Combatting Cybercrime
Tools and Capacity Building for
Emerging Economies
Page 1 | Chapter 1 | § Table of Contents
Combatting Cybercrime
Tools and Capacity Building for
Emerging Economies
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Acknowledgments
This Toolkit was developed under a project, Combating Cybercrime: Tools and Capacity Building for Emerging
Economies (Project), financed by a grant from the Korean Ministry of Strategy and Finance under the Korea-
World Bank Group Partnership Facility (KWPF) Trust Fund. The team gratefully acknowledges financial
support from the Korean Ministry of Strategy and Finance that made this Project possible.
The Project team was headquartered in the World Bank, and Marco Obiso, Preetam Maloor and Rosheen Awotar-Mauree
included the following participating organizations: the Council of ITU; Francesca Bosco and Arthur Brocato of UNICRI; Sadie
of Europe (CoE), the International Association of Penal Law Creese, Eva Ignatuschtschenko and Lara Pace of Oxford; Cecile
(AIDP), the International Telecommunication Union (ITU), the Barayre of UNCTAD; Alexander Seger and Betty Shave of CoE;
Korea Supreme Prosecutors Office (KSPO), the Oxford Cyber- and Neil Walsh, Dimosthenis Chrysikos and Bilal Sen of
security Capacity Building Centre (Oxford), the United Nations UNODC.
Conference on Trade & Development (UNCTAD), the United
The Team would also like to express its gratitude to peer
Nations Interregional Crime and Justice Research Institute
reviewers, Professor Ian Walden, Queen Mary University of
(UNICRI) and the United Nations Office on Drugs & Crime
London, and Steven Malby of the Commonwealth. The team
(UNODC).
is also grateful for the time, consultations and valuable inputs
The Project team at the World Bank was led by David Satola received from staff at INTERPOL’s Global Complex for
and included Seunghyun Bahn, Evarist Baimu, Nigel Marc Innovation in Singapore including Madan Oberoi, Mustafa
Bartlett, Jinyong Chung, Conrad C. Daly, Heike Gramckow, Erten, Steve Honiss, Silvino Schlickmann and Tomas Herko.
Theodore Christopher Kouts, Clay Lin, Rishabh Malhotra, James
The Toolkit and Assessment Tool were also the subject of several
Neumann, Marco Nicoli, Diana Norman, Elizabeth Anne Norton,
consultation events, conferences and workshops held at or with
Seunghwan Park, Sandra Sargent, Dolie Schein, Hyunji Song,
the sponsorship of the CoE, Europol, INTERPOL, ITU, the Korea
Emilio C. Viano, Georgina Weise, Christiaan van der Does de
Institute of Criminology, UNCTAD, UN and Central Bank of
Willebois, Stuart Yikona, Keong Min Yoon and Tamika Zaun.
Qatar. The team thanks the participants in all of these events
The Team owes a special debt of gratitude to Hyunji Song, for and at these organizations for the opportunities to raise
her unflagging commitment and contributions to this project awareness of this Project and for helpful comments and
too numerous to mention here. Without her research and suggestions.
organizational skills, initial drafting efforts and intellectual
The team apologizes to any individuals or organizations
guidance, this Project could not have been realized.
inadvertently omitted from this list.
The contributions of the following people from the participating
The Toolkit, Assessment Tool, and Website designed and
organizations are recognized. From KSPO, Youngdae Kim,
developed by Informatics Studio: www.informatics-studio.com.
Seokjo Yang, Heesuk Lee and Seungjin Choi. Luc Dandurand,
Foreword
Advances in technologies over the last 20 years have affected virtually every aspect of the way
we live and conduct our daily lives. While these technologies have been a source of good and
enabled social and economic progress around the world, hardly a day goes by without news
of yet another cyberattack, or the use of technology in the commission of crime. Here, at the
World Bank, we know that in order for technologies, including the internet, to continue to be
used as a force for economic growth and development, measures must be taken to ensure the
security of the internet and the data and communications that flow over it.
This book, Combatting Cybercrime: Tools and Capacity Building for Emerging Economies,
is an important contribution to the global effort for a safe, secure and equitable internet.
It focuses on building the human capacity of policy-makers, legislators, judges, lawyers,
prosecutors, investigators and civil society on the various legal issues that comprise the fight
against cybercrime. Though focusing on legal matters, Combatting Cybercrime recognizes
that the challenge is much larger, and, accordingly, builds from the perspective that an effective
response to ever-more sophisticated cybercrime requires a multidisciplinary, multi-stakeholder,
public-private approach.
In addition to serving as a resource in the traditional sense, Combatting Cybercrime includes
an online Assessment Tool that enables countries to more accurately identify priority areas, that
facilitates a focused and targeted allocation of scarce, capacity-building resources.
Much like the collective approach that is required to fight cybercrime, Combatting Cybercrime
is also the result of a collective effort among some of the key global and regional organizations,
both public and private, whose expertise and experience are synthesized in this book. I would
like to thank the organizations and their staff who contributed to this important work, as well
as the Government of Korea for its generous funding and leadership in this area that made
Combatting Cybercrime possible.
It is our collective hope that Combatting Cybercrime will be a useful resource in building
capacity on these key legal issues in the global fight against cybercrime, and would invite readers
to consult the project website for updates. The Toolkit, the Assessment Tool and a library of
pertinent sources can be found and freely accessed at www.combattingcybercrime.org.
Sandie Okoro
Senior Vice President and General Counsel
The World Bank
Table of Contents
1. Introductory Part 10 6. Capacity-Building 225
An overall introduction to the Toolkit, View An overview of capacity-building issues View
highlighting some of the main the issues around for policy makers and legislators, law
Print Print
cybercrime and describing some of the main enforcement, consumers and cooperation
challenges to fighting cybercrime. with the private sector.
2. Foundational Considerations 64 7. In-country Assessment Tool 268
An overview describing what is meant by View An overview of various existing tools to assess View
“cybercrime” and the discusses what “basics” cybercrime preparedness and an introduction of
Print Print
regarding procedural, evidentiary, jurisdictional the Assessment Tool enabling users to determine
and institutional issues. gaps in capacity and highlight priority areas to
direct capacity-building resources.
3. National Legal Frameworks 157 8. Analysis & Conclusion 276
An overview of substantive criminal aspects View Concluding thoughts on evolving good View
of cybercrime and how they are expressed in practices in combatting cybercrime.
Print Print
national legal frameworks.
4. Safeguards 170 9. Appendices 282
An overview examining procedural View View
“safeguards” of due process, data protection/
Print Print
privacy and freedom of expression as they
relate to cybercrime.
5. International Cooperation 193 10. Bibliography 407
An introduction to both formal and informal View View
aspects of international cooperation to
Print Print
combat cybercrime.
Abbreviations & Acronyms
ACHPR African Commission on Human and Peoples’ Rights EAC East African Community
ACHR American Convention on Human Rights EaP EU Eastern Partnership
AI Artificial Intelligence EC3 European Cybercrime Centre
ALADI Asociación Latinoamericana de Integración ECHR European Convention on Human Rights
AML Anti-money Laundering ECJ European Court of Justice
AP-CERT Asia Pacific Computer Emergency Response Team ECtHR European Court of Human Rights
APEC Asia-Pacific Economic Cooperation ECOWAS Economic Community of West African States
ASEAN Association of Southeast Asian Nations ECTF US Secret Service Electronic Crimes Task Force
ATM Automated Teller Machine EJN European Judicial Network
BEC Business Email Compromise ENISA European Network and Information Security Agency
CCI Commonwealth Cybercrime Initiative EU European Union
CCIPS Computer Crime and Intellectual Property Section EUISS EU Institute for Security Studies
CCPCJ Commission on Crime Prevention and Criminal EUROJUST EU Judicial Cooperation Unit
Justice EUROPOL European Police Office
CERT Computer Emergency Response Team (or FBI US Federal Bureau of Investigation
Computer Emergency Readiness Team)
FOI Freedom of Information
CETS Child Exploitation Tracking System
G8 Group of Eight
CFTT Computer Forensics Tool Testing
GCA ITU Global Cybersecurity Agenda
CIRT Computer Incidence Response Team
GCI ITU Global Cybersecurity Index
CIS Commonwealth of Independent States
GCSCC Global Cyber Security Capacity Centre (Oxford
CJEU Court of Justice of the European Union University’s Martin School)
COMESA Common Market for Eastern and Southern Africa GLACY Global Action on Cybercrime (CoE & EU)
CoE Council of Europe GLACY+ Global Action on Cybercrime Extended (CoE &
COMSEC Commonwealth Secretariat EU)
cPPP Contractual Public-Private Partnership GPEN Global Prosecutors E-crime Network
C-PROC CoE Cybercrime Programme Office GPS Global Positioning System
CSIRT Computer Security Incident Response Team HIPCAR Harmonization of ICT Policies, Legislation and
Regulatory Procedures in the Caribbean
CSIS Center for Strategic and International Studies
HIPSSA Harmonization of ICT Policies in Sub-saharan Africa
CTO Commonwealth Telecommunications Organisation
IADB Inter-American Development Bank
DC3 US Defense Cyber Crime Center
IAP International Association of Prosecutors
DDBMS Distributed Database Management System
IAPL International Association of Penal Law
DDoS Distributed Denial of Service
IBRD International Bank for Reconstruction and
DEA US Drug Enforcement Agency
Development
DHS US Department of Homeland Security
IC3 Internet Crime Complaint Center
DNS Domain Name System
ICB4PAC Information and Communications Capacity
DoD US Department of Defense Building for Pacific Island Countries
DoJ US Department of Justice ICCPR International Covenant on Civil and Political Rights
DoS Denial of Service ICT Information and Communication Technology
E2EE End-to-end Encryption IDCC INTERPOL Digital Crime Centre
IoE Internet of Everything PPP Public-Private Partnership
IGCI INTERPOL Global Complex for Innovation R&I Research and Innovation
IGO Intergovernmental Organization RTI Right to information
INTERPOL International Criminal Police Organization RICO US Racketeer Influenced Corrupt Practices Act
IOSCO
International Organization of Securities SADC Southern African Development Community
Commissions SAR Suspicious Activity Reporting
IoT Internet of Things SCO Shanghai Cooperation Organization
IP Internet Protocol SDG Sustainable Development Goa
iPROCEEDS ooperation on Cybercrime under the Instrument
C SELA
El Sistema Económico Latinoamericano y del
of Pre-accession (IPA) Caribe
ISAC Intelligence Sharing and Analysis Center SIM Subscriber Identification Modulel
ISP Internet Service Provider SME Small & Medium Sized Enterprise
IT Information Technology SMS Short Message Service
ITU International Telecommunication Union SNS Social Networking Service
J-CAT Joint Cybercrime Action Taskforce SQL Structured Query Language
JIT Joint Investigation Team SQLi Structured Query Language Injection
JPIIT
KSPO’s Joint Personal Information Investigation SWIFT
Society for Worldwide Interbank Financial
Team Telecommunication
KSPO Korean Supreme Prosecutor’s Office T-CY CoE Cybercrime Convention Committee
MA Mutual Assistance Tor The Onion Router
MLA Mutual Legal Assistance UDHR Universal Declaration of Human Rights
MLAT Mutual Legal Assistance Treaty UK-CERT UK Computer Emergency Response Team
MSN Microsoft Service Network UN United Nations
NCA UK National Crime Agency UNAFEI
UN Asia and Far East Institute for the Prevention
NCB National Central Bureau of Crime and the Treatment of Offenders
NCCIC U
S National Cybersecurity and Communications UNCITRAL UN Commission on International Trade Law
Integration Center UNCTAD UN Conference on Trade and Development
NCFTA National Cyber-Forensics & Training Alliance UNESCO
UN Educational, Scientific and Cultural
NCIJTF
FBI’s National Cyber Investigative Joint Task Force Organization
NCRP National Central Reference Points UNHRC UN Human Rights Council
NCS National Cybercrime Strategy UNICRI
UN Interregional Crime and Justice Research
Institute
NIST
US National Institute of Standards and Technology
UNODC UN Office on Drugs and Crime
NSA US National Security Agency
USB Universal Serial Bus
OAS Organization of American States
US-CERT US Computer Emergency Response Team
OCSI UK Office of Cyber Security and Information
USSS US Secret Service
OECD
Organization for Economic Co-operation and
Development VoIP Voice-over Internet Protocol
OECS Organization of Eastern Caribbean States VPN Virtual Private Network
OSCE Organization for Security and Co-operation in VR Virtual Reality
Europe WDR
World Bank World Development Report: Digital
OTP One-time Pad Dividends (2016)
P2P Peer-to-peer WEF World Economic Forum
PIN Personal Identification Number WSIS World Summit on Information Society
CHAPTER 1
Introductory Part
This chapter sets the stage for the rest of the
Toolkit. It provides an overall introduction to the
Toolkit, highlights some of the main the issues
around cybercrime and describes some of the
main challenges to fighting cybercrime.
In this Chapter
A. Purpose of Toolkit 11
B. Phenomenon & Dimensions of Cybercrime 15
C. Challenges to Fighting Cybercrime 27
D. Framework for a Capacity-building Program 45
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CHAPTER 1
A. Purpose of Toolkit
Table of Contents
I. Background 11
II. The Toolkit 12
III. The Assessment Tool 13
IV. The Broader Context 13
V. Participating Organizations 14
I. Background
Hardly a day goes by without the press disclosing some major cyber-incident. The past year alone
has witnessed a proliferation of cyberthreats, breaches of corporate and governmental networks,
major thefts from banks, malware, ransomware, etc. Here are a few notable incidents:
McAfee reports 316 threats every second1
Theft of US$81 million from account of Bangladesh at New York Federal
Reserve Bank resulting from alleged compromise of SWIFT network2
1 billion hacked Yahoo! accounts3
But cybercrime is not limited to major breaches. Individuals also suffer from threats, exploitation
and harassment, or worse. The internet, which has enriched peoples’ lives and made the world a
“smaller” place, also enables a range of criminal activity.
One recent study4 finds that, while cyberthreats mainly consisted of viruses, worms and Trojans, over
time cybercriminals have begun to take advantage of techniques related to social engineering—
such as phishing—that target employees having direct access to databases containing confidential
business information, as well as pharming, credit card fraud, dedicated denial-of-service (DDoS)
attacks, identity theft and data theft. According to a Special Eurobarometer commissioned by the
European Union (EU), the majority of internet users across the EU do not feel that making online
purchases or doing online banking is secure, and have no idea how to navigate the internet safely.5
Many respondents claim to know about cybercrime from newspapers or television, but do not feel
informed about the risks that may be experienced. Cybercriminals exploit this lack of awareness.
The same study found that more than a third of internet users claim to have received at least one
email scam and feel concerned about their sensitive data online.6 Considering the increasing
number of people in possession of at least one smart device, and the increasing use of such
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devices as business tools, it is easy to see that there is plenty of fertile ground in which cybercrime
can operate and grow.
As cyberspace is rapidly evolving, the cyberthreats of the recent past also have also changed. They
have not only multiplied with respect to the means through which they are perpetrated, but also
have evolved into cybercrime, cyberterrorism, cyberespionage, cyberwarfare and hacktivism.7 The
universe of cybercrime is huge and includes different types of attacks and attackers, risks and
threats.
The challenge, therefore, is how to combat such diverse criminal activity and yet to preserve the
many positive aspects of our interconnected world.
II. The Toolkit
This Toolkit, Combating Cybercrime: Tools and Capacity Building for Emerging Economies, aims
at building capacity to combat cybercrime among policy-makers, legislators, public prosecutors
and investigators, as well as among individuals and in civil society at large in developing countries
by providing a synthesis of good practices in the policy, legal and criminal-justice aspects of the
enabling environment necessary to combat cybercrime. Included in this Toolkit is an Assessment
Tool that enables countries to assess their current capacity to combat cybercrime and identify
capacity-building priorities (discussed in more detail in chapter 7, and included in appendix 9
E). The Toolkit is also accompanied by a Virtual Library, with materials provided by participating
organizations and others.8
There are no shortages of resources regarding combatting cybercrime. An overriding ethos of the
organizations (listed below) participating in the development of this Toolkit was to avoid repeating
or replicating existing resources. However, it was felt that there was merit to producing a synthetic
reference on combatting cybercrime, taking best practices and packaging them in a new, holistic
fashion. In that sense, the Toolkit can be viewed as a kind of “portal”, overview or one-stop
shop that directs users who want to learn more or to go deeper into a particular topic, as well as
developing a framework to better understand how seemingly disparate issues interrelate and
providing some direction on how to get to primary resources.
The Toolkit is arranged along the following lines. In the introductory chapter, the Toolkit examines
the current landscape of cybercrime and some of the challenges are to combatting cybercrime. In
chapter 2, the Toolkit then looks at some foundational issues including what is meant by and what
constitutes cybercrime, and then looks at procedural, evidentiary, jurisdictional and institutional
issues. The Toolkit goes on to consider formal and informal measures of international cooperation
in chapter 3. In chapter 4, the Toolkit explores national legal frameworks. Chapter 5 examines in
detail at due process, data protection and freedom of expression safeguards. Chapter 6 looks
at different aspects of capacity-building. Chapter 7 explores various assessment tools, including
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the Assessment Tool developed under this Project. Some concluding observations can be found
in chapter 8. The Toolkit also contains appendices regarding cybercrime cases, multilateral
instruments, national legal frameworks and the various assessment tools.
III. The Assessment Tool
The Toolkit, a reference resource on its own, provides a broad contextual background to the
Assessment Tool. The Toolkit and Assessment Tool should be read together.
The Assessment Tool follows the same general organization as the Toolkit and assesses
capacity readiness using some 115 indicators and is organized along the following nine
dimensions:
1 Policy Framework 6 Jurisdiction
2 Legal Framework 7 Safeguards
Substantive Criminal Law
3 8 International Cooperation
Procedural Criminal Law
4 9 Capacity-building
5 e-Evidence
IV. The Broader Context
While this Toolkit and the Assessment Tool look at capacity building to combat cybercrime primarily
from a legal perspective, it is recognized that combatting cybercrime is a part of a broader effort
to ensure cybersecurity. Accordingly, this Toolkit puts cybercrime in a broader cybersecurity
context. And while it is primarily legal, it also looks at the role of the private sector and technical
community, including CIRTs and the like,9 in combatting cybercrime. But because the Toolkit
mainly approaches combatting cybercrime from a legal perspective, every effort has been made to
illustrate the various aspects of cybercrime through the use of court cases. Almost by definition, if a
case ends up in the courts, it is because there is a disputed issue of law. These cases are referred to
and highlighted as “cases” in the text of the Toolkit. These cases are used throughout the Toolkit
but are also aggregated in appendix 9 A. Of course, not all issues, even if they involve criminal
activity, end up in the courts. Accordingly, not every aspect of combatting cybercrime is supported
by a case. However, the Toolkit also uses case studies to illustrate some aspects of combatting
cybercrime. These are referred to and included in “boxes” throughout the Toolkit. In its synthetic
approach, the Toolkit also attempts to include different legal systems.
As discussed above, and explored in more depth in sections 2 A and 2 B, the Toolkit has attempted
to include not only more “traditional” cybercrimes, but also “new” kinds of crime committed on or
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using the internet. Importantly, and for the reasons described herein, the Toolkit adopts a definition
of “cybercrime” (see section 2 A, below) for the purposes of this Toolkit that attempts to be “future
proof”—that is, a definition that is broad enough to encompass already well-known types of crimes,
but also new and evolving areas, such as risk posed by cloud and quantum computing, blockchain
technologies and digital currencies, the internet of things (IoT), etc.
The Toolkit also places emphasis on the safeguards accompanying cybersecurity (considerations
of “due process” and ensuring freedom of expression and privacy/data protection). As a general
proposition, the “balance” to be achieved between security and preservation of basic rights was
recently given prominence of place in the World Bank’s World Development Report 2016: Digital
Dividends (WDR).10
At the same time, the Toolkit is about cybercrime and not cyberterrorism or cyberwar. Admittedly, it
is becoming increasingly difficult to distinguish between acts that might first appear to be “mere”
cybercrime perpetrated by civilian actors, but that may emerge with the passage of time and further
investigation to be acts by states against states (or their proxies).11 Indeed, cyberspace has been
recognized as a sovereign domain, akin to air, land and sea.12 That relationship and blurring of lines
between cybercrime and cyberwar is beyond the scope of this work and will have to be the subject
of another work.
It is axiomatic to say that cybercrime is continually evolving. Accordingly, the Toolkit captures
information as of 1 January 2017 and will be periodically updated.
It should also go without saying that nothing in this Toolkit constitutes legal advice and no inference
should be drawn as to the completeness, adequacy, accuracy or suitability of any of the analyses or
recommendations in it to any particular circumstance. All information contained in the Toolkit may
be updated, modified or amended at any time.
V. Participating Organizations
Association Internationale de Droit Pénal This work has been
Council of Europe (CoE) funded by the
International Telecommunication Union (ITU) Government of Korea
Supreme Prosecutors’ Office of Republic of Korea (KSPO) through a grant
Global Cyber Security Capacity Building Centre located at the provided by the
Martin School at Oxford University (Oxford) Korea-World Bank
United Nations Conference on Trade and Development Group Partnership
(UNCTAD) Facility.
United Nations Interregional Crime and Justice Research
Institute (UNICRI)
United Nations Office on Drugs and Crime (UNODC)
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CHAPTER 1
B. Phenomenon & Dimensions of
Cybercrime1
Table of Contents
Introduction 15
I. Situating Cyberspace 15
A. “A Brave New World”3 16
B. Maintaining Public Confidence 18
C. Cybercrime’s Physical & Virtual Nature 18
D. Innovative Criminal Prohibitions 20
E. Technological Innovations 21
II. Private Sector Cooperation 22
Conclusion 25
Introduction
Having set forth the purpose of the Toolkit in section 1 A, we now look at some of
the particular features of cybercrime in its evolving context. This section begins by (I)
talking about the place of cyberspace in today’s world and the place of the law therein,
going on to (II) drawing attention to the important role of private sector engagement.
I. Situating Cyberspace
Law, as a reflection of public policy, is intended to provide a predictable, fair and transparent basis
for ordering society, and for offering objective means for dispute resolution. With (A) the society’s
expansion into “cyberspace”2 ushering in a brave new world, it is fundamental that (B) public
confidence in law and order also extends into cyberspace in order for that space to continue to
be a place where economic, political and social discourse flourish. But because (C) cybercrime
is not entirely virtual or physical, (D) innovative public policy and legal approaches addressing
cybercrime—balancing security with human right—are imperative.
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A. “A Brave New World”3
Cyberspace is a nebulous digital or electronic realm characterized by the use of electronics and
electromagnetics to store, modify and exchange data via networked systems and associated
physical infrastructures. Not a “place” per se, it has been defined as “the online world of computer
networks”,4 but has been more aptly likened to the “human psyche translated to the internet”.5
However it is understood, cyberspace has transformed the world and our way of being. It has
created a “virtual” space parallel to the “real”, physical world. And, although not actually real, that
revolutionary world is itself about to be revolutionized as virtual reality (VR) prepares to render
further transformations, no doubt with great implications for the “real” world,6 and, indeed, for
what “real” means.7 Information and communications technologies (ICTs) allow for information to
be accessed, business conducted, professional and personal connections grown and maintained,
and governments engaged and governance expanded. Cyberspace and ICTs hold out huge growth
potential in practically every walk of life.8
With this greater openness, interconnectedness and dependency also comes greater risk: while ICT
has created new and legitimate opportunities, spaces and markets, those very same opportunities,
spaces and markets are rife for criminal exploitation. Individual cybercriminals and organized
criminal groups are increasingly using digital technologies to facilitate their illegal activities, be they
the enabling of traditional crimes, such as theft and fraud, or the rendering of new crimes, such
as attacks on computer hardware and software. Even in countries characterized by high rates of
unemployment, wage inequality and poverty, cybercrime is accessible, easy and cheap. Essentially,
anyone with access to the internet can become a cybercriminal. Moreover, with the emergence
of hacking tools, such as exploit-kits, neither computer expertise nor technological knowledge is
longer necessary.9 People in developing countries, often unable to find legitimate work in their
domestic market, see cyberspace, with more than 3.488 billion internet users worldwide,10 as a
market ripe for exploitation.11 Governments are coming to recognize both the harm that has been
caused, as well as the ever-growing gravity of the threat cybercrime, and are working on forming a
collaborative response at both the domestic and international levels.
That collaborative, international response to cybercrime cannot come soon enough: cybercrime is
on the rise, and the opportunities and gains are increasingly alluring.
In 2014, more than 348 million identities were exposed
When identity thieves hacked several trusted institutions, and 594 million persons are
affected by cybercrime globally.12
US$1 trillion in the United States
Estimates of losses from intellectual property and data theft go as high as US$1 trillion
in the United States alone.13
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170 million credit and debit card numbers stolen
In 2010, a hacker was sentenced to twenty years in prison for stealing more than 170
million credit and debit card numbers, making it the largest single-identity theft case
that the US Department of Justice (DoJ) has ever prosecuted.14
Case 1.1: FBI Hacks “Playpen” Child Pornography Site on Tor Network
(USA)15
In a massive sting operation, FBI agents infiltrated “Playpen”, one of the largest ever child
pornography networks, by infecting websites with malware that bypassed user’s security
systems.16 The FBI continued to operate the site for thirteen days after it had secured control
of it, subsequently identifying hundreds of users.
Tor—an abbreviation for “The Onion Router”—is a free software that allows anonymous
internet communication, preventing localization of users or monitoring of browsing
habits, by bouncing users’ internet traffic from one computer to another to make it largely
untraceable.17 Operating through the special-use, top level domain suffix “.onion”,18
Tor addresses are not actual names in the domain name system (DNS)—the hierarchical,
decentralized naming system for computers, services or any resource connected to the
internet or a private network. Initially developed with the US Navy, today it is a nonprofit
organization; the, Tor network is a group of volunteer-operated servers.
