International Journal of Cyber Criminology (IJCC) ISSN:
0974 – 2891 Vol 1 (2): 167–179
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Control in the Digital Age: An exploration of Human Rights Implications
Russell G. Smith
Institute of Criminology, Australia
information and communications technologies (ICT) have created not only a
range of new crime problems, but also facilitated prevention, detection,
investigation, prosecution and punishment of crime. Although technology has
assisted criminal justice agencies and offered many protections for suspects
and offenders, risks of infringement of human rights have arisen from the
way in which the law has responded to computer crime. This paper identifies
the principal areas of human rights concern, which the digital age has
created and assesses whether the achievements and benefits derived outweigh
the potential and actual infringements of liberty that exist. It is
concluded that policy makers have sometimes been attracted by the novelty
and efficiency of technology without having due regard to the sometimes
covert infringements of human rights which could and do occur.
Communication; Technology; Human Rights; Liberty; Internet; Computer Crime;
considers the human rights implications of crime control in the digital
age—that is, crime that involves information systems as instruments or as
targets of illegality. 'Digital', simply refers to the fact that computerized
systems operate by reducing information to streams of ‘1s’ and ‘0s’. Almost
every type of information is thus able to be transmitted across
telecommunications networks connected either by wires or by means of radio
waves. Advances in information and communications technologies (ICT) have
created not only a range of new crime problems, but also facilitated the
prevention, detection, investigation, prosecution, adjudication and punishment
of crime. Examples include the use of encryption to ensure that data are held
securely, neural networks to detect financial crime, biometric systems to
identify suspects, hard drive imaging to secure data from alteration or
destruction, sharing of data held in official databases to identify suspects
and risks, electronic courtrooms to present evidence clearly, and electronic
monitoring of offenders to enhance surveillance during periods of home
technology has assisted criminal justice agencies and offered many protections
for suspects and offenders, risks of infringement of human rights have arisen
from the ways in which legal reforms designed to deal with computer crime
risks have been framed. As Arup and Tucker (1998: 245) observed:
technology has provided authoritarian states with capacity to monitor contain
and discipline their subjects but information technology and the human rights
associated with it have also done much to undermine their hold.
identifies some areas of human rights concern which legal reforms designed to
address ICT-related crime have created and assesses whether the achievements
and benefits derived outweigh the potential and actual infringements of
liberty that exist. It is concluded that policy makers have sometimes been
attracted by the novelty and efficiency of technology without having due
regard to the sometimes covert infringements of human rights which could and
present there are no specific normative instruments that comprehensively set
out human rights applicable in the digital age. Instead, developments in ICT
have implications for the various existing international and local regimes
that seek to protect human rights (see Weeramantry 1990). These include:
Declaration of Human Rights (1948) (UDHR)
International Covenant on Civil and Political Rights (1966) (ICCPR), to
which Australia is a signatory;
International Covenant on Economic, Social and Cultural Rights (1966) (ICESCR),
to which Australia is a signatory; and
Protocol to the International Covenant on Civil and Political Rights (1966).
Declaration sets out general principles concerning physical integrity (life,
liberty, arrest, detention, torture, freedom of movement, asylum), social
welfare (social security, the right to work, rest, leisure, education),
health, adequate standard of living, the family, legal integrity (nationality,
participation in government, recognition before the law, fair trial), and
mental and moral integrity (dignity, freedom of thought, conscience and
religion, freedom of opinion and expression, freedom of peaceful assembly and
association). These rights are described more fully in the Covenants and
some countries and regions have developed their own Human Rights Conventions,
such as the European Convention for the Protection of Human Rights and
Fundamental Freedoms, the United States Constitution and the Canadian Charter
of Rights and Freedoms. There are also the British constitutional documents
Magna Carta (1215), and the Declaration of Rights (1689) which, along with the
common law, has created a climate of respect for individual liberty in English
common law countries.
there are numerous pieces of legislation that give effect to these human
rights principles, although there is no national level Human Rights Act. At
the federal level there are some twenty Acts that are relevant to the
protection of human rights including the Human Rights and Equal Opportunity
Commission Act 1986, which protects certain specific rights such as freedom
from various forms of discrimination. There are also over 80 state and
territory Acts that protect human rights in various ways dealing with
principles of anti-discrimination, freedom of information, equal opportunity,
adherence to the rules of natural justice, to mention a few (for a full list
http://www.hreoc.gov.au/hr_explained/hr_in_australia.html). In the
Australian Capital Territory, various rights are also now protected under the
Human Rights Act 2004 (ACT) and the Human Rights Commission Act 2005 (ACT)
which is based on the International Covenant on Civil and Political Rights. In
Victoria, since 1, January, 2007, human rights are also protected under the
Charter of Human Rights and Responsibilities Act 2006 (Victoria).
