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					   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
 reason for international negotiations
 the content of the cyber crime convention
 discussion of some dilemma‟s
 meaning of the convention




        CoE Cyber Crime Convention Sydney October 24 & 25, 2002   2
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: ??

       CoE Cyber Crime Convention Sydney October 24 & 25, 2002   3
Negotiating Parties
 Council of Europe Member States
 U.S.A.
 Canada
 Japan
 South Africa




       CoE Cyber Crime Convention Sydney October 24 & 25, 2002   4
Signatories to the Convention
EU-member states (out of 15):                                      13
Non-European States:                                                4
                                                                  ===
(includes All G-7)                                                 17
Other CoE members states,                                          14
                                                                  ===
Parties to the Convention                                          31
Ratifications: 1
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Aim 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


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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


            CoE Cyber Crime Convention Sydney October 24 & 25, 2002   7
Scope CCC- continued
   Mutual assistance
    –   supplementing existing bilateral and
        multilateral instruments
    –   extradition
    –   scope of application of coercive powers
    –   further assistance




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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

             CoE Cyber Crime Convention Sydney October 24 & 25, 2002   9
General provisions
   Definitions: art. 1
    –   computer system
    –   computer data
 Element: “without right”
 Element: “intentionally”




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Content-related offences
   Child porn
    –   Defines child porn material
          refersto sexually explicit conduct including adult
          actors and realistic virtual material
    –   Criminalised Conduct
                     production, distribution of digital child
          possession,
          porn material including procurement, offering,
          making available by means of a computer system
   Exemptions: to be defined under domestic
    law as “with right”
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Issues considered but not
included
 Surreptitiously gathering of personal data
  (“Cookies”)
 Spam (unsolicited e-mail)
 Spoofing
 Racism and xenophobia (see hereafter)
 Other Content-related offences (e.g.
  gambling)
 Non-liability of ISP‟s
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Jurisdiction
 Scope art. 22: only substantive provisions
 Principle: territoriality
 Includes ships and aircrafts
 Restricted nationality principle
 Dedere aut judicare
 Conflicts: Consulting mechanism
  (substantial link)

        CoE Cyber Crime Convention Sydney October 24 & 25, 2002   13
Criminal procedural law
 Starting point: 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.
        CoE Cyber Crime Convention Sydney October 24 & 25, 2002   14
Criminal Procedural law- general
principles
 Scope: art. 14
 Scope, conditions and safeguards art. 15:
  domestic law
 Distinction between stored data and flowing
  data




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Definitions
 art. 1
 computer system
 computer data
 service provider: communication services:
  TO and ISP equal footing
 traffic data: functional definition (path,
  source)

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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




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Preservation of traffic data
   EU-directive Telecommunications and
    Privacy 1997:
    –   deletion of non-billing data
 Other Parties: no restrictions
 Principle CCC: “preserve traffic data as is”




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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
 Law enforcement authorities or service
  provider
 “As is available”, no technical requirements
 Confidentiality clause possibility
        CoE Cyber Crime Convention Sydney October 24 & 25, 2002   19
Measures considered but not
included
 Measures to undo encryption
 Specification of individual safeguards
 Mandatory retention of traffic data
    –   efficacy vs burden innocent third parties
    –   reasonable time limit
    –   legal safeguards
   International harmonisation of
    collection/interception
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International mutual legal
assistance
   General principles, art. 24, 26
    –   to the widest extent possible
    –   scope: art. 14
    –   expedited, flexible, modern means of
        communication
    –   basis always domestic law
    –   no refusal for fiscal offences
    –   flexible interpretation of „dual criminality‟
    –   spontaneous information
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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.
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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
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Transborder investigative
measures
   Only through MLA, except
    –   Accessing and downloading of “Open source”
    –   With permission of the person in control on the
        territory
    –   Possibly through production order
   Notification in EU MLA



            CoE Cyber Crime Convention Sydney October 24 & 25, 2002   24
Mutual assistance instruments
considered but not included
 Adaptation of existing MLA- instruments
 Data protection exception
 Misuse of jurisdiction
 International order for collection/retention
  of traffic data
 Trans-border network search




         CoE Cyber Crime Convention Sydney October 24 & 25, 2002   25
Final provisions
 Coming into force: 5 ratifications
 Accession: unanimity of Parties and
  majority of Committee of Ministers CoE
 Declarations, reservations
 Conference of Parties
 Amendments
 Dispute Resolution: consultation


        CoE Cyber Crime Convention Sydney October 24 & 25, 2002   26
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
    –   preventionCrime Convention Sydney October 24 & 25, 2002
             CoE Cyber                                            27
Cyber Crime Convention - final
observations (II)
 Transparency of the drafting process
 Industry and NGO involvement
 Human rights and privacy concerns


Internet brings people more together than
  some administrations would like to see.


        CoE Cyber Crime Convention Sydney October 24 & 25, 2002   28
1st Additonal 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

          CoE Cyber Crime Convention Sydney October 24 & 25, 2002   29
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
 address a smaller group of Parties

        CoE Cyber Crime Convention Sydney October 24 & 25, 2002   30
Crimes under the 1st Add.
Protocol
 art. 3: dissemination
 art 4: threats
 art. 5: insults
 art. 6: denial
 art. 7: aiding and abetting




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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


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

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art. 4 threats
   threat
    –   (private communications included)
 with commission of a serious crime
 factors from art. 2




             CoE Cyber Crime Convention Sydney October 24 & 25, 2002   34
art. 5 insults
 insulting publicly
 intentionally/without right
 iactors from art. 2
 reservation clauses




        CoE Cyber Crime Convention Sydney October 24 & 25, 2002   35
art. 6 denial
 denial, gross minimisation
 holocaust or future genocide or crime
  against humanity
 reservation clause




        CoE Cyber Crime Convention Sydney October 24 & 25, 2002   36
Other issues
 attempt to art. 3-6 not criminal
 copying of the definitions of the Cyber
  Crime Convention
 powers and instruments of the Cyber Crime
  Convention applicable




        CoE Cyber Crime Convention Sydney October 24 & 25, 2002   37
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




         CoE Cyber Crime Convention Sydney October 24 & 25, 2002   38
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 judge
    –   parties to the protocol or the convention

            CoE Cyber Crime Convention Sydney October 24 & 25, 2002   39

				
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