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International Cooperation in Combating Cyber-Crime

International Cooperation in Combating Cyber-Crime. Donald K. Piragoff Department of Justice, Canada June 23, 2003. International Nature. Access/mobility of data fundamental to economic systems Borders by-passed Exploitation by criminals & terrorists data hidden abroad

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International Cooperation in Combating Cyber-Crime

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  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 Cont’d

  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 Cont’d

  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 Cont’d

  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 Assistance:Scope 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 Cont’d

  10. Mutual Legal Assistance:Mechanics 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

  11. Mutual Legal Assistance:General 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 Assistance:Specific 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) Cont’d

  13. Mutual Legal Assistance:Specific 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 Cont’d

  14. Mutual Legal Assistance:Specific 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 Cont’d

  15. Mutual Legal Assistance:Specific 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 Cont’d

  16. Mutual Legal Assistance:Specific 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 Cont’d

  17. Mutual Legal Assistance:Specific 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

  18. 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

  19. 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

  20. 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

  21. 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

  22. 24-7 Network • Need for coordinated law enforcement contacts • G8 • Council of Europe

  23. 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

  24. 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 Cont’d

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

  26. 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

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