The purpose of
the following discussion is not to assess whether legislation in Australia
relevant to cyber crime complies with each Convention or piece of legislation,
but rather to indicate some areas in which human rights concerns have been
identified, and also to point to potential areas of infringement if certain
technological developments occur. At present Australia can be guided by what
has occurred in various overseas countries which have enacted local human
rights legislation, or whose legislation has been challenged in the Human
Rights Commissions or higher courts.
are at Risk from Crime Control in the Digital Age?
In the digital
age, misuse of ICT can take place in relation both to government and private
sector activities. Most human rights principles are directed at identifying
and preventing abuses by government agencies, although recently we have seen
an extension of privacy protections from the public sector to the private
sector. In addition, human rights abuses can arise from the actions of
individuals, which give rise to the need for governments to enact laws to
protect citizens both from the acts of government agencies as well as other
individuals and corporations, a point recognized by Arup and Tucker (1998),
some time ago. The present discussion focuses on abuses which can occur in
criminal justice contexts involving cyber crime, which increasingly are
inclusive of private corporations as providers of investigative, judicial and
Weeramantry (1983: 17-21) has identified various technological advances which
could detract from basic human rights unless regulated by legislation. Over
the last twenty years many new issues have arisen and Table 1 sets out those
areas of concern that relate to the regulation of ICT in the context of
criminal justice in the 21st century.
Table 1 -
Potential Human Rights Infringement
with ICT and its Regulation
Sources of Possible Denigration by ICT
freedom and dignity
(UDHR art 1,
ICCPR art 10)
surveillance (listening devices, CCTV)
matching by government agencies
tagging of offenders
discrimination (UDHR art 2, ICCPR art 26)
thought and expression
18, 19, ICCPR art 18, 19)
Denial of service attacks
bodily security and freedom from inhuman punishments (UDHR art 3, 5, ICCPR
tagging of offenders
computer chips in humans
Right to a
fair trial, presumption of innocence, freedom from self-incrimination (UDHR
art 11, ICCPR art 9, 14)
of encryption keys / passwords
electronic evidence in court
of electronic evidence
to online information
Right to own
property and protect intellectual property (UDHR art 17, 27.1)
12, ICCPR art 17)
matching by government agencies
marketing and spam
(UDHR art 3,
ICCPR art 6)
punishment for cyber crime
participate in government and vote
21, ICCPR art 25)
of electronic voting activities
from Weeramantry (1983: 17-21).
* UDHR -
articles of the Universal Declaration of Human Rights (1948);
ICCPR - articles of the International Covenant on Civil and Political Rights
are relevant to infringements of human rights include: the Internet, DNA
analysis techniques, biometric identification technologies, CCTV and mobile
phone cameras, listening devices, networked databases and neural networks for
data analysis, voice recognition systems and others. Many of these
technologies were developed by the military and security industry in the 1940s
during the Cold War for policing and national security purposes. Since the
1990s, their miniaturization and power has increased immensely. It needs to be
emphasized that potential infringements of human rights most often arise
following the introduction of legislative measures designed to regulate these
new technologies, rather than from the creation or usage of the technologies
With the advent
of personal computers and wireless technologies in more recent times, the
capacity to carry out complete surveillance of people is astounding, although
the idea of the 'surveillance society' has its roots in much older times. In
the late 18th century, Bentham designed his 'Panopticon' or total institution
in which those in charge could monitor the activities of inmates, be they
prisoners or patients in hospitals, easily through the use of specially
designed buildings (Semple 1993). Foucault (1977) identified the societal
implications of the power imbalance that would result in discipline and
punishment. Unfortunately, technologies of surveillance have since developed,
often with less than adequate controls over potential abuse.