Tor’s popularity recently increased with its launch of a hidden chat tool that not only hides
message contents from everyone except participants, as well as hiding the location of those
participants, but which also operates with platforms such as Facebook Chat, Google Talk,
Twitter and Yahoo!, even in countries where those platforms are banned.19 Rather than rely on
the “dark web”, a collection of hidden websites and services of which Tor forms a prominent
part, the Tor Messenger operates by sending messages across a series of internet relays (or
routers), known as “bridges”, thereby masking the messages’ origins.20 Because the services
operate through a collection of relays that are not publicly listed, blocking access to the Tor
network would not affect the Tor Messenger.21 Furthermore, just as with services such as
WhatsApp (see section 1 B, case 1.3, below), end-to-end message encryption may be offered.
Although concern exists that the services might be used for more nefarious purposes, there
is public interest in having such a tool—for instance, for whistleblowers and others needing
anonymity. While banning Tor might well be both infeasible and unwise,22 this case indicates
that Tor is not a perfect blanket of anonymity.
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B. Maintaining Public Confidence
One of the principal purposes of the law is to provide an objective, predictable, transparent and
universally-applicable set of rules that governs conduct and maintains order.23 A key element
to order is public confidence,24 which is bolstered through laws supported by principles of
transparency, accountability and participation. It is well understood that “trust” in the use of the
internet and ICTs will engender use, and that part of building this trust environment in cyberspace
involves striking a balance between establishing the security of networks, devices and data, and
ensuring that fundamental rights such as privacy (including data protection) and freedom of
expression are observed.25 The evolution of cyberspace, and the ever-increasingly easy means of
accessing it, have resulted in a new range of living and coexisting, which society—and the law—are
grappling to understand.26 These new, exciting possibilities should not be either unnecessarily or
disproportionately stifled in the name of security and combating criminality.
Nature abhorring a vacuum,27 and the path of least resistance being preferred,28 society at large—
individuals, financial institutions, private industry and governments—have increasingly exploited,
and subsequently come to rely on technology in order to function: cyber networks have become
essential to everyday operations, with power grids, air traffic control, urban utilities and much more
dependent upon cyber technology.29 Consequentially, the potential threat posed by cybercriminals
has grown dramatically and afforded significant opportunities for terrorist groups and extremist
organizations.
Public confidence in the secure functioning of ICT systems and of cyberspace has become
necessary to maintaining social order.30 Several legal systems stress the need to protect the
functioning of ICT systems through criminal laws.31 The principal protected interests are the
confidentiality, integrity and availability of information systems and electronic data.32 In pursuit
of the urgency to criminalize certain behavior, the challenge in terms of law reform is to avoid
overreaching in order not to violate fundamental rights.33
C. Cybercrime’s Physical & Virtual Nature
While this Toolkit expands in more detail in subsequent chapters both the working definition of
cybercrime (see section 2 A, below) as well as what sort of acts constitute cybercrime (see section
2 B, below), in many cases, cybercrime can be understood as digital versions of well-known,
“traditional” offenses only with a virtual or cyberspatial dimension in addition or in lieu of.34
For instance, identity theft, which can happen in both the physical and electronic worlds, fits an
adaptive conception of cybercrime perfectly well. The factor differentiating identity theft in the
physical and virtual worlds is the crime’s “how”. In both instances, the criminal intent (namely, to
obtain a benefit) and the result (namely, fraudulent misrepresentation) are the same.35 The “how”
differs in that, in the physical version, the impersonation is done with a physical item (e.g., a stolen
identity card, mail, statement), while, in the virtual version, the crime is committed through the
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presentation, usually to some remote, automated interface, of identifying information (e.g., a
password). In the virtual setting, the cybercriminal may fraudulently induce someone to voluntarily
reveal that information or use automated “keystroke logging” software to record an electronic copy
of that information and relay it to the cybercriminal.
While the two paradigms are relatively comparable, transitional difficulties arise at the level of
law enforcement.36 For instance, police, frequently accustomed to building a physical record—a
physical “paper trail”—, often have difficulty transposing that record to the electronic world and
investigating on purely electronic grounds.37
Problems in conceptualization are often complicated or reinforced by laws that remain outpaced
by technological developments.38 As a result, law enforcement often lags far behind the pioneers
of organized crime.39 For example, in the United States, computer fraud (criminalized in 18 USC §
1030) is not yet classified as a predicate offense for racketeering under the Racketeer Influenced
Corrupt Practices (RICO) Act.40 One of the most important tools to combat organized crime,41 RICO,
which allows for leaders of crime syndicates to be targeted, came to prominence in the 1980s when
its provisions began to be applied to combat the mafia.42
Cyberspace has allowed criminals to more “efficiently” commit crimes.43 Electronic tools and
equipment, many of which are freely available on the internet, can be ordered and distributed with
just one mouse-click, yet frequently affecting millions. Examples of “computerized” or “electronic”
versions of traditional crimes include ICT-mediated fraud, revelation of electronically-stored secrets,
forging digitally-stored data, defamation, cyberstalking, copyright violation and cyber-bullying.44 In
such instances, the affected interests remain the same, with only the modus operandi differing from
the traditional form.45
In many cases, cyberspace has made committing crimes so much simpler that the use of the
electronic medium has eclipsed using traditional ones. For instance, today, pornography
(including child pornography) is principally transmitted and distributed electronically. Indeed,
such behavior has even led some legal systems to introduce special criminal prohibitions against
cyber pornography, with nuanced aspects unique to cyberspace being addressed—for instance,
“grooming” of children for potential sexual abuse through electronic communications has also been
defined as a criminal offense in many jurisdictions.46 Where perpetrators use virtual social networks
to initiate and establish physical contact in order to commit sexual offenses, they cross the line
between the “traditional” crime type and the type of crime that depends on the existence of the
internet.
Case 1.2: State of Tamil Nadu vs. Suhas Katti (India)47
Complainant, a divorced woman, was the subject of obscene, defamatory and harassing
messages that were both posted online and which were sent to her from an email account
falsely opened in Complainant’s name. Defendant’s postings, which released her phone
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number without her consent, resulted in telephone calls to Complainant in the belief that
she was soliciting sexual favors. Defendant, a purported family friend of Complainant, was
apparently motivated by a desire to marry Complainant. When Complainant’s marriage
ended in divorce, Defendant resumed contact with her and, on her refusal to marry him,
began his cyber harassment.
The court, relying on testimony from witnesses at the cyber café where the behavior took
place, on experts, and on cyber forensic evidence, convicted Defendant of “transmitting
obscene material in electronic form” under Section 67 of Information Technology Act 2000
(§§ 469 & 509, Indian Penal Code). The Act has drawn subsequent controversy as a vaguely
worded criminal statute, predicated on the meaning of “obscene” material as one that could
be used to curtail any sexually explicit material. While cybercrime has a fairly low conviction
rate, this case, the first of its kind, was prosecuted in just seven months.
The first case of successful cybercrime conviction in India, and with such rapid conviction, this
case represents a significant landmark in the fight against cybercrime.
D. Innovative Criminal Prohibitions
The relationship between virtual and physical worlds has meant that laws ordained for the physical
world and to tangible property have sometimes been applied to cyberspace and to virtual
property.48 Applying physical-crime laws to cybercrime has been particularly prevalent with respect
to theft and fraud, although doing so has met with varying degrees of success. On the one hand, in
2012, the Dutch Supreme Court confirmed a conviction for theft of electronic goods on the basis
of existing, unadapted law.49 Similarly, in the United States illegally acquiring or using another’s
“means of identification” with the intent to commit an unlawful act is a crime.50 Elsewhere, computer
forgery, fraud by false representation, wrongful impersonation of another person, defamation
and dissemination of information violating another’s personal privacy have all been accepted
as crimes committed in cyberspace on the basis of physical-world crimes.51 On the other hand,
however, other legal systems have not always considered hacking as theft, typically on the basis that
hacking normally does not “permanently deprive” the victim of the goods, and, as such, should be
understood as a form of involuntary sharing, rather than theft.
Regardless of the answer to whether laws written for the physical world should be applied to
the electronic world, legal systems have created corresponding categories and definitions of
offenses52 aimed specifically at protecting the substantial, new interests and opportunities possible
in the cyberworld.53 For example, a virtual version of harassment exists in many legal systems:
cyberharassment has been defined as a person’s “use [of] a network or electronic communications
service or other electronic means to annoy or cause damage to his correspondent, or to install
any device intended to commit the offense and the attempt to commit it”.54 Similarly, because the
internet allows for the immediate dissemination of sensitive information and images in the absence
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of consent,55 cases of “revenge porn” (where material containing nudity or of sex activities is posted
in revenge by erstwhile lovers in order to embarrass, punish or interfere with other relationships of
the victim), are increasingly frequent and have received particular legal attention.56
Moreover, although the electronic and physical worlds are distinct from each other, the two are
very much interconnected. For instance, regarding property, “cyber goods” have value and their
loss can cause just as much harm as the loss of tangible property.57 Moreover, stealing a person’s
virtual identity can have very serious repercussions in the physical world, and such identity theft is
often a precursor to defrauding the victim in concrete, commercial transactions involving tangible
goods.58 For example, a perpetrator may illegally acquire the victim’s access data, gain access to
his bank account or, more simply, order and acquire goods, leaving the bill to the victim.59 Still
more troubling, the usurpation of a person’s virtual identity can have serious and even irreparable
consequences in both professional and personal circles; loss of reputation can be much more
damaging than financial loss of online purchases.60 Given the potentially great value of both
reputation and integrity of cyber personalities and avatars, the usurpation or falsification of a
person’s virtual identity has been criminalized,61 often regardless of whether there is intent to cause
material harm.62
E. Technological Innovations
Recent technological developments have drawn increased attention on the importance of
addressing how the physical and electronic worlds are to interrelate, and how to define the overall
landscape of cyberspace. Although discussed in greater depth further on (see sections 1 C and 2 A,
below).The most notable of these matters merit mentioning here:
These technological advances include developments in FinTech, horizontal data partitioning
(“sharding”), blockchain, quantum computing and artificial intelligence:
Reliance on FinTech or financial technology, will continue to grow as the technology-enabled
financial solutions facilitated “smart” transactions and help removing transaction costs.63
However, as FinTech continues to permeate everyday activities, it necessarily results in the
collecting and agglomerating of sensitive information —notably unique metadata—, inevitably
becoming a target for cybercriminals.64
Various techniques are being developed to improve data and systems security. Key among
them is the use of the horizontal data partitioning, a technique known as “sharding”,
whereby electronic data is stored and spread across multiple databases. Doing so means that
unauthorized users will only be able to access a small portion of the data, which may not even
be readable on its own, or will have to independently infiltrate several or all of the systems
in order to have the full data set. For instance, this technique might separate out credit card
numbers, or parts of those numbers, from the corresponding verification numbers.65
Blockchain technology is anticipated to change how transactions are done. Blockchain is
a distributed, open-source, peer-to-peer, public ledger that records ownership and value. It
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removes the need for a third-party verification organization, as transactions recorded on a public
ledger and are verified through consensus. It is inexpensive, easy to use and secure; presently,
it is the most secure transaction method available.66 Although the technology is perhaps best
known for its use in digital currencies,67 its potential utility is endless. Beyond finance, blockchain
has the potential to revolutionize all exchanges of information—smart contracts, patent
registration, voting, distribution of social benefits, records, etc.68
More dramatic changes are promised by quantum computing. Quantum computing would,
in essence, take the present, binary operating form to a multidimensional level (see section
1 C, box 1.2, below), thereby threatening to undermine existing encryption systems and their
algorithms.69 Faced with this challenge, new cryptology schemes are looking to quantum
mechanics that would use photons, and rely on physics as a means of security.70
Lastly, the role of artificial intelligence (AI) is a growing prospect. Modern technology such
as machine learning and autonomous systems would allow computers to learn, reason and
make decisions with minimal human involvement. For example, AI can detect a security breach
immediately, whereas, in the past, it would take months. Correspondingly, AI might be used to
commit cybercrime, therein presenting unique legal questions (see section 1 C, below).
II. Private Sector Cooperation
Governments have an obligation to assure public safety and security in the analog world.71 The ease
and speed of information-sharing between cybercriminals, and the disparateness of criminal activity,
makes it difficult for law enforcement to keep up. However, much of the infrastructure undergirding
cyberspace, and many of the means of communications operating in cyberspace, are controlled by
nonstate actors. Such being the case, government efforts to combat cybercrime will have to rely on
private sector involvement, notably through the use of public-private partnerships (PPPs).72
In order to combat cybercrime, not only are tailor-made tools complementing traditional
approaches needed, but so, too, is a unified approach for building collaborative partnerships
between law enforcement and the private sector. Gathering and analyzing digital data are key
to investigating and prosecuting cybercrime cases. At both the international and national level,
entities such as INTERPOL and the KSPO are coordinating with the private sector in the area of
digital forensics. These issues are explored in more depth further on (see section 6 C, below).
To a large extent, content carriers, notably internet service providers (ISPs), are not subject to
prosecution, even though criminal content or criminal activity may be carried out using their
services, and even though ISPs often have unique access to essential data regarding criminal
content or activity. ISPs also store customer-use data. Moreover, most ISPs are usually private
entities. In order to encourage investment in provision of internet services and access to the
internet, most jurisdictions afford some limited liability for ISPs on the basis of being “mere
conduits” or intermediaries. Once coupled with privacy guarantees,73 the basic and widespread
position is that ISPs are unaware of the criminal activity in much the same way that a landlord or a
telephone company might be unaware of the natures of activities occurring on the rented premises,
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or carried across their telephone lines. By contrast, those arguing for ISPs to assume greater liability
from the start prefer to construe ISPs as newspaper publishers who should be responsible for the
material on their servers. That said, liability often attaches once ISPs become aware of illicit activity
and fail to act accordingly. Similar liability attaches to other service providers, such as bulletin board
operators and proprietary information providers. It has been argued that, while many have called
for harmonization, “uniformity is both illusory and unnecessary”.74
Cooperation with the private sector, including PPPs play a vital part in the fight against cybercrime,
especially, and to reiterate, as the private sector, and not government, either owns or operates so
much essential infrastructure and provides essential services. According to INTERPOL,
“The complex and ever-changing nature of the cyber threat landscape
requires high-level technical expertise, and it is essential that law enforcement
collaborates across sectors to effectively combat cybercrime and enhance digital
security.”75
In announcing its support for PPP cybersecurity initiatives last year, the US White House observed
that “[c]urrent [PPPs] in this space have at best unclear or ill-defined roles and responsibilities
for the industry and government partners.”76 The vastness of cybercrime is beyond the means of
government: law enforcement is both unprepared and unable to fully scale-up to a fast-growing
threat landscape. The greater the communication and coordination between public and private
sectors, the greater society’s resilience and ability to evolve to meet cybersecurity threats.
However, there is a lack of cooperation between governments and the private sector on matters of
cybersecurity. US President Barack Obama highlighted this concern with his Executive Order aiming
at encouraging better information sharing between the public and private sectors on cyberattacks.77
President Obama said the following:
“[T]he cyber threat is one of the most serious challenges to national and
economic security that we face as a nation” and that “the economic prosperity
of the United States in the twenty-first century will depend on cyber security”.78
In Europe,79 only a handful of European countries have an established framework for PPPs on
cybersecurity.80
Case 1.3: In the matter of the Search of an Apple iPhone (USA)81
Though not technically a “cybercrime” case, the FBI went to court to compel Apple, Inc. to
create a software tool that would help the FBI gain access to a locked iPhone that belonged
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to an alleged terrorist shooter in San Bernardino, California.82 The suit was eventually
dropped after an unidentified third party successfully cracked the 5C iPhone running iOS 9
software, at a cost of US$1.3 million to the FBI.83
This situation demonstrates the diversity of efforts required for combatting cybercrime,
and is anecdotal of the technical limitations on a government’s ability to access data to
investigate and prosecute acts of terrorism or cybercrime without the input of the private
sector. The case raised the debate over whether private technology companies’ encryption
technologies protect privacy or endanger the public by preventing law enforcement access
to critical information. As cyberspace continues to evolve, innovated investigative tools will
also correspondingly be required to enable effective law enforcement investigations. While
this particular standoff has come to an end, the tension between a government’s desire
to access technology and data necessary to enable effective investigation and the private
sector’s legitimate interest in providing secure technology and services to consumers as well
as protecting proprietary investments has not. Moreover, while this suit was dropped, the
US Government has since initiated other proceedings to compel Apple to assist the FBI in
unlocking an iPhone 5s running iOS 7, though this time involving a “routine drug case”.84
This incident also demonstrates that perfectly legitimate products—in this case, an iPhone—
have become central to committing cybercrimes. Such technology, although only incidentally
being used to support criminal activity, is being developed by a multitude of private actors.
The government’s ability to cover the great diversity of fields and spaces is well-beyond
present budgetary constraints, illustrating the necessity of public-private cooperation. The
public-private problem is only likely to grow, as not only Apple85 but other technology firms,
such as WhatsApp,86 extend security and protection with end-to-end encryption (E2EE) and
other security measures.
Indeed, following the 2017 terrorist attack outside the UK Houses of Parliament in London in
March, and again following those in Manchester in June, UK authorities recently advocated
that similar access should be granted vis-à-vis instant-messaging services, most notably for
WhatsApp.87 While the UK Home Secretary has sought to enlist the support of technology
and social media at large,88 the UK Prime Minister having repeated as much,89 it seems
unlikely that, even with private-sector cooperation, the problem would ever be resolved:
simply put, the technological ease of encrypting communications means that a rival app or
process is likely to appear almost immediately should present instant messaging systems
be obliged to create such a “back door” for government. Moreover, lowered technological
barriers to entry are bolstered by market demand, which, for numerous reasons—many
of which are legitimate and legal—incentivizes the development of secure, anonymous
communication tools.
Creating a strong legal cybersecurity framework is complex. The fundamentals of doing so
range from establishing strong legal foundations and a comprehensive and regularly updated
cybersecurity strategy, to engendering trust, working in partnership and promoting cybersecurity
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education. These building blocks provide valuable guidance for governments that are ultimately
responsible for implementing cybersecurity rules and policies.90
Conclusion
Although all of the following matters are addressed in greater depth in the Toolkit, a few
points bear mentioning given this section’s discussion:
Cyberworld is a burgeoning space: In 2016, over 3.488 billion people, roughly forty percent
of the world’s population, used the internet.91 Over sixty percent of all internet users are in
developing countries, with forty-five percent of all internet users below the age of twenty-five
years. By the end of the year 2017, it is estimated that mobile broadband subscriptions will
approach seventy percent of the world’s total population. By 2020, the number of networked
devices (the “internet of things” (IoT)) will outnumber people by six to one, completely
transforming current conceptions of the internet; moreover, interconnectivity will not be
limited to the networking of devices but will also extend to humans, both at the individual and
collective level (the “internet of everything” (IoE)).92 In the hyper-connected world of tomorrow,
it will become hard to imagine a “computer crime”, and perhaps any crime, that does not
involve electronic evidence linked with internet protocol (IP) connectivity. The greatest growth
in the internet in the coming years will be the developing world because that is where the
world’s next billion people will access the internet for the first time.93 It follows from that that
the developing world is also where the greatest need will be to put in place policy and legal
approaches for dealing with cybersecurity and cybercrime.
Defining cybercrime poses difficulties (see section 2 A, below): A limited number of acts
against the confidentiality, integrity and availability of computer data or systems represent the
core of cybercrime. Beyond this, however, computer-related acts for personal or financial gain or
harm, including forms of identity-related crime, and computer content-related acts (all of which
fall within a wider meaning of the term “cybercrime”) do not lend themselves easily to efforts
to arrive at legal definitions of the aggregate term. Certain definitions are required for the core
of cybercrime acts. However, a “definition” of cybercrime is not as relevant for other purposes,
such as defining the scope of specialized investigative and international cooperation powers,
which are better focused on electronic evidence for any crime, rather than a broad, artificial
“cybercrime” construct.
Cybercrime is global and occurs across sectors: Globally, cybercrime is broadly distributed
across financially-driven acts, computer-content related acts, and acts against the confidentiality,
integrity, and accessibility of computer systems. Perceptions of relative risk and threat vary,
however, between governments and private sector enterprises. Currently, crime statistics may
not represent a sound basis for cross-national comparisons, although such statistics are often
important for policy making at the national level.
International legal instruments have done much to spread increase knowledge sharing
(see section 3 A, below): Legal measures play a key role in the prevention and combatting
of cybercrime. These are required in all areas, including criminalization, procedural powers,
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jurisdiction, international cooperation and ISP responsibility and liability. The last decade has
seen significant developments in the promulgation of international and regional instruments
aimed at countering cybercrime. These include binding and non-binding instruments. Five
clusters can be identified, consisting of instruments developed in the context of, or inspired by:
(1) the Council of Europe or the European Union, (2) the Commonwealth of Independent States
or the Shanghai Cooperation Organization, (3) intergovernmental African organizations, (4) the
League of Arab States, and (5) the United Nations. A significant amount of cross-fertilization
exists between all instruments, including, in particular, concepts and approaches developed in
the Council of Europe Convention on Cybercrime (the “Budapest Convention”).
There is a risk of partition between cooperating with shared cybercrime procedures and
non-cooperating states (see section 3 A, below): Current international cooperation risks fall
into two country clusters: those states that have implemented reciprocal powers and procedures
to cooperate among themselves, and those that have failed to implement those measures,
are restricted to “traditional” modes of international cooperation that take no account of
the specificities of electronic evidence and the global nature of cybercrime. Such a concern
is particularly true of investigative actions. The lack of a common approach, including within
current multilateral cybercrime instruments, means that even simple requests for actions, such
data preservation, may not be easily fulfilled.
Regulatory frameworks must maintain data integrity while protecting freedoms: Regulatory
frameworks, essential to the fight cybercrime, must be sufficiently bolstered to assure freedom
of speech and access to information. Relatedly, while data protection laws generally require
personal data to be deleted when no longer required, some states have made exceptions for
purposes of criminal investigation, requiring ISPs to store specific types of data for a set period
of time. Many developed countries also have rules requiring organizations to notify individuals
and regulators of data breaches. Also, while it might be technically possible for ISPs to filter
content, any restrictions that they place on internet access are subject to both foreseeability
and proportionality requirements under international human rights law protecting rights to seek,
receive and impart information.
The question of holding ISPs liable: Following directly on from the previous matter is the
question of whether, and to what extent, to hold ISPs liable for objectionable content is a vast
one. In many legal systems, ISPs may be held liable for failing to control or constrain illegal
content or activity crossing their systems. In other systems, however, that liability is limited on
the basis that ISPs are “mere conduits” of data. That said, where liability is limited, it can often
shift to a requirement to take action if an element of content-awareness becomes apparent—for
instance, where the ISP modifies transmitted content or if actual or constructive knowledge of
illegal activity or content is shown.
PPPs are central to cybercrime prevention: PPPs are created as much by informal agreement
as by legal basis. Private sector entities tend to be most frequently involved in partnerships,
followed by academic institutions, and then by international and regional organizations. PPPs
are mostly used to facilitate knowledge sharing, though they have been used, especially by
private-sector entities, to prompt investigation and legal actions. Such actions complement
those of law enforcement and can help mitigate damage to victims. Academic institutions
play a variety of roles in preventing cybercrime, including training, developing law and policy
development, and technical standards setting, as well as housing cybercrime experts, computer
emergency response teams CIRTs and specialized research centers.
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CHAPTER 1
C. Challenges to Fighting Cybercrime
Table of Contents
Introduction 27
I. General Challenges 28
II. Challenges to Developing Legal Frameworks 28
A. Adapting Current Legal Frameworks 29
B. Developing Developing Legal Frameworks 30
III. Challenges of Additional Resources 32
A. Additional Legal Tools 32
B. The Consumer’s Role 32
C. Private Sector Cooperation 33
D. Detecting Cybercrime 34
IV. Challenges to International Interoperability 36
A. International Cooperation 37
B. Jurisdictional Challenges 39
V. Safeguards 40
A. Respecting Constitutional Limits 40
B. Balancing Data Collection with Data Protection 41
C. Freedom of Communication 42
1. Freedom of Opinion and Expression 42
2. Freedom of Information 43
Conclusion 44
Introduction
Recent ICT developments have not only allowed for the emergence of new types of
illegal activities, but have also resulted in novel techniques for evading law enforcement
authorities, and, even after having been found out, in hindering investigation and
prosecution. At the same time, ICT advancements have strengthened the abilities of
law enforcement agencies to investigate and prosecute cybercriminals.1 This section
examines challenges in the fight against cybercrime.
This section begins by (I) talking of general challenges to cybercrime, goes on to (II)
talk about specific challenges of developing legal frameworks, and then (III) highlights
that there are other resources that might be brought to bear. The last half of the section
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discusses (IV) the various challenges of a lack of international interoperability and
(V) the need for appropriate safeguards to be implemented by both national and
international authorities.
I. General Challenges
Challenges to investigating and prosecuting cybercrime arise out of its transnational, and thus
multi-jurisdictional, nature, as well as to challenges in detecting these crimes, insufficient legal
frameworks and the ever-shifting technological landscape.
Technology moves on apace, and usually much more quickly than authorities or, even more so,
legislatures do. Bearing such technological evolution in mind, legislatures frequently attempt to
account for technological progress that would render the wording of a criminal statute obsolete
by, for instance, using relatively generic language and not specifying technology, or by adopting
generalizations—for instance, “any electronic communication technology, regardless of its
technological format or appearance”.2
Challenges for law enforcement in the fight against cybercrime are manifold. The most
common include the following:
1
Growing access to high-speed internet access;
2
Growing availability of hardware and software tools (particularly encryption technologies);
3
Increasing ease of launching automated cyberattacks;
4
Rapid development of novel cybercrime techniques;
5
Rapid nature of cyberattacks;
6
Fragility and temporal nature of electronic data;
7
Lack of investigative capacity devoted to cyberspace;
8
Increasing reliance on (initial) automated investigation processes due to increasing number
of internet users;
9
Decentralized nature, architecture, and design of the internet;
10
Multi-jurisdictionally of the crimes; and
11
Anonymous nature of online communications.
