“The Role of ISPs in the Investigation of Cybercrime” in Information Ethics in an Electronic Age: Current Issues in Africa and the World, ed. Thomas Mendina and Johannes Britz (Jefferson, North Carolina: McFarland Press, 2004).
In this chapter, co-authored by my good friend and colleague Daphne Gilbert, we describe the changing role of internet service providers (ISPs) from trusted stewards of clients’ personal information to “agents of the state”, from gatekeepers of privacy to active partners in the fight against cybercrime. We begin with an investigation of the role of ISPs as information intermediaries and consider how information intermediaries can be used by law enforcement agencies. This is done through an examination of a Canadian search and seizure case, where an ISP was said to act as an “agent of the state” after sending copies of a client’s personal emails to the police of without his knowledge or consent. We argue that the “agent of the state” analysis is especially important in light of the Council of Europe’s Convention on Cybercrime. Finally, we conclude by considering the privacy implications of the evolving roles of ISPs and their shifting technological architectures, arguing that the changing face of our communications infrastructure must be built with safeguards that will not only further the goals of national security and law enforcement but will also preserve and promote personal privacy.
