Civil Liberties and Security in Cyberspace - Hoover Institution

Hoover Press : Cyber DP5 HPCYBE0500 06-11-:1 11:53:04 rev1 page 216
216 Ekaterina A. Drozdova
Regardless of the existing domestic and international legal safeguards,
violations of due process principles persist around the world.
The U.S. State Department reports widespread denials of basic legal
protections and due process to criminal defendants, detentions without
trial or charge, prolonged pretrial detentions and trial delays,
illegal searches, and infringements on citizens’ privacy rights. 79
Requirements for due process of law and accountability apply fully
to computer-related cases. They also augment technological, legal, and
organizational challenges involved in combating cyber crime. Effective
and timely information exchanges among ISPs, technical experts, and
law enforcement can improve investigative functions. A global incident
response capability may require teams of technical, legal, and
police experts, linked to their respective organizations, to track trends
and activities of known and potential cyber criminals and terrorists.
Accomplishing such cooperation among individuals and organizations
with different goals, cultures, and procedures is likely to be difficult
from the operational standpoint. The legitimacy of specific methods
used to accomplish such goals will be judged according to specific
situations.
General warnings are also appropriate. Proposals have been made
to assign a presumption of guilt to suspects who withhold decryption
keys, unless the defense could somehow prove nonpossession. 80 Reversing
burdens of proof in this manner may deprive an accused of the
right to a fair trial. Extensive profiling of individual behaviors on the
Internet may lead to self-incrimination. Once an infrastructure for
est protectors of this right from the perspective of the accused. See Lensing, in Bradley,
ed., Criminal Procedure, pp. 427–28. Russian citizens have a constitutional right to
qualified legal counsel, but the law permits both licensed attorneys and nonlawyers
(members of a social organizations or close family) to act as defense counsel in criminal
proceedings. See Newcombe, ibid., p. 290. In China, judges appoint legal counsel to
criminal defendants if they consider it necessary. See Liling Yue, ibid., p. 88.
79. See, e.g., “1999 Country Reports on Human Rights Practices,” Bureau of
Democracy, Human Rights, and Labor, U.S. Department of State, February 25, 2000,
available at http://www.state.gov/www/global/human_rights/99hrp_index.html.
80. Bowden, “Unprecedented Safeguards.”