues and differences in national strategies in criminalizing “computer misuse tools.  Are we confident we have we found the right fit for Trinidad and Tobago?

Clause: 26 – 28: Order for removal or disablement of data, Production Order & Expedited Preservation

Given the emerging field of cloud computing where data and services from various corporate entities and individuals may be hosted on a single physical server or storage device, i.e. co-located at a 3rd party’s data centre; the issues raised in clause 26 through clause 28 take on a different dimension.  

How does one safely ensure that an “Order for removal or disablement of data” only affects the data and services of the target being investigated?

How does one ensure that in issuing a “Production Order” or an order for “Expedited preservation” one does not inadvertently copy data from another entity who is not the subject of investigation?  This should be a significant concern to corporate entities who would be keenly interested in protecting the privacy or their own data as well as data stored on behalf of their customers.  

How do the police even get forensic access to data of Trinidadian entities when said entity’s data is domicile in other counties?  We would normally believe that Mutual Legal Assistance Treaty (MLAT) between countries would bridge this gap, but given the lack of results the public has seen from a very public email investigation originating in 2013 we need to be mindful as to how such investigations are executed.  

 The emerging field of cloud forensics may have some solutions here;  one proposal being to have competent cloud forensic experts on staff at data centres, who are then included in the chain of custody to facilitate such orders which may require instances of data acquiring, removal, disablement etc.  The Cloud Security Alliance (CSA) a consortium of cloud industry stakeholders is undertaking an effort at present towards mapping an ISO standard for digital forensics (ISO/IEC 27037:2012) to cloud computing.

While I fully appreciate the need for legislation to be as technology agnostic as possible, I raise this point as an example of how the pace of rapidly emerging and maturing technologies can outstrip the lethargic pace of policy, regulatory and legislative efforts as well as to underscore the importance of technical expertise stakeholder consultations to continuously update these processes with scenarios which may challenge the path being followed.

At present, are there sufficient (or for that matter…any) Information Security centric roles within the public service tasked with looking at these issues from a strategic perspective to come up with the potential scenarios I have outlined above? The capacity building effort to accompany this type of legislative agenda must begin well in advance of enactment but I believe this is sorely lacking at present.

Clause 19:  Violation of Privacy

The advancements have not only been on the technical side though, and again the following two points establish the need for stakeholder engagement with strategic thinkers who are tuned into current issue and can examine if the cybercrime policy, regulatory and legislative efforts being pursued are sufficient.  It also underscores the need for possible further analysis at the legal wording of certain clauses.

Michael Robertson of Massachusetts, USA, was charged with two counts of violating several women’s right to privacy by taking ‘upskirt’ photos of them.   Upskriting refers to the practice of covertly taking photos of another person’s exposed underwear or private area without their knowledge. While his defence acknowledged that he did take such photos of women as they used public transport, they argued that the wording of the ‘peeping tom’ laws he was charged under, only made provisions for victims who were nude or semi-nude; consequently, in March 2014 he was found not guilty.  In light of this ruling the wording of clause 19(3) of our own Cybercrime Bill which deals with violation of privacy offences, may require a revisit to ensure that the intention of the clause is maintained under the circumstances cited in this case.

Clause 21: Harassment utilizing electronic communication

 This is one of the clauses which has drawn the ire of Caribbean media workers, and their take on the matter has been well ventilated; my views are presented from the technical perspective.   Again the wording of certain clauses comes into focus when one looks at clause “Harassment utilizing electronic communication” specifically clauses 21(1) & 21(6) where the term cyberbully is mentioned.

As currently worded the “cyberbully” needs to use the computer system “repeatedly or continuously” to commit an offence against someone.  Yet, there are instances where a single action by an offending party (i.e. non-repeated or non-continuous) on a social media site against a victim can spawn a multitude of supporting actions from other entities all directed against the same victim.  For example, it not inconceivable that a single offensive tweet about someone can lead to a multitude of retweets and favourites without any follow-up action from the offending party.

In such an instance the concept of the use of a computer to “support severe repeated and hostile behaviour” as found I the original HIPCAR model law document may be more appropriate given the context and usage of the word “support”.  Again, this is one for the legal wording experts.

HIPCAR Cybercrime model law document

HIPCAR Cybercrime model law document

Clause 23:  Offence by body corporate

Interestingly, one of the areas of the Cybercrime Bill which I actually view as strengthening the cause of ensuring proper Information Security Governance within corporate entities is one of the clauses which media workers have taken issue with i.e. clause 23.  Different lens of perception leads to a different point of view!

While I fully appreciate the media workers perspective, from an ICT and Information Security perspective, I view this clause as placing responsibility squarely on the shoulders of corporate entities, and appropriate individual members of staff, to ensure that they have practiced “due diligence” in their efforts to secure their ICT infrastructure, people and processes from committing offenses identified within the bill.  Further details on my opinion of the benefits of this clause can be found in my Slideshare folder

 Conclusion

While the Government must be commended for their continued efforts to keep legislation abreast with technical advancement, it is incumbent upon the Government to ensure that as wide as possible stakeholder engagement takes place into reviewing the bill and ensuring that concerns are captured and treated with appropriately. It is also incumbent upon the Government to ensure that they have the right compliment of technical expertise on board to continuously survey the landscape of cybersecurity and cybercrime developments around the world and constantly provide feedback on policy/regulatory and legislative efforts being pursued.  

The limited review presented here is illustrative of the complexity of the issue and how its multiple dimensions resultantly produced multiple perspectives.   For example, some of the opposition I’ve heard coming from local and Caribbean based ICT professionals have to do with the harsh penalties and sentences for certain offensives; yet recently in the UK there has been overwhelming support for announcements of life sentences for certain cyberattack offenses.  

Somewhere a balance must be found and it is up to the public at large, corporate entities and institutions to inform themselves on how this bill potentially impacts them.  These views must then be presented to public officials at appropriate forums designed to receive and objectively process such feedback. Multi-stakeholder engagement is now required to find the most appropriate fit for Trinidad and Tobago.

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.