Cyberspace, Surveillance and Law: a legal informatics perspective

Filippo Novario

Abstract


Nowadays, cyberspace is where a large amount of our social life takes place. Its social impact involves the necessity of surveillance, just as much as it is needed in what can be defined as the 'real' world. Surveillance techniques are made up of network monitoring through software that allow the acquisition and analysis of digital elements. These tools can allow a clear vision of the electronic communications that have crossed the cyberspace. These software allow the observation of contents in real time and the storage of data in databases for its examination afterwards. Data is bound to its properties and related information and can be a target for digital forensic acquisition using computer forensic techniques - the discipline for the acquisition, custody and analysis of data for judiciary purposes - so that it can be used as evidence in court.

The impact of this type of technology on cyberspace monitoring is significant. Whoever organizes surveillance activities has all the data from the whole of cyberspace at his disposal, together with their properties, in a database that can be queried and exploited for its filing properties. The impact on web users is also considerable and full of problematic issues. The influence of these technologies on the delicate equilibrium between surveillance needs and fundamental human rights is unavoidably high, particularly regarding online privacy rights. The problematic issues can be analyzed and resolved using legal informatics solutions aimed at balancing technique and law in a way that does not pervert one of the two in favor of the other. The issue must be faced based on the rule of technical experience that 'it's not the software that can be legal or not, it's all about how it's used'. It is a rule that says that these kinds of software cannot and must not be put under accusation: They are developed for a precise purpose that they perfectly fulfill. The technical configuration, influenced by the user's will and purposes, could instead be a topic for discussion. As with any software, these tools also have to be installed and configured, according to the user's needs, in this specific case the police force's needs. The fact that even only some cyberspace areas can be monitored requires decisions that fall into in the technical-juridical field and that have to be taken before the tool's installation. This decision-making moment is the real fulcrum of the informatics law issue: How can cyberspace surveillance be organized so that it can be effective for the police authorities, yet at the same time protect users? The solution to this problem lies in legal informatics: Best Practices need to be developed, with juridical techniques regarding the selection of the best option, transparency and ethics of cyberspace surveillance activities.


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