Potential Human Rights Infringements
Control in the Digital Age
Over the last
thirty years during which cyber crime and its control have developed, we have
witnessed many examples of the misuse of ICT, and legislative responses to it,
that could be said to have infringed human rights. The following are some
illustrations that have been detected or which individuals have raised as
potential infringements. Some relate to abuses of normative instruments in
other countries, especially the United States Constitution, and so are not of
direct relevance to Australia at present. Others relate to more universal
human rights and so have particular importance in Australia. The following is
not an exhaustive list, but serves to illustrate the kinds of issues that
exist in the 21st century. It can be anticipated that the years ahead will see
an escalation in these and other potential forms of human rights abuses.
group of rights that has relevance to ICT concerns the protection of privacy.
In Australia, the legislative protection of privacy came relatively late in
1988 with the enactment of the Privacy Act 1988 (Commonwealth) and the more
recent Privacy Amendment (Private Sector) Act 2000 (Commonwealth). There are
also privacy laws in some states and territories, such as the Privacy and
Personal Information Protection Act 1998 (New South Wales) and the Information
Privacy Act 2000 (Victoria). However, Australian privacy laws are not
particularly strong legislative instruments as remedies for breach of privacy
are generally by way of declaration rather than criminal punishment, and
private sector compliance is largely through voluntary codes of practice.
of privacy in Australia arguably lags behind privacy protection in Europe,
where various Privacy Directives have implemented protections under the
European Convention for the Protection of Human Rights and Fundamental
Freedoms. Recent measures include the Privacy Directive (95/46/EC) and the
Privacy and Electronic Communications Directive (2002/58/EC) (see Smith,
Grabosky & Urbas 2004).
The ability to
monitor computer usage creates a number of potential human rights concerns
including infringements of human freedom, freedom of thought and expression,
and the right to privacy. Although the monitoring of emails and Internet usage
by employers is usually undertaken with the knowledge of employees, informed
and free consent is sometimes lacking.
certain are situations in which ISPs and telecommunications carriers monitor
computer usage or provide logs to government agencies. Article 20 (real-time
collection of traffic data) and Article 21 (interception of content data) of
the Council of Europe's Convention on Cyber crime, for example, have been
criticized as involving breaches of human rights in requiring organizations to
collect traffic data and the content of communications and make this available
to law enforcement agencies (Taylor 2001).
towards the creation of electronic identity cards, e-Passports and
data-matching also raise potential infringements of privacy which need to be
addressed prior to the widespread implementation of such initiatives. Hong
Kong, for example, has developed multi-use ID smartcards which contain basic
biometric information such as thumb prints and a photograph, and are capable
of multiple functions including use as drivers’ licenses and as library cards
(Benitez 2002). A pilot program for a biometric ID card has also been
implemented in Britain, in relation to asylum seekers (McAuliffe 2002).
Some of the main
privacy concerns which affect biometrically enabled identity cards include
fears that information will be gathered without permission or knowledge, or
without explicitly defining the purpose for which it is required; that
information may be used for a variety of purposes other than those for which
it was originally acquired (‘function creep’); shared without explicit
permission; or used to track people across multiple databases to amalgamate
information for the purpose of surveillance or social control.
In addition to
complying with privacy principles and privacy legislation, additional measures
may be needed to enhance privacy protections in the digital age. These include
mandating the use of specified levels of encryption for the capture, storage
and transmission of data, limiting database matching except under close
scrutiny by independent observers, preventing the reconstruction or retention
of original biometric samples from encrypted biometric information, and
preventing comparisons with reproductions of biometric information not
obtained directly from individuals. Some of these aspects may require
amendments to the Privacy Act 1988 (Commonwealth).
Seizure and Criminal Trials
legislation is expanding greatly the range of investigatory powers available
to law enforcement agencies to deal with such problems as concealing
electronic evidence through the use of encryption. Those countries
unconstrained by a Bill of Rights have devised a simple solution to the
challenge of encryption. They simply require individuals to disclose
encryption keys or face criminal charges. In the United Kingdom, this can
entail imprisonment for up to two years (Regulation of Investigatory Powers
Act 2000 (England) ss. 49-55). In Europe, Article 6 of the Rome Convention
could be a barrier to such compulsory disclosure, although the European
Commission on Human Rights has restricted the scope of the article to oral
statements. Nevertheless, European procedures for compulsory decryption would
have to be formulated precisely in order to withstand judicial scrutiny
(Smith, Grabosky & Urbas 2004: 67).
