Crime on Social Media – The Case for Linking Users’ Social Media Registrations to their National Identity Number
OVERVIEW: After discussing the problems with regulating, policing and crime that is investigating violence on social media, the project will now deal with the issue of responses to the challenges. The purpose of this chapter is to assess the effectiveness associated with the current UK approach to regulating crime on social media and present the alternative of linking users’ social media registrations making use of their national identity number. Firstly, the current UK approach will be assessed by examining its theoretical foundations and how it is often implemented in the context of social media. Secondly, the chapter will present the proposal of introducing the measure of linking users’ registration to their ID by referring to two examples of cases in which a similar requirement has been put in practice – the mandatory registration of prepaid SIM cards in some states and the Sina Weibo social media in China. Finally, the chapter will discuss the potential of the measure to address the challenges of regulation and investigation of crime on social media in the UK.
The current UK approach is best summarised in the House of Lords Select Committee on Communications report on social media and criminal offences: ‘what is not an offence off-line should not be an offence online.’ According to the conclusions of the report, the existing UK legislation is capable of dealing with task of regulating crime on social media. The substantive side of this approach is defined out in the Crown Prosecution’s Service October 2016 tips on prosecution of crimes involving communications transmitted through social media. The guidelines divide the offences on social media in four categories – (1) communications which constitute threat to violence or damage to property; (2) communications that specifically target individuals (harassment, stalking, controlling behaviour, revenge pornography, etc.); (3) communications which amount to a breach of a court order or a statutory prohibition (juror misconduct, contempt of court, breach of restraining order, etc.) and (4) grossly offensive, indecent, obscene or false communications. It sets out the existing primary legislation, tackling crime on social media and the maxims when applying it – there was high threshold at the evidential stage, the context of social media where communication is instantaneous, casual, often ill thought out and with unintended consequences, the public curiosity about prosecution of crime on social media and Art. 10 ECHR on freedom of expression.
Summary of the Current UK Approach in Respect to Crime on Social Media:
The current UK approach is based on the principle of online-offline equivalence – the presumption that there should be equivalence of treatment between online and offline activities and online and offline law respectively. The principle is divided into equivalence of application (the obligations imposed by the legal norm should be equivalent) and equivalence of the law ( the consequence of applying a norm should be equivalent). While equivalence of application can easily be achieved, equivalence of outcome is not at all guaranteed in full in respect to Internet law.https://medium.com/@vladimirtrofimov049/3-best-business-essay-samples-89565e1951d8 Examples of such divergence of outcomes are the application of copyright law to the online environment which is based on the principle of copying, regulation of search-engines which can not be equated to that of telecoms, access providers or broadcasters.
Social networking platforms converge audio-visual and print media with communication platforms, thus making the implementation of the online-offline equivalence principle problematic. Crime on social media differs from crime in the physical world. For example, cyberbullying differs from bullying in several ways. In the majority of cases, the victims do not know their perpetrators – roughly in about 31 per cent of cases victims know their perpetrator. This has important implications for the victims as it reinforces the perpetrators’ sense that they can act without fear of punishment and makes them commit crimes that they would not otherwise commit in actual life. Even though the victim of traditional bullying can physically escape the torments of the bully, cyberbullying victims are deprived of this option as most people use technology on a regular basis, therefore the victim is tormented at any time and any place without having any safe place to retreat to. There was scientific research showing that some forms of cyberbullying cause more harm than traditional bullying, especially cyberbullying involving circulation of videos and images as once such content is released on social media, its reach grows exponentially and it is difficult to restrict it, causing permanent humiliation of the victim.
Given these substantive differences, it really is hard to see how the principle of online-offline equivalence can lead to adequate regulation of cyberbullying on social media. Firstly, in terms of equivalence of application, as there was inherent difficulty in determining the perpetrators of cybercrimes, and thus, criminals feel that they can act with impunity, it’s not possible to apply the law online in the same manner as in the physical world. Secondly, as far as equivalence of outcome is concerned, as the harm caused by cyberbullying might be greater than the harm caused by traditional bullying, applying the same law does not produce the exact same result in terms of delivering justice to the victims. Cyberbullying is only an example of a social media-assisted crime. The situation of inadequacy of the current legislation is even worse in respect to social-media enabled and social-media dependent crimes. For example, there are no easily available legislative means of prevent the release of unsettling live videos on Facebook – a criminal practice that became commonplace after the release of the ‘Facebook live’ feature in 2016.
All of this demonstrates that contrary to the claim made by the House of Lords report that the existing UK legislation is capable of dealing with crime on social media, this is simply not the case, and either serious adjustment to the existing framework becomes necessary, or fundamentally new legislation that deals specifically with the issue of cybercrime should be enacted. A requirement to link social media user registrations with the users’ national identity number is a proposal in light of those problems.
This idea originates from the policy in some states to oblige mobile operators to require proof of identity from users when they sign up for a pre-paid sim card. This requirement is justified on grounds of facilitating law enforcement agencies in apprehending criminals and terrorists, thus resulting in reduction in crime, terrorism and anti-social behaviour. It was applied in practice in the context of Internet services in China where in 2011 the government introduced a law requiring users of many online services to register making use of their names and provide their national ID number. This has been put in practice by the biggest Chinese social networking platform – Sina Weibo. How this proposal has worked in practice will be discussed below.
