Ashurst case sparks e-legalisation debate

The case of Lee Ashurst, the 21-year old Briton accused of hacking Etisalat, is due to begin in earnest in the middle of March and the region’s first cyber trial has drawn attention to the legal void created by the Internet.

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By  Greg Wilson Published  February 27, 2001

Page 1|~||~||~|The case of Lee Ashurst, the 21-year old Briton accused of hacking Etisalat, is due to begin in earnest in the middle of March. Dubai Prosecution is attempting to win a conviction under Article 297 of UAE Penal Code, Federal Law No. 3 of 1987, which states, that “any individual who intentionally puts out of action any means of telecommunications designated for public use and benefit, as well as he who cuts or destroys any of its wires or equipment, or who intentionally prevents their repair, shall be punishable by imprisonment of a period not exceeding ten years.”

Whether or not Ashurst is convicted, the region’s first cyber trial has drawn attention to the legal void created by the Internet. While the US and Europe have taken steps to address issues, such as the legality of digital certificates, online privacy, content protection and the legal standing of electronic documents. Across the rest of the Gulf, the need for cyber legislation is only just becoming apparent.

“Although Internet legislation had been discussed prior to this, the Ashurst case has directed the lights on the vacuum in the UAE legal system,” says Samer Qudah, legal consultant with Dubai-based Al Tamimi & Company.

The Etisalat/Ashurst case highlights some of the shortcomings of the existing legislation to cope with virtual crimes. The most fundamental flaw in the UAE legislation is the UAE’s evidence law, which doesn’t recognise electronic evidence. “But irrespective of our view of [the case], Article [297] couldn’t perfectly fit into that context of the case, we believe that this [reflects a bigger] problem,” explains Qudah. “There is a problem in the UAE evidence law. The UAE courts do not recognise electronic evidence as yet, and that is the major problem of the whole case.”

The prospect of the UAE courts not recognising electronic evidence could seriously undermine much of the prosecutor’s case against Ashurst. In particular, how they can prove ‘intention’ to damage beyond all reasonable doubt. Adds Qudah, “specifically for the Ashurst case, the article of the penal code which [Etisalat] has placed their argument on requires the intention of the person to damage… This is, if not impossible, very difficult to prove that the person wanted to damage that data of the ISP,” he explains.

An article by Essam Al Tamimi managing partner with Al Tamimi & Company, also addresses issues with the Ashurst case. Al Tamimi’s article in part focuses on the interpretation of Article 297 of the UAE penal code, which literally requires physically destroying public telecommunications services. “In contrast, fraudulent activities, misuse of information, or even breaking into an Internet system or web site in order to view information, would not seem to be covered under the broadest interpretation of... Article 297,” states the article.

However, the implications of the Etisalat/Ashurst case go beyond hacking activity. The absence of ‘e’ legislation also has implications on the region’s race to join the global IT community. Speaking at a recent conference hosted by Al Tamimi, ‘Legal Aspects of E-commerce,’ Lubna Al Qasimi, managing director of said “the Internet is having a legal impact on every level of every industry… Laws here don’t recognise electronic formats, but we need that for e-commerce,” she said.

However, its not just a case of the law accepting digital certificates, there has to be broader legislation to integrate e-business into the current and future economic environment.

Initiatives to outline possible e-legislation are thought to be ongoing in a number of countries around the Gulf. Al Tamimi has already participated in work with the UAE Federal Government, and says Qudah, Egypt has produced a draft law to regulate e-commerce. But cooperation at a governmental level is also going to be required to formulate pan Gulf laws for the Internet.

“There are initiatives at the GCC level to regulate e-commerce, and to have a harmonisation of laws at this level,” says Qudah.

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