Abstract
The exponential increase on the internet of indecent images of children (IIOC) has been followed by a transformation within criminal justice. The scale, nature and rapid technological evolution of such crimes—often of distant initial geographical origin—requires collaborative justice and harm reduction arrangements with internet companies and NGOs. The diminished reach (declining criminal justice interventions) and power (even in identifying crimes for intervention) of state authority with the current collaborative model, however, has resulted in inadequate social regulation and policing in response to IIOC crimes on the surface web. There is a considerable risk that the Online Harms White Paper proposals to establish overarching government authority to generally reduce harmful conduct will not fully resolve problems that go much wider than the technological, commercial and consumer protection on the surface web issues emphasised in that document. Only political choices about funding and fundamental rights compliant legislation can (a) prevent the hollowing out of criminal justice capacity and capabilities to deal with IIOC offenders and (b) ensure an essential compatibility and consistency in police operational ability—including the access sought to anonymised communication data via an encryption key—and legal principles when dealing with IIOC crimes across all levels of the internet, including ‘the dark web’. These issues are examined as a case study in civic epistemology about the influence of neoliberalism in technologically focused policy making.
Highlights
The concept of collaborative justice appears to have originated in the USA as a description of innovative penal thinking.[1]
The form and terms of the partnership with industry, especially ISPs and social media companies, and NGOs are no longer determinable solely within the public sphere. This model signifies: (a) a major retreat from a foundational concept of the state: that all actions deemed criminal under its laws are prioritised politically and quasi-judicially as sufficiently grave to warrant state intervention; and (b) a change in power relationships as increasingly the state’s ability to respond to certain crimes relies on often variable levels of voluntary compliance by powerful non-state partners, whose resources and political influence on technological issues may rival that of governments diminished by neoliberalism.[6]
In 2018 the industry-funded IWF (Internet Watch Foundation)[31] ensured that 29,865 UK hosted posts were suppressed or ‘taken-down’ quickly (45% within two hours). This appears to have made the UK surface web a comparatively hostile environment for indecent images of children (IIOC) commerce. This country’s estimated share of the global total of hosted child sexual abuse content is believed to have fallen from 18% in 1996 when the IWF was established to 0.04% in 2018.32 Since 2018 the IWF has been given accessed images collected during police investigations and recorded on the UK police Child Abuse Database (CAID)
Summary
The concept of collaborative justice appears to have originated in the USA as a description of innovative penal thinking.[1]. This section explains the limits of what is apparently achievable through government-industry accords for image suppression on the surface web by considering how criminals exploit platforms and communication networks that (a) cannot be regulated (ACNs and surface web services operated from countries that are relatively safe for cybercriminals84) and (b) are not regulated (but could be) such as commercially provided encryption, for example, Signal (‘going dark’) and police responses This includes the combination of anonymization techniques, for example, the combined WhatsApp and ACN connectivity revealed by Operation Tantalio’s investigation into IIOC distribution.[85] Consideration of these issues underlines how policy inconsistency between criminal justice interventions on the surface web (for which the Government appears to have a limited appetite) may weaken the policing of anonymised web communication. ICPO has the judicial authority and inspectorial experience to enforce-compliance with Convention rights in police and other regulatory interventions at all levels of and locations on the web
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