II. Challenges to Developing Legal Frameworks
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Beyond the general challenges faced in combatting cybercrime, there are challenges in (A)
adapting current legal frameworks and (B) developing new, cybercrime-specific aspects and legal
frameworks, while also (C) respecting constitutional limits.
A. Adapting Current Legal Frameworks
Developing cybercrime countermeasures requires building a sufficiently robust and flexible
legal framework through legislative and regulatory action. That framework needs to provide law
enforcement agencies with both procedural means and actual resources to fight cybercrime.3
Adapting pre-existing legislation that has not been specifically intended to deal with cybercrime
often may be an option, even if not ideal. For example, in the United States anti-money-laundering
(AML) and identity theft laws are being applied to their cyberspace analogs.4 Many other countries
have adapted existing legislation by introducing provisions that extend existing laws to include
criminal activity conducted on the internet or facilitated by the use of ICT. Short of legislative
activity, the application of existing laws5 and concepts6 to cyberspace is dependent upon judicial
interpretation of creative prosecutions; just how the prosecutors and the judiciary act, and interact,
will be shaped by a country’s legal system, especially whether it is in the civil or common law
approach, in the determination of essential values and overall policy.7
Technological developments present perennial challenge for combatting cybercrime. One that,
though only nascent at best, deserves raising is the development of AI as combined with the
creation of autonomous systems. It is not all that far in the future that one could foresee such
systems being on such a level of sophistication that they are less “tools” and more as cognitive
“minds”. For the purposes of the Toolkit, such advances have a particular potential bearing on
understandings of criminal liability. As discussed further on, criminal liability requires two criminal
components be satisfied: first, an objective, fact-based showing of an action, or actus reas, and,
second, the accompanying, requisite mental state, or mens rea (“guilty mind”), which requires a
subjective determination (see sections 1 D and 4 A, below). It is not inconceivable that AI could
“commit” crimes in their own right, therein complicating mens rea assessments.8 Although AI is
not presently subject to criminal liability, considering how it might be addressed should be borne
in mind by governments—indeed, one model for doing as much might, for instance, be borrowed,
from criminal liability of corporations.
Case 1.4: United States v. Liberty Reserve (USA)9
Incorporated in 2006 in Costa Rica, Liberty Reserve was a centralized, digital currency service
that operated its own currency exchange using a digital currency, commonly called the
“LR”. The exchange allowed the anonymous transfer of client funds between third party
payment exchange merchants and bank accounts. Liberty Reserve allowed clients to create
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layered anonymity because of exceptionally lax identification requirements. Furthermore,
they worked with unregulated money service businesses that operated using equally lax
identification requirements. In doing so, Liberty Reserve charged fees for services rendered to
clients, including currency exchanges and money transfers. Liberty Reserve became an ideal
method for laundering and transferring monies internationally, with over US$6 billion were
allegedly laundered through its channels.
On 28 May 2013, prosecutors in the US Southern District of New York brought charges
against seven individuals under the USA PATRIOT Act for money laundering and running
an unlicensed financial transaction company. The provisions used to target those at Liberty
Reserve were not specifically targeting cybercrime.10 The investigation involved operations in
at least seventeen countries.
This case is indicative both of the ease with which financial cybercrimes can be committed
thanks to the connectivity of cyberspace, as well as the potentially very great financial gains
that might be had from such crimes.
B. Developing Developing Legal Frameworks
Despite a wide range of efforts to create a favorable legal environment to tackle cybercrime,
challenges persist to assuring adequate legal frameworks.
These challenges include, among others, difficulties in:
1
Drafting new and clear11 cybercrime legislation after the recognition of an abuse of new
technology and identification of criminal law gaps;
2
Developing procedures for e-evidence;
3
Ensuring the criminalization of new and developing types of internet crimes;
4
Introducing new investigative instruments in response to offenders’ growing use of ICTs to
prepare and execute their offences;
5
Promoting technologically neutral laws12; and
6
Balancing security and rights.13
Box 1.1: Computer-facilitated Fraud Involving Illegally-obtained Online Game
Items14
Through mobile phones with a built-in SIM card, and thus access to gamers’ IDs, Defendants
would use stored credit to repeatedly and fraudulently purchase game products from the
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acquired phones. Thereafter, the game items would be sold for money on an intermediary
trading website.
The Supreme Court of Korea read “game items” into the Game Industry Promotion Act: the
“tangible and intangible results obtained through the use of game products [are] forbidden
to make a business of exchanging such items”.15 The Court validated its position by looking
to two different Enforcement Decrees for the Game Industry Promotion Act: first, the current
Decree reads that “Game money or data, such as items, produced or acquired by using
game products with personal information of another person”16; second, the former Decree
read, “Game money or data, such as game items, produced or acquired by abnormal use of
game products”.17
Thus, Korea has used both amendments and judicial interpretation to ensure that evolving
forms of cybercrime remain criminalized.
While countries are finding various means to criminalize the growing diversity of cybercrime,
doubt has been expressed over the deterrent effect of current regulations.18 Part of the concern
is cybercrime’s ubiquity and difficulties in identifying perpetrators and cross-jurisdictional
prosecution.19 Additionally, however, is the concern that penalties are not sufficiently severe to deter
criminal behavior.20 That said, anecdotal evidence suggests that this situation might be changing.
Case 1.5: United States v. Albert Gonzalez (USA)21
On 25 March 2010, Albert Gonzalez, the so-called TJX hacker, was sentenced to twenty years
in prison, the longest US prison term in history for hacking.22 Gonzalez engineered what was
at the time the largest theft of credit and debit card information in US history (some eighty
gigabytes of data), which resulted in the theft of over 130 million card numbers and costing
individuals, companies and banks, and which amounted to nearly US$200 million in losses.23
The hacks involved the first known intrusions involving decryption of PIN codes, a key
protective feature in bank card security in the United States.
The sentence represents one of the toughest verdicts for both financial crimes and
cybercrimes to date in the United States.24 Although sentences have been becoming
increasingly robust, they have not played a significant role in reducing cybercrime due to
difficulties in identifying, arresting and prosecuting offenders. Also, restitution orders are
rarely, if ever, fully paid back.25
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III. Challenges of Additional Resources
Before defining the term of cybercrime,26 it bears noting that (A) there are additional, noncriminal
legal tools in preventing crime, (B) consumer awareness plays a role in preventing crime and (C)
government efforts to combat cybercrime will have to involve public-private partnerships due to
the important role of nonstate actors in the provision of infrastructure and cyber services Another,
separate challenge is faced in (D) developing sufficient capacity to detect cybercriminal activities.
A. Additional Legal Tools
Criminalization is not the only option to combatting untoward cyber activity. Indeed, pursuant
to the ultima ratio principle,27 criminal law should be used only as a last resort for dealing with a
social ill. Both administrative and civil measures might be taken to combat errant cyber activity.
Administrative measures that might be taken include ordering the removal of certain content, or the
“closing down” of offensive websites (for instance, in combatting child pornography).28 Ordering
an ISP to block access to the website might also be an option,29 although, as discussed further on,
the internet’s transnationality limits the efficacy of such options. Removal of content and closing
of websites may also interfere with domestic or foreign criminal investigations (or national security
investigations), or such measures may hinder efforts to rescue trafficking victims if carried out
without coordination. Additionally, many legal systems allow individual victims redress for damages
in civil courts. Due to the cost and complexity, as well as shifting the burden from the state to the
victim, civil sanctions are largely unused, except in the case of copyright violations.30 Other tools
include the creation of a digital ID—for instance, in South Korea, these IDs, which are visible to
law enforcement but not to the public, have helped to reduce incidences of cyberstalking and
cyberbullying.
B. The Consumer’s Role
What roles and responsibilities do individuals have in combatting cybercrime?
A growing body of literature recognizes the responsibilities of individuals to ensure they take proper
precautions to secure their devices and data.31 As certain cybercrimes could be easily prevented
through user caution and awareness, it has been argued that the user ought to be incentivized by
the law to do so. Basic steps include using and maintaining up-to-date antiviral software, keeping
personal devices clean of malware, maintaining up-to-date antiviral software, being mindful when
opening emails and downloading files and being conscious of sharing personal information.
Additional techniques include the use of strong passwords, two-step verification, personal
identification numbers (PINs), encrypted communications, as well as keeping device Bluetooth and
WiFi off when not in use. In many instances, virtual private networks (VPNs), which connect users to
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a server, therein giving the appearance that the traffic is coming out of that source rather than from
the user, might be used to improve privacy. By failing to take simple security actions, the user not
only becomes a vulnerable target but also allows criminals to coopt electronic devices to conduct
other malicious and criminal behavior, costs which are potentially both considerable and which are
passed on to society.32 However, while many countries encourage the use of appropriate protection,
only a few go so far as to sanction failure to use protection.33
Of greater concern than the role of the individual is the role of the private sector companies
involved or operating critical infrastructure. Companies—frequently driven almost-exclusively by
profit in the age of privatization—have proven themselves slow to invest the necessary resources in
many aspects but quite notably in the area of industrial controls and security.34 Indeed, Kaspersky
Labs found critical infrastructure companies still running 30-year-oId operating systems.35 In the
United States, attempts to legislate requiring companies to maintain better security practices were
stymied on the grounds that it would be too costly for businesses.36 Such infrastructural lacks have
been aggravated by user apathy, with many companies operating industrial control systems not
even changing the default passwords.37
C. Private Sector Cooperation
The ease and speed of information-sharing between cybercriminals, and the disparateness of
criminal activity, makes it difficult for either law enforcement or targets to keep up. As discussed
in the previous section in greater depth (see section 1 B, above), cybercrime cannot be effectively
combatted without cooperation between the public and private sectors.38 As cyberspace continues
to develop, different investigative tools will be required of law enforcement, as dramatically shown
in the FBI’s inability to independently unlock iPhone.39 Only partnerships with the private sector will
make such possible.
Box 1.2: WannaCry Ransomware Attack
In May 2017, a huge cyberattack—described by Europol chief as “unprecedented in its
scale”—affected more than 200,000 victims in over 150 countries.40 While the United
Kingdom and Russia were the worst affected, the attack was global in nature, with large
affected institutions including the UK’s National Health Service, Russia’s Interior Ministry,
Germany’s rail network Deutsche Bahn, France’s car manufacturer Renault, Spain’s
telecommunications operator Telefonica and US logistics giant FedEx.
The virus, a worm-application, was paired with ransomware that takes control of users’
files and demands payments of US$300 in Bitcoin in order to unlock files and return
control to users. What made this malware—having permutations on the name WannaCry
and WannaCrypt—particularly virulent was its ability to move around a network by itself,
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spreading itself within networks without relying on human activity to spread it.41 The
attack was indiscriminate rather than targeted, with evidence suggesting a North Korean
connection.42
The initial attacks were hindered by a 22-year-old UK security researcher—going by the name
of MalwareTech for purposes of anonymity—who discovered an apparently unintentional “kill
switch” to the malware.43 However, due to the relative ease of launching cyberattacks, and
the great deal of money at stake, concerns persist that either attacks will be relaunched with
the coded kill switch removed, or that subsequent attackers will learn from lessons from this
experience.44
WannaCry is a weaponization of one of a series of system’s vulnerabilities first identified
by the US National Security Agency (NSA),45 and which were stolen when the NSA was
hacked46 and then leaked to the public in April 2017.47 Of that cache, it is the tool codenamed
“EternalBlue” that appears to have been “the most significant factor” behind the
WannaCry attack.48 Among other things, the attacks have reignited the debate over whether
governments should disclose web or system vulnerabilities of which they become aware.49
The cyberattacks highlight the importance of user awareness. WannaCry appears to
have capitalized upon outdated systems for which patches existed, and even to have
targeted systems and sectors that might tend to run on legacy systems, such as healthcare
and transport. The attacks emphasize that it is incumbent upon users—individual and
institutional—to keep their systems up to date by installing the fixes—so-called “patches”—
that developers, such as Microsoft or Apple, make available as they become aware of system
weaknesses.51 In this instance, the attacks capitalized vulnerabilities in outdated Microsoft
Window software; Microsoft had released security updates to patch this matter in April, and,
responding to the attack, did so again on the day of this attack.52
As ransomware attacks grew by fifty-one percent last year,53 the threat seems unlikely to
abate. “This [problem] is one in which what’s broken is the system by which we fix”, said
Professor Zeynep Tufeki of the University of North Carolina.54
D. Detecting Cybercrime
Detecting cybercrimes is challenging because, first, the victim may have no idea that a crime has
occurred, and, second, cybercriminals are wont to operate behind multiple layers of fake identities
and often operate out of nation-states having either limited cybercrime-fighting capacity, or limited
interested in taking on such a fight.54 It is generally difficult to detect system security breaches
before any visible damage—such as the fraudulent transferring of a victim’s funds—has been done.
Moreover, much of the damage can be done simply by surveilling—for instance, in the collection of
personal information or metadata for use in identity theft. Moreover, even where a breach has been
identified, hackers often hide their identities through the use of various tools. Further difficulties
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arise where “acts that might previously have been considered civilian attacks are […] uncovered as
acts of states against states via nonstate actor proxies”.56
Encryption is also an issue. Data can be increasingly stored and sent in an encrypted form. Of
particular note is end-to-end encryption (E2EE), which is becoming increasingly common, if not
quite (yet) the norm.57 With traditional encryption methods, the facilitator—that is, the company,
transmitter or ISP—itself holds the cryptographic key. As a result, anyone compromising the
facilitator’s systems has access to the cryptographic key, and thus to the data of all individual users
relying on the facilitator’s resources. By contrast, E2EE securitizes communications on an individual
basis. E2EE creates two complementary cryptographic keys (rather than one, common key, as is
in traditional encryption). Those keys are with the communicating parties and the communicating
parties alone58: the decryption key (a “private” or “secret” key) never leaves the user’s device,
while the encryption key (a “public” key) can be shared with those sending messages to the user.59
With this protection in place, only those directly communicating can read the messages, thereby
preventing even successful eavesdroppers from understanding the message’s garbled contents.
Successful eavesdroppers would be forced to independently decrypt the data. However, the
possibility of independently decrypting captured E2EE-protected data is increasingly unlikely, as the
possible number of decryption combinations has increased exponentially. Indeed, the possibility of
cracking an encrypted message—typically done through a cryptanalytic attack, known as a brute-
force attack or an exhaustive key search—has become challenging to the point of near-impossibility,
even with sophisticated software.60 Although E2EE is still susceptible to so-called man-in-the-middle
attacks (whereby the interceptor impersonates the recipient, attempting to encrypt the message
with his public key instead of the one intended by the sender), E2EE has substantially reduced the
viability of illegally intercepting data.61 Deciphering by interlopers is made more difficult by features
such as PFS-perfect forward secrecy, which create new encryption keys for each message sent.62
As a result, intercepting data being sent between devices is generally less valuable than being
able to read the data on the device, either before encrypting and sending or after receiving and
decrypting.
Box 1.3: Understanding Encryption
Encryption methods are rendering it increasingly difficult for those intercepting data to
decipher the data.63 For instance, the factorization of a 256-bit AES key64—which the NSA
requires for data classified up to Top Secret, and which is used by many other third-party
providers, including WhatsApp—has 256-bit possible options: that is, any sequence of 256
bits is a potential key, and there is no internal structure to those 256 bits.65
One byte—equivalent to two nibbles or eight bits—can hold 256 different states, possibilities
or values. Each bit has one of two values: 0 or 1. The number combination exponentially
increases the number of potential sequences.
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For example, there are sixteen possible key combinations for a 4-bit sequence:
0000 0, 0100 4, 1000 8, 1100 12,
0001 1, 0101 5, 1001 9, 1101 13,
0010 2, 0110 6, 1010 10, 1110 14,
0011 3, 0110 7, 1011 11, 1111 15.
The above assessment is based on a binary computing; however, quantum computing,
which uses “quibits” instead of bits, would transform binary form into a multidimensional
manner (see section 2 A, below). Steady improvements in computer power have resulted in
the periodic increasing in the length of number-based keys, meaning that encryption has
a shelf life and is rapidly becoming more vulnerable. Quantum computing is set to disrupt
present understandings and significantly complicate matters. Quantum communication
embeds the encryption key not in code but in photons (that is, particles of light). In addition
to dramatically heightening system security, the so-called “quantum key distribution” means
that interception by would-be hackers necessarily alters or destroys the particles of light,
making any attempt at hacking immediately noticeable.66
Critics have claimed that E2EE plays potential havoc with investigations by law enforcement, as
even third parties involved in transmitting messages—telecom companies, ISPs, the application
administrators and the sort—do not have anything more than the garbled, encrypted data, and
thus, are no more capable of understanding communications than are any eavesdroppers. Such
technological compromises have led law enforcement to press IT companies to design so-called
“back doors” that would allow the reading of communications. Many companies boast using E2EE,
with WhatsApp perhaps being the most visible of late.67 The flipside of these developments is that
governments sometimes restrict the key size that apps may use. For instance, India restricts ISPs
and TSPs to 40-bit key length (relatively low security).68
Encryption techniques are becoming increasingly complex. One of particular note is that of the
“one-time pad” (OTP), which relies the exchange of a one-time, truly random, never reused (neither
in part or in whole) pre-shared key that is at least as long as the message that has been sent.69 It
has been argued that such encryption algorithms would create mathematically “unbreakable”
ciphertexts. Be that as it may, practical problems and limitations have prevented OTPs from
becoming widely used.
IV. Challenges to International Interoperability
In a world of increasing transnational conduct, improving (A) international cooperation and
addressing (B) jurisdictional and conflict of laws issues are paramount to facilitating international
interoperability of frameworks developed to combat cybercrime.
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A. International Cooperation
As cybercrime defies traditional notions of geography and mobility, traditional definitions
of jurisdiction have become insufficient. As discussed further on, various efforts have been
undertaken to mitigate harder, limiting notions of jurisdiction (see sections 2 E and 3 A, below).
Certain international legal instruments have been influential in harmonizing legislation.70 European
instruments have been particularly impactful on national legislations, especially the CoE Convention
on Cybercrime (commonly known as the “Budapest Convention”),71 which has had an impact on
legislation even in those states that have not ratified it; the European Council Framework Decision
2005/222/JHA on attacks against information systems72; and European Council Framework Decision
2004/68/JHA on the sexual exploitation of children and child pornography.73 The EU Data Retention
Directive 2006/24/CE74 has also had a great impact; however, on 8 April 2014, the Court of Justice
of the European Union (CJEU) declared the Directive invalid in response to a case brought against
Irish authorities.75
In general, there has been a remarkable degree of convergence of various multilateral instruments
on cybercrime in criminalizing acts against the confidentiality, integrity and availability of computer
data and systems. In addition to the aforementioned European measures, multilateral instruments
connected with the African Union (AU), the League of Arab States(Arab League), the Economic
Community of West African States (ECOWAS), the Common Market for Eastern and Southern Africa
(COMESA), the Commonwealth Secretariat (COMSEC) and the International Telecommunications
Union (ITU) all criminalize illegal access to: a computer system, illegal interception, illegal computer
data and system interference and the misuse of devices.76
On the other hand, other offences, such as illegally remaining in a computer system to date, have
received considerably less support.
Remarkably, identity theft has not been universally condemned in multilateral instruments,
nor have extortion, spam, harassment, stalking or bullying.77 Other areas receiving little
demand to be classified as crimes in international treaties include:
Violation of data protection measures for personal information;
Breach of confidentiality;
Use of forged or fraudulently obtained data;
Illicit use of electronic payment tools;
Acts against privacy; disclosure of details of an investigation; and
Failure to permit assistance.78
When it comes to computer-related acts, two categories—forgery and fraud—are widely
criminalized, although neither the CIS nor the COMSEC have criminalized such actions. Computer
solicitation or grooming of children has been included only in the CoE Convention on Protection
of Children against Sexual Exploitation and Sexual Abuse (the “Lanzarote Convention”),79 the first
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international treaty that addresses child sexual abuse that occurs within the home or family.
As to computer content-related acts, the most frequently criminalized acts are those involving
child pornography and, to a lesser extent, dissemination of racist and xenophobic materials and
related threats and insults.80 Genocide, terrorism, pornography (including facilitating access of a
child to pornography), gambling, money laundering and illicit trafficking using electronic media
technologies have been very rarely criminalized as cybercrime to date.81
Addressing a very specific form of crime via a treaty may not, however, be advisable:
1
First, of course, countries are free to criminalize whatever conduct they see fit, whether or not
a treaty exists.
2
Second, since treaties are relatively inflexible, countries may wish to wait to see if a crime
trend persists and is serious or to discern how best to frame a criminal provision. Importantly,
many of the crimes above may be addressed by a non-cybercrime treaty (genocide,
terrorism, etc.) or by a cybercrime treaty or domestic statute in a different guise (acts against
privacy may be covered by illegal access; extortion may be covered by an ordinary criminal
statute; illicit use of electronic payment tools may be covered by misuse or possession of
access devices; etc.)
3
Finally, crimes that are defined more generally will often be easier to prosecute and prove
because they demand fewer specific elements.
International cooperation, essential for effective cybercrime prevention and prosecution, has been
largely supported by the international community. One such example is Operation Blue Amber,
which, in a series of international actions, tackled organized crime in various locations across the
world (see box 1.4, below).82
Having said as much, several individual countries have already criminalized many of the
aforementioned behaviors. On the other hand, ratification of treaties is frequently predicated on
“Reservations”, whereby ratifying countries decline to accept one or more of the treaty’s clauses,
or whereby the treaty’s implementation is subordinated to domestic law.83 Such reservations are
most typically used to assert that the treaty is limited to the state’s constitutional interpretation,
or for where the treaty will be made subject to domestic enabling legislation that places limits
on treaty applicability and enforcement. While the number of ratifications may give the mistaken
impression of widespread acceptance and enforcement, Reservations can effectively gut a treaty
of its most important provisions. It is for this reason that the Budapest Convention strictly limits the
Reservations that may be taken.84
Box 1.4: Operation Blue Amber
Police arrested 130 suspects in connection with cyberfraud, including fraudulent online
purchases of airline tickets using stolen credit card data at 140 airports around the world in
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an international law enforcement operation. The operation was coordinated through Europol
in The Hague, the Netherlands, INTERPOL in Singapore and Ameripol in Bogota, Columbia
with support from Canadian and US law enforcement authorities. Increased commitment
from law enforcement agencies, private sector and international organizations enabled the
operation to be conducted at airports in twenty-five countries in Europe and twenty-four
other countries in Asia, Australia, America and Africa.
The operation against airline fraudsters is part of Operation Blue Amber, a series of
international actions tackling organized crime in various locations across the world. Europol
said it will continue to support EU Member States, working closely with the private sector and
other international organizations, to improve security at the airports by fighting this type of
online fraud.
B. Jurisdictional Challenges
As already mentioned, jurisdictional and cooperation issues frequently hinder investigation and
prosecution.85 Law enforcement agencies are usually jurisdictionally restricted and therefore rely on
foreign agencies or international agreements to pursue multinational cybercriminals and prosecute
them.86 This problem is exacerbated in comparison to traditional crimes largely due to the
transnational nature of not just the cyberspace but also of various internet actors, especially ISPs.87
Procedures for international cooperation also create obstacles. Extradition, mutual assistance,
mutual assistance for provisional measures, trans-border access to stored computer data and
communication networks for investigations are all problematic areas. Non-participation in cross-
jurisdictional information sharing agreements has far reaching consequences. For example, not
being party to such an agreement may limit the ability of authorities to retrieve information and
metadata, such as on cyberattacks their nature, extent and trend. Such difficulties are especially
evident when the servers are physically located in foreign jurisdictions with either rigid or
nonexistent laws.88
Case 1.6: United States v. Aleksandr Andreevich Panin (“SpyEye”)89
SpyEye is a prolific type of Trojan malware that is estimated to have infected more than 1.4
million computers, resulting in losses of at least US$5 million between 2009 and 2011. SpyEye
was developed by Aleksandr Panin, a Russian programmer who was the primary developer
and malware distributor, and Hamza Bendelladj, an Algerian hacker.
”One of the most professional and successful malware families”, SpyEye even offered
buyers regular version updates and betas.90 The SpyEye code operated by secretly infecting
victims’ devices, enabling cybercriminals to remotely control those devices through so-called
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command and control (C2) servers.91 SpyEye could be tailored to obtain victims’ personal and
financial information, with version of the software being sold—on an invite-only basis—for
between $1000 and $8500 to at least 150 clients. Ultimately, Defendants sold SpyEye to an
undercover FBI agent.92
US authorities indicted Defendants on the grounds of the impact of SpyEye on US interests
and on the presence of a control hub in Georgia, and sought extradition for criminal
proceedings. For a period of years, Defendants were tracked by a consortium of law
enforcement agencies (UK, US, Thai, Dutch, Dominican, Bulgarian, Australian), as aided by
several private sector entities (Trend Micro, Dell Secureworks, Trusteer, Underworld.no), and
supported by INTERPOL. Following the arrests of Panin and Bendelladj in the Dominican
Republic and Thailand, respectively, Defendants were transported to the United States for
trial.93 Both pled guilty and were sentenced to a combined twenty-four years and six months
in prison.94
The SpyEye case shows the multinational nature of cybercrime and the barriers hindering
prosecution. Notably, the absence of a formal extradition agreement between Russia and
the United States, along with jurisdictional issues, caused substantial hindrance. On the other
hand, the case also illustrates the potential that cooperation and partnerships—both on the
international level and between the public and private sectors—can have.95
V. Safeguards
Building cyberspace requires attention to implementing the necessary safeguards. Fundamentally,
(A) legal limits, notably constitutional and human rights laws,96 must be respected even as
appropriate security is implemented. With that in mind, safeguards can be developed to protect
(B) both the environment of cyberspace itself by protecting against excessive data collection, as
well as by protecting users and their data. Attention must be given to protecting the basic interests
of users as members of society by assuring (C) the constituent parts of freedom of communication,
namely, freedom of opinion and expression and freedom of information.
