Hard Cases? (Thinking Aloud)

During the 01 August 2008 ICT class on “The Procedural Aspects of the Proposed Cybercrime Act”, which highlighted some areas of the proposed law (Jurisdiction of the courts, Regulatory Agencies and their powers, and the Role of Service Providers), I found it difficult not to ask questions of why and how. Blame my great UP (Law and Public Ad) Professors; they who taught me not to swallow laws and policies hook, line, and sinker.

Some points of dilemma:
1. While recognizing the convenience of acquiring jurisdiction over cybercrimes on the basis of their economic effects, it is also admitted that these crimes bring about a plethora of other effects to individuals and societies, which must also be properly addressed by court action.

If our laws vest jurisdiction to courts over acts constituting crimes against chastity and public morals absent any economic effect, then couldn’t the courts acquire jurisdiction over similar acts done over the internet? If so, how could this be done effectively?

2. Despite the fact that there are downsides to the creation of a new government office to regulate cybercrimes, cybercrime is a specialized activity which must be concomitantly subjected to regulation of a specialized team.

If this is to be carried out, do the benefits of doing so actually outweigh the costs?

3. While it is recognized that service providers are essential entities in the prosecution of these cybercrimes, it is also admitted that over the past years, these entities are generally absolved from any liability thereto.

Why would these providers consider cooperating with the authorities absent any stake (liability or benefit) on their part? Should they be benefited or be held liable, what would be the bases of these benefits and liabilities under our existing laws?


It is in this context of formulating the legal framework to penalize cybercrimes in the country that I am reminded of the often-quoted line from Justice Oliver Wendell Holmes Jr.: “Hard cases make bad laws.”

But, is it cases like cybercrimes which constitute what Justice Holmes refers to as “hard cases”? Because if they are, then are we bound to make bad laws on them?

In dissenting to the main opinion in the 1904 decided case of Northern Securities Co. v. United States[1], Justice Holmes compared hard cases to great cases. While he defined the latter to be appealing to feelings and distorting judgment due to some accident of immediate overwhelming interest over them, the former was in no way defined, except for the fact that they also make bad laws. By parity, therefore, it can be said that where logic is often shortcut in a hard case, later attempts to justify the new law thus created often compound the original inadequacy of reasoning therein.

Therefore, and with all deference to Justice Holmes, hard cases do not ipso facto make bad laws. It is rather the lack of logic, or reasoning in resolving them, that creates bad laws.


It has been said that though the problem of cybercrime didn’t spring up as a full-blown problem overnight, it’s safe to say that soon after the first computer networks were built, some people were looking for ways to exploit them for their own illegal purposes.[2] Cybercrime has been associated with unlawful acts, using computers as a tool (financial crimes, cyber pornography, sale of illegal articles, online gambling, intellectual property crimes, email spoofing, forgery, cyber defamation, and cyber stalking) and as targets (unauthorized access to computer systems or networks, theft of information contained in electric form, email bombing, data diddling, salami attacks, denial of service attack, virus / worm attacks, logic bombs, Trojan attacks, internet time thefts, web jacking, theft of Computer system, and physically damaging a computer system).[3]


So, it all boils down to this. Any unlawful act with computers as tools or targets (or both) is a crime, which should be penalized. All laws to be made towards that end, as long as not contrary to existing laws, should suffice as a logical and reasonable way to deal with it.

Now, if the phrase “as long as not contrary to existing laws” would be taken out, things would be much simpler. A hard case to deal with? Maybe.



(for the week 03 - 09 Aug 2008)
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[1] 193 U.S. 197. Held: The combination by several individuals separately owning stock in two competing railroad companies engaged in interstate commerce, to place the control of both in a single corporation, which is organized for that purpose expressly, and as a mere instrumentality by which the competing railroads can be combined, the resulting combination is a direct restraint of trade by destroying competition, and is illegal.
[2] http://www.syngress.com/book_catalog/225_CyberCrime/sample.pdf
[3] http://www.cidap.gov.in/cybercrimes.aspx