International Cooperation in Combating Cyber-Crime

1
International CooperationinCombating Cyber-Crime

• Donald K. Piragoff
• Department of Justice, Canada
• June 23, 2003

2
International Nature

• Access/mobility of data fundamental to economic
  systems
• Borders by-passed
• Exploitation by criminals terrorists
• data hidden abroad
• hackers and viruses abroad
• economic criminals abroad
• illegal content abroad
• communicate to plan

Contd
3
International Nature

• Minimal risk of detection and apprehension
• Different national laws
• Crime is borderless but enforcement is
  constrained by borders
• International cooperation is essential

4
Harmonization of National Laws

• Common framework required
• But , no universal consensus of
• types of computer crime
• set of procedural powers
• specifics of definition or scope

Contd
5
Harmonization of National Laws

• Lack of harmonization creates problems
• no common understanding of problem and how to
  respond
• sovereignty (e.g., trans-border search)
• dual criminality
• treaties may not include necessary investigative
  powers

Contd
6
Harmonization of National Laws

• No truly international fora
• Problems regarding international cooperation
  inter-related with harmonization of substantive
  procedural law

7
Inter-relation with procedural law

• International investigative powers are
  coextensive with domestic powers
• search or production of data
• preservation of stored data
• collection of traffic data
• interception of communications
• Obtain evidence and trace communications

8
Legal Framework for International Cooperation

• Mutual legal assistance
• scope of cooperation
• mechanics of cooperation
• general obligations
• specific investigative powers
• Extradition
• dual criminality
• nationality

9
Mutual Legal AssistanceScope of cooperation

• Scope of offences
• crimes against access, integrity availability
• crimes committed by means of computers
• facilitate communication crimes
• facilitate communication to plan crimes
• collect electronic evidence of any crime
• Types of investigative powers
• approximate domestic powers

Contd
10
Mutual Legal AssistanceMechanics of cooperation

• Conventions are generally independent of
  bilateral or other treaties
• Council of Europe Convention - hybrid
• convention serves as basis
• existing treaties take precedence
• convention supplements or applies in absence of
  other treaties

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Mutual Legal AssistanceGeneral obligations

• Afford MLA to widest extent possible
• MLA subject to law of requested state or
  applicable treaties
• If no pre-existing arrangement, supplement with
  new provisions

12
Mutual Legal AssistanceSpecific powers

• Employ both traditional and new investigative
  powers
• Preservation of stored data
• volatility of data, inherent delays, increased
  threat of loss
• provisional measure to secure availability
• rapid
• protects privacy
• safeguards (e.g., intent to make MLA request
  time limits)

Contd
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Mutual Legal AssistanceSpecific powers

• Dual criminality
• modern trend to eliminate or restrict
• preservation less intrusive
• verification counter-productive to quick
  provisional measure
• early stages - extent of criminality unknown
• Council of Europe compromise
• may refuse to preserve if reasons to believe that
  at time of disclosure dual criminality can not be
  met

Contd
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Mutual Legal AssistanceSpecific powers

• Expedited preservation and disclosure of
  preserved traffic data
• essential to trace communications
• traffic data reveals source, path and destination
  of a specific communication
• multiple service providers
• preservation at each service provider
• disclosure of sufficient amount of data to
  identify next service provider and path
• cross-border and MLA

Contd
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Mutual Legal AssistanceSpecific powers

• Search, access and disclosure
• apply to electronic data
• system searches
• avoids trans-border search
• Real-time collection of traffic data
• historical tracing may not be possible
• crime may require immediate tracing
• cross-border and MLA
• Council of Europe - reservation

Contd
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Mutual Legal AssistanceSpecific powers

• Interception of content data
• content may be illegal or afford evidence of
  crime
• privacy issues
• Council of Europe
• only to extent permitted by Parties laws and
  treaties
• convention not provide independent basis

Contd
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Mutual Legal AssistanceSpecific powers

• Safeguards
• subject to law of requested state
• safeguards in definition of powers
• Council of Europe
• subject to national safeguards, which must
• protect human rights under applicable conventions
  between Parties
• provide proportionality, judicial or other
  supervision, justifying grounds, limitations on
  scope and duration
• consider impact on third parties

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Extradition

• Dual criminality and harmonization of law
• Council of Europe
• convention may serve as basis
• precedence given to existing treaties
• refusal on grounds of nationality
• obligation to investigate and prosecute

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G8

• Washington, D.C., 1997
• Principles and Action Plan to Combat High-tech
  Crime
• Moscow, Russia, 1999
• Principles on Transborder Access to Stored
  Computer Data

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G8

• Mont Tremblant, Canada, 2002
• Recommendations for Tracing Networked
  Communications Across National Borders in
  Terrorist and Criminal Investigations
• Prinicples on the Availability of Data Essential
  to Protecting Public Safety
• G8 Statement on Data Protection Regimes
• Data Preservation Checklists

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Commonwealth

• Model Law on Computer Related Crime, 2002
• Guide to assist
• Influenced by text of Council of Europe
  Convention
• Common framework with Council of Europe

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24-7 Network

• Need for coordinated law enforcement contacts
• G8
• Council of Europe

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Inter-American Conventions

• Consider extent to which Conventions require
  amendment or protocol to
• incorporate new investigative techniques
• supplement existing bilateral treaties
• provide additional safeguards
• 24/7 Network

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Recommendations

• Agree to common concepts of crime
• Agree to common list of investigative powers
• Investigative powers should
• apply not only to computer-related crime but to
  collection of evidence of any crime
• balance powers with privacy and human rights
• provide ability to trace communications
• be available for MLA

Contd
25
Recommendations

• Afford cooperation to widest extent
• Ensure extradition relations prevent computer
  crime havens

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Conclusion

• Improving international cooperation requires
• harmonization of substantive law
• common set of investigative powers
• application of investigative powers to MLA
  arrangements
• adequate and flexible MLA and extradition
  arrangements