A. Respecting Constitutional Limits
Although discussed in greater depth in section 4 A, specific mention needs to be made to
preserving and respecting constitutional guarantees and limits in this context, namely the
challenges of developing legal frameworks.97
Any criminalization of communications in cyberspace is potentially in conflict with freedom of
expression, a constitutional right in most countries, as well as being a limit on both the freedoms of
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the press and of artistic expression.98 Infringements of these basic rights are permissible only if they
are proportionate to the danger that they seek to combat.99 Some countries have constitutionalized
the so-called “harm principle”,100 which more generally limits the scope of the criminal law to
conduct that is harmful or imminently dangerous to an interest worthy of protection.101 Many of
the limits placed on state action to secure cyberspace exist and are supported in international law,
which is binding law on States Parties (see section 5 A, below).
It should be born in mind that criminal law generally requires not only a guilty act (“actus reus”) but
a concurrently guilty mental state (“mens rea”) for culpability to attach (see section 1 D, above),.102
Such elements of the crime also must be respected in cybercriminal prosecutions (see section 2 A,
below).
B. Balancing Data Collection with Data Protection
For cyberspace to remain open and free, the same norms, principles and values that are upheld
offline must apply online. Fundamental rights and the rule of law need to be protected in
cyberspace. Data protection is about safeguarding the fundamental right to privacy, a right
enshrined in numerous international and regional instruments. However, according to the United
Nations Conference on Trade and Development (UNCTAD), only 107 countries had privacy laws or
bills in place as of 2014.103 Other countries have privacy laws governing select areas—for example,
children or financial records—but not a comprehensive law.104
Data collection is commonly understood as securing any personal information that is automatically
collected, processed and stored. It is essential that data protection laws restrain and shape data
collection, managing and storage activities conducted by both companies and governments. Past
behavior shows that, unless restrictive rules are in place, both public and private sector entities will
collect, mine and store as much information as possible without necessarily even informing the
public of such activities.105
Our freedoms and prosperity increasingly depend on a robust and innovative internet, which
will continue to flourish if private sector innovation and civil society drive its growth. But freedom
online requires safety and security too. Cyberspace should be protected from incidents, malicious
activities and misuse.
Governments have several tasks vis-à-vis cyberspace:
To safeguard access and openness;
To respect and protect fundamental rights online; and
To maintain the reliability and interoperability of the internet.
As discussed, because the private sector owns and operates significant parts of the infrastructure
creating cyberspace, any initiative addressing data collection and protection should engage with
the private sector.
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C. Freedom of Communication
As discussed in greater depth further on (see section 5 A, below), freedom of communication relies
on two complementary rights: (1) the freedom of opinion and expression, which is the fundamental
right to feel, think and believe and to express oneself, and (2) the freedom of information, which is
a fundamental prerequisite to allowing the creation of full and informed opinions and allowing self-
expression.
1. Freedom of Opinion and Expression
Freedom of opinion and expression is a fundamental right, declared in a number of instruments,
including in the Universal Declaration of Human Rights (1948),106 the International Covenant on Civil
and Political Rights (1966)107 and the American Convention on Human Rights (1969).108
The internet has been revolutionary in many ways but especially in terms of facilitating
communication and freedom of expression. The internet has significantly expanded the meaning of
that right, allowing instant, inexpensive communication to almost everyone, dramatically impacting
journalism, access to information and knowledge sharing and ideation.109 Nevertheless, freedom
of opinion and expression has been suppressed in countries for various reasons including public
safety, breach of confidentiality, defamation, threats to person or property, terrorism, incitement to
genocide, incitement to religious hatred and child pornography.110
The internet’s configuration and architecture have greatly impacted the flow of information, as
well as what level of control can be exerted over it. First developed by the US military as part of
the Pentagon’s Advanced Research Projects Agency Network (or “Arpanet”) program to create a
command and communication contingency in the midst of war,111 the internet was developed to be
flexible, decentralized, open and neutral. That architecture, which has fostered for rapid growth and
amazing creativity, should be preserved. As such, any regulations should be designed in dialogue
with all stakeholders and, fundamentally, should seek to maintain the basic characteristics of
democratization, universality and nondiscriminatory access.
Efforts should be made to assure that the special characteristics that have made the internet a
rich medium for growing democratic, open, plural and expansive exercising of expression are
protected. Such an understanding has been recognized at the international level: jointly, the UN
Special Rapporteur on Freedom of Opinion and Expression, the Organization for Security and
Cooperation in Europe (OSCE) Representative on Freedom of the Media, the Organization of
American States (OAS) Special Rapporteur on Freedom of Expression and the African Commission
on Human and Peoples’ Rights (ACHPR) Special Rapporteur on Freedom of Expression and Access
to Information have recognized that “[a]pproaches to regulation developed for other means of
communication—such as telephony or broadcasting—cannot simply be transferred to the internet
but, rather, need to be specifically designed for it”.112
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The UN Human Rights Council in 2012 declared that freedom of expression on the internet is a
basic human right and affirmed that people have the same rights online that they have offline.113
That view was reaffirmed in 2016 regarding the importance of promoting, protecting and enjoying
human rights on the internet, including privacy and freedom of expression.114
2. Freedom of Information
Access to, or freedom of, information (FOI), or the right to information, is a corollary to freedom
of expression that looks to inform the citizenry on government action. It is the right to access
information held by public bodies, and includes the right to seek, receive and impart information
and ideas. The UN General Assembly, in its very first session in 1946, recognized it as essential to
the underpinning of democracy, adopting a resolution stating that “Freedom of information is a
fundamental human right[, …] the touchstone of all the freedoms to which the United Nations is
consecrated.”115
Elaborating on this statement, the UN Special Rapporteur on Freedom of Opinion and
Expression had the following to say:
“Freedom will be bereft of all effectiveness if the people have no access to
information. Access to information is basic to the democratic way of life. The
tendency to withhold information from the people at large is therefore to be
strongly checked.”116
Functional polities rely on civic participation and on individuals being able access to information
held by various public bodies; that information allows individuals to be aware of, involved in
and responsive to public activities. Such information ranges from interpretations of applicable
laws to details on economic, social, or public concerns. A central tenet to the rule of law117—the
notion that all, including the government, are subject to the law118—, access to information makes
transparency, accountability and participation—the so-called TAP principles—possible. In addition
to being key tools for combatting corruption, the TAP principles increase government efficiency
and responsiveness, and build civic trust.119 Accessing public information is not only a right of every
person but also necessary to making informed decisions and to living an autonomous life.120 It bears
noting that right is not absolute and that freedom of information may need to be limited in certain
instances, such the public interest.121
Access to information legislation should reflect the fundamental premise that all information held
by governments and governmental institutions is in principle public and may only be exceptionally
withheld, such as for reasons of privacy or security. There is a global trend to recognize the right to
information, and, since 1990, the number of countries with such legislation has grown from thirteen
to ninety-five.122
Page 43 | Chapter 1 | § C. Challenges to Fighting Cybercrime Table of Contents
Conclusion
This subchapter has given an overview of challenges facing law enforcement in combatting
cybercrime. Those challenges come in all forms, ranging from the basic and general—yet
perfidious—challenges associated with the nature of ICT and the development of cyberspace, to
challenges in developing legal frameworks that both respect exist existing legal frameworks and
yet which can accommodate the diverse novelties of cyberspace. Public safety and security in the
analog world is, as the WDR aptly notes, a public good which governments are obliged to ensure.123
However, while it is a unique public good so much of the analog world—its data, communications
and critical infrastructure—is controlled by the private sector or other nonstate actors.124 Thus,
beyond taking the traditional tacks of acting through policies, laws and institutions, governments
must also seek additional resources, including informing consumers and engaging the private
sector.
Having appropriately organized themselves, governments then face the challenge of assuring
international interoperability. Jurisdictional and international cooperation issues create substantial
difficulties to investigating and prosecuting multinational cybercrime cases. Moreover, challenges
of certain states operating under insufficiently cybercrime-specific legal frameworks often hinders
combatting transnational acts.
Page 44 | Chapter 1 | § C. Challenges to Fighting Cybercrime Table of Contents
CHAPTER 1
D. Framework for a Capacity-building Program
Table of Contents
Introduction 45
I. Objectives of Cybercrime Capacity-building Programs 46
A. Rationale & Objectives 47
B. Supporting a Process of Change 47
II. Elements of Capacity-building Programs 47
A. Producing an Overarching Cybercrime Policy & Strategy 48
B. Developing Cybercrime-specific Legislation 49
C. Creating Specialized Cybercrime Units 50
Conclusion 50
Introduction
Capacity-building programs require resources. Although many sectors are competing
for scarce resources, there is increasing recognition that at least some of those resources
are urgently needed to combat cybercrime. There are several reasons for building such
capacity—and just as many ways that capacity can be built. The Toolkit at large, and
its Assessment Tool in particular (see section 7, below), aim to provide evidence and
direction for implementing targeted capacity building. At a high level, some of the main
reasons for allocating scarce resources to cybercrime capacity-building programs include
the following:
Societies are increasingly reliant on ICT. As discussed (see sections 1 A and 1 B, above),
society writ large is increasingly reliant on ICT for all manner of activities, and ICTs are used
in support of all manner of ventures, both public and private. Many have become dependent
on the existence of ICT in their day-to-day lives. Every region of the world has experienced
massive growth in internet usage,1 largely facilitated by the increased availability of broadband
connections and the growing use of internet-enabled mobile phones and related applications.2
That growth has created spaces for all sorts of development—both economic and commercial,
as well as individual and social. As such, ensuring the security of, and confidence and trust in,
ICTs and ICT systems should be a priority of any government.
e-Evidence’s ubiquity in all crime-types. Cybercrime is no longer a peripheral phenomenon.
The more ICTs are used, the more criminals seek to exploit corresponding—and ever-
developing—vulnerabilities. As the division between crimes occurring in the “cyber” world
and those in the “real” one continues to blur,3 ICTs are increasingly holding evidence, direct
Page 45 | Chapter 1 | § D. Framework for a Capacity-building Program Table of Contents
or tangential, that is relevant not only to cybercrime but to any crime.4 Thus, regardless of the
matter, law enforcement officers, prosecutors and judges are already frequently confronted with
e-evidence; such is the case not only in criminal matters but also in commercial, civil, labor and
other matters. Capacity-building programs can help criminal justice authorities to meet these
challenges, for example, through training and institution-building and by mainstreaming the
issues of cybercrime and e-evidence into law enforcement and judicial training curricula.
Cybercrime capacity-building programs improve rule of law and civil and human rights
safeguards. Many governments are adopting cybersecurity strategies with the primary purpose
of protecting critical information infrastructure. Capacity-building programs on cybercrime
can support a crucial element of cybersecurity strategies, especially responding to attacks
against the confidentiality and integrity of ICT systems and services. Such programs can also
help governments meet their positive obligation to protect people from all types of crime,
including murder, human trafficking, sexual violence and other types of violent crime, as well
as fraud, corruption, drug trafficking, extortion, stalking or theft (see section 1 B, above). When
governments take action against cybercrime they must respect rule of law and civil and human
rights requirements. Investigative powers must be limited by conditions and safeguards.5
The preservation, analysis and presentation of e-evidence must follow clear rules to serve as
evidence in court. Strengthening the focus on the criminal justice response to cyberattacks
may help improve both rule of law and civil and human rights safeguards,6 both at large and
with regard to cyberspace. Correspondingly, capacity-building programs should furthermore
strengthen regulations and mechanisms for the protection of personal data, a dimension that is
particularly important given that much of the most sensitive of personal data is nowadays stored
in electronic form (see section 2 D, below). In short, such programs not only protect people
against crime but also protect their rights.
Cybercrime capacity-building programs facilitate human development and improve
governance. ICTs can be “powerful tools for human development and poverty reduction”,
something that cybercrime capacity-building programs might help societies realize.7 Relatedly,
strengthening confidence, trust, security and reliability of ICT and of ICT systems will facilitate
economic development and access to education and sharing of information.8 Effective
criminal justice systems enhance the physical security and health of individuals, for example,
by protecting children against sexual exploitation and abuse, by preventing the distribution
of counterfeit and substandard medicines or by protecting people against crime in general.
Increased adherence to rule of law contributes to democratic governance and reduces undue
interference in individual rights.
I. Objectives of Cybercrime Capacity-building Programs
In promoting cybercrime capacity-building programs, it is important to begin by (A) understanding
the rationale and objectives of such programs, and (B) using such programs as a “process of
change” that may go well beyond cybercrime.
Page 46 | Chapter 1 | § D. Framework for a Capacity-building Program Table of Contents
A. Rationale & Objectives
Cybercrime capacity-building programs generally focus on strengthening the response of criminal
justice actors to various forms of cybercrime. Once a crime has been committed, ICT-stored-
evidence must be preserved and protected (see section 2 C, below). Cybercrime and e-evidence
are transversal and transnational challenges requiring cooperation at all levels: interagency, public/
private (in particular law enforcement/internet service provider) and international cooperation.
Strengthening these various avenues of cooperation should be reflected in the objectives of any
capacity-building program.
B. Supporting a Process of Change
As with any other capacity-building program requiring technical cooperation, cybercrime capacity-
building programs are implemented to support processes of change. To take effect, such
processes, as well as their objectives and expected outcomes, must be not only defined but also
“owned” by the institution receiving support. Doing so creates an institution-wide “culture”, one
which is exemplified by leadership from above and which is implemented at all levels.9 Without
commitment from the top to a clearly defined process of change, it will be difficult for the larger
institutional “cultural” issues to take root.
For example, while ad hoc training courses for judges and prosecutors might well be beneficial to
the participants, without a sustained effort, it may have limited impact on the system with temporary
results. By contrast, a more holistic, sustained and longer-term approach is preferable. For example,
such a sustained effort methodically develops a capacity-building program that begins by training
trainers, piloting courses, including standardized training materials and integrating curricula across
institutions having shared or related competencies for cybercrime.
Additionally, once a defined strategy is in place, donors can better coordinate their inputs in a
complementary and more effective manner.
II. Elements of Capacity-building Programs
As described in sections 1 B and 1 C, above, cybercrime is a large and broad topic. Accordingly,
capacity-building programs targeting cybercrime should be likewise encompassing. Areas of
focus might include (A) elaborating cybercrime policies and strategies, (B) elaborating effective,
cybercrime-specific legislation, (C) creating cybercrime specialized law enforcement units, (D)
training government authorities and personnel in cybercrime matters, (E) encouraging cooperation
between the public and private sectors and (F) furthering international cooperation.
Page 47 | Chapter 1 | § D. Framework for a Capacity-building Program Table of Contents
A. Producing an Overarching Cybercrime Policy & Strategy
The basis for any good approach to cybercrime is the development of effective policies based on
stakeholder consultations, and which include comprehensive strategies and actions plans.
Such policies, strategies and action plans might include the following elements:
Engaged decision-makers. It is essential that decision-makers in government and affected
1
organizations understand both the varied risks and the corresponding options, and that they
manage to agree on setting strategic priorities.
Synergistic cybersecurity strategies. Cybercrime and cybersecurity strategies are interrelated
2
and mutually reinforcing. As such, synergies and links must be explicitly identified, ensuring
coherence.
Multi-stakeholder participation in strategy elaboration. As cybercrime and cybersecurity
3
implicate the entirety of society, part of the challenge in developing effective policies and
strategies is ensuring the active participation of diverse stakeholders from both the public and
private sectors.
Approaches support human rights and rule of law requirements. A criminal justice response
4
to cybercrime implies a rule of law rationale; as such, rule of law requirements need to be
respected and promoted as do general respect and promotion of human rights. As discussed
(see section 4 A and 4 B, below), an appropriate balance between combatting crime and
ensuring human-rights safeguards is central to the success of any strategy.
Cybercrime strategies require vertical and horizontal management. Once a cybercrime
5
policy has been developed, the implementation of the ensuing cybercrime strategy begins.
That implementation process is a complex one, involving many stakeholders and actors.
Effective operationalization requires good management, both vertically and horizontally, clear
information sharing and extensive coordination. The progress, results and impact must all be
assessed in order to for any corrective measures to take effect, as well as to justify the allocation
of resources.
Concerted alignment of donor contributions and partner cooperation. The development of
6
a clear cybercrime policy, and subsequent implementation of the resulting cybercrime strategy,
create a clear path for donors and other partners to provide support. Doing so will increasingly
crystalize and clarify the anticipated change process that is desired. Moreover, encouraging
such cooperation can lead to faster learning of lessons.
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Many donors require that a policy be in place before approving technical assistance and
undertaking capacity-building programs. That said, a program might be structured such that
the development of a strategy on cybercrime is a central objective. For instance, CoE considers
an official request for accession to the Budapest Convention to represent the government’s
commitment that in turn justifies capacity-building activities that would support the treaty’s full
implementation.10
B. Developing Cybercrime-specific Legislation
While cybercrime policies create the overall story, a central element to fighting any criminal activity
must be based in the law. As such, criminal justice measures targeting cybercrime and e-evidence
must be enshrined in the law. Also, while the responsibility for creating such legislation lies with
public representatives and authorities, they should be supported by other stakeholders, public and
private, in the appropriate tailoring, targeting and wording of any such legislation. Such legislation
is a central part to furthering interoperability (see section 3 A, below).
Domestic cybercrime legislation would address the following areas:11
Substantive law measures. The central plank and basis of the law is the development of,
1
on the one hand, what substantive legal rights and responsibilities surround a matter, and,
on the other hand, what actions are disallowed. Substantive legal matters govern society’s
behavior, and include, for instance, not only what actions and activities are disallowed, but
also what is the requisite mental state, or mens rea, a perpetrator must have in order to be
found culpable (see section 1 C, above). While much of criminal law differentiates between
“general” intent (that is, the aim to commit a prohibited act) and “specific” intent (that is, the
aim to commit both a prohibited act and aim to cause a particular effect resulting from that
act),12 cybercrime generally does not, requiring general intent alone.13
Procedural law tools. Having laid out prescribed and prohibited behaviors, the law
2
must carefully discuss and delineate the associate procedural aspects, which include the
procedures for investigating crime and enforcing the substantive law. Procedural tools also
largely govern what powers lie with the authorities.
3 Safeguards. Due to the increased pervasiveness of the cyberactivity in all areas of the
physical world, attempts to regulate a person’s comportment in cyberspace must be
careful not to become excessively expansive and infringe on other rights. As such, any law
combatting cybercrime must pay careful attention establishing appropriate safeguards and
the conditions under and by which investigative powers might be exercised.
nternational cooperation. The developed legislation must not only be inward or domestic-
4 I
looking, but should also include provisions for international cooperation. To this end,
international conventions, notably the Budapest Convention, offer both substantial guidance
and structure.14
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C. Creating Specialized Cybercrime Units
The investigation of cybercrime and forensic analysis of e- evidence and the prosecution of
cybercrime require specific skills (see section 2 D, below). Authorities—investigatory, prosecutorial,
judicial and advisory—should be supported in the setting up or strengthening of units that offer
specialized support. Relatedly, mechanisms for assuring feedback and information sharing among
agencies and units must be developed.
Particular attention should be paid to assuring that there is sufficient expertise among law
enforcement authorities. Particular points of interest include (1) police-type cybercrime or high-tech
units with strategic and operational responsibilities, (2) prosecution-type cybercrime units and (3)
most generally, developing computer forensic resources for other law enforcement agencies that
may not be created with the goal of tackling cybercrime, by either embedding small specialized
units within, or by creating separate structures, or, at minimum, by creating focal points and
procedures for looping specialized units into matters, wherever appropriate. Because cybercrime is
not a “siloed” area of concern, it should be expected that even non-specialized units will have to be
able to utilize e-evidence in non-computer crime, physical-world cases. As such, while certain tasks
will necessarily require handling by trained specialists, many impediments could be prophylactically
overcome by having these specialized units disseminate their knowledge and skills to the entirety
of their agencies; indeed, in many case, knowledge dissemination might merely entail spreading
awareness.
Beyond the law enforcement authorities, the judiciary should also have a place of recourse for
matters of cybercrime. However, unlike with law enforcement authorities, setting up specialized
cybercrime courts is not a preferable solution because the near-ubiquity of e-evidence means that
all judges will have to consider such matters, regardless of the nature of the case in question. Good
practices have shown that a better first step is to train some judges, and to use those judges as
focal points for acting as a resource and disseminating knowledge more widely.
More generally, it is important that interagency cooperation be facilitated and actively encouraged.
Such a unifying and integrative element is essential, as, to be effective, cybercrime units must
cooperate both with other police services (such as economic crime units, child protection units) and
with other institutions (such as financial intelligence units, CIRTs).
Conclusion
To support cybersecurity is to support and increase society’s ability to grow more robustly and more
equitably. Cybercrime capacity-building is an essential element therein. And while resource-scarcity
is a concern for all governments and institutions, it is generally—and increasingly—recognized
that cybercrime capacity-building programs cannot be left unattended. Reasons for supporting
cybercrime capacity-building include the great and growing reliance of society writ large on ICTs,
Page 50 | Chapter 1 | § D. Framework for a Capacity-building Program Table of Contents
and the ubiquity of e-evidence in all crime-types; developing such capacity has the tangential
benefits of improving rule of law and human rights safeguards, as well as bolstering civil rights at
large, facilitating human development and improving governance.
Cybercrime capacity-building programs are intended to support change. To that end, there must
be a “culture of change” which, though initiated at certain points, must extend throughout all
branches government. It must be owned by those in positions of authority, and administered and
implemented in a coherent, holistic manner, as opposed to in a spotty, ad hoc fashion.
Producing an effective cybercrime capacity-building program requires a diversity of elements. At a
fundamental level, both an overarching cybercrime policy and a strategy for implementation must
be developed. Doing so will engage decision-makers, create synergistic cybersecurity strategies,
support human rights and rule of law requirements. To be effective, the policy must increase multi-
stakeholder participation in strategy elaboration, and that strategy must be effectively managed
in both a vertical and horizontal sense. Relatedly, contributions by donors and cooperation with
partners must align with that strategy in a concerted manner.
That overall cybercrime policy and implementation strategy should be embodied in cybercrime-
specific legislation. Although applicable to all aspects of cybersecurity, such is particularly true
for the criminal aspects. Doing so requires the development and legislating of substantive law
measures, building of procedural law tools, the creation of safeguards for rights and the opening up
of a national system into one that not only allows for but which facilitates international cooperation.
Lastly, cybercrime capacity-building programs can focus on creating specialized cybercrime units.
Such units can, in turn, act to catalysts and educators in their own right, first, by taking on discrete
cybersecurity activities, and, second, raising understanding and awareness among their peers and
counterparts across all branches of government.
Page 51 | Chapter 1 | § D. Framework for a Capacity-building Program Table of Contents
End Notes
Referenced in: § A. Purpose of 12. See, e.g., “Warsaw Summit Communiqué,
Toolkit Issued by the Heads of State and
Government Participating in the Meeting
of the North Atlantic Council in Warsaw
1. ”Infographic: McAfee Labs Threats 8–9 July 2016: Press Release (2016),”
Report,” McAfee, (Mar. 2016), at https:// North Atlantic Treaty Organisation
www.mcafee.com/us/resources/misc/ (NATO), (9 Jul. 2016) [hereafter, “Warsaw
infographic-threats-report-mar-2016.pdf. Summit Communiqué], para. 70, at http://
www.nato.int/cps/en/natohq/official_
2. Jim Finkle, “SWIFT Discloses More Cyber-
texts_133169.htm.
Thefts, Pressures Banks on Security,”
Reuters, (31 Aug. 2016), at http://www.
reuters.com/article/us-cyber-heist-swift-
idUSKCN11600C.
3. Vindu Goel & Nicole Perlroth, “Yahoo
Says 1 Billion User Accounts Were
Hacked,” (14 Dec. 2016), at https://www.
nytimes.com/2016/12/14/technology/
yahoo-hack.html?mcubz=0.
4. UN Interregional Crime and Justice
Research Institute (UNICRI), Cybercrime:
Risks for the Economy and Enterprises at
the EU and Italian Level, (Turin: UNICRI,
2014), at http://www.unicri.it/in_focus/
files/Criminalita_informatica_inglese.pdf.
5. Ibid.
6. Ibid.
7. As discussed below, some acts that might
otherwise constitute cybercrime, or that
with the passage of time are revealed to
be acts of states against states, and that
might be characterized as cyberterrorism
or cyberwarfare, are beyond the scope of
this Toolkit.
8. See http://www.combattingcybercrime.
org.
9. Unless otherwise indicated, such as in
reference to a specific entity, the term
“CIRT” will be used generically for all
such related terms (e.g., CERT, CSIRT).
10. World Bank, World Development Report
2016: Digital Dividends, (Washington:
World Bank, 2016) [hereafter,
“WDR”], at p. 222 et seq., at http://
documents.worldbank.org/curated/
en/896971468194972881/pdf/102725-
PUB-Replacement-PUBLIC.pdf.
11. See, e.g., Nicole Perlroth, “Hackers Are
Targeting Nuclear Facilities, Homeland
Security Dept. and F.B.I. Say,” New York
Times, (6 Jul. 2017), at https://www.
nytimes.com/2017/07/06/technology/
nuclear-plant-hack-report.html?mcubz=0.
