1. Copyright (C) 2002 Takato Natsui.1 Omissions by ISPs are unlawful or not? A Comparative analysis to legal standards for Criminal Liability Takato Natsui Professor at Meiji University Law Faculty and Graduate School of Law, Tokyo, Japan Attorney at law registered at Tokyo Bar Association E-mail : sumwel_h@kisc.meiji.ac.jp

2. Copyright (C) 2002 Takato Natsui.2 Legal Meaning of Omission Types of Criminal Behavior  Positive Actions  Intentional Omissions or Recklessness Where are definitions of such distinction?  Statutes (Acts or Bills)  Court Orders (Judgments)  Legal Theories (Guardian’s Duty Theory)

3. Copyright (C) 2002 Takato Natsui.3 Examples in Several Legislations ‘Omission’ terms in Statutes  USA New Mexico Statutes Annotated 1978  Section 30-45-7.  United Kingdom Computer Misuse Act 1990 (c.18)  Section 9  Canada Criminal Code (R.S.1985 c.C-46)  Section 460

4. Copyright (C) 2002 Takato Natsui.4 Guardian’s Duty Theory Who will be guardian?  Elements in Legal Theories Statutory duties (ex. specific officers) Any other kind of legal duties (most of cases are constructed from legal interpretation)  Duties originated in non-criminal statutory duties  Specific environment (ex. emergency time)  Common sense (cf. good faith or ordinary customs) Guardian’s duty  Guardian must do anything that is necessary to do in such environment. Legal effects  Such omission or ignorance is equal to a positive criminal action.

5. Copyright (C) 2002 Takato Natsui.5 Legal Functions of Standards Standards for duty to do some actions  Ex. ISP’s Liability Law of Japan (Law No.137-2001) This new legislation had made a limitation to civil liabilities of ISPs in accordance with Notice and Take Down Rule. But, this rule is also functioning as a standard that makes ISPs as guardians who owe legal duties to take down. Omission of such actions by any ISPs will be considered as unlawful or punishable behaviors. Such standards are terrible for ISPs?  No rule will bring more difficult problems. Ambiguous environment will strength free hands of prosecutors and judges.

6. Copyright (C) 2002 Takato Natsui.6 Discussion Every type of omission will have to be punishable or unlawful?  Intentional omission  Reckless ignorance  Simple carelessness New proposal in US Congress  Online Criminal Liability Standardization Act of 2002 (H.R.3716)  Is this new Bill too simple?  Is the scope of this new Bill too narrow?  Is this new Bill excessive? The most critical view point is to consider whether ISPs are special existences or not.