1 / 39

CLE Conference, 24-25 October 2002 CoE’s Cyber Crime Convention

CLE Conference, 24-25 October 2002 CoE’s Cyber Crime Convention. Content and background Prof. Dr. Henrik W.K. Kaspersen Vrije Universiteit Amsterdam The Netherlands. Overview of the presentation. Reasons for international negotiations Content of the cyber crime convention

candice-emerson
Download Presentation

CLE Conference, 24-25 October 2002 CoE’s Cyber Crime Convention

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. CLE Conference, 24-25 October 2002CoE’s Cyber Crime Convention Content and background Prof. Dr. Henrik W.K. Kaspersen Vrije Universiteit Amsterdam The Netherlands

  2. Overview of the presentation • Reasons for international negotiations • Content of the cyber crime convention • Discussion of some dilemma’s • Meaning of the convention CLE Conference, Sydney October 24 & 25, 2002

  3. Procedure in the Council of Europe • Start :1997 • Completion: officially December 2000, factually August 2001 • Adoption by Committee of Ministers: November 2001 • Signature Ceremony: Budapest November 23, 2001 • ETS 185, coming into force: ?? CLE Conference, Sydney October 24 & 25, 2002

  4. Negotiating Parties • Council of Europe Member States • 43 • Non-member States • U.S.A. • Canada • Japan • South Africa CLE Conference, Sydney October 24 & 25, 2002

  5. Signatories to the Convention EU-member states (out of 15): 13 Non-European States: 4 === (includes All G-7) 17 Other CoE members states, 16 === Parties to the Convention 33 Ratifications: 1 CLE Conference, Sydney October 24 & 25, 2002

  6. Aims of the Cyber Crime Convention • Harmonisation of criminal substantive law, basis R (89) 9. • Harmonisation of criminal procedural law, basis R (95) 13. • Instruments for mutual legal assistance, basis existing co-operation instruments. • Codification of international law • Framework for future developments CLE Conference, Sydney October 24 & 25, 2002

  7. Scope of the Cyber Crime Convention • Minimum character • Substantive law: • categorisation; distinction cyber crime in narrow and in broad sense. • Procedural law • specific investigative powers related to IT, preliminary measures CLE Conference, Sydney October 24 & 25, 2002

  8. Scope CCC- continued • Mutual assistance • supplementing existing bilateral and multilateral instruments • extradition with regard to cybercrimes • scope of application of coercive powers • further assistance CLE Conference, Sydney October 24 & 25, 2002

  9. Harmonising of substantive criminal law • Cyber crime in the narrow sense • C.i.a.-offences: artt. 2-6 • Cyber Crime in the broader sense: • Computer-related offences: artt. 7-8 • Content-related offences: art. 9 • I.p.r.-related offences: art. 10 • Accessory provisions: artt. 11-13 • Civil and criminal liability legal persons CLE Conference, Sydney October 24 & 25, 2002

  10. General provisions • Definitions: art. 1 • computer system • computer data • Notion: “without right” • Notion: “intentionally” CLE Conference, Sydney October 24 & 25, 2002

  11. Content-related offences • Child porn • Defines child porn material • refers to sexually explicit conduct including adult actors and realistic virtual material • Criminalised Conduct • possession, production, distribution of digital child porn material including procurement, offering, making available by means of a computer system • Exemptions: to be defined under domestic law as “with right” CLE Conference, Sydney October 24 & 25, 2002

  12. Issues considered but not included • Surreptitiously gathering of personal data (“Cookies”) • Spam (unsolicited e-mail) • Spoofing and integrity internet-communications • Racism and xenophobia (see hereafter) • Other Content-related offences (e.g. gambling) • (Non)-liability of ISP’s CLE Conference, Sydney October 24 & 25, 2002

  13. Jurisdiction • Scope art. 22: only relating to substantive provisions • Principle: territoriality • Includes ships and aircrafts • Restricted nationality principle • Dedere aut judicare • Determining jurisdiction (substantial link) • Conflicts: Consulting mechanism CLE Conference, Sydney October 24 & 25, 2002

  14. Criminal procedural law • Starting point: Recomm. CoE R(95) 13 • Aim: gathering of electronic evidence of a specific criminal offence • Scope: cyber crimes art.14: a) offences established in the CCC; b) computer system instrument of the crime; c) any other crime for which electronic evidence is needed. CLE Conference, Sydney October 24 & 25, 2002

  15. Criminal Procedural law- general principles • Scope: art. 14 relating to art. 20/21 • Scope, conditions and safeguards art. 15: domestic law • Distinction between stored data (in existence) and flowing data (in transmission) CLE Conference, Sydney October 24 & 25, 2002

  16. Definitions • Art. 1 • computer system • stand-alone, networks, telecommunication systems • computer data • service provider: communication services: TO and ISP equal footing • traffic data: functional definition (path, source) CLE Conference, Sydney October 24 & 25, 2002

  17. Measures concerning stored computer data • Search of computer system and files: art. 19 • Production order: art. 18 • Expedited preservation: art. 16 • Expedited preservation of stored traffic data: art. 17 CLE Conference, Sydney October 24 & 25, 2002

  18. Preservation of traffic data • EU-directive Telecommunications and Privacy 1997: • deletion of non-billing data • 2002-review: extension to marketing • mandatory retention possible • Other Parties: no privacy restrictions • Principle CCC: “preserve traffic data as is” • G8: establish necessary traffic data CLE Conference, Sydney October 24 & 25, 2002