Page 52 | Chapter 1 | End Notes Table of Contents
Referenced in: § B. Phenomenon & 8. See, e.g., WDR, supra § 1 A, note 15. United States v. Steven W. Chase,
Dimensions of Cybercrime 10, which lays out a multitude of 5:15-CR-00015-RLV-DCK-1 (W.D.N.C.
ways in which the internet and ICTs 2016). To date, reports indicate that
(mobile phones, computers and other at least 137 cases have been brought
1. The title of this section owes its technologies and tools) contribute to around the United States following
inspiration to ITU’s report, International innovation, economic growth, economic on from the FBI sting operation. See,
Telecommunication Union (ITU), and social inclusion and efficiencies, as e.g., “The Playpen Cases: Frequently
Understanding Cybercrime: Phenomena, well as attendant risks. Asked Questions The Basics,” Electronic
Challenges and Legal Response, (Geneva: Frontier Foundation, at https://www.eff.
ITU, 2014) [hereafter, “ITU Understanding 9. Ilia Kolochenko, “Cybercrime: The org/pages/playpen-cases-frequently-
Cybercrime”], at http://www.itu.int/ Price of Inequality,” Forbes, (16 Dec. asked-questions#howmanycases. See
en/ITU-D/Cybersecurity/Documents/ 2016), at http://www.forbes.com/sites/ also US Dept. of Justice, “Assistant
cybercrime2014.pdf. forbestechcouncil/2016/12/19/cybercrime-
Attorney General Leslie R. Caldwell
the-price-of-inequality/2/#1994040176db.
2. See, e.g., Susan Brenner, “Thoughts, Delivers Remarks Highlighting
Witches and Crimes,” CYB3RCRIM3: 10. “Number of Internet Users Worldwide Cybercrime Enforcement at Center for
Observations on Technology, Law, and from 2005 to 2016 (in Millions),” Strategic and International Studies,”
Lawlessness, (6 May 2009), at http:// Statista, at http://www.statista.com/ Office of Public Affairs, (7 Dec. 2016), at
cyb3rcrim3.blogspot.com/2009/05/ statistics/273018/number-of-internet- https://www.justice.gov/opa/speech/
thoughts-witches-and-crimes.html (noting users-worldwide/. assistant-attorney-general-leslie-r-
that “cybercrime is merely a method caldwell-delivers-remarks-highlighting-
crime, i.e., crime the commission of which 11. See, e.g., Noah Rayman, “The World’s cybercrime.
is distinct due to the tool the perpetrator Top 5 Cybercrime Hotspots,” Time, (7
Aug. 2014), at http://time.com/3087768/ 16. See, e.g., Joseph Cox, “The FBI’s
uses. […] cybercrime [can be addressed
the-worlds-5-cybercrime-hotspots/; ‘Unprecedented’ Hacking Campaign
through…] traditional offenses that are
Craig Silverman & Lawrence Alexander, Targeted over a Thousand Computers,”
revised, as necessary, to encompass the
“How Teens in the Balkans Are Duping Motherboard, (5 Jan. 2016), at http://
digital versions of these crimes”).
Trump Supporters with Fake News,” motherboard.vice.com/read/the-fbis-
3. From Shakespeare’s “The Tempest,” V.i, BuzzFeed News, (3 Nov. 2016), at https:// unprecedented-hacking-campaign-
186–189 (in which Miranda proclaims, “O www.buzzfeed.com/craigsilverman/ targeted-over-a-thousand-computers.
wonder! / How many goodly creatures how-macedonia-became-a-global-
17. “Tor,” Tor Project, at https://torproject.
are there here! / How beauteous mankind hub-for-pro-trump-misinfo?utm_term=.
org/.
is! O brave new world, / That has such eiWv81lZY#.yrrb4qwgD.
people in’t.”), and used by Aldous Huxley 18. Duly named because it uses
in his 1931 novel by the same name 12. “Norton Cybersecurity Insights Report
onion routing, a technique of
(“ ‘O brave new world!’ Miranda was 2016,” Symantec, (2016), at https://
layered encryption for anonymous
proclaiming the possibility of loveliness, us.norton.com/norton-cybersecurity-
communication over a computer network.
the possibility of transforming even the insights-report-global?inid=hho_norton.
See, e.g., Joan Feigenbaum, Aaron
nightmare into something fine and noble. com_cybersecurityinsights_hero_
Johnson & Paul Syverson, “A Model of
‘O brave new world!’ It was a challenge, a seeglobalrpt.
Onion Routing with Provable Anonymity,”
command.”). Financial Cryptography & Data Security,
13. See also “Cyberspace Policy Review,”
4. Merriam-Webster Dictionary. The White House of President Barack (30 Aug. 2006), pp. 57–71, at http://www.
Obama, at https://obamawhitehouse. cs.yale.edu/homes/jf/FJS.pdf.
5. Black’s Law Dictionary, 2d ed. archives.gov/cyberreview/documents/.
19. Chris Baraniuk, “Tor Launches Anti-
6. Maria Konnikova, “Virtual Reality Gets 14. See also “Leader of Hacking Ring Censorship Messenger Service,” BBC
Real: The Promises—and Pitfalls—of the Sentenced for Massive Identity Thefts News (30 Oct. 2015), at http://www.bbc.
Emerging Technology,” The Atlantic, (Oct. from Payment Processor and US Retail com/news/technology-34677323.
2015), at http://www.theatlantic.com/ Networks,” US Dept. of Justice, (26 Mar.
magazine/archive/2015/10/virtual-reality- 20. Ibid.
2010), at https://www.justice.gov/sites/
gets-real/403225/. default/files/usao-nj/legacy/2014/09/02/ 21. Ibid.
dojgonzalez0326rel.pdf.
7. For a provocative fictional depiction
22. Parliamentary Office of Science and
thereof, and querying of what is “real,”
Technology (POST), “The Darknet
see Jennifer Haley, “The Nether”
and Online Anonymity,” UK Houses
(Chicago: Northwestern Univ., 2015).
of Parliament, No.488 (9 Mar. 2015), at
For a review of the play, see, e.g., Sadie
http://researchbriefings.parliament.
Dingfelder, “‘The Nether’ at Woolly
uk/ResearchBriefing/Summary/POST-
Mammoth Is a Creepy Puzzle of a Play,”
PN-488.
Washington Post, (7 Apr. 2016), at https://
www.washingtonpost.com/express/ 23. See, e.g., “What is the Law?” Information
wp/2016/04/07/the-nether-at-woolly- Exchange Network for Mutual Assistance
mammoth-is-a-creepy-puzzle-of-a-play/. in Criminal Matters and Extradition (the
“Network”), (2007), at https://www.oas.
org/juridico/mla/en/can/en_can_mla_
what.html.
Page 53 | Chapter 1 | End Notes Table of Contents
24. For a discussion of the importance of 33. David S. Wall, “Policing Cybercrimes: 44. Full list of legislation in the United States
public confidence in the banking systems, Situating the Public Police in Networks concerning cyberbulling can be found
see, e.g., Vincent Di Lorenzo, “Public of Security within Cyberspace,” Police under this address: http://cyberbullying.
Confidence and the Banking System: The Practice & Research, Vol. 8, Issue 2 (2007), org/bullying-laws. For a broad analysis
Policy Basis for Continued Separation of pp. 183–205. of cyberbullying law in the United States,
Commercial and Investment Banking,” see Megan Rehber & Susan W. Brenner,
35 American Law Review, (1986), pp. 34. Brenner, supra note 2. “‘Kiddie Crime?’ The Utility of Criminal
647–98, at http://www.stjohns.edu/sites/ Law in Controlling Cyberbullying,” First
35. David S. Wall, “Cybercrime as a Conduit
default/files/documents/law/dilorenzo- Amendment Law Review, Vol. 8 (2009), pp.
for Criminal Activity,” in: A. Pattavina (ed.),
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Information Technology and the Criminal
Public confidence stretches well-beyond
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banking and financial markets, with loss
Publications, 2015), pp. 77–98.
of confidence being attributed as one
46. Ibid. at 52.
of the principle factors contributing to 36. Emilio Viano, “Cybercrime: A New
the fall of the Roman Empire. See, e.g., Frontier in Criminology,” International 47. India: State of Tamil Nadu vs. Suhas Katti
Edward Gibbon, The Decline and Fall of Annals of Criminology, Vol. 44 (2006), pp. (CC No.4680/2004).
the Roman Empire, (New York: Harcourt, 11–22.
Brace, 1960). 48. Allen Chein, “A Practical Look at Virtual
37. Audrey Guinchard, “Cybercrime: The Property,” St. John’s Law Review, Vol. 80
25. See generally, WDR supra § 1 A, note 10, Transformation of Crime in the Digital (2006), p. 1088f. See also Theodore J.
at 221 et seq. Age,” Information, Communication and Westbrook, “Owned: Finding a Place for
Society, Vol. 11 (2008), pp. 1030–32. Virtual World Property Rights,” Michigan
26. Thomas Weigend, “Information Society
State Law Review (2006), p. 779ff.
and Penal Law: General Report,” Revue 38. See, e.g., Stalking Resource Center,
internationale de droit pénal, Vol. 84 National Center for Victims of Crime, 49. In the RuneScape case, the Dutch
(2013), p. 53. Stalking Technology Outpaces State Laws, Supreme Court decided that electronic
Stalking Resource Center Newsletter, Vol. goods are equal to tangible goods:
27. Latin: “horror vacui”; a postulate of 3, No. 2 (2003), at https://victimsofcrime. “virtual goods are goods [under Dutch
physics attributed to Aristotle. org/docs/src/stalking-technology- law], so this is theft”; Ben Kuchera, “Dutch
28. An approximation of the notion of outpaces-state-laws17A308005D0C. Court Imposes Real-World Punishment
pdf?sfvrsn=2. for Virtual Theft,” Ars Technica, (23
physics that the least energy state is
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Special Part, Information Society and real-world-punishment-for-virtual-theft/.
29. Francesca Spidalieri, State of the States
Penal Law, General Report,” Revue
on Cybersecurity, (Newport: Pell Center
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for International Relations, 2015), p. 3,
(2013) 3–4, p. 339. of identity theft and fraud under a variety
at http://pellcenter.org/wp-content/
of federal statutes. In 1998, Congress
uploads/2017/02/State-of-the-States- 40. USC Title 18, § 1961. However, at least passed the Identity Theft and Assumption
Report.pdf. six types of fraud commonly charged in Deterrence Act, which created a new
conjunction with USC Title 18, § 1030 offense of identity theft and prohibiting
30. Brett Burns, “Level 85 Rogue: When
are RICO predicate offenses, as are “knowingly transfer[ring] or us[ing],
Virtual Theft Merits Criminal Penalties,”
many serious offenses likely to underlie without lawful authority, a means of
University of Missouri-Kansas City Law
a cybercrime (trafficking in persons, identification of another person with
Review, Vol. 80 (2011), p. 845f.
interstate transportation of stolen the intent to commit, or to aid or abet,
31. US Government Accountability Office property, murder for hire, etc.). any unlawful activity that constitutes a
(GAO), Public and Private Entities Face violation of Federal law, or that constitutes
41. For more information on RICO, see
Challenges in Addressing Cyber Threats, a felony under any applicable State or
Charles Doyle, “RICO: A Brief Sketch,”
(Washington: GAO, 2007), p. 15, at http:// local law.” USC Title 18, § 1028 - Fraud
US Congressional Research Service (CRS),
www.gao.gov/new.items/d07705.pdf. and Related Activity in Connection with
No. 96-950 (18 May 2016), at https://fas.
Identification Documents, Authentication
32. See, e.g., ibid., 23; CoE, Convention on org/sgp/crs/misc/96-950.pdf.
Features, and Information.
Cybercrime, (23 Nov. 2001) ETS No. 185 42. Mark Gordon, “Ideas Shoot Bullets: How
[hereafter, “Budapest Convention”], 51. Jonathan Clough, “Data Theft?
the RICO Act Became a Potent Weapon
Preamble, at https://www.coe.int/en/ Cybercrime and the Increasing
in the War Against Organized Crime,”
web/conventions/full-list/-/conventions/ Criminalization of Access to Data,”
Concept, Vol. 26, (2002), at https://
treaty/185; Philippines: Cybercrime Criminal Law Forum, Vol. 22 (2011), pp.
concept.journals.villanova.edu/article/
Prevention Act of 2012, No. 10175, Ch. 145–70.
view/312/275.
II, Art. 4-A, at https://www.unodc.org/
52. Alex Steel, “The True Identity of
cld/en/legislation/phl/republic_act_ 43. Weigend, supra note 26, at 51.
Australian Identity Theft Offences: A
no._10175_cybercrime_prevention_act_
Measured Response or an Unjustified
of_2012/chapter_ii/article_4-a/article_4-a.
Status Offence?,” University of New South
html.
Wales Law Journal, Vol. 33 (2010), pp.
503–531.
Page 54 | Chapter 1 | End Notes Table of Contents
53. Soumyo D. Moitra, “Cybercrime: Towards 64. Moreover, the gap between technology 73. Association Internationale de Droit Pénal
an Assessment of its Nature and Impact, and regulation is significant in FinTech. (AIDP/IAPL), 19th International Congress
International Journal of Comparative & It will be important for regulators, of Penal Law, (Aug. 2014), § 1.A.1, (noting,
Applied Criminal Justice,” Vol. 28, Issue 2 while attempting to bridge this in relevant part, that “ICT and cyberspace
(2004), pp. 105–20. gap, to carefully support market have created specific interests which
development, while ensuring consumer must be respected and protected, for
54. Weigend, supra note 26, at 56. security. John Villasenor, “Ensuring example, privacy, confidentiality, integrity
Cybersecurity in Fintech: Key Trends and availability of ICT systems as well
55. Viano, supra note 39, at 341.
and Solutions,” Forbes, (25 Aug. as the integrity of personal identities in
56. David S. Walls, “Cybercrime, Media 2016), at http://www.forbes.com/sites/ cyberspace”).
and Insecurity: The Shaping of Public johnvillasenor/2016/08/25/ensuring-
cybersecurity-in-fintech-key-trends-and- 74. Xavier Amadei, “Standards of Liability
Perceptions of Cybercrime,” International
solutions/#13edc74be1fa. for Internet Service Providers: A
Review of Law, Computers and
Comparative Study of France and
Technology, Special Issue: Crime and
65. For an overview of data partitioning, the United States with a Specific
Criminal Justice, Vol. 22 (2008), pp. 45–63.
see Microsoft Website, at https:// Focus on Copyright, Defamation, and
57. Leyla Bilge, Thorsten Strufe, Davide docs.microsoft.com/en-us/azure/best- Illicit Content,” Cornell International
Balzaroti & Engin Kirda, “All Your practices-data-partitioning. Law Journal, Vol. 35 (1) (2001), at
Contacts Belong to Us: Automated http://scholarship.law.cornell.edu/
66. Jamie Smith, “There Is More to cilj/?utm_source=scholarship.law.cornell.
Identity Theft Attacks on Social
Blockchain than Moving Money. It Has edu%2Fcilj%2Fvol35%2Fiss1%2F4&utm_
Networks,” SBA Research, at http://www.
the Potential to Transform Our Lives— medium=PDF&utm_campaign=PDFCov
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58. Marco Gercke, “Internet-Related org/agenda/2016/11/there-is-more-to- 75. Ronald Noble, Former INTERPOL
Identity Theft,”CoE Discussion Paper, blockchain-than-moving-money. Secretary General, at https://cdn.press.
(22 Nov. 2007), p. 4, at https://rm.coe. kaspersky.com/files/2013/06/Kaspersky-
67. See, e.g., Kariappa Bheemaiah, “Block Lab-Transparency-Principles_Q3_2015_
int/16802fa3a0.
Chain 2.0: The Renaissance of Money,” final.pdf.
59. Weigend, supra note 26, at 57. Wired, (Jan. 2015), at https://www.wired.
com/insights/2015/01/block-chain-2-0/. 76. Internet Security Alliance, “Cross Cutting
60. Iain Moir & George R. S. Weir, “Identity Issue #2: How Can We Create Public
Theft: A Study in Contact Centres,” in: 68. “How Blockchains Could Change the Private Partnerships that Extended to
Hamid Jahankhani, Kenneth Revett & World,” McKinsey & Company, (May Action Plans that Work?,” The White
Dominic Palmer-Brown (eds.), Global 2016), at http://www.mckinsey.com/ House of Barack Obama, at https://
E-Security: Communications in Computer industries/high-tech/our-insights/how- obamawhitehouse.archives.gov/
and Information Science, Vol. 12 (Berlin: blockchains-could-change-the-world. files/documents/cyber/ISA%20-%20
Springer, 2008), at http://www.cis.strath. Hathaway%20public%20private
69. Mary-Ann Russon, “Quantum
ac.uk/cis/research/publications/papers/ %20partnerships.pdf.
Cryptography Breakthrough:
strath_cis_publication_2243.pdf.
‘Unbreakable Security’ Possible Using 77. Executive Order—Promoting Private
61. A full list of identity fraud state regulations Pulse Laser Seeding,” International Sector Cybersecurity Information Sharing,
can be found at http://www.ncsl.org/ Business Times (7 Apr. 2016), at (13 Feb. 2015). See also “Executive Order
issues-research/banking/identity-theft- http://www.ibtimes.co.uk/quantum- -- Promoting Private Sector Cybersecurity
state-statutes.aspx. cryptography-breakthrough-unbreakable- Information Sharing,” The White House of
security-possible-using-pulse-laser- President Barack Obama, Press Release,
62. Walter A. Effross, “High-Tech Heroes, seeding-1553721. (13 Feb. 2015), at https://www.whitehouse.
Virtual Villains, and Jacked-In Justice: gov/the-press-office/2015/02/13/
Visions of Law and Lawyers in Cyberpunk 70. Ibid.
executive-order-promoting-private-sector-
Science Fiction,” Buffalo Law Review, Vol. cybersecurity-information-shari; Gregory
71. WDR, supra § 1 A, note 10, at 223.
46 (1997), p. 931. Korte, “Obama Signs Two Executive
For an interesting perspective on the
63. For example, Venmo does not charge interrelation of analog and digital, see Orders on Cybersecurity,” USA Today,
transaction fees for transferring funds Peter Kinget, “The World Is Analog,” (9 Feb. 2016), at http://www.usatoday.
between debit card or checking account, Circuit Cellar, No. 292 (Nov. 2014), at com/story/news/politics/2016/02/09/
“Fees & Venmo,” Venmo, at https://help. http://www.ee.columbia.edu/~kinget/ obama-signs-two-executive-orders-
venmo.com/hc/en-us/articles/224361007- WhyAnalog/circuitcellar_The_World_Is_ cybersecurity/80037452/.
Fees-Venmo. Analog_201410.pdf.
78. Pres. Barack Obama, “Remarks by the
72. WDR, supra § 1 A, note 10, at 223. President on Securing Our Nation’s Cyber
Infrastructure,” The White House Office of
the Press Secretary, The White House of
President Barack Obama, (29 May 2009),
at https://obamawhitehouse.archives.
gov/the-press-office/remarks-president-
securing-our-nations-cyber-infrastructure.
Page 55 | Chapter 1 | End Notes Table of Contents
79. On 18 December 2015, the European 83. See Julia Edwards, “FBI Paid More Than 90. Thomas Boué, “Closing the Gaps in EU
Commission launched a public $1.3 Million to Break into San Bernardino Cyber Security,” Computer Weekly, (Jun.
consultation, accompanied by a policy iPhone,” Reuters, (22 Apr. 2016), at 2015), at http://www.computerweekly.
roadmap, to seek stakeholders’ views http://www.reuters.com/article/us-apple- com/opinion/Closing-the-gaps-in-EU-
on the areas of work of a future public- encryption-fbi-idUSKCN0XI2IB. cyber-security.
private partnership, as well as on potential
additional policy measures—in areas 84. Kim Zetter, “The Feds’ Battle with Apple 91. “Number of Internet Users Worldwide
such as certification, standardization and Isn’t Over—It Just Moved to New York,” from 2000 to 2015 (in Millions),”
labeling—that could benefit the European Wired, (8 Apr. 2016), at https://www.wired. Statista, at http://www.statista.com/
cybersecurity industry. To strengthen com/2016/04/feds-battle-apple-isnt-just- statistics/273018/number-of-internet-
EU’s cybersecurity industry, the European moved-ny/. users-worldwide/.
Commission will establish a contractual
85. Nathaniel Mott, Take That, “FBI: 92. See, e.g., Tim Bajarin, “The Next
Public-Private Partnership (cPPP) on
Apple Goes All in on Encryption,” The Big Thing for Tech: The Internet of
cybersecurity, as envisaged in the Digital
Guardian, (15 Jun. 2016), at https://www. Everything,” Time, (13 Jan. 2014), at
Single Market Strategy. The aim of
theguardian.com/technology/2016/ http://time.com/539/the-next-big-thing-
the PPP is to stimulate the European
jun/15/apple-fbi-file-encryption-wwdc. for-tech-the-internet-of-everything/.
cybersecurity industry by: bringing
together industrial and public resources 86. Cade Metz, “Forget Apple vs. the FBI: 93. See WDR § 1 A, supra note 10.
to improve Europe’s industrial policy on WhatsApp Just Switched on Encryption
cybersecurity, focusing on innovation for a Billion People,” Wired, (5 Apr. 2016),
and following a jointly-agreed strategic at http://www.wired.com/2016/04/forget-
research and innovation roadmap; helping apple-vs-fbi-whatsapp-just-switched-
build trust among Member States and encryption-billion-people/.
industrial actors by fostering bottom-up
cooperation on research and innovation; 87. See, e.g., Ivana Kottasova and Samuel
helping stimulate cybersecurity Burke, “UK Government Wants Access
industry by aligning the demand and to WhatsApp Messages,” CNN Tech,
supply for cybersecurity products and (27 Mar. 2017), at http://money.cnn.
services, and allowing the industry to com/2017/03/27/technology/whatsapp-
efficiently elicit future requirements encryption-london-attack/index.html.
from end-users; leveraging funding
88. See, e.g., Amber Rudd, Home Secretary,
from Horizon2020 and maximizing the
“Social Media Firms Must Join the War
impact of available industry funds through
on Terror,” Telegraph, (25 Mar. 2017) (“We
better coordination and better focus on
need the help of social media companies,
a few technical priorities; and providing
the Googles, the Twitters, the Facebooks
visibility to European R&I excellence
of this world. And the smaller ones, too:
in cyber security and digital privacy.
platforms such as Telegram, WordPress
See also Commissioner, “Digital Single
and Justpaste.it. We need them to
Market,” European Commission, at http://
take a more proactive and leading role
ec.europa.eu/priorities/digital-single-
in tackling the terrorist abuse of their
market/.
platforms. We need them to develop
80. Warwick Ashford, “Co-Operation Driving further technology solutions. We need
Progress in Fighting Cybercrime, Say Law them to set up an industry-wide forum
Enforcers,” Computer Weekly, (5 Jun. to address the global threat.”), at http://
2015), at http://www.computerweekly. www.telegraph.co.uk/news/2017/03/25/
com/news/4500247603/Co-operation- social-media-firms-must-join-war-terror/;
driving-progress-in-fighting-cyber-crime- UK Home Secretary, “We need the
say-law-enforcers. Help of Social Media Companies,” UK
Home Office News Team, (26 Mar. 2017),
81. See also Actual Order Compelling at https://homeofficemedia.blog.gov.
Apple, Inc. to Assist Agents in Search of uk/2017/03/26/home-secretary-we-need-
iPhone,”Cybersecuritylaw, at http://blog. the-help-of-social-media-companies/.
cybersecuritylaw.us/2016/02/23/actual-
order-compelling-apple-inc-to-assist- 89. See, e.g., Peter Walker and Heather
agents-in-search-of-iphone/. Stewart, “No 10 Repeats Rudd’s Call
for Authorities to Access Encrypted
82. See, e.g., Saeed Ahmed, “Who Were Messages,” Guardian, (27 Mar. 2017),
Syed Rizwan Farook and Tashfeen at https://www.theguardian.com/
Malik?,” CNN, (4 Dec. 2015), at http:// politics/2017/mar/27/downing-street-
www.cnn.com/2015/12/03/us/syed-farook- amber-rudd-authorities-access-encrypted-
tashfeen-malik-mass-shooting-profile/ messages-whatsapp-terrorism.
index.html.
Page 56 | Chapter 1 | End Notes Table of Contents
Referenced in: § C. Challenges to 9. United States v. Liberty Reserve et al., 13 14. Supreme Court of Korea, Decision
Fighting Cybercrime Cr. 368, UNODC Cybercrime Repository, 2014 No. 8838 (13 Nov. 2014), at
at https://www.unodc.org/cld/case-law- http://www.law.go.kr/precInfoP.
doc/cybercrimecrimetype/usa/2014/us_v_ do?mode=0&precSeq=176320 (in
1. ITU Understanding Cybercrime, supra § 1 liberty_reserve_et_al..html?&tmpl=cyb; Korean). See also Seoul Central District
B, note 1. Indictment & Supporting Documents: Court, Decision 2014 No.323 (26 Jun.
United States v. Liberty Reserve et al., 2014), at http://www.law.go.kr/precInfoP.
2. See, e.g., US Access Board, § 508 -
(S.D.N.Y. 2013), at http://www.justice. do?evtNo=2014%eb%85%b8323 (in
Standards for Electronic and Information
gov/usao/nys/pressreleases/May13/ Korean); Seoul Central District Court,
Technology, Final Rule, (21 Dec. 2000).