The rationale that different states use for introducing such a policy differ, but the most common one is curbing criminal activity. Other reasons include curbing widespread theft of mobile phones. Such is the scenario in Latin America where in actuality the cellular phone identification number (IMEI number) is registered against a particular SIM to facilitate investigation of theft. In other countries, the primary concern is to ensure that there was adequate age verification process. According to the conclusions of the GSM Association’s 2016 report on the subject, the decision of states whether to adopt such a policy is directly linked to the availability of national identity documents that can be matched against an official government registry. For example, the UK has no formal verifiable ID system. The repealed Identity Cards Act 2006 contained a provision for establishing a national identity register, which was to be a reliable record of registerable facts about individuals in the UK. The lack of a national identity register and uniform proof of ID is thus linked to the lack of a requirement for mandatory registration of pre-paid SIMs. In cases where there is absolutely no verifiable national registry and proof of ID is requested upon registration, often the physical presenting of the documents and the physical presence of the consumer are required before their registration is processed.
The mandatory registration of pre-paid SIMs suffers from a wide range of drawbacks. There is a possibility for fraudulent registration of SIMs by criminals, who have stolen ID details of individuals. The measure also opens up the possibility for emergence of black markets for fraudulently registered or stolen SIM cards, which can potentially become another problem on the plate of the law enforcement agencies. Also, the SIM or the handset is physically provided to someone else or stolen, so there is not solution to ensure that the person who has committed a crime is the person under whose name a phone number is registered. Finally, a SIM registration requirement is jurisdictionally limited, so there is no solution to block foreign criminals who target a particular country operating a mandatory registration requirement by using a phone in a country which does not have such a requirement. The alternative approach to SIM registration is lawful interception of communications which require phone operators to have capability in place to monitor communications in real time and allow access to the enforcement agencies when needed upon authorisation from the relevant authorities. This is the approach the UK has adopted – the latest development in this regard was the Interception of Communications Act 2016. In respect to cybercrime, the UK’s approach is consistent with the requirements of Art. 21 Council of Europe Cybercrime Convention, which empowers its signatory states to legislate and provide measures for real-time collection and interception of content data, subject to the conditions in Art. 15(1) which is that the measure is relative to the ECHR. There is absolutely no provision in the Cybercrime Convention requiring states to adopt linking of users’ registration to their national ID number.
China features a long history of attempting to introduce a real-name policy on the online world. The initial attempts to do so were not effective as it was extremely hard to force users to provide their national ID number retroactively, i.e. once they have registered without it prior to the introduction of the measure. whenever policy was introduced on Sina Weibo, this matter was dealt with by disabling the comments functions of old users who refuse to register their national ID number. The rationale behind the policy was to eradicate ‘bad speech’ on the Internet. The deadline for the implementation of the registration through a national ID number on Sina Weibo expired in March 2012, but the issues with implementing the policy persisted after the deadline.
The introduction of linking users’ registration making use of their national ID number encountered a number of problems. Firstly, there was clearly resistance on behalf of social networking platforms such as Sina Weibo because of the immense costs of implementing the policy and ensuring that users’ data is kept secure, the administrative burden of verifying users’ registrations are genuine and the negative impact on business as it leads to withdrawal of users. Moreover, you’ll be able to type any Chinese ID number upon registration, so there is a big market for stolen or leaked ID numbers and no solution to verify perhaps the registration is accurate and genuine. After China denied market access to foreign social networking platforms such as Facebook, this led to proliferation of local social media. The implementation of the policy by the largest social networking platform – Sina Weibo, led to migration of users to alternative platforms that do not run the policy and thus, break the law. The remaining users found how to circumvent the requirement by setting their location to ‘overseas’ or through buying a SIM and using Sina Weibo through a mobile network. There is a mandatory SIM card registration requirement in China, but the sellers of mobiles often fill in fake information. At the same time, there is little that the government can do to compel all social media sites to implement the ID registration policy. The government has curiosity about keeping all users on one or two platforms and then targeting these featuring its policy. The market in China is fragmented after the withdrawal of international social media, and so, users not use predominantly one or two platforms. The government could close the infringing platforms, but it cannot prevent setting up of new ones and fragmentation of the market.
There are a number of factors why requiring social media sites to link users’ registration to their national ID number may have positive impact on law enforcement in the UK.
The House of Lords Select Committee on Communications report on the subject of social media and criminal offences rightly describes the necessity for law enforcement agencies in order to easily identify criminals on social media – “there is little point in criminalising certain behaviour and at the same time legitimately making that same behaviour impossible to detect.” It is therefore proportionate to require website operators to establish the identity of users before they can register an account. Subsequently though, according to the select committee report, users ought to be allowed to use the social networking platform by using pseudonyms.