  19. Real time collection of traffic data/interception of content • Art. 20/21 parallel in structure • Art. 21: serious crime only (domestic law) • Specific communication by means of a computer system • Direct through Law enforcement authorities or with assistance of service provider • “As is available”, no technical requirements • Confidentiality clause possible CLE Conference, Sydney October 24 & 25, 2002

  20. Measures considered but not included • Measures to restrict proliferation of encryption • Order to undo encryption • Specification of individual safeguards • Mandatory retention of traffic data • efficacy vs burden innocent third parties • reasonable time limit • legal safeguards • Harmonisation of collection/interception powers CLE Conference, Sydney October 24 & 25, 2002

  21. International mutual legal assistance • General principles, art. 24, 26 • to the widest extent possible • scope: art. 14 • expedited, flexible, modern means of (direct) communication • basis always domestic law • no refusal possible for fiscal offences • flexible interpretation of ‘dual criminality’ • spontaneous information CLE Conference, Sydney October 24 & 25, 2002

  22. Mutual legal assistance in general • Extradition: extraditable offences (art. 24) • Factual co-operation:  Can the request be executed on the basis of an existing bilateral or multilateral instrument? (EI) Y, proceed. N, apply art. 27 CCC (comprehensive set for MLA).  Is the application of specific measures necessary? Apply CCC or EI or both. CLE Conference, Sydney October 24 & 25, 2002

  23. Mutual legal assistance- specific measures • Expedited preservation of computer data (art. 29) • Expedited partial disclosure in case of traffic data (art. 30) • Access to computer systems and data (art. 31) • Transborder investigative measures that are lawful (art. 32) • Real time collection of traffic data (art. 33) • Real time interception of content (art. 34) • 24/7 network central authority CLE Conference, Sydney October 24 & 25, 2002

  24. Transborder investigative measures • CCC: only through MLA, except • Accessing and downloading of “Open source” • With permission of the person in control on the territory • Possibly through production order of art. 18 • EU MLA: interception of satellite communications: notification CLE Conference, Sydney October 24 & 25, 2002

  25. Mutual assistance instruments considered but not included • Adaptation of existing MLA- instruments • Data protection exception • Misuse of jurisdiction (U-turn) • International order for collection/retention of traffic data • Trans-border network search CLE Conference, Sydney October 24 & 25, 2002

  26. Final provisions • Coming into force: 5 ratifications required • Accession: unanimity of Parties and majority of Committee of Ministers CoE • Declarations, reservations • Conference of Parties • Amendments • Dispute Resolution: no court but consultation CLE Conference, Sydney October 24 & 25, 2002

  27. Cyber Crime Convention- final observations (I) • Minimum character: electronic environment • Framework character: ongoing development • Need for flanking, internationally co-ordinated measures • Enhances practical co-operation of law enforcement authorities • exchange of expertise • training and education • prevention CLE Conference, Sydney October 24 & 25, 2002

  28. Cyber Crime Convention - final observations (II) • Transparency of the drafting process • Industry and NGO involvement • Human rights and privacy concerns CLE Conference, Sydney October 24 & 25, 2002

  29. 1st Additional Protocol on Racism and Xenophobia Procedure: • decision by CDPC in June 2001 • drafting December 2001-April 2002 • adoption CDPC June 2002; Parliamentary Assembly September 2002 • adoption by Committee of Ministers November 6, 2002 • opening for signature: January 2003 CLE Conference, Sydney October 24 & 25, 2002

  30. Meaning of the Protocol • Harmonising criminal offences concerning dissemination of racist and xenophobic material and related acts in computer networks • Provide for adequate means of criminal investigations as defined by the Cyber Crime Convention • Most Parties to the Convention CLE Conference, Sydney October 24 & 25, 2002

  31. Crimes under the 1st Add. Protocol • art. 3: dissemination • art 4: threats • art. 5: insults • art. 6: denial • art. 7: aiding and abetting CLE Conference, Sydney October 24 & 25, 2002

  32. art. 2: racist and xenophobic material • written or any other representation • data carrier • thoughts and theories • advocating, promoting, inciting • hatred, discrimination, violence • race, colour, decent, national or ethnic origin, religion (qualified) CLE Conference, Sydney October 24 & 25, 2002

  33. art. 3: dissemination • dissemination or otherwise making available through a computer system • excludes private communications • excludes production, possession, procurement • racist and xenophobic material (art. 2) • intentionally • without right • reservation clauses concerning discrimination CLE Conference, Sydney October 24 & 25, 2002

  34. art. 4 threats • threat • (private communications included) • with commission of a serious crime • factors from art. 2 CLE Conference, Sydney October 24 & 25, 2002

  35. art. 5 insults • insulting publicly • intentionally/without right • factors from art. 2 • reservation clauses CLE Conference, Sydney October 24 & 25, 2002

  36. art. 6 denial • denial, gross minimisation, • holocaust or future genocide or crime against humanity • reservation clause CLE Conference, Sydney October 24 & 25, 2002

  37. Other issues • attempt of art. 3-6 not criminalised • copying definitions and notions of the Cyber Crime Convention • powers and instruments of the Cyber Crime Convention applicable CLE Conference, Sydney October 24 & 25, 2002

  38. Not included in the Protocol • factors of art. 2: gender, sexual nature, age etc. • set up, running and supporting of racist and xenophobic associations • specific investigative measures CLE Conference, Sydney October 24 & 25, 2002

  39. Conclusion • framework of human rights, Rome Convention 1950 • major step forward in global approach since UN-CERD 1967 • meaning Protocol not restricted to • computer networks • scope of art. 2; role national legislator /court • model law CLE Conference, Sydney October 24 & 25, 2002

More Related