LibertyReserveetalDocuments.php; Decision No.4451, 4488 (Consolidation)
3. Ibid., at 75. Emily Flitter, “US Accuses Currency (15 Jan. 2014), at http://mobile.law.go.kr/
Exchange of Laundering $6 Billion,” LSWM/mobile/precScInfo.do;jsessio
4. See, e.g., Kristin Finklea & Catherine A. Reuters, (29 May 2013), at http://www. nid=plrVTdB8eoKZ1bXXaJl0wla9S2E4
Theohary, Cybercrime: Conceptual Issues reuters.com/article/2013/05/29/net- 4BfcfQGizaMGLE3jt081q9o0TtHznXov6J
for Congress and US Law Enforcement, us-cybercrime-libertyreserve-charges- FN.de_kl_a6_servlet_PRM?precSeq=176
US Congressional Research Service (CRS), idUSBRE94R0KQ20130529. 605&precScNm=%ED%8C%90%EB%A1
(2015), p. 16 (provides that “For instance, %80&searchKeyword=&pageIndex=127
identity theft (18 USC § 1028(a)(7)) is a 10. Uniting and Strengthening America by &name=precSc (in Korean).
crime whether it is committed solely in the Providing Appropriate Tools Required to
real world or carried out via cyber means. Intercept and Obstruct Terrorism (USA 15. Korea: Game Industry Promotion Act, at
The statute does not distinguish between PATRIOT Act), No. 107–56, 115 Stat. 272 http://elaw.klri.re.kr/eng_mobile/viewer.
the means by which the crime is carried (2001) [hereafter, “USA PATRIOT Act”]. do?hseq=28802&type=sogan&key=8 (in
out”), at https://www.fas.org/sgp/crs/ English).
11. See infra § 2 B.
misc/R42547.pdf.
16. Ibid., Art. 18-3(c).
12. Technological neutrality refers to the
5. For example, “wire transfer” and
drafting of laws that are technologically 17. Ibid.
“stalking”.
agnostic, that is, laws that do not
specifically refer to any particular 18. Rohini Tendulkar, Securities Markets and
6. Such as “place” and “document”.
technology. Doing so not only assures Systemic Risk: Joint Staff Working Paper
7. UN Office of Drugs and Crime (UNODC), that online and offline conduct is of the IOSCO Research Department and
Comprehensive Study on Cybercrime treated equally, but also assures that World Federation of Exchanges, IOSCO
(Draft) [hereafter, “UNODC Cybercrime the law is not so easily outdated by Research Department, at pp. 4 & 22, at
Study”], (New York: United Nations, technological progress. This strategy, http://www.iosco.org/research/pdf/swp/
2013), p. 58, at https://www.unodc.org/ refraining from naming any device or Cyber-Crime-Securities-Markets-and-
documents/organized-crime/UNODC_ software or using a nonexclusive list, Systemic-Risk.pdf.
CCPCJ_EG.4_2013/CYBERCRIME_ punishes a criminal conduct as long
19. Ibid.
STUDY_210213.pdf. as the effect is felt. Moreover, not
naming a specific technology allows 20. Ibid. at 4.
8. One famous conception of just such laws to stay relevant even after new
a scenario is in the 1968 cult-classic device or criminal methodology is 21. United States v. Albert Gonzalez, D. Mass.
film 2001: A Space Odyssey, where the developed. See “Technology Neutrality (No. 10223 & No. 10382).
spacecraft’s computer, HAL—short for in Internet, Telecoms and Data Protection
“heuristically-programmed algorithmic Regulation,” Hogan Lovells Global 22. Kim Zetter, “TJX Hacker Gets 20 Years in
computer”—“decides” to terminate the Media and Communications Quarterly, Prison,” Wired, (25 Mar. 2010), at https://
human team members when it becomes (2014), at http://www.hoganlovells. www.wired.com/2010/03/tjx-sentencing/.
apparent that the humans, who are com/files/Uploads/Documents/8%20
unaware of the mission’s real purpose, 23. Edecio Martinez, “Albert Gonzalez,
Technology%20neutrality%20in%20 ‘SoupNazi’ Credit Card Hacker Gets
may jeopardize that purpose. Stanley Internet.pdf.
Kubrick, dir. 2001: A Space Odyssey. Writ. 20 Years,” CBS News, (26 Mar. 2010), at
Arthur C. Clarke & Stanley Kubrick. Metro 13. See, e.g., WDR, supra § 1 A, note http://www.cbsnews.com/news/albert-
Goldwyn-Mayer (MGM), 1968. Film. 10, at 222, noting “Public safety and gonzalez-soupnazi-credit-card-hacker-
security in the analog world is a public gets-20-years/; Kim Zetter, “In Surprise
good, ensured by governments. In Appeal, TJX Hacker Claims US Authorized
the cyberworld, governments also His Crimes,” Wired, (7 Jul. 2011), at http://
have an obligation […] to ensure the www.wired.com/2011/04/gonzalez-plea-
protection of data, communications, withdrawal/.
and critical infrastructure.” See also ITU 24. Do Punishments Fit the Cybercrime?,”
Understanding Cybercrime, supra § 1 B, 2010, InfoSecurity Magazine, (25 Aug.
note 1, at 82–84. 2010), at https://www.infosecurity-
magazine.com/magazine-features/do-
punishments-fit-the-cybercrime/.
25. L. Thomas Winfree, Jr., G. Larry Mays
& Leanne Fiftal Alarid Introduction to
Criminal Justice (New York: Wolters
Kluwer, 2015
Page 57 | Chapter 1 | End Notes Table of Contents
26. See infra § 2 C. 30. Mary M. Cheh, “Constitutional Limits 39. Mott, supra § 1 B, note 85.
on Using Civil Remedies To Achieve
27. The ultima ratio principle emphasizes the Criminal Law Objectives: Understanding 40. “Ransomware Cyber-attack Threat
repressive nature of the criminal justice and Transcending the Criminal-Civil Escalating—Europe,” BBC News, (14
system and classifies it as the last resort of Law Distinction,” Hastings Law Journal, May 2017), at http://www.bbc.com/news/
the legislator. See, e.g., Sakari Melander, Vol. 42 (1991), p. 1325; Julie Adler, “The technology-39913630.
“Ultima Ratio in European Criminal Public’s Burden in a Digital Age: Pressures
Law,” Oñate Socio-Legal Series, Vol. 41. “WannaCry: What Is Ransomware
on Intermediaries & the Privatization of
3 (2013); Rudolf Wendt, “The Principle and How to Avoid It,” Al Jazeera, (16
Internet Censorship,” Journal of Law
of Ultima Ratio and/or the Principle of May 2017), at http://www.aljazeera.
& Policy, Vol. 20 (2011), p. 231; James
Proportionality,” Oñate Socio-Legal com/news/2017/05/ransomware-
R. Marsh, “Predators, Porn and the
Series, Vol. 3 (2013); Markus D. Dubber, avoid-170513041345145.html; Victoria
Law: America’s Children in the Internet
“Ultima Ratio as Caveat Dominus: Legal Woollaston, “Wanna Decryptor
Era: A Federal Civil Remedy for Child
Principles, Police Maxims and the Critical Ransomware Appears to be Spawning
Pornography Victims,” Syracuse Law
Analysis of Law,” SSRN (5 Jul. 2013), at and This Time It May Not Have a Kill
Review, Vol. 61 (2015), p. 459; Joseph
http://ssrn.com/abstract=2289479. Switch,” Wired, (16 May 2017), at http://
Salvador, “Dismantling the Internet Mafia:
www.wired.co.uk/article/wanna-decryptor-
RICO’s Applicability to Cyber Crime,”
28. Kathleen Fuller, “ICANN: The Debate ransomware. Typically, hackers rely on
Rutgers Computer & Technology Law
Over Governing the Internet,” Duke Law tricking users to click on attachments
Journal, Vol. 41 (2015), p. 268. Microsoft
& Technology Review, Vol. 2 (2001); Mary harboring attack code, and email is the
has used civil actions to attack botnets.
B. Kibble, “Fear Mongering, Filters, the still the preferred attack tool. Ibid. See
See Official Microsoft Blog, “Botnets,”
Internet and the First Amendment: Why also 2017 Internet Security Threat Report,
Microsoft, at https://blogs.microsoft.com/
Congress Should Not Pass Legislation Symantec, at https://www.symantec.com/
blog/tag/botnets/#sm.000013htf1t8ngf0
Similar to the Deleting Online Predators content/dam/symantec/docs/reports/istr-
zuycn3473chdh.
Act,” Roger Williams University Law 22-2017-en.pdf.
Review, Vol. 13 (2007), p. 497. 31. See, e.g., WDR, supra § 1 A, note 10,
at 223; see also Bauer, Johannes & Bill
29. Anita Bernstein, “Social Networks and
Dutton, Addressing the Cybersecurity
the Law: Real Remedies for Virtual
Paradox: Economic and Cultural
Injuries,” North Carolina Law Review,
Challenges to an Open and Global
Vol. 90 (Jun. 2012), p. 1457; “New Bill
Internet, Background Paper for the World
Gives Turkish Government Power to
Development Report 2016, (Washington:
Shut Down Websites in Four Hours,”
World Bank, 2016).
BBC Monitoring Europe, (23 Mar. 2015);
Nicholas Cecil, “MP Demands Law to 32. Emilio Viano, “Balancing Liberty and
Force Internet Providers to Remove Gang Security Fighting Cybercrime: Challenges
Videos,” Evening Standard, (6 Nov. 2011), for the Networked Society,” in: Stefano
at http://www.standard.co.uk/news/mp- Manacorda (ed.), Cybercriminality:
demands-law-to-force-internet-providers- Finding a Balance between Freedom and
to-remove-gang-videos-6365780. Security (Milano: ISPAC Editora, 2012), pp.
html; Wayne McCormack, “US Judicial 33–64.
Independence: Victim in the ‘War on
Terror,’” Washington & Lee Law Review, 33. Russell G. Smith, Ray Chak-Chung
Vol. 71 (2014), p. 305. Cheung & Laurie Yiu-Chung Lau,
Cybercrime Risks and Responses: Eastern
and Western Perspectives, (London:
Palgrave MacMillan, 2015), p. 47.
34. David Kushner, “The Real Story of
Stuxnet: How Kaspersky Lab Tracked
Down the Malware that Stymied Iran’s
Nuclear-Fuel Enrichment Program,”
IEEE Spectrum, (26 Feb. 2013), at http://
spectrum.ieee.org/telecom/security/the-
real-story-of-stuxnet.
35. Ibid.
36. Michael S. Schmidt, “Cybersecurity Bill Is
Blocked in Senate by G.O.P. Filibuster,”
New York Times, (2 Aug. 2012), at: http://
www.nytimes.com/2012/08/03/us/politics/
cybersecurity-bill-blocked-by-gop-
filibuster.html?_r=0.
37. Fuller, supra note 28.
38. See AIDP/IAPL, supra § 1 B, note 73.
Page 58 | Chapter 1 | End Notes Table of Contents
42. Early linguistic analysis by Flashpoint 44. Speaking to the BBC, MalwareTech 49. US policy had been understood to be
indicated a Chinese connection: of the 28 said, “There’s a lot of money in this, one of disclosing identified vulnerabilities
languages in which the ransom notice was there is no reason for them to stop. It’s to vendors and others so that they can
written, only the Chinese (both Simplified not much effort for them to change the be patched. See Kim Zetter, “Obama:
and Traditional) and English versions were code and start over.” Chris Foxx, “Global NSA Must Reveal Bugs Like Heartbleed,
written by humans instead of machine- Cyber-attack: Security Blogger Halts Unless They Help the NSA,” Wired,
translated, and only the Chinese notice Ransomware ‘by Accident’,” BBC News, (15 Apr. 2014), at https://www.wired.
appears to have been written by a fluent (14 May 2017), at http://www.bbc.com/ com/2014/04/obama-zero-day/. Such
speaker; the other messages, including news/technology-39907049. being the case, it is not clear why the
the Korean message, were apparently vulnerabilities identified had not been
translated from the English note using 45. Dave Lee, “Global Cyber-Attack: How released. See Brad Smith, “The Need for
Google Translate. See Jon Condra, John Roots Can be Traced to the US,” BBC Urgent Collective Action to Keep People
Costello & Sherman Chu, “Linguistic News, (13 May 2017), at http://www.bbc. Safe Online: Lessons from Last Week’s
Analysis of WannaCry Ransomware com/news/technology-39905509. The Cyberattack,” Official Microsoft Blog,
Messages Suggests Chinese-Speaking,” NSA has neither confirmed nor denied (14 May 2017), at https://blogs.microsoft.
Flashpoint, (25 May 2017), at https:// as much. It is not known who conducted com/on-the-issues/2017/05/14/need-
www.flashpoint-intel.com/blog/linguistic- the attacks. It has been suggested that urgent-collective-action-keep-people-
analysis-wannacry-ransomware/. However, the NSA may have created the tool. Id.; safe-online-lessons-last-weeks-cyberattac
more in-depth and nuanced forensic Bill Chappell, “WannaCry Ransomware: k/#oHaqtHbEYodLhwLl.99. See also Matt
analyses points to criminals from North Microsoft Calls Out NSA For ‘Stockpiling’ Day, “Microsoft Criticizes Government
Korea; that said, no connection to Vulnerabilities,” NPR, (15 May 2017), at Creation of Hacking Tools Used in Global
the North Korea state itself had been http://www.npr.org/sections/thetwo- Cyberattack,” Seattle Times, (14 May
demonstrated. The cybersecurity service way/2017/05/15/528439968/wannacry- 2017), at http://www.seattletimes.com/
firm Symantec showed “strong links” to ransomware-microsoft-calls-out-nsa- business/microsoft/microsoft-criticizes-
Lazarus group, a hacking group based for-stockpiling-vulnerabilities; Thomas government-creation-of-hacking-tools-
in Pyongyang and closely associated Fox-Brewster, “An NSA Cyber Weapon used-in-global-cyberattack/.
with the North Korean government. See Might Be Behind A Massive Global
Symantec Security Response, “WannaCry: Ransomware Outbreak,” Forbes, (12 May 50. “Next Cyber-attack Could Be Imminent,
Ransomware Attacks Show Strong Links 2017), at http://www.npr.org/sections/ Warn Experts,” BBC News (14 May 2017),
to Lazarus Group,” Symantec Official thetwo-way/2017/05/15/528439968/ at http://www.strategic-culture.org/
Blog, (22 May 2017), at https://www. wannacry-ransomware-microsoft-calls-out- news/2017/05/14/international-cyber-
symantec.com/connect/blogs/wannacry- nsa-for-stockpiling-vulnerabilities. attack-roots-traced-us-national-security-
ransomware-attacks-show-strong-links- agency.html; Victoria Woollaston, “Wanna
46. Andy Greenberg, “Major Leak Suggests Decryptor Ransomware Appears to Be
lazarus-group. That analysis has been
NSA Was Deep in Middle East Banking Spawning and This Time It May Not Have
since supported by an investigation led by
System,” Wired, (14 Apr. 2017), at https:// a Kill Switch,” Wired, (16 May 2017), at
Britain’s National Cyber Security Centre
www.wired.com/2017/04/major-leak- http://www.wired.co.uk/article/wanna-
(NCSC) and supported by the US-CERT.
suggests-nsa-deep-middle-east-banking- decryptor-ransomware.
See, e.g., Gordon Corera, “NHS Cyber-
system/.
Attack Was ‘Launched from North Korea,”
51. In March 2017, Microsoft released a patch
BBC News, (16 Jun. 2017), at http://www. 47. Bill Chappell, “WannaCry Ransomware: for the vulnerability in question. Microsoft,
bbc.com/news/technology-40297493. What We Know Monday,” NPR, (15 May Security Bulletin MS17-010, (14 Mar. 2017),
Lazarus group has been blamed for the 2017), at http://www.npr.org/sections/ at https://technet.microsoft.com/en-us/
2014 cyberattack on Sony and the theft of thetwo-way/2017/05/15/528451534/ library/security/ms17-010.aspx. Following
US$81m from Bangladesh’s central bank. wannacry-ransomware-what-we-know- the attacks in May, Microsoft released
“More Evidence for WannaCry ‘Link’ to monday. a separate patch for users of older and
North Korean Hackers,” BBC News, (23
unsupported operating systems, such as
May 2017), at http://www.bbc.com/news/ 48. “WannaCry: Are You Safe?,” Kaspersky
Windows XP.
technology-40010996. As already noted, Labs, (13 May 2017), at https://
such matters are beyond the scope of the blog.kaspersky.com/wannacry- 52. MSRC Team, “Customer Guidance for
Toolkit. See supra § 1 A. ransomware/16518/; “Kaspersky Lab’s WannaCrypt Attacks,” Microsoft Official
Notice to Customers about the Shadow Blog, (12 May 2017), at https://blogs.
43. MalwareTech, “How to Accidentally Stop Brokers’ Publication from April 14,” technet.microsoft.com/msrc/2017/05/12/
a Global Cyber Attacks,” MalwareTech Kaspersky Labs, (14 Apr. 2017), at https:// customer-guidance-for-wannacrypt-
Blog, (13 May 2017), at https://www. support.kaspersky.com/shadowbrokers. attacks/.
malwaretech.com/2017/05/how-to-
accidentally-stop-a-global-cyber-attacks. 53. 2017 Data Breach Investigations Report,
html. The researcher noted that the 10th ed., Verizon, (27 Apr. 2017), at http://
malware attempted to contact a specific www.verizonenterprise.com/verizon-
web address each time it infected a new insights-lab/dbir/2017/.
system; the address not being registered,
he did so himself, allowing him to see 54. See, e.g., Dave Lee, “Global Cyber-
where computers were being affected Attack: How Roots Can Be Traced
and unexpectedly triggering a part of the to the US,” BBC News, (13 May
code that told the ransomware to stop 2017), at http://www.bbc.com/news/
spreading. Ibid. technology-39905509.
Page 59 | Chapter 1 | End Notes Table of Contents
55. Cybercrime Knows No Borders, 64. “256-bit AES key” means that every 73. EU Council Framework Decision 2004/68/
InfoSecurity Magazine, (19 May 2011), at 256-bit number is a valid key or modulus. JHA (22 Dec. 2003) on combating the
http://www.infosecurity-magazine.com/ Having superseded DES (Data Encryption sexual exploitation of children and child
magazine-features/cybercrime-knows-no- Standard), AES (Advanced Encryption pornography. The Framework Decision
borders/. Standard) is a symmetric encryption was replaced by Directive 2011/93/
algorithm (specifically, a block cypher) EU of the European Parliament and
56. WDR, supra § 1 A, note 10, at 222. While in use worldwide, which is defined over of the Council of 13 December 2011
such actions “blur[ ] the lines between keys of 128, 192 and 256 bits. Symmetric on combating the sexual abuse and
acts of cybercrime and cyberwar or algorithms are designed to be as simple sexual exploitation of children and child
cyberterrorism,” it is nonetheless the and quick as possible (for cryptography), pornography. See OJ 2011 L 335 (17 Dec.
responsibility of the government to assure and retain a high level of security. See, 2011), pp. 1–17.
public safety and security in cyberspace. e.g., “Why Do You Need a 4096-bit
Ibid. at 223. DSA Key When AES Is Only 256-Bits?,” 74. Directive 2006/24/EC of the European
Information Security Stack Exchange, Parliament and of the Council of 15 March
57. The first free, widely used end-to-end 2006 on the retention of data generated
at http://security.stackexchange.com/
encrypted messaging software was PGP or processed in connection with the
questions/59190/why-do-you-need-a-
(“Pretty Good Privacy”), coded by Phil provision of publicly available electronic
4096-bit-dsa-key-when-aes-is-only-256-
Zimmermann and released in 1991. Andy communications services or of public
bits; “What Does ‘Key with Length of
Greenberg, “Hacker Lexicon: What Is communications networks and amending
X Bits’ Mean?,” Information Security
End-to-End Encryption?,” Wired, (25 Nov. Directive 2002/58/EC [2006] OJ L105/54
Stack Exchange, at http://security.
2014), at https://www.wired.com/2014/11/ (“Data Retention Directive”).
stackexchange.com/questions/8912/what-
hacker-lexicon-end-to-end-encryption/.
does-key-with-length-of-x-bits-mean.
75. European Commission v. Hungary,
58. Greenberg, ibid. [hereafter, “Commission v. Hungary”],
65. “Why Do You Need a 4096-bit DSA Key
When AES Is Only 256-Bits?,” ibid. Case number C-286/12, [CJEU] (8 Apr.
59. Ibid.
2014), at http://curia.europa.eu/juris/
60. Information theory can be used to render 66. Mary-Ann Russon, “Quantum documents.jsf?num=C-293/12; EUR-Lex,
a cryptosystem information-theoretically Cryptography Breakthrough: Official Journal of the European Union, (8
secure, and therefore cryptanalytically ‘Unbreakable Security’ Possible Using Apr. 2014).
unbreakable, even when the adversary Pulse Laser Seeding,” International
Business Times, (7 Apr. 2016), at 76. Richard W. Downing, “Shoring Up
has unlimited computing power. Ueli
http://www.ibtimes.co.uk/quantum- the Weakest Link: What Lawmakers
Maurer, “Information-Theoretically
cryptography-breakthrough-unbreakable- Around the World Need to Consider
Secure Secret-Key Agreement by NOT
security-possible-using-pulse-laser- in Developing Comprehensive Laws to
Authenticated Public Discussion,” in:
seeding-1553721. China has made Combat Cybercrime,” Columbia Journal
EUROCRYPT’97 Proceedings of the
particular advances in the development of Transnational Law, Vol. 43 (2005), p.
16th annual international conference on
of such technology; for the implications 705; Erin I. Kunze, “Sex Trafficking Via the
Theory and application of cryptographic
of implications of such advances, see Internet: How International Agreements
techniques, (1997), pp. 209–25, at ftp://
Andreas Illmer, “China Set to Launch an Address the Problem and Fail to Go Far
ftp.inf.ethz.ch/pub/crypto/publications/
‘Unhackable’ Internet Communication,” Enough,” Journal on Telecommunications
Maurer97.pdf.
BBC News, (25 July 2017), at http://www. & High Technology Law, Vol. 10 (2010),
61. Greenberg, supra note 57. bbc.com/news/world-asia-40565722. p. 241; Miriam F. Miquelon-Weismann,
“The Convention on Cybercrime:
62. PFS-perfect forward secrecy is a technique 67. Greenberg, supra note 57. A Harmonized Implementation
used, for instance, by TextSecure, an of International Penal Law: What
SMS application for Android, and the 68. See also Nandagopal Rajan, “WhatsApp Prospects for Procedural Due Process,”
software integrated by WhatsApp into Is Not Breaking Indian Laws with 256-Bit John Marshall Journal Computer &
its messaging services. See, e.g., Dan Encryption, for Now,” Indian Express, (12 Informational Law, Vol. 23 (2005), p. 329;
Goodin, “WhatsApp Brings Strong End- Apr. 2016), at http://indianexpress.com/ Deborah Griffith Keeling & Michael M.
to-end Frypto to the Masses,” Quora, (18 article/technology/social/whatsapp-end- Losavio, “A Comparative Review of
Nov. 2014), at https://www.quora.com/ to-end-encryption-not-illegal-in-india/. Cybercrime Law and Digital Forensics in
How-secure-is-WhatsApps-new-end-to- Russia, the United States and under the
69. Russon, supra note 66.
end-encryption. Convention on Cybercrime of the Council
70. Brendan J. Sweeney, Global Competition: of Europe,” Northern Kentucky University
63. For a discussion of the mathematics
Searching for a Rational Basis for Global Law Review, Vol. 39 (2012), p. 267.
behind cracking computer cyphers, see,
Competition Rules, Sydney Law Review,
e.g., “The Math Behind Estimations to 77. Viano, supra § 1 B, note 39, at 342–44.
Vol. 30 (2008), p. 209.
Break a 2048-bit Certificate,” DigiCert,
at https://www.digicert.com/TimeTravel/ 78. Ibid., at 347–53.
71. Budapest Convention, supra § 1 B, note
math.htm. 32. 79. Convention on the Protection of
Children against Sexual Exploitation
72. EU Council Framework Decision
and Sexual Abuse, CoE, (25 Oct. 2007)
2005/222/JHA (24 Feb. 2005) on Attacks
CETS No. 201 [hereafter, “Lanzarote
against Information Systems, at http://
Convention”], at http://conventions.
eur-lex.europa.eu/legal-content/EN/
coe.int/Treaty/Commun/ChercheSig.
ALL/?uri=CELEX:32005F0222.
asp?NT=201&CM=&DF=&CL=ENG.
Page 60 | Chapter 1 | End Notes Table of Contents
80. See, e.g., Additional Protocol to 90. Christopher Budd, “Why the SpyEye 101. The “harm” principle is fundamental to
the Council of Europe Convention Conviction is a Big Deal,” Trend Micro, John Stuart Mill’s approach to justifying
on Cybercrime Concerning the (3 Feb. 2014), at http://blog.trendmicro. or rejecting the intervention of the
Criminalization of Acts of a Racist and com/spyeye-conviction-big-deal/. state through criminal law to prohibit,
Xenophobic Nature Committed through deter and punish certain behaviors. In
Computer Systems, CoE (2003), at http:// 91. “SpyEye Botnet Kit Developer Sentenced On Liberty, Mill argues for “one very
conventions.coe.int/Treaty/en/Treaties/ to Long Jail Term,” PC World, (20 Apr. simple principle, as entitled to govern
Html/189.htm. 2016), at http://www.pcworld.com/ absolutely the dealings of society with
article/3059557/spyeye-botnet-kit- the individual in the way of compulsion
81. International Narcotics Control Board, developer-sentenced-to-long-jail-term. and control.” That principle is that “The
“Globalization and New Technologies: html. only purpose for which power can be
Challenges to Drug Law Enforcement rightfully exercised over any member of
in the Twenty-First Century,” (2001), 92. US Attorney’s Office, N.D. Ga., “Cyber
a civilized community, against his will, is
at https://www.incb.org/documents/ Criminal Pleads Guilty to Developing and
to prevent harm to others. His own good,
Publications/AnnualReports/AR2001/ Distributing Notorious SpyEye Malware,”
either physical or moral, is not a sufficient
AR_01_Chapter_I.pdf; ITU Understanding (28 Jan. 2014), at https://archives.fbi.gov/
warrant,” John Gray & G.W. Smith (eds.),
Cybercrime, supra § 1 B, note 1, pp. 30– archives/atlanta/press-releases/2014/
J.S. Mill on Liberty, (New York: Routledge,
40; Stefan Frederick Fafinski, “Computer cyber-criminal-pleads-guilty-to-
2003), p. 90.