Cybercrime Act 2001 (Commonwealth), provides a maximum penalty of six months’
imprisonment for failure to comply with a Magistrate’s order to provide such
information to investigating officials (see s. 3LA Criminal Code Act 1995
(Commonwealth) and s. 201A of the Customs Act 1901 (Commonwealth)). Arguably
this could infringe article 14(3) (g) of the ICCPR which provides that a
person shall not be compelled to testify against himself or to confess guilt.
The Council of
Europe's Convention on Cyber crime (2001) incorporates various provisions
designed to safeguard human rights norms and privileges in connection with
cyber crime investigations, such as requirements for judicial or other
independent supervision, proportionality, and respect for and consideration of
the rights of third parties. Given the strength of the provisions allowing
search, seizure and surveillance, however, these have been criticized by some
privacy advocates as being inadequate (Taylor 2001).
particular area of concern relates to the use of 'keystroke logging' software
which can be installed remotely on computers to capture information such as
passwords and decryption keys typed on keyboards. Some have argued that such
activities infringe the United States Constitution's Fourth Amendment right
against unreasonable search and seizure. In one case, FBI agents in the United
States tricked a pair of suspected hackers out of passwords and account
numbers and then downloaded evidence from their computers in Russia.
States District Court rejected several motions filed on behalf of the
defendants who sought to suppress the evidence obtained from their computers.
They argued that the FBI agents had violated their Fourth Amendment right
against unreasonable search and seizure by secretly obtaining the passwords
and account numbers using a 'sniffer' program that recorded their
keystrokes when the FBI agents remotely accessed the computers in Chelyabinsk,
The court found,
that the defendants had no expectation of privacy when they sat down at
computers at an FBI office set up to lure the suspects to the United States
with offers of work in the computer security field. When they sat down at the
networked computer they knew that the systems administrator could and likely
would monitor their activities.
The court also
found that the Fourth Amendment applied neither to the computers because they
are the property of a non-resident and located outside the United States nor
the data, at least until it was transmitted to the United States. The judge
noted that investigators then obtained a search warrant before viewing the
nearly 250 gigabytes of data. He rejected the argument that the warrant should
have been obtained before the data were downloaded, noting that the agents had
good reason to fear that if they did not copy the data, the defendants'
co-conspirators would destroy the evidence or make it unavailable (United
States v Gorshkov and Ivanov 2001 WL 1024026 W.D.Wash.).
relation to the gathering and use of electronic evidence also can be placed in
jeopardy because of the extent of electronic information that has been
gathered. Often it will be necessary for police to image an entire computer's
hard drive when executing a search warrant, despite the fact that much of the
data copied will be irrelevant to the investigation. If the irrelevant
material contains evidence of unsuspected criminal activity by other persons,
their rights may be adversely affected.
In relation to
criminal trials, a number of human rights implications arise. The rights to a
fair trial, the presumption of innocence, and the freedom from
self-incrimination are all established rights (UDHR article 11, ICCPR articles
9, 14) which could be infringed where ICT is used to gather and to present
evidence. Risks could arise where electronic evidence is presented in court
proceedings which may be unduly prejudicial to the accused or where jurors
undertake private online research into the background of an accused contrary
to directions from the judge. In both New South Wales and Queensland it is an
offence for a juror to undertake investigations on the Internet or otherwise
(Jury Act 1977 (New South Wales) s. 68C; Jury Act 1995 (Queensland) s. 69A).
The extent of online information is such that prejudicial material could
easily be discovered by jurors during a trial, with few opportunities for the
judge or defense counsel to learn of this potential problem (see Spigelman
An example of
this occurred recently in New South Wales. The accused had been convicted of
murder of his first wife, but the Court of Criminal Appeal ordered a re-trial.
He had also been tried and acquitted of the murder of his second wife. Both
wives were from the Philippines and a Website called The Solidarity
Philippines Australia Network contained material which was prejudicial to the
accused. During the re-trial, a juror conducted Internet searches and
inspected the Website and discovered that he had been tried and convicted of
murdering his first wife and charged and acquitted of murdering his second
wife. The Court of Criminal Appeal set aside the conviction in the re-trial
because of the conduct of the juror in obtaining access to the information
contained on the Internet. It ordered a further re-trial as a result of which
the accused was convicted of murdering his first wife (R. v K (2002) 59 NSWLR
431; 144 A Crim R 468;  NSWCCA 406).
infringement of anti-discrimination laws in the digital age can arise in
situations in which persons accused of illegal online activity claim to be
acting due to some form of impairment. A Canadian civil case, for example,
involved the dismissal of a University academic for using his employer’s
equipment for downloading child pornography (Re Seneca College and Ontario
Public Service Employees Union, Local 560, 109 L.A.C. (4th) 334, 2002 L.A.C.
