Tag Archives: Digital Rights

The Regional Subjectivity of Crime & The Tests for Guilt

A definitive statement as to what constitutes Crime has successfully evaded scholars. But one thing that they all seem to agree on is that “A person is never punished merely for wrong thinking or evil thoughts”.

“Thought Crimes” Orwell style are not offences (Or are they?).

In an age of Mass Surveillance, Kinematic Fingerprinting & Emotion Detection, Mass Data Retention & the Investigatory Powers Act and Alphabet Agency Profiling based on Digital Activities, is that still the case?

Certainly there are many examples of arrest and detention for “thinking” a certain way. But that’s not for here at this time.

Rather than examining the definition of crime in a particular country I think it is more interesting to examine it in the global context. The majority of people tend to assume that Crime and Punishment can be generally assumed to be similar everywhere that they travel to.

As someone with a wanderlust tendency who has “walked the Earth” I can assure you that is not the case.

A Moving Goalpost

The definition of “Crime” in a society has always been influenced by the prevailing norms that exist at any particular time amongst a group of people living together as a community.

Personal feelings, religious beliefs, preferences, tastes, experiences, economic expediency or laws based based on the personal opinions of a “leader” have been the motivations that translated into local laws that criminalised some acts and did not consider other acts as “criminal”.

A Simple Analogy: The Attitude to Cannabis in the USA

In 2017 I guess the simplest analogy would be the different attitude to marijuana in the United States. The use, possession, sale, cultivation, and transportation of cannabis is illegal under federal law in the United States but individual States are permitted to conditionally decriminalise cannabis for recreational or medical use.

Cannabis is listed at a Federal level as a Schedule I substance under the Controlled Substances Act of 1970 and is classified as a Schedule I drug. The DEA defines this classification as a substance that has a high potential of being abused by its users and has no acceptable medical uses.

So there exists a contradictory attitude of Federal versus certain State laws regarding the exact same matter – in the former it is a “crime”, in the latter it is not – in some States.

The Definition of Crime

“There is no one word in the whole lexicon of legal and criminological terms which is so elusive of definition as the word crime” (McCabe 1983:49)

It reminds me of the first thing that we were thought during my time as an Economics student – namely, that the study of Economics was an “inexact social science”.

Inexact laws that contain in their antecedents vague ceteris paribus (“all other things being equal”) conditions and “facts” based on local beliefs or tendencies do not constitute definitions.

The different definitions of crime and the vastly different tariffs which certain criminal offences attract are therefore, for the most part best understood in the context of the culture, religious practices and societal “norms” of the region or country that are being examined (excluding the universally abhorred offences – but irritatingly that is not always the case either).

Examples:

  • Judicial Corporal Punishment in Saudi Arabia for Possession of Alcohol (Flogging);
  • Mandatory death penalty for drug trafficking in Singapore;
  • Filipino President Rodrigo Duterte’s state sanctioned vigilante murders of suspected drug dealers;
  • The universal application of sharia (Islamic law) by certain countries;
  • The acceptance of sharia in some secular European countries as the basis for divorce, inheritance and other personal affairs of their Islamic population;

Looking around Google I came across the following definition of crime which was not accredited:

“Harmful act or omission against the public which the State wishes to prevent and which, upon conviction, is punishable by fine, imprisonment, and/or death. No conduct constitutes a crime unless it is declared criminal in the laws of the country. Some crimes (such as theft or criminal damage) may also be civil wrongs (torts) for which the victim(s) may claim damages in compensation.”

Types of Crime (In the Republic of Ireland) 

* A crime is defined in law in the Republic of Ireland as an act which may be punished by the State. The way in which a criminal offence is investigated and prosecuted depends on the type of crime involved. For these purposes criminal offences may be described in different ways such as:

  • Summary offences
  • Indictable offences
  • Minor offences
  • Serious offences
  • Arrestable offences

* Citizens Information. (19 July 2016). Classification of crimes in criminal cases. Journal, [online] Volume(Issue), P1. Available at: URL [Accessed 25th February. 2017].

The Test for “Guilt”

However, the mental state as well as the physical elements of a crime are key parts of establishing the guilt of a person committing an offence. In order for a person to be guilty of an offence there must be coincidence between two key concepts, that of “Mens Rea” and “Actus Reus”:

  • Mens Rea dictates that there must be a guilty mind, moral culpability and a blameworthy state of mind;
  • Actus Reus concerns itself with with the physical elements of the crime and excludes the mental element;

For guilt to be established then the two concepts must be coincidental “happening or existing at the same time”.

The latin phrase “Actus Non Facit Reum, Nisi Mens Sit Rea” translates as “An act does not itself constitute guilt unless the mind is guilty”.

REFERENCES

Naidoo, Jadel. 2016/2017. Diploma in Criminology Class Notes. Dublin Business School 1 (1) 1-14;

Penrose, Graham, AirGap Anonymity Collective (16 January 2017). Mass Surveillance & The Oxford Comma Analogy. Blog [online] Available at: URL [Accessed 25th February. 2017].

Penrose, Graham, AirGap Anonymity Collective (3 January 2017). Orwell 4.0: The Stealth Advance of Kinematic Fingerprinting & Emotion Detection for Mass Manipulation. Blog [online] Available at: URL [Accessed 25th February. 2017].