There was some logic in this statement in light of the security threats, the spread of ubiquitous surveillance, terrorist propaganda, crime and organised crime on social media. In relation to real-name policies, a type of which will be the requirement to link users’ registration with their national ID number, the Electronic Frontier Foundation (EFF) has noted that such a measure improves behaviour on social media, creates a more civil environment and contains a preventive power over stalking and harassment by introducing accountability for actions on social media. Interestingly, the EFF has suggested that implementing the requirement will reduce the need for lawful interception of communication, currently carried out by a wide range of governments, including the UK. This is a consistent conclusion, given that as noted above, governments that do not have a general national registry and centralised identification system through a uniform identity document tend to rely on spying the Internet. The issue of increased spying is one of the big public concerns in the UK. It could be argued that if the introduction of ID registration on social media leads to less spying on behalf of the government, the social media users will be more willing to give up their personal information. This hypothesis, nonetheless, has not been tested in practice. Hardly any conclusions in this regard could be drawn from the Sina Weibo experience since government control of the Internet in China is part of everyday life and there is no such public revolt against the practice as in the case associated with UK’s widespread interception of communications.
Millions of accounts on Facebook belong to young ones who are under the minimum age for establishing a profile on the platform – 13 years. Introducing a requirement to link users’ registration with their ID number is a way of introducing age verification at the gateway of social media sites and dealing with the problem with under-aged users. Linked to this point, social media companies are plagued by a problem with a massive quantity of fake accounts. Requesting ID number upon registration will substantially decrease the amount of fake accounts.
As discussed in Chapter I, one of the challenges of policing and prosecuting crime on social media is the immense human and financial resources that this requires and the time that it takes. Having easily available means to identify the point of origin for most crimes on social media will alleviate this problem to a great extent. This will decrease the practice to rely on amateur detectives – technically savvy citizens who take part in investigating crime without being aware of the official code of practice for this activity and then forward the evidence to the police. Linking users’ registration to their national ID number may also decrease the distraction of the police with finding previously unavailable evidence for minor crime and return its give attention to serious crime and violence on social media.
By introducing accountability for one’s actions, the linking of users’ registration on social networking platforms with their national ID number, has the potential for expanding the impact of law on behaviour on social media. In Chapter I it was argued that the law has limited impact on behaviour as behaviour is also influenced by the social norms, market and the architecture of the environment. There are three ways in which law influences outcomes – acting under threat of punishment (first-order enforcement), being subject to informal sanctions by the society due to the law (second-order enforcement) and internalisation of the law and avoidance of committing crimes as a result of prospect of guilt (third-order enforcement). The measure under discussion has the potential of reinforcing the third-order enforcement as the criminals’ sense that they can act with impunity on social media as it is difficult to identify them and attribute the criminal act to them will be addressed.
SUMMARY: The current UK approach to regulating and investigating crime and violence on social media is based on the assumption that what is not an offence online ought not to be considered an offence online. This is the so-called online-offline equivalence principle. Nonetheless, there are substantive differences in terms of scale, scope and degree of harm between similar crimes in the physical world and on social media as demonstrated by the example of cyberbullying. Also, there are social media-dependent crimes, which are not familiar to the criminal justice system. These factors render the current UK legislation designed to deal with traditional crime inadequate to address the specificity of crime on social media. The proposal to require from social networking platforms to request users’ national identity number upon registration is a departure from the principle of online-offline equivalence. It was first introduced in the context of mobiles with the requirement for mandatory registration of SIM cards in some states and social networks in China. In both cases, there have been issues with enforcing the measure, mainly because users attempt to circumvent it through various means. The measure has some limited potential to alleviate the problems of regulation and investigation of crime on social media in the UK. It can facilitate the attribution of criminal acts and thus, partially curtail the activities of criminals. Also, it has a real potential to decrease the cost of and time spent on investigating crime on social media and reduce the number of fake accounts and accounts belonging to under-aged minors. Arguably, it could also improve third-order enforcement of the law through self-restraint of criminals and reduce the need for hidden surveillance on behalf of the government.
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 Ibid., para. 10
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 Ibid., p. 56
 Ibid., p. 57
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 Wall, D. ‘Cybercrime, Media and Insecurity’, p. 57
 Investigatory Powers Act 2016, Chapter 25
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 Ibid., para. 52
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 Brenner, S. ‘At Light Speed’, p. 407
 Ibid., pp. 409-410
 Brenner, S., Schwerha IV, J. ‘Transnational Evidence Gathering and Local Prosecution of International Cybercrime’  20(3) Journal of Computer and Information Law 347, p. 354
 Brenner, S. ‘At Light Speed’, p. 414
 Ibid., p. 415-416
 House of Lords Select Committee on Communications, ‘Social media and criminal offences’, para. 32
 Ibid., p. 5
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 Ibid., under Category 4
 Simplified and adapted from House of Lords Select Committee on Communications, ‘Social media and criminal offences’, pp. 30-31
 Chapter 49
 Chapter 34
 Chapter 100
 Chapter 40
 Chapter 21
 Chapter 27
 Chapter 37
 Chapter 44
 Reed, C. ‘Online and Offline Equivalence: Aspiration and Achievement’ 18(3) International Journal of Law and Information Technology 248, p. 248