Lexis 160, File No. MPA/Y200927 (2002). The professor, who had pleaded guilty
to criminal charges, was given a suspended sentence and placed on probation
for two years.
He sought to
challenge his discharge from the college on the grounds that it arose from a
mental disorder that could be considered a disability under Ontario’s Human
Rights Code. Accordingly, it was argued that he had been discriminated against
on the basis of mental disability. The professor, who lived under difficult
circumstances with his ageing parents, claimed to have used the Internet as an
escape from the sadness and isolation that characterized his personal life. He
claimed that he was unable to control his impulses.
The Court held
that evidence did not support a conclusion that the professor was suffering
from any form of medically recognized mental disorder. His inappropriate use
of the college’s computers was both selective and controlled, and the
depression for which he was temporarily hospitalized was brought about by his
impending dismissal from the college as a result of his misconduct. These
findings served to neutralize any justification for therapeutic use, or and
extenuation based on compulsive behavior. His dismissal from the college was
upheld (see Smith, Grabosky & Urbas 2004: 79).
Thought and Expression
The UDHR and the
ICCPR establish rights to freedom of thought, conscience, religion and
expression. In the digital age infringements could arise from both government
agencies and business organizations and other individuals. In the case of
organizations, surveillance of email and mobile phone communications could
entail infringements of freedom of expression. In the case of individuals, the
dissemination of spam, racist material or distributed denial of service
attacks could infringe other people's human rights. Laws which restrict online
content in various ways including obscene or defamatory materials could also
involving breaches of freedom of expression.
These rights are
obviously not unrestricted, and the Conventions allow for limitations in order
to protect the rights or reputation on others and for the protection of
national security, public order, public health and morals. Clearly, the
Internet creates an environment in which these rights are difficult to
for example, several States and territories have enacted various criminal laws
prohibiting racial and religious vilification, although at the Commonwealth
level, as with privacy, the approach has been less punitive. In a case
concerning Fredrick Toben’s Adelaide Institute, for example, the Human Rights
and Equal Opportunity Commission (HREOC) ordered a website questioning the
historical occurrence of the Holocaust to be closed down, but there were no
criminal penalties involved (Jones v Toben, 2001 / 2002, HREOC / FCA).
The issue of
‘cyber racism’ has also recently been addressed by the Council of Europe. In
May 2001, the Council’s Convention on Cyber crime was opened for signature,
together with a First Additional Protocol concerning criminalization of Racist
and Xenophobic propaganda over the Internet, aimed at harmonized approach to
the criminalization of such content as well as investigative issues and
international assistance (Smith, Grabosky & Urbas 2004).
In the United
States, it has been argued in some cases that the imposition of restrictions
on the use of computers or monitoring of online activities of convicted
offenders infringes the First Amendment of the Constitution concerning freedom
of speech. It has been held, however, that as long as restrictions are
reasonably related to the offence and defendant’s history, are primarily
designed to protect the public and promote rehabilitation by preventing
recidivism, are expressly related to those ends, and particularly in light of
defendant’s past conduct, involve no greater deprivation of liberty than is
reasonably necessary to achieving those ends, they should survive a First
Amendment challenge (Painter 2001, and United States v Ristine (Eighth
Circuit, 2 July 2003) and United States v Mitnick (Ninth Circuit, 14 May 1998,
145 F.3d 1342 C.A.9 (Cal.), 1998)).
The famous case
involving Kevin Mitnick who, in addition to being sentenced to almost five
years’ imprisonment and ordered to pay US$4,125 in restitution and to assign
to his victims any proceeds he may receive from selling the story of his
conduct, was subject to stringent conditions during his three year period of
parole. These included a complete prohibition (without prior express written
approval of the probation officer) on the possession or use (personally or
through third parties), for any purpose, of the following: cell phones,
computers, any computer software programs, computer peripherals or support
equipment, personal information assistants, modems, anything capable of
accessing computer networks, and any other electronic equipment presently
available or new technology that becomes available that can be converted to,
or has as its function, the ability to act as a computer system or to access a
computer system, computer network, or telecommunications network. In addition,
Mitnick was prohibited from acting as a consultant or advisor to individuals
or groups engaged in any computer-related activity.
