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
• hackers and viruses abroad
• economic criminals abroad
• illegal content abroad
• communicate to plan

Cont’d
2
International Nature
Minimal risk of detection and
apprehension
Different national laws
Crime is borderless but enforcement is
constrained by borders
International cooperation is essential

3
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
4
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
5
Harmonization of National Laws
No truly international fora
Problems regarding international
cooperation inter-related with
harmonization of substantive & procedural
law

6
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

7
Legal Framework for
International Cooperation
Mutual legal assistance
• scope of cooperation
• mechanics of cooperation
• general obligations
• specific investigative powers
Extradition
• dual criminality
• nationality

8
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
9
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

10
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

11
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
12
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
13
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
14
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
15
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
16
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

17
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

18
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

19
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

20
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

21
24-7 Network
Need for coordinated law enforcement
contacts
G8
Council of Europe

22
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

23
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
24
Recommendations
Afford cooperation to widest extent
Ensure extradition relations prevent
computer crime havens

25
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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