Evaluating internet intermediary responsibility and liability for criminal law and national security enforcement

The term, Internet intermediaries include companies such as Internet Service Providers (ISPs), search engines and social media platforms that facilitate the use of the Internet. Government law enforcement agencies do not have direct access to information on the Internet. Internet intermediaries are in essence "gatekeepers" to access and participation in online information or content exchange for example to gain access to information on the Internet, an ISP is used; to find information, a search engine is used and to share information, social media is used. The Internet has become a fixed feature of the lives of many people in different parts of the world. Conveniently the Internet is not limited to a fixed abode, but accompany people where ever they go and may be accessed anywhere at any time. Although the Internet is mostly used to improve and enhance the daily lives of people, it is also used for the commission of crimes such as hacking, phishing, DoS attacks or terrorist-related activities, for example the planning of an act of terror or communicating the implementation of such terror. As the intermediary is the gateway to all online communication and plays a central role in enabling online conduct, governments have focused their attention on the intermediary in respect of Internet regulation. A perplexing question facing governments is the role an intermediary should play in the detection, prevention and investigation of third party criminal conduct and the extent to which an intermediary might be held responsible for third party criminal conduct? The discussion focuses on the shift of state regulation to non-state actors, namely intermediaries. It evaluates the scope and extent of an intermediary's responsibility for criminal law and national security enforcement. It highlights the legal role of and challenges intermediaries experience nationally and globally and how an intermediary might mitigate the risks inherent to enforcing these responsibilities. The discussion does not focus on a specific jurisdiction but aims at providing an overview of the responsibilities facing an intermediary from the different jurisdictions from which it operates. The discussion also brings to light the worrying development that governments may consider by-passing intermediaries and obtaining direct access to all online communication and thus eliminating the safeguards posed by intermediaries in protecting their customers' rights. The law pertaining to the responsibilities of the Internet intermediary with specific reference to criminal law and national security enforcement necessitates a debate on international level in addressing the various issues highlighted in the discussion. At present jurisdictions implement their own laws without an over-arching coherent approach to the responsibilities of the intermediary.