Mitnick appealed against this order on the basis that it involved a violation
of his First Amendment rights and because it was said to be vague and overly
restrictive. The Appeals Court held that the district court had not abused its
discretion because the conditions imposed were reasonably related to
legitimate sentencing goals and were no more restrictive than necessary.
Conditions which restrict otherwise lawful activities are still legitimate
when the defendant, by engaging in them, might be tempted to commit further
crimes. Also, the fact that Mitnick may have engaged in otherwise prohibited
conduct with his probation officer's approval made the conditions imposed less
restrictive that an outright ban on such conduct.
Court also rejected Mitnick's contention that the supervised release
conditions impermissibly restricted the exercise of his First Amendment rights
of freedom of speech. Despite the increasing pervasiveness and importance of
the Internet as a communication tool, restrictions on access to such
technology 'are proper if related to and reasonably necessary to promote the
goals of sentencing.' As long as the conditions were expressly related to
preventing recidivism and did not go beyond what was reasonably necessary,
they would be valid. Mitnick also contended, that the district court erred by
imposing supervised release conditions which restricted his employment in the
computer and telecommunications industries as well as employment in which
Mitnick would have access to computers and computer-related equipment. The
district court was held not to have abused its discretion because a reasonably
direct relationship existed between Mitnick's possible occupation and his
offences (United States v Kevin Mitnick, 1998 WL255343, 9th Circuit 20 May
The rights to
participate in government and to vote by secret ballot or free voting
procedures are specified in the Universal Declaration and ICCPR (UDHR article
21, ICCPR article 25). Where electronic or online voting procedures are used,
potential infringements could arise from individuals who do not have access to
computers being disenfranchised, surveillance of voting activities by citizens
or from manipulation of information provided to voters. Problems of the
authentication of the identity of individuals will also arise (Smith 2002).
Article 7 of the
ICCPR provides that 'no one shall be subjected to torture or to cruel, inhuman
or degrading treatment or punishment'. Capital punishment is still employed in
a number of countries and in some rare instances in China, capital punishment
has even been ordered for computer-related offences (see People’s Daily Online
2000 – a case in which a 36 year old computer hacker in Hangzhou Province was
sentenced to death for embezzling 1.66 million Yuan (about US$200,000) by
counterfeiting bank paper and misappropriating funds from customers’ accounts
from the bank at which he was employed as an accountant).
The use of
electronic monitoring as a punishment, if sufficiently invasive, could also,
arguably infringe this article. Electronic monitoring is undoubtedly an
invasive technology that involves the physical attachment of a device to a
person. Modern technologies are also psychologically invasive in the sense
that the person’s every move can be tracked, other than when the device is
programmed to be off. Fox (1987) reported that 'those who have experienced the
regime of [electronically] monitored home detention indicate that it is
psychologically wearing and more onerous in terms of self discipline than the
world of prison'.
conditional orders which require the surveillance of offenders must not be
unreasonable in their potential to interfere with the offender’s life. In the
Northern Territory case of Dunn v Woodcock ( NTSC 24 Supreme Court of
the Northern Territory, 20 March 2003), conditions were imposed on an offender
convicted of unlawfully supplying cannabis, which required her to consent to
any number of searches at any time during the day or night over a period of
twelve months, irrespective of whether or not the police had reasonable
grounds for believing that there may be dangerous drugs concealed upon her
premises, and even if a search warrant had not been obtained. The court
considered that the condition placed an unreasonable burden on the offender as
it placed her in the power of the police who could exercise very substantial
control over her life by the mere threat of exercising the power to search
unreasonably or unfairly. The court struck out the condition on the grounds
that it was unduly oppressive.
A more invasive
development involves the use of computer chips embedded beneath the skin of
offenders, albeit with their consent (The Economist 2002). Miniature tracking
devices can be implanted beneath the skin and can track an individual’s
location as well as monitor physiological signs. Although these may be removed
using a simple surgical procedure, the potential for civil action for any
adverse consequences of the surgery or the implant itself, demands serious
consideration before any such developments take place. Professional ethical
issues also arise for doctors involved in the non-therapeutic implantation and
removal procedures. In the United Kingdom, there have been indications that
the government may consider the use of surgically implanted devices for
convicted pedophiles (Bright 2002).
recently enacted legislation that enables, inter alia, control orders, which
may include electronic monitoring, to be made in respect of persons in
situations in which such orders will substantially assist in preventing a
terrorist act, or where it is suspected on reasonable grounds that a person
has provided training to, or received training from, a listed terrorist
organization (Criminal Code Act 1995 (Cth), Division 104).