Use and Misuse: The Constellation of developing-and-distributing-notorious-
Control,” Ph.D. Dissertation, University of spyeye-malware/. 102. The principle is captured by the Latin
Leeds, School of Law, (2008), pp. 273–81. dictum “actus reus non facit reum nisi
93. “Two Major International Hackers Who
mens sit rea” (“the act is not culpable
82. See, e.g., “Europol Supports Huge Developed the ‘SpyEye’ Malware Get
unless the mind is guilty”). See, e.g.,
International Operation to Tackle Over 24 Years Combined in Federal
Oxford Reference.
Organised Crime,” Europol, at https:// Prison,” US Dept. of Justice, (26 Apr.
www.europol.europa.eu/content/europol- 2016), at https://www.justice.gov/usao- 103. See, e.g., “Cyberla Tracker,” UNCTAD,
supports-huge-international-operation- ndga/pr/two-major-international-hackers- at http://unctad.org/en/Pages/DTL/
tackle-organised-crime. who-developed-spyeye-malware-get- STI_and_ICTs/ICT4D-Legislation/eCom-
over-24-years-combined. Data-Protection-Laws.aspx.
83. Eric Neumayer, “Qualified Ratification:
Explaining Reservations to International 94. Ibid. 104. For instance, while an early leader in the
Human Rights Treaties,” Journal of Legal field of data protection, the US Privacy Act
95. Ibid. See also US Attorney’s Office, supra
Studies, Vol. 36 (2007), p. 397. 1974 (USC Title 5, § 552a) applies only to
note 92.
the Federal Government, and subsequent
84. Budapest Convention, supra § 1 B, note laws applies to specific sectors, but there
96. UNODC Cybercrime Study, supra § 1 C,
32, at Art. 42. is no comprehensive law to date.
note 7, at 108.
85. ITU Understanding Cybercrime, supra § 1 105. “What Is Data Protection?,” Privacy
97. See infra § 5 A.
B, note 1, at 77–78. International, at https://www.
98. Fernando Molina, “A Comparison privacyinternational.org/node/44.
86. For example, according to “Cybercrime
between Continental European and
knows no borders” featured by 106. UN General Assembly, Universal
Anglo-American Approaches to
InfoSecurity Magazine in 2011, Invincea Declaration of Human Rights, (10
Overcriminalization and Some Remarks
founder Anup Ghosh notes that “Law Dec. 1948) 217 A (III) [hereafter,
on How to Deal with It,” New Criminal
enforcement agencies don’t have “UDHR”], at http://www.refworld.org/
Law Review, Vol. 14 (2011), p. 123;
jurisdiction to prosecute outside their docid/3ae6b3712c.html.
Kimberly Kessler Ferzan, “Prevention,
borders, so they need bilateral or multi-
Wrongdoing, and the Harm Principle’s
lateral agreements to bring criminals to 107. UN General Assembly, International
Breaking Point,” Ohio State University
justice. But often it is really just sharing Covenant on Civil and Political Rights,
Journal of Criminal Law, Vol. 10 (2013), p.
information with foreign law enforcement (16 Dec. 1966) United Nations, Treaty
685, at http://ailadc.org/form.php?form_
agencies and hoping they will do Series, Vol. 999, p. 171 [hereafter,
id=12; Joel Feinberg & Robert P. George,
something about it.” For additional “ICCPR”], at http://www.refworld.org/
“Crime and Punishment: Moralistic
information: Ibid. docid/3ae6b3aa0.html.
Liberalism and Legal Moralism: Harmless
87. See infra § 2 E. Wrongdoing: The Moral Limits of the 108. OAS, American Convention on Human
Criminal Law,” Michigan Law Review, Vol. Rights, (22 Nov. 1969), at http://www.
88. Anthony J. Colangelo, “A Unified 88 (1990), p. 1415. refworld.org/docid/3ae6b36510.html.
Approach to Extraterritoriality,” Virginia
Law Review, Vol. 97 (2011), p. 1019. 99. US Dept. of Commerce, Internet Policy 109. UN General Assembly, Report of the
Task Force, Copyright, Creativity and Special Rapporteur on the promotion
89. United States v. Aleksandr Andreevich Innovation in the Digital Economy, (Jul. and protection of the right to freedom of
Panin, a/k/a Harderman, a/k/a 2013). opinion and expression, (10 Aug. 2011)
Gribodemon, and Hamza Bendelladj, A/66/290, para. 10, at http://www.ohchr.
a/k/a Bx1, (26 Jun. 2013) N.D. Ga., No. 100. Nina Persak, Criminalizing Harmful
org/Documents/Issues/Opinion/A.66.290.
1:11-cr-00557-AT-AJB Document 35. Conduct: The Harm Principle, Its Limits
pdf.
and Continental Counterparts, Springer
Science & Business Media, 2007. 110. UNODC Cybercrime Study, supra § 1 C,
note 7 at 110.
Page 61 | Chapter 1 | End Notes Table of Contents
111. See, e.g., “Brief History of the Internet,” 122. “Access to Information Laws: Overview
Internet Society, at http://www.intern and Statutory Goals,” Right2info, (20 Jan.
etsociety.org/internet/what-internet/ 2012), at http://right2info.org/access-to-
history-internet/brief-history-internet. information-laws.
112. “Freedom of Expression Rapporteurs 123. WDR, supra § 1 A, note 10, at 222.
Issue Joint Declaration Concerning the
Internet,” R50/11 (1 Jun. 2011), pt. 1(c), at 124. Ibid.
http://www.oas.org/en/iachr/expression/
showarticle.asp?artID=848.
113. Ibid.
114. UN Human Rights Council, “Promotion,
Protection and Enjoyment of Human
Rights on the Internet,” (32nd Session)
[hereafter, “UNHRC Internet Resolution”],
A/HRC/32/L.20 (27 Jun. 2016), at https://
documents-dds-ny.un.org/doc/UNDOC/
LTD/G16/131/89/PDF/G1613189.
pdf?OpenElement.
115. UN General Assembly, “Calling of an
International Conference on Freedom
of Information,” 59(I) (14 Dec. 1946), at
https://documents-dds-ny.un.org/doc/
RESOLUTION/GEN/NR0/033/10/IMG/
NR003310.pdf?OpenElement.
116. Abid Hussain, Report on the Mission
to the Republic of Korea of the Special
Rapporteur on the Promotion and
Protection of the Right to Freedom of
Opinion and Expression, 1995 Report to
the UN Commission on Human Rights E/
CN.4/1996/39/Add.1 (21 Nov. 1995), at
http://hrlibrary.umn.edu/commission/
country52/39-add1.htm.
117. “Access to Information: An Instrumental
Right for Empowerment,” Article 19 &
ADC, (Jul. 2007), p. 5, at https://www.
article19.org/data/files/pdfs/publications/
ati-empowerment-right.pdf.
118. See, e.g., American Bar Association
(ABA), “Part I: What Is the Rule of Law,”
at https://www.americanbar.org/content/
dam/aba/migrated/publiced/features/
Part1DialogueROL.authcheckdam.pdf.
119. See, e.g., Operations Policy & Country
Services (OPCS), “Dealing with
Governance and Corruption Risks
in Project Lending Emerging Good
Practices,” World Bank, (Feb. 2009), p.
7, at http://siteresources.worldbank.org/
EXTGOVANTICORR/Resources/303
5863-1281627136986/EmergingGoo
dPracticesNote_8.11.09.pdf.
120. See, e.g., Commission v. Hungary, supra
note 74.
121. See, e.g., Budapest Convention, supra § 1
B, note 32, at Art. 15.3.
Page 62 | Chapter 1 | End Notes Table of Contents
Referenced in: § D. Framework for a 7. UN Development Programme (UNDP),
Capacity-building Program Human Development Report 2001:
Making New Technologies Work for
Human Development, (New York: United
1. WDR, supra § 1 A, note 10, at 28 et seq. Nations, 2001), at http://hdr.undp.
See also “World Internet Usage and org/en/content/human-development-
Population Statistics,” Internet World report-2001. See also WDR, supra § 1 A,
Stats, (4 Mar. 2017), at http://www. note 10, at 42 et seq.
internetworldstats.com/stats.htm.
8. See WDR, supra § 1 A, note 10, at 222 et
2. In Uganda, which has 22.6 million mobile seq.
phone numbers, there may be more
mobile phones than lightbulbs. See 9. For instance, in the fight against fraud and
Laura Gray, “Does Uganda Have More corruption, a “culture of compliance” has
Mobile Phones Than Light Bulbs?,” BBC been espoused as a necessary element
News, (25 Mar. 2016), at http://www.bbc. in rooting out corruption. See, e.g.,
com/news/magazine-35883649. Mobile “Eight Ways to Move Toward a Culture
phones are frequently used to make of Compliance,” Wall Street Journal, (7
payments in remote rural areas: Across Jul. 2013), at http://deloitte.wsj.com/
Africa, more than 25 million active users cfo/2013/06/07/toward-a-culture-of-
are reported to use “M-Pesa” (“M” for compliance-eight-initiatives-ccos-can-
“mobile” and “Pesa” for “money” in lead/.
Swahili), a means for making small-value
payments from ordinary mobile. See 10. For additional resources and examples,
“Vodafone M-Pesa Reaches 25 Million see, e.g., CyberCrime@EaP, Cybercrime
Customers Milestone,” Vodaphone, (25 and Cybersecurity Strategies in the
Apr. 2016), at https://www.vodafone.com/ Eastern Partnership Region, (Bucharest:
content/index/media/vodafone-group- CoE, 2015), at https://rm.coe.int/
releases/2016/mpesa-25million.html. CoERMPublicCommonSearchServices/
See also “M-Pesa Transactions Rise to DisplayDCTMContent?documentId=090
Sh15bn Daily after Systems Upgrade,” (8 00016803053d2.
May 2016), at http://www.nation.co.ke/ 11. For references and links to domestic
news/MPesa-transactions-rise-to-Sh15bn- cybercrime legislation, see appendix 9 C.
after-systems-upgrade/1056-3194774-
llu8yjz/index.html (noting that daily 12. United States v. Chenault, 844 F.2d 1124,
M-Pesa transactions in Kenya exceed 1131 (5th Cir. 1988).
Sh15bn (~US$145m)); Ignacio Mas & Dan
Radcliffe, “Mobile Payments Go Viral 13. Bettina Weisser, “Cyber Crime—The
M-PESA in Kenya,” Capco Journal of Information Society and Related Crimes,”
Financial Transformation, Vol. 32 (2011): at, http://www.penal.org/sites/default/
169–82. files/files/RM-8.pdf. Cf. computer fraud,
which requires specific intent. USC Title
3. Cf. §§ 2 A & 2 B, below. 18 § 1030; fraud and related activity in
connection with computers USC Title 18,
4. Cf. § 2 E, discussing e-evidence. § 1030(a)(4).
5. See, e.g., CyberCrime@IPA, Article 15 14. For additional resources and examples,
Conditions and Safeguards under the see, e.g., Budapest Convention, supra §
Budapest Convention on Cybercrime: 1 B, note 32, at Art. 15; CoE, Explanatory
Discussion Paper with Contributions Report to the Budapest Convention,
by Henrik Kaspersen (Netherlands), (23 Nov. 2001) [hereafter, “Budapest
Joseph Schwerha (USA), Drazen Explanatory Report”], at https://rm.coe.
Dragicevic (Croatia), (Strasbourg: int/CoERMPublicCommonSearchSer
CoE, 2012) [hereafter, “Article 15 vices/DisplayDCTMContent?documen
Safeguards”], at https://rm.coe.int/ tId=09000016800cce5b; “Country Profiles
CoERMPublicCommonSearchServices/ on Cybercrime Legislation,” CoE, at
isplayDCTMContent?documentId=09000 http://www.coe.int/en/web/cybercrime/
01680303194#search=cybercrime%20246 country-profiles; “Data Protection,” CoE,
7%20safeguards%2029mar12. at http://www.coe.int/en/web/data-
6. Cf. §§ 5 A & 5 B, generally, for a protection/home.
discussions of safeguards and human
rights issues.
Page 63 | Chapter 1 | End Notes Table of Contents
CHAPTER 2
Foundational
Considerations
This chapter provides an overview for some
of the foundational issues discussed in greater
detail in the Toolkit. It starts by describing what is
meant by “cybercrime”, discusses what conduct
is criminalized and then provides some “basics”
regarding procedural, evidentiary, jurisdictional
and institutional issues.
In this Chapter
A. Working Definition of Cybercrime 65
B. Criminalized Conduct 78
C. Procedural Issues 95
D. Evidentiary Issues 109
E. Jurisdicational Issues 121
F. Institutional Framework 130
Page 64 | Chapter 2 | Foundational Considerations
CHAPTER 2
A. Working Definition of Cybercrime
Table of Contents
Introduction 65
I. Defining Cybercrime 66
A. Key Terms 66
B. Technology’s Place: Now and to Come 67
1. Today’s Technological Infrastructure: A Tool & Target for Cybercrime 67
2. New Threats & Opportunities: “To Infinity and Beyond” 20
68
C. Locating the Crime 69
D. Broad & Narrow Understandings of Cybercrime 70
E. National versus International Approaches 71
II. Existing Definitions 71
A. National Level 71
B. International & Regional Instruments 72
C. Academia 72
III. Classifying Cybercrime 73
A. United Nations Secretariat 73
B. Commonwealth Secretariat 73
C. African Union 74
D. Economic Community of West African States 74
E. United Nations Office on Drugs and Crime 75
F. United Nations Interregional Crime and Justice Research Institute 75
G. Council of Europe 76
Conclusion: The Toolkit’s Working Definition of “Cybercrime” 76
Introduction
Broadly speaking, “cybercrime” encompasses illegal activities committed in cyberspace
that either use ICT systems to commit the crime,1 or that target ICT systems and the
data that they store.2 In the former category, ICT—be it a computer, smart phone or
other device(s)—is a vital component of the offense’s modus operandi.3 Though vague
and vast, such definitional variability is not necessarily detrimental, as technology’s
constant development requires an evolving definition of “cybercrime”: a loose and
flexible understanding of the term facilitates combatting illegal activities.4
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Recognizing that a tight, globally-accepted definition of cybercrime does not exist,5
this section (I) explores ways in which cybercrime has been understood, then goes
through both (II) existing definitions of cybercrime as well as (III) grouping activities
constituting cybercrime and (IV) finishes by proposing a working definition of
“cybercrime” that will be used in the Toolkit. Discussion focuses on various approaches
used by various institutions and organizations with an yet to looking to lessons learned
from existing knowledge.
I. Defining Cybercrime
Different definitions of cybercrime, of varying breadth and depth, have been put forward by
experts, industry and academia, some of which have been used by governments.6 Under rule
of law principles, it is understood that laws must clearly define prohibited behavior7 and should
be construed narrowly8; such tenets, or so-called canons of construction, are particularly true
of criminal laws, where the consequences of misbehavior have significantly greater costs for
perpetrators.
In order to define “cybercrime”, it is helpful to begin (A) by defining a few key terms, before
moving on (B) to consider technology’s place in this evolving term and space and (C) to understand
where cybercrime actually takes place. The subsection goes on to explore both (D) broad and
narrow understandings of cybercrime before concluding with (E) a discussion of how and why
national and international approaches differ.
A. Key Terms
Before further examining different definitions of “cybercrime”, it is useful to describe some
key elements central to construing cyberspace, namely “computer” (and “ICT”), “data” and
“systems”.9 For the purposes of this Toolkit, these terms are understood as follows:
Computer Computer” is understood as an electronic device for storing and processing
”
data. While those processes are typically in binary form, according to
instructions given to it in a variable program,10 it is expected that, in the not-so-
distant future, devices may operate in quantum form using what are known as
“quibits” (as opposed to “bits”), which, in essence, take the operating of binary
form to a multidimensional level (see section 1 C, box 1.3, above). Relatedly,
“information and communications technology” (ICT) is a broader term, which,
though less commonly used to define cybercrime, emphasizes the place of
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unified communications, and which integrates audio-visual, telephone and
computer networks; although no concrete or universal definition exists as
the concept continues to evolve with great rapidity, it can be understood as
including computer systems and networks, as well as the data processed by
them.
Data Data” (be it described as computer, ICT, information or electronic) describes
”
a representation of facts, information or concepts that can be read, processed
or stored by a computer or a computer system. Although some (though not
all11) multilateral instruments explicitly provide that “computer data” includes
computer “programs”,12 in practice all activities involving data are generally
considered to be covered by provisions for computer data.13
System ystem” (be it described as computer, ICT, information or electronic) means
”S
any device capable of processing data. Some multilateral instruments define
“computer network” as an interconnection between two or more computer
systems.14 In practice, “computer system” includes, but is not limited to, the
linking of any number of computers, smart phones, tablets and other such
ICT devices.15
B. Technology’s Place: Now and to Come
At the heart of the matter of cybercrime is technology, both (1) as it stands now, both as a tool and
as a target for cybercrime, and (2) as improvements come usher in both new opportunities and
corresponding threats.
1. Today’s Technological Infrastructure: A Tool & Target for Cybercrime
In defining cybercrime, it is helpful to have an understanding of the infrastructure allowing it,
namely of the technology that underpins it. Technology plays a defining role in cybercrime.16 On the
one hand, and as discussed earlier,17 technology, in the form of electronic devices (e.g., computers
or smart phones), or software (e.g., viruses and malware) may be used to facilitate a diversity of
crimes. Those crimes may be perpetrated against individuals, organizations or governmental
entities. Essential cybertools having legitimate and beneficial uses—including high-speed internet,
peer-to-peer file sharing and encryption—can be used to both enable and conceal criminal activity.
On the other hand, the technology itself may be the target of the crime. That technology needs
to be understood in all of its diversity, being both hardware and software, and as being used by
both the public and private sectors, as well as by organizations and individuals. Hardware is used
by governmental and quasi-governmental authorities to assure the functioning of societies, from
the functioning of power grids to the operating of dams and other pieces of infrastructure, to the
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coordinating of traffic controls and emergency services. Software is used to assure communications,
delivery of goods and monitoring of financial markets and delivery of its products. As the WannaCry
cyberattacks demonstrate (see section 1 C, box 1.2, above), much of modern society has come to
rely on ICT and systems’ networking, making lives easier, while also making the elements of the
infrastructure targets for attack.
Regardless of whether technology is understood as a facilitator or as a target in cybercrime, it
bears noting that physical technology stores both the fruits and the evidence of cyber-committed
crimes.18 The nature of that evidence, as well as concerns such as the handling of e-evidence, is
discussed in greater depth further on (see section 2 D, below).
It also bears noting that there is a great range and variance in the uses of technology in cybercrime.
Certain cybercrimes require more technological savoir-faire or more powerful digital technologies
in order to be carried out.19 For instance, “point-and-click” crimes, such as downloading child
pornography or engaging in cyberstalking require relatively minimal technological support. By
contrast, phishing, identity theft and “denial-of-service” (DoS) or “distributed denial-of-service”
(DDoS) attacks presuppose a much deeper and better understanding of digital and electronic
technologies (see section 2 B, box 2.1, below). Deviant acts requiring greater technological know-
how also tend to be more deeply embedded in the virtual world.
2. New Threats & Opportunities: “To Infinity and Beyond”20
Technological developments have led at once to new opportunities as well as to new threats and
complexities. Although it is impossible to know what the future holds, it is important to consider
what certain developments might mean. The start of that transformation is already being seen in
the so-called “internet of things” (IoT), which, perhaps best defined as “the infrastructure of the
information society”,21 is already revolutionized society and ways of life by (increasingly) optimizing
device functionality and connectivity, creating new revenue opportunities and lowering operational
costs through the inter-connection of all manner of smart devices.22 These devices—including, for
instance, household machines, heating, ventilation and air conditioning (HVAC) systems and the
global positioning systems (GPS) of automobiles—are typically less secure than computers,23 and
yet, collectively, these devices result in an unprecedented sharing of vast volumes of sensitive data,
therein raising serious security and privacy concerns.24
Technological developments will continue to transform the meaning of the internet and of
interconnectivity. The “internet of everything” (IoE), a step beyond the IoT, is set to dramatically
expand the present understanding of what makes the “infrastructure” of the information society.
With the addition of the “smart” moniker to (potentially) everything, networking will involve not
only devices but also the data on them,25 and will also extend to directly connecting humans, both
at the individual and collective level.26 Anticipated advances—such as quantum computing,27
biocomputing,28 machine learning (or “pattern recognition”),29 AI and autonomous systems—
will both enhance and challenge today’s norms—for instance, by rendering existing encryption
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technology outmoded, prompting the development of “unbreakable” encryption.30 While the
ramifications of these concerns are, in their concreteness, beyond the scope of the Toolkit, it bears
noting that anticipated technological advances promise to simultaneously revolutionize cyber-
securitization and to facilitate more sophisticated cybercrime. This dramatic redefining of society at
all levels makes the readying of systems’ interoperability among states today, not tomorrow, all the
more important.
C. Locating the Crime
The borders and physicality of the “real”, physical world are nonexistent in the “virtual”,
digital world of cyberspace. Cyberspace enables criminals to impudently disregard borders
and jurisdictions, to target large number of victims, and to do so both simultaneously and
instantaneously. Although law-making and law-enforcing authorities, threatened by the new
environment of cyberspace,31 attempt to impose or imprint a Westphalian nation-state conception
of sovereignty and jurisdiction upon cyberspace, the idea of a “border” is vague at best, and
largely defies definition.32
That said, physical elements do play a mediating role between the physical and the virtual world,
giving cybercrime a “location” that has underlying physical qualities to the more easily discernible
virtual ones.33 Recently, and increasingly, the physicality mediating access to cyberspace has moved
beyond use of a computer or some other directive piece of ICT to integrative networking of smart
devices, including cars, home utilities and wearable technology.34 Indeed, smart cities35—and even
networked cities36—are already becoming a reality. While cyberspace “radically subverts a system
of rule-making based on borders between physical spaces”,37 these physical elements have been
central to tying cybercrime into traditional legal understandings.
Although the complexities of jurisdictional issues is discussed in greater depth further on (see
section 2 E, below), several points are worth raising here briefly. States typically exercise both their
jurisdictional power and apply their laws to offenses committed on their territory. Cyberspace,
however, transcends geographical frontiers, enabling perpetrators to act illegally in one state
while being physically located in another state. In cases where the crime is enacted from abroad,
jurisdiction is asserted on the basis that the committed offense negatively impacted the state (or
its citizen). However, while such harm might be used as a means of establishing jurisdiction, the
typical baseline for a custodial state to recognize, validate and accept the jurisdictional exercise of
the requesting state is instead that of “double criminality” (or “dual criminality”), meaning that the
perpetrator’s comportment is punishable in both states.38 This approach both respects the maxim of
nulla poena sine lege (“no punishment without law”), as well as typically raising fewer jurisdictional
concerns.39 This mutuality is generally the basis, for example, of extradition law.40
Alternatively, jurisdiction might be asserted on the basis that the instrumentality enabling the
offense—be it bank, money services or other instrument—was located in the state intending to
prosecute. In such an instance, a form of what is often called “long-arm” jurisdiction is being
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exerted over the perpetrator, whereby the foreign jurisdiction reaches beyond its territorial
expanse to claim jurisdiction.41 In either instance, a basic, territorial approach and understanding to
jurisdiction is at work.
Case 2.1: Smc Pneumatics (India) Pvt. Ltd. vs. Shri Jogesh Kwatra (OS)
No. 1279/2001 (India)
In India’s first case of cyber-defamation, Defendant was accused of sending “distinctly
obscene, vulgar, filthy, intimidating, embarrassing, humiliating and defamatory” emails to
Complainant’s employer and to employer’s subsidiaries around the world. Complainant filed
suit for permanent injunction restraining Defendant.
The court accepted that Complainant had made a prima facie case, and, the aim and
intention established, enjoining Defendant ex parte to, first, cease and desist in sending of
further such emails, and, second, restraining him from publishing, transmitting or causing
to be published any information in both the physical world and in cyberspace that was
derogatory or defamatory or abusive of Complainant.
D. Broad & Narrow Understandings of Cybercrime
Approaches to criminalizing cybercrime have been largely disunited, resulting in a Balkanization of
criminal laws rather than the creation of a single, international corpus juris of “cybercrime”. On a
practical level, the absence of a concrete definition is a matter of particular concern in cybercrime
as opposed to traditional crimes given cybercrime’s inherent trans-border and trans-jurisdictional
nature.
In the absence of a concrete definition, law enforcement authorities have generally
distinguished between two main types of internet-related crime:
A narrow understanding of cyber-enabled crimes, which focuses on advanced cybercrime
1
(or high-tech crime), and which involves sophisticated attacks against computer hardware
and software
A broad understanding of cyber-enabled crimes, which are so-called “traditional” crimes
2
committed with the facilitation of ICT, or which are committed “in” cyberspace, and
might include crimes against children, financial crimes, and even terrorism.42 This binary
understanding, which has permeated many systems, was introduced during the Tenth UN
Congress on the Prevention of Crime and the Treatment of Offenders in 2000 as “cybercrime
in a narrow sense” (or “computer crimes”)43 and “cybercrime in a broad sense” (or
“computer-related crimes”).44
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E. National versus International Approaches
Defining cybercrime depends on the context and purpose for which the definition will be used.
