There is, amongst others, on thing worth noting in regard of the prosecution of Gottfrid Svartholm Warg. When it comes to judging whether or not the case of fraud should be considered severe, the prosecutor points toward “the general public’s confidence in systems of payment being affected”. Marcin de Kaminski points out that “rumors about digital society possibly being vulnerable are of course just as dangerous as the vulnerabilities themselves”.
In this context, it is worth paying attention to the fact that the prosecutor has accused Gottfrid Svartholm Warg of transferring the considerably small sum of 24000 Danish crowns to accounts which could lead to personal gain. Other cases have obviously been successfully stopped in time. In the law it says (BrB 9:3) that the crime should be considered severe “if the perpetrator has abused public trust”. This is something different than that which the prosecutor is pointing at and is hardly invoked in this particular case.
I don’t think that anyone would claim that Gottfrid Svartholm Warg has the confidence of the general public. Therefore, he cannot be guilty of a severe crime as an affect of this regulation. This is rather yet more proof of how the law is twisted in order to satisfy established interests. These are not at all illegitimate, on the contrary, but in a constitutional state one cannot allow oneself to adapt the legal starting points to fit that which in a certain case appear important.
It is also hard to claim that the committed crime “referred to significant value” (BrB 9:3). The only thing remaining in BrB 9:3 is that the crime meant “particularly noticeable damage”. And it has, but not with regard to fraud. However, the general public’s confidence in systems of payment is of course affected if information about that which Gottfrid Svartholm Warg and his co-defendants are accused of is spread to the public.
This is probably what the prosecutor has in mind as he forms his indictment, and this is where it becomes understandable why it confuses Marcin de Kaminski. As a paradox, damage is done through the prosecution itself. Surely it affects the general public’s confidence in both systems of payment as well as choices made over the internet.
However, as stated previously, this is not what the law points at. As usual, the prosecution wants to get to something else, other than, in this case, that a Danish union has lost 24000 Danish crowns. It’s about something much bigger, namely using new technology for unauthorized purposes. Such things cannot be regulated through a general clause in a constitutional state. Consider the following offense: “If someone uses information technology for unauthorized purposes, this person shall be sentenced for the crime abuse of technological opportunities to a fine or prison, alternatively electronic tagging for at most two years”. Technology is at stake both in the trial against The Pirate Bay as well as in the case of the crimes that Gottfrid Svartholm Warg is being prosecuted for.
Marcin de Kaminski also expresses outrage concerning that data from so many important authorities not only has been collected in the same place, but has also been passed on to a different operator with purpose of procurement. As I see it, this is where we come to another paradox. We can not exclude that Logica (the company to which designing of the systems and control operation has been outsourced) possibly could have the ambition to use the prosecution in order to maintain the security of their systems and that they’ve done their jobs. After all, they did discover the intrusions. But one can just as well state the opposite, that they didn’t do their jobs. There are gaps in security.
Yet again, Marcin de Kaminski’s reflections become relevant, regarding that this is hardly the only activity that can threaten the legitimacy of the systems. The only thing that is certain is that we can assume that it is impossible to completely protect oneself against intrusions and that they do happen.
It becomes all the more important that the responsibility issues become transparent. We need to know who has the responsibility for what concerning the administration of the systems and the technology. Outsourcing on a basis that is unknown to the public hardly instills confidence, as Marcin de Kaminski points out. It is something that could affect the public’s trust in all kinds of systems, not only those used for payment.
If the prosecution of Gottfrid Svartholm Warg and his co-defendants points out anything, it is probably this.
Note: This English translation of “Outsourcing, åtal och teknikens legitimitet” was made by Jonathan Lindahl from the LUii Embassy as a part of the new efforts of the Cybernorms RG to make more texts and blog posts available to international readers.