In making an
order, the Judge must be satisfied on the balance of probabilities that the
order to be imposed is reasonably necessary and reasonably appropriate and
adapted for the purpose of protecting the public from a terrorist act (s.
104.3(c)). Such a control order can be made for up to 12 months, except in the
case of 16 to 18 year olds which can only be made for up to 3 months. Control
orders cannot be made in respect of people less than 16 years of age. Failure
to comply with a control order, such as by removing a tracking device, carries
a maximum penalty of 5 years' imprisonment (s. 104.13). The Attorney General
must provide written consent prior to such orders being sought from a Judge.
Electronic monitoring is defined in the legislation as a 'tracking device'
which means any electronic device capable of being used to determine or
monitor the location of a person or an object or the status of an object (s.
Although the use
of electronic monitoring in this context would entail similar issues to its
use in correctional settings, the manner in which the legislation has been
framed in Australia has raised numerous legal and human rights concerns (see,
for example, Byrnes, Charlesworth & McKinnon 2005). These questions relate
principally to the legal protections that govern the making of orders, their
constitutionality and their compliance or otherwise with international human
rights protections. Questions also arise concerning the effectiveness of such
orders in enabling government agencies to gain useful information about
terrorist threats. Clearly if a suspect were required to wear an electronic
device, he or she would no longer be included in terrorist activities as the
risks of detection would be substantial. It remains to be seen whether
electronically-monitored control orders will be used, and to what extent, and
whether or not these human rights concerns will eventuate. Once again, it
needs to be emphasized that these potential infringements for human rights
arise from the legislative measures introduced, rather than from the creation
and use of the monitoring technologies themselves.
How Can We
Prevent Human Rights Infringement in the Digital Age?
prevention of human rights infringements in the digital age lies with
individual legislatures which should ensure that new legislation complies with
current international and local normative instruments. In addition, the
private sector could play a part in preventing abuses by designing new
technologies in ways that prevent or minimize potential human rights abuses.
Thus, the protection of human rights can best be achieved through an
interaction between technological innovation and policy reform.
and software developers could be persuaded to build into new products
technological solutions to problems that concern human rights when developing
new technologies. An example is the use of systems which prevent illegal
copying of data to protect copyright.
Second, it is
important for the human rights implications of new technologies to be examined
before they are introduced, not after. Fox (2001, p. 268) notes the need for
academics to question the use of new technologies, while Kirby (1998: 331) has
stressed the need for ongoing and informed debate about the social
implications of new technologies, and the desirability of establishing global
principles to guide the use of new technologies.
cautionary observation of Casella (2003: 92) is worth recalling in the present
The longer a
technology is used, the more entrenched in life it becomes. When technologies
are new, or are used in newer ways . . . their uses are easier to modify and
their consequences easier to control. . . . If we wish to question the
unintended consequences of these developments, now is the time to do so.
rigorous evaluative research needs to be conducted once new technologies have
been introduced in order to monitor their potential for denigration of human
rights and infringements of international and national laws. The reporting
requirements under international law should be taken seriously by governments
and individuals and organizations should be encouraged to report infringing
practices immediately they appear.
capitalist marketplace where corporate reputations are important, having a
link to new technologies that infringe human rights may be a powerful
deterrent and a useful way of ensuring that some of the more egregious
developments in the digital age are avoided. At the same time, the development
of technologies to protect and to enhance human rights could be a powerful
marketing feature. An example would be the use of biometric user
authentication technologies to protect personal identity information. Ideally,
those responsible for technological innovation should work closely with human
rights advocates and policy makers to prevent potential problems from arising
during the development phase of new technologies, rather than devising
solutions once problems have arisen and human rights have been infringed.
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Principal Criminologist; Manager, Global, Economic and Electronic Crime
Program, Australian Institute of Criminology, GPO Box 2944 Canberra ACT
2601, Australia. Email:
“The views expressed are those of the author alone and not the