Penrose, Graham, AirGap Anonymity Collective (21 November 2016). NSA, GCHQ, The Five Eyes Handing Ireland Cyber-Security Opportunity. Blog [online] Available at: URL [Accessed 25th February. 2017].

Penrose, Graham, AirGap Anonymity Collective (29 October 2016). Ireland is NOT a Privacy Advocate. Blog [online] Available at: URL [Accessed 25th February. 2017].

Hausman, Daniel M. 1984. Causal Priority. Noûs, 18 (2): 261-279.

Hausman, Daniel M. 1998. Causal asymmetries. Cambridge: Cambridge University Press.

Citizens Information. (19 July 2016). Classification of crimes in criminal cases. Journal, [online] Volume(Issue), P1. Available at: URL [Accessed 25th February. 2017].

ENDS

The Irish PM, Cabinet Ministers & Head of Police Force use Gmail for Official Business

The leader of the country whose government presides over the data protection compliance of a host of global social media sites uses Gmail for government business.

Let’s just think about that for a second. The guy uses a service who in a 2013 filing, while defending a data-mining lawsuit, said that people have “no legitimate expectation of privacy in information” voluntarily turned over to third parties.

Ireland sits next door to the most surveilled society on the planet who last week passed into law the most intrusive surveillance laws ever enacted in a democracy. This is what the British have publicly declared they are willing to do to their own citizens and foreign residents and they even had the audacity to spin “that the protection of privacy is at the heart of this legislation“.

What do you think they might have in their more covert bag of tricks for use on foreign governments?

One wonders why the Irish so close to the British geographically are as so far removed from realising the national security implications of having a kindergarten knowledge level with respect to mass surveillance, industrial espionage and cyber security.

The whole sorry mess and the puerile responses from the PM’s spokespersons made to queries regarding the Irish prime minister’s use of the service were widely covered in the last two weeks by The Irish Daily Mail and The Irish Mail on Sunday in articles by  Senior Reporter Seán Dunne.

How much of Ireland’s bargaining strategy with respect to the Brexit negotiations will the British authorities possess foreknowledge of when a teeny-bopper hacker who took a few hacking 101 classes at the local tech could access the comms of the Irish politicians centrally involved in the discussion.

This blog has made it’s view of Ireland as a Privacy Advocate and the abilities of the Office of the Data Protection Commission in Ireland well known.

The office of the Data Protection Commissioner in Ireland was established under the 1988 Data Protection Act. The Data Protection Amendment Act, 2003, updated the legislation, implementing the provisions of EU Directive 95/46.

The Acts set out the general principle that individuals should be in a position to control how data relating to them is used. The Data Protection Commissioner is allegedly responsible for upholding the rights of individuals as set out in the Acts, and enforcing the obligations upon data controllers.

The Commissioner is appointed by Government and is allegedly “independent” in the exercise of his or her functions but has fallen foul several times to allegations that they are inherently political in their motives and policy.

The DPC have been censured by The High Court in Ireland regarding their a decision to refuse to investigate a data privacy complaint by Austrian law student Max Schrems against Facebook and his attempt to expose the cosy attitude to abuses of Safe Harbour.

Digital Rights Ireland have also claimed in a 2016 lawsuit that the Irish State has not properly implemented EU legislation on data protection. They claim “Ireland’s data protection authority doesn’t meet the criteria set down by the EU case law for true independence,” it added “As the Irish government has refused to acknowledge this to date, we are turning to the courts to uphold Irish and EU citizens’ fundamental rights.”

The group also claims Ireland has not properly implemented EU legislation that requires data protection authorities to be genuinely independent from the government.

DRI had previously taken a case to the Court of Justice of the European Union that led to an EU data-retention directive, then the basis for Irish law, being thrown out in 2014.

Facebook love the Irish Data Protection Commission as do all the other social media giants who not only get a free run enjoying multi-billion dollar tax breaks while the people of Ireland pay for their free ride with swingeing austerity.

Last week I received an email from Twitter and when I clicked the link I read:

“Twitter’s global operations and data transfer – Our services are a window to the world. They are primarily designed to help people share information around the world instantly. To bring you these services, we operate globally. Twitter, Inc., based in the United States, and Twitter International Company, based in Ireland, (collectively, “we”) provide the services, as explained in the Twitter Terms of Service and Privacy Policy. We have offices, partners, and service providers around the world that help to deliver the services. Your information, which we receive when you use the services, may be transferred to and stored in the United States, Ireland, and other countries where we operate, including through our offices, partners, and service providers. In some of these countries, the privacy and data protection laws and rules on when data may be accessed may differ from those in the country where you live. For a list of the locations where we have offices, please see our company information here.”

The section above that I have highlighted and italicised prompted me to tweet:

I followed this tweet up with an emailed request for clarification – which much like my many failed attempts to acquire the elusive “Blue Tick” was met with a stony silence. Which is code I think for “Please go away Mr. Penrose you are a massive pain in the neck”.

I also sent an email to the lovely Ms. Dixon, Irish Data Protection Commissioner requesting a comment. Do I need to tell you what I received? Well – just in case you own an irony bypass – I received nothing.

When regulation is in the hands of amateurs and when policy is set on subjects by people with no qualifications in the matter and when both of them are in the pay of those they are inspecting then what hope do we have really? Again recognising that some do not recognise rhetorical questions, the answer is that we have none.

END