CHAPTER ONE: CONNECTIVITY AND CYBERCRIME The possession or dissemination of a range of content expressed via computer systems may be considered as criminal conduct by countries. In this respect, it is important to note that, in addition to the principle of state sovereignty, a key starting point enshrined in international human rights treaties is the right to freedom of opinion and expression.103 From this starting point, Conspiracy for preparation of a terrorist act international law permits certain necessary In May 2012, a Western European court sentenced restrictions as provided for by law.104 one of its nationals to five years of imprisonment for International law further obliges states to prohibit participation in a criminal conspiracy for the preparation of a terrorist act. At trial, the prosecution certain exceptional types of expression, including presented dozens of decrypted e-mail child pornography, direct and public incitement communications of jihadist content, which were, among others, sent to the website of the President of to commit genocide, forms of hate speech, and the country, and traced back to a member of a 105 Chapter Four incitement to terrorism. globally operating extremist group. A preservation (Criminalization) examines national, international order enabled the authorities to identify communication between the extremist group’s and regional approaches to the criminalization of member and extremist websites, including a website computer content, including from an with the stated goal of hosting and disseminating the extremist group’s documents, audio and video international human rights law perspective, in recordings, statements from warlords and suicide detail. attackers and the materials of other extremist groups. This indicated that the defendant actively performed, Computer-related acts in support of inter alia, the translation, encryption, compression and password-protection of pro-jihadist materials, which terrorism offences are included in the contenthe then uploaded and circulated via the internet; and related cybercrime category. The recent UNODC taking concrete steps to provide financial support to extremist group, including through the attempted use publication ‘The use of the Internet for terrorist of PayPal and other virtual payment systems. The 106 purposes’ observes that computer systems may court found the required sufficient evidence to be used for a range of acts that promote and demonstrate that the defendant had provided not merely intellectual support, but also direct logistical support terrorism. These include propaganda support to a clearly identified terrorist plan. (including recruitment, radicalization and Source: UNODC. 2012. Use of the internet for terrorist incitement to terrorism); financing; training; purposes. planning (including through secret communication and open-source information); execution; and cyberattacks.107 The questionnaire used for information gathering for this Study referred directly to computer-related incitement to terrorism, terrorist financing offences and terrorist planning offences.108 As such, this Study concerns only on the computer content aspect of terrorism offences and excludes the threat of cyberattacks by terrorist organizations from the scope of the analysis – an approach equivalent to that of the UNODC publication on the use of the internet for terrorist purposes. Other cybercrime acts The list of 14 cybercrime acts is not exhaustive. During information gathering for the Study, countries were invited to identify other acts that they considered to also constitute cybercrime.109 Responses included ‘computer-related tools for facilitating illegal acts related to financial instruments and means of payment’; ‘online gambling’; ‘use of an information technology device for the purposes of trafficking in persons’; 103 104 105 106 107 108 109 UDHR, Art. 19; ICCPR Art. 19; ECHR, Art. 9; ACHR Art. 13; ACHPR Art. 9. Cassese, A., 2005. International Law. 2nd ed. Oxford: Oxford University Press. p.53. and pp.59 et seq. United Nations General Assembly, 2011. Promotion and protection of the right to freedom of opinion and expression. Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. A/66/290. 10 August 2011. UNODC, 2012. The Use of the Internet for Terrorist Purposes. Available at https://www.unodc.org/documents/frontpage/Use_of_Internet_for_Terrorist_Purposes.pdf Ibid. Study cybercrime questionnaire. Act Descriptions section. See also Annex One (Act descriptions). Study cybercrime questionnaire. Q39. 19