In national, domestic legislation, the purpose of defining cybercrime is to enable investigation
and prosecution of various offences falling under that umbrella. As such, it may not be useful to
define the term either narrowly or precisely, especially when procedural provisions of domestic law
could be applicable to acts constituting cybercrime as well as other crimes involving e-evidence.45
In the international context, defining cybercrime is useful for interpreting provisions concerning
cross-border investigative powers. Some multilateral treaties on cybercrime extend international
cooperation rules “for the collection of evidence in electronic form of a criminal offence”,46 while
others specify that international cooperation rules apply to differentiate between “offences against
computer information”47 and “cybercrime”.48 This differentiation has led the United Nations
Office on Drugs and Crime (UNODC) to note that “[i]n the international sphere, conceptions of
‘cybercrime’ may thus have implications for the availability of investigative powers and access to
extraterritorial e-evidence.”49
That is not to understate the link between national laws and international instruments. To illustrate,
note that many concepts in the Budapest Convention draw from national legislations.50 In turn,
countries ratifying the Budapest Convention have utilized the Convention’s understanding of
cybercrime within their own national laws. This dual integrativeness has helped reduce the friction
among national laws, which in turn, improves state coordination and provides clarity through
convergence.
II. Existing Definitions
This section briefly takes stock of selected practices in definitional approaches to “cybercrime” as
used (A) in domestic, national legislation, (B) in multilateral instruments on cybercrime and (C) in
the literature.
A. National Level
While a number of countries have legislation dealing with cybercrime,51 only a few countries define
“cybercrime” in their national legislation.52 Of those countries with a national cybercrime law, only a
few explicitly use the term “cybercrime” in the articles of such law.53
Rather, titles or provisions in national laws pertaining to cybercrime use terms such as:
“Electronic crimes”
“Computer crimes”
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“Information technology crimes”
“Crimes in the sphere of computer information” 54
“High-technology crimes” 55
Many other jurisdictions construe cybercrime as a crime committed with the use of ICT.56
Regardless of how cybercrime is addressed, or what method is used to adapt it, a legal definition
of “cybercrime” is rarely provided. Even when domestic legislation explicitly refers to “cybercrime”,
there are often differences in how various national laws of the same state define the term. For
example, while one approach defines cybercrime as “crimes referred to in this law”,57 another
approach is to do so on the basis of instrumentalities, broadly defining cybercrime as “criminal
offences carried out in a network or committed by the use of computer systems and computer
data”.58
B. International & Regional Instruments
There is no multilateral cybercrime instrument that explicitly defines the meaning of term. That said,
the term has been used to accommodate a broad range of different offences, making any typology
or classification difficult59: “[t]he word ‘cybercrime’ itself is not amenable to a single definition, and
is likely best considered as a collection of acts or conduct, rather than one single act”.60
There are, however, two general approaches within applicable multilateral instruments on
cybercrime on how to conceptualize cybercrime:
The first approach understands cybercrime as a collection of acts, without actually providing
1
a singular definition of the term “cybercrime” itself;
The second approach is to offer a broad definition of either the term “offences against
2
computer information”61 or to use the term “information crime”62 without explicit reference
to the term “cybercrime”.
Examples of the first approach can be found, in the Budapest Convention, the AU Convention and
the ECOWAS Directive. Examples of the second approach are found in the CIS Agreement63 and
the SCO Agreement.64
C. Academia
Although academia has made wide and varying contributions to the effort to create a definition of
“cybercrime”,65 no single, standardized consensus definition has been agreed upon. One colorful
descriptor is that of cybercrime as “new wine, no bottles”.66 In any case, similar to what has been
just discussed, there is consensus that cybercrimes can be appropriately understood as including
both traditional crimes moved to a new environment, also new crimes made possible by this new
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environment.67 This understanding has let one author to classify according to “issues of degree”
and “issues of kind”.68 Such variance in the definition of cybercrime is in part due to the rapid
advances and evolutions in ICT, as well as understandings of cyberspace.69
III. Classifying Cybercrime
While specific cybercrimes will be considered hereafter (see section 2 B, below), it is worth
considering how different regimes have classified cybercriminal behavior in developing an
understanding of cybercrime. In the absence of a unitary definition, and without any unitary concept
of what cybercrime is, the term is better understood as a range of acts falling into a certain category
of crimes.70 That said, while a classification or categorization of cybercrime is less contentious, it is
nonetheless difficult to find consensus with regard to the appropriate divisions of acts constituting
cybercrime in domestic legislation, multilateral instruments or the literature.71 Herein, seven
different classifications, as laid out in international instruments are considered, namely, those of
(A) the UN Secretariat, (B) COMSEC, (C) the AU; (D) the ECOWAS, (E) UNODC, (F) UNICRI and (G)
the CoE.
A. United Nations Secretariat
The UN Secretariat carries out the diverse day-to-day work of the United Nations, servicing the
other principal UN organs and administering their programs and policies. The Secretariat’s activities
include administering peacekeeping operations, mediating international disputes, surveying
economic and social trends and problems and preparing studies on human rights and sustainable
development.72 In a background paper for a workshop on cybercrime presented at the Thirteenth
UN Congress on Cybercrime Prevention and Criminal Justice in 2015, the UN Secretariat, building
on its earlier documentation,73 took a binary approach to defining cybercrime.
Under the UN Secretariat’s approach, cybercrime is categorized according to the nature of
the offense:
Offenses affecting the confidentiality, integrity and availability of computer data or systems;
1
and
Offenses where computer or ICT systems form an integral part of the crime’s modus
2
operandi.74
B. Commonwealth Secretariat
COMSEC is the main agency and central institution of the Commonwealth of Nations,75 an
intergovernmental organization of fifty-three Member States that were mostly territories of the
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former British Empire.76 COMSEC facilitates cooperation between members, organizes meetings,
assists and advises on policy development and provides assistance in implementing decisions and
policies of the Commonwealth.77 In its 2014 Report to Commonwealth Law Ministers, COMSEC
provides that “cybercrime” is not a defined legal category but rather a label that has been applied
to a range of illicit activities associated with ICT and computer networks.78
The Report also categorizes cybercrime in a binary fashion:
1 New, criminal offences covering conduct that is harmful to ICT; and
Traditional crimes committed using, or affected by, ICT.79
2
C. African Union
Established in 200080 with the vision of “[an] integrated, prosperous and peaceful Africa, driven by
its own citizens and representing a dynamic force in global arena”,81 the AU plays an important
role in international cooperation. The AU is part of a series of initiatives going back to 1980 that
had the continent’s economic and social development as their quest.82 In 2014, the AU adopted its
Convention on Cyber Security and Personal Data Protection.83 The tripartite Convention speaks
to electronic transactions, personal data protection and promoting cyber security and combatting
cybercrime.84
The AU Convention classifies cybercriminal offenses in two:
1 Offences specific to ICT85; and
2 ICT-adapted offenses.86
D. Economic Community of West African States
Founded in 1975, ECOWAS is a regional group of fifteen West African countries87 headquartered
in Abuja, Nigeria with the mandate of promoting economic integration among its constituents.88
An important regional bloc, ECOWAS is one the five regional pillars of the African Economic
Community (AEC).89 In working towards that integration, ECOWAS has considered the matter of
cybercrime, and has produced its “Directive on Fighting Cyber Crime within ECOWAS”.90
The ECOWAS Directive categorizes cybercrimes in a binary manner:
1 New crimes; and
2 Traditional, ICT-adapted crimes.91
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It bears noting that only the intended objectives of ECOWAS directives are binding on its Member
States, and that each Member State retains the freedom to decide on the best strategies for
implementing and realizing those objectives.92
E. United Nations Office on Drugs and Crime
UNODC is mandated to assist UN Member States in their struggle against illicit drugs, crime and
terrorism.93 This mandate is in support of the Millennium Declaration made by Member States,
in which they resolved to intensify efforts to fight transnational crime in all its dimensions, to
redouble the efforts to implement the commitment to counter the world drug problem, and to take
concerted action against international terrorism.94 UNODC is built on the three pillars of (1) field-
based technical cooperation projects to enhance Member State capacity to counteract illicit drugs,
crime and terrorism; (2) research and analytical work to increase knowledge and understanding of
drugs and crime issues and to expand the evidence base for policy and operational decisions; and
(3) normative work to assist states in the ratification and implementation of the relevant international
treaties, the development of domestic legislation on drugs, crime and terrorism, and the provision
of secretariat and substantive services to the treaty-based and governing bodies.95
Taking a slightly more complicated approach to categorizing cybercrime, UNODC posits three,
non-exhaustive categories in its Comprehensive Study on Cybercrime96:
Acts against the confidentiality, integrity and availability of computer data or systems;
1
Computer-related acts for personal or financial gain or harm, including sending spam; and
2
Computer content-related acts.97
3
F. United Nations Interregional Crime and Justice Research Institute
UNICRI exists to assist the international community in formulating and implementing improved
crime prevention and criminal justice policies through action-oriented research, training and
technical-cooperation programs. Having launched a strategic engagement in technology to
support the fight against crime and responding to the misuse of technology, UNICRI is working to
maintain a harmonized approach that effectively balances security concerns and human rights.
Similar to UNODC, UNICRI posits a tripartite classification of cybercrime in its “Cybercrime:
Risks for the Economy and Enterprises” Roundtable in 201398:
1 Cyber analogues of traditional crimes;
2 Cyber publishing of illegal content (e.g., child pornography; incitement to racial hatred); and
3 Crimes unique to cyberspace (e.g., denial of service and hacking).99
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G. Council of Europe
Founded in 1949, and with forty-seven Member States and six Observer States,100 the CoE has
the purpose of “achieving a greater unity between its members for the purpose of safeguarding
and realizing the ideals and principles which are their common heritage and of facilitating their
economic and social progress”.101 With a focus on promoting human rights, democracy, rule of law,
economic development and integration of certain regulatory functions in Europe,102 the Council has
developed a diversity of treaties and explanatory reports.103
Most notable for the purposes at hand is the CoE’s Convention on Cybercrime, commonly known
as the “Budapest Convention”.104 The first global instrument on cybercrime, the Convention’s
main objective is to pursue a common criminal policy aimed at the protection of society
against cybercrime, especially through the adoption of appropriate legislation and by fostering
international cooperation.105 Focusing on infringements of copyright, computer-related fraud, child
pornography and violations of network security,106 the Convention operates on the aspiration of
legal harmonization and, accordingly, seeks and sets the highest international level of agreement.
The Convention details powers and procedures, such as for searching computer networks and
lawful interception to that effect, all to address both the crimes listed in the Convention and any
other crimes entailing e-evidence.
The Budapest Convention proposes the most nuanced categorization of cybercrime all major
instruments, dividing cybercrime into four different types of criminal behavior:
Offenses against the confidentiality, integrity, and availability of computer data and system107;
1
2 Computer-related offenses108;
Computer content-related offenses (defined as child pornography)109; and
3
Computer-related offenses involving infringements of copyright and related rights.110
4
The Convention also allows for ancillary liability and sanctions for inchoate offenses (attempt, and
aiding or abetting)111 and for corporate liability.112
Conclusion: The Toolkit’s Working Definition of “Cybercrime”
A precise definition of “cybercrime” does not exist. Broadly speaking, cybercrime is understood
as a “computer-related crime” and need not necessarily target a computer or ICT device.113 A
“typology” approach of acts constituting cybercrime has been used by a number of institutions and
agreements, including in the AU Convention,114 the ECOWAS Directive115 and COMSEC’s 2014
report to Commonwealth Law Ministers.116
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Instead of categorizing, and, in an effort to make the Toolkit as useful as possible, a broad and
expansive working definition of cybercrime is used herein. Accordingly, the term “cybercrime”
is understood to include criminal conduct (as provided in substantive law) directed against the
confidentiality, integrity and availability of ICTs, as well as criminal acts carried out through the
instrumentality of ICTs.
Relatedly, the term “ICT”, a term growing in usage, is understood to include computer systems
and networks, as well as the data stored and processed thereon. Using the term “ICT” as opposed
to computer is helpful as it reflects recent trends in technological developments, including
convergences of older forms of technologies with newer ones.
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CHAPTER 2
B. Criminalized Conduct
Table of Contents
Introduction 78
I. Unauthorized Access (“Hacking”) 79
II. Unauthorized Monitoring 81
III. Data Alteration 82
IV. System Interference 83
V. Computer Content-related Offences 84
VI. Cyberstalking 85
A. The Concept of (Cyber)stalking 85
B. Combatting Cyberstalking at the Societal Level 86
C. Examples of Good Practice in Prosecuting Cyberstalking 87
VII. Financial Cybercrimes 88
A. Financial Sector Vulnerabilities 89
B. The Impact of Cyberattacks on the Financial Sector 90
VIII. Misuse of Devices 92
Conclusion 93
Introduction
As developed in the previous section,1 the Toolkit uses a broad definition of
“cybercrime”, understanding it as criminal conduct (as provided in substantive law)
directed against the confidentiality, integrity and availability of ICTs, as well as criminal acts
carried out through the instrumentality of ICTs. That definition construes cybercrime as
including both information and systems as targets (ICT-targeted), and the use of ICT
devices to conduct criminal offenses (ICT-enabled offenses). Building upon the previous
section’s definition, this section examines criminalized conduct. While the working
definition is bipartite, this section presents criminalized conduct, without trying to
classify that behavior as either ICT-targeted or ICT-enabled—indeed, some will be
both.
Additionally, as much as already been written about them, this section does not attempt to cover
all of the well-accepted cybercrimes, but is instead intended to focus on select new and emerging
Page 78 | Chapter 2 | § B. Criminalized Conduct Table of Contents
issues, as well as to shed new light on some of those more well-known cybercrimes. One of the
great challenges in combatting cybercrime is “future-proofing” the law—ensuring that the law
keeps pace with all sorts of new ways to conduct criminal activity on-line. In practical terms, one
question facing policy-makers and legislators is whether to attempt to specifically criminalize each
new type of activity, or to craft a legal framework that is more general in nature but flexible enough
to ensure that it can be applicable to new sorts of criminal activity as they arise.
Just as with the definition of cybercrime, it is equally difficult to find consensus on what constitutes
cybercrime beyond a limited, core number of acts compromising ICT confidentiality, integrity and
availability. With the exception of ICT-facilitated dissemination of child pornography,2 there is little
agreement on what constitutes content-related offences.3
This section runs through several of the mostly commonly criminalized acts constituting cybercrime:
(I) unauthorized access to a computer system (or “hacking”), (II) unauthorized monitoring, (III) data
alteration (or data “diddling”), (IV) system interference, (V) computer content-related offences, (VI)
cyberstalking, (VII) financial cybercrimes and (VIII) misuse of devices. It concludes in an integrative
attempt to prepare the discussion on procedural issues, discussed more thoroughly in the next
section (see section 2 C, below).
I. Unauthorized Access (“Hacking”)
The unauthorized access to an ICT system—commonly known as “hacking—, is, in many ways, the
most basic cybercrime as it enables subsequent (cyber)criminal behavior.4 Once access is gained
to an ICT device or network, the cybercriminal may target information and data, or may turn to
target systems. There are various means for infiltrating a device, system or network. “Malware” is an
umbrella term used to describe malicious code or software, including viruses, worms, Trojan horses,
ransomware, spyware, adware and scareware.5
Box 2.1: Various Hacking Techniques
Hacking might be accomplished through a variety of techniques. The most common
forms include the following:
Malware: A malicious piece of code (including viruses, worms, Trojans or spyware) which
infects devices or systems, which is typically capable of copying itself, and which typically has
a detrimental effect, such as corrupting the system or destroying data.
Adware: A malicious piece of code that downloads or displays unwanted ads when a user
is online, collects marketing data and other information without the user’s knowledge or
redirects search requests to certain advertising websites.
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Social Engineering: The deceptive use of electronic communications, such as emails
or social media messages, for purposes of fraud, system access or collecting sensitive
information; the most common forms of social engineering includes phishing, pretexting,
baiting, quid pro quo and tailgating.6
Botnet: A network of private computers infected with malicious software and controlled as a
group without their owners’ knowledge in order to multiply the effects of cyberattack.
Denial-of-Service (DoS) or Distributed Denial-of-Service (DDoS) Attack: An attempt to
overwhelm or overload an organization’s website or network in order to render it unavailable
to intended users by interrupting or suspending services.
Ransomware: Malicious code disguised as a legitimate file used by hackers to encrypt data
on users’ devices, thereby preventing access to either the data or to the device itself until a
ransom fee is paid. The inverse of a DoS attack, ransomware makes it impossible for the user
decrypt his or her its own data without the decryption key, which (in principle) is offered upon
payment of a ransom.
Injection Attack: The most common and successful attack-type on the internet (e.g.,
SQL Injection (SQLi), Cross-Site Scripting (XSS)), it targets web-based applications, and
works by hiding malicious code (a “payload”) inside verified user input (thereby bypassing
authentication and authorization mechanisms) that is shown to the end-user’s browser, which
in turn executes the apparently trustworthy script. The script often creates errors visible to
the attacker, many of which tend to be sufficiently descriptive to allow an attacker to obtain
information about the structure of the database and thereby control it.7
Hacking by definition compromises system integrity and, as such, imperils confidence not only in
that individual device, system or network, but also potentially in the larger notion of the integrity of
networking and cyberspace as a whole.8
Box 2.2: Target Corp. Targeted in Massive Data Hack
In December 2013, in one of the largest data breaches ever reported, hackers infiltrated the
ICT systems of Target Corporation, the second-largest discount retailer in the United States,
and stole personal information (email, addresses, etc.) of some seventy million customers,
including credit and debit card records on more than forty million customers.
The Target breach, caused by malware installed on the company’s networks that siphoned
away customer information, happened during the holiday shopping period. When
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announced, the chain’s traffic, sales and stock value were immediately affected, with profits
falling by forty-six percent for that quarter. Target subsequently agreed to pay US$10 million
to settle a lawsuit brought by shoppers affected by the breach.
Since most ICT systems are usually shielded from unauthorized access, an intruder must penetrate
the security system. As such, many legal systems class hacking—simply on the basis of being
unauthorized access—as criminal in and of itself.9 The Budapest Convention, for instance, addresses
hacking by criminalizing “offenses against the confidentiality, integrity and availability of computer
data and systems” at large,10 and, more specifically, by targeting “illegal access”, understood as
“access to the whole or any part of a computer system without right”.11 Laws generally categorize
the offense as unauthorized entry into a protected ICT system, regardless of the offender’s
purpose.12 However, the Budapest Convention allows that further mens rea elements13 in addition
to intentionality and “without right” might be included, as State Parties “may require that the
offence be committed by infringing security measures, with the intent of obtaining computer
data or other dishonest intent, or in relation to a computer system that is connected to another
computer system”.14
Case 2.2: United States v. Marcel Lehe Lazar (USA)15
Defendant, Marcel Lehe Lazar, pled guilty to two of nine counts of an indictment that
included three counts of gaining unauthorized access to protected computers, having hacked
into email and social media accounts of some one hundred Americans, including family
members of two former US Presidents, a former US Cabinet member, a former member of
the US Joint Chiefs of Staff and a former presidential advisor. Lazar claims to have breached
Hillary Clinton’s personal email server,16 although there is no evidence to verify that claim.
Lazar was apprehended and tried in his native Romania, where he was found guilty on similar
charges and jailed for seven years.17 Thereafter, in a showing of international cooperation
among law enforcement authorities, he was extradited to the United States.18 The US District
Court for the Eastern District of Virginia sentenced him to a further seven years in prison.19
II. Unauthorized Monitoring
Just like hacking, unauthorized “monitoring”20 might target devices, data or both; when data is
targeted, it is often referred to as “illegal interception”. Such activity is typically done by using or
installing monitoring devices or software in the ICT system after having gained access to the system.
The physical world analogue is wiretapping. It bears noting that, while initial access to the system
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may have been granted and authorized, this offence is not in the unauthorized system entry—as in
hacking—but rather in remaining “in” the system thereafter, and monitoring or otherwise affecting
the system and/or any stored or transmitted data therein.21 Thus, while authorized entry may not
have been per se revoked (that is, if it had been granted), permission to remain in the system, even
if only in a “viewing” capacity, has not been granted.
Box 2.3: Spotting Hack Attacks and Monitoring Malware
Edward Snowden, of renown for his unauthorized copying and leaking of classified
information collected by the NSA in 2013,22 is developing a smart phone case that will inform
the user whether the device has been hacked.23 As mobile phones are the “perfect tracking
device”,24 and as it is relatively easy to develop software that masks whether the phone’s
integrity has been compromised, Snowden and a colleague are developing a phone-
mounted battery case that monitors radio activity. Monitoring technology might be used as
much by governments25 as private sector spies.26
An example of monitoring malware is Flame (also known as well as Flamer, sKyWIper,
and Skywiper),27 a modular computer malware discovered in 2012 by Kaspersky Labs at
the prompting of the ITU, the UN agency that manages information and communication
technologies.28 Flame, which may have been active for as long as eight or more years
before it was discovered,29 not only targeted computers running the Microsoft Windows
operating system, but, in an act that broke world-class encryption, was found to have
been delivered through Windows updates.30 A precursor to the Stuxnet virus,31 Flame was
designed to stealthily search top-secret files and gather intelligence through keyboard,
screen, microphone, storage devices, network, WiFi, Bluetooth, USB and system processes,32
subsequently transmitting document summaries of the gleaned intelligence.33 As network
managers might notice sudden data outflows, the malware was designed to gradually
transmit harvested information to its command-and-control server.34 Data transfer could be
done with any Bluetooth-enabled device, and, with a “Bluetooth rifle”, could have a range of
up to two kilometers.35 Flame has been particularly used to target Middle Eastern countries.
III. Data Alteration
Data alteration (or data “diddling”, or false data entry36), is the interception and changing of data
before or during entry into a computer system, or the altering of raw data just prior to processing
and then changing it back after processing has been completed.37 It can occur at various points
along the chain of information entry. However, as E2EE is growing in both effectiveness38 and in
frequency,39 data diddling is increasingly happening by hacking the device before either the to-
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be-sent data has been encrypted or after the received data and been unencrypted, rather than
intercepting the data and then having to unencrypt it.40
As with many other cybercrimes, data diddling allows cybercriminals to manipulate output while
largely preserving the perpetrator’s anonymity; however, data diddling is often very subtle and
virtually undetectable. Forging or counterfeiting documents are typical examples. Cyber forensic
tools can be used to trace when data was altered, what that data was and then to change it back
to its original form. A simpler and more direct method of control is through version control and by
keeping multiple records, including hardcopies, just as much for comparison’s sake as to back up
the data. Data diddling may be used to target a wide-range of information; indeed, concern over
possible tampering with public legal documents has limited governmental recourse to the web in
areas as diverse as the publication of court judgments41 and voting.42
Case 2.3: People of Colorado v. Raymond D. Ressin et al. (USA)43
In a matter going back to 1978, Defendants defrauded a brokerage firm of US$171,756.17,
and were convicted on three counts of theft. Raymond Ressin, a clerk working for a brokerage
firm in Denver, Colorado, purchased two hundred shares of Loren Industries at US$1.50 for
his outside accomplice, Robert Millar, amounting to a total of US$300. He subsequently
altered the account number suffix, changing the purchase from a legitimate “cash” account,
which was to have been paid in full, to a “margin” account, which qualified the purchase
for a loan of up to fifty percent of the account value. Ressin subsequently changed the last
two digits of the authorization code from LII (Loren Industries, Inc.) to LILN (Longing Island
Lighting), an approved margin stock worth US$130 a share. As a result, the account value
went from US$300 to US$26,000, which, as a margin account, also came, with a borrowing
power of US$13,000. Ressin subsequently adjusted the records inputted into a computerized
accounting system. Repeating the process, and then leveraging that fraudulent borrowing
power, Defendants made further purchases, parlaying the initial US$300 investment to a net
value of US$171,756.17 (approximately US$700,000 in 2016).
IV. System Interference
As already discussed,44 a fundamental interest is the “integrity” of private and public ICT systems
and networks, meaning that they function according to their operating rules and the input furnished
by the owners.45 As any unauthorized interference can seriously undermine public trust in the
secure, proper functioning of ICT systems, many legal systems have adopted criminal sanctions
to punish it.46 This kind of activity goes beyond undermining uncertainty in cyberspace and in the
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systems constructed therein.47 Typical examples include unauthorized transmission and changes of
data, removal or destruction of data and of software, as well as impeding access to an ICT system.48
Just as system interference (sometimes called “cybersabotage”) can be conducted by either private
industry or by governments, so, too, can its targets be either private industry or public operations.
In this section, system interference is being discussed in the context of criminal gain.49
Box 2.4: Sony Pictures Entertainment Attacked
On 24 November 2014, a hacker group identifying itself as “Guardians of Peace” (GOP)
leaked confidential data stolen from the film studio Sony Pictures Entertainment.50 The large
amount of leaked data included personal details on Sony Pictures employees and their
families, emails between employees, information about executive salaries, copies of then-
unreleased Sony films, and other information.51 Following threats to release more information,
Sony Pictures bowed to the demands by the GOP group not to release the film The Interview,
a spoof on North Korean premier, Kim Jong-un.52 US authorities concluded that North Korea
had been “centrally involved” in the hack.53
V. Computer Content-related Offences
Computer content-related offences are acts of disseminating, making available or storing material
with illegal content by the use of computer systems or the ICTs. Particular concern is given to
content that is religiously or racially discriminatory, contains child pornography or incites hate acts
or terrorism.
This category of offenses can often pose challenges to freedom of expression protections.54
International law allows the prohibition of certain types of expression.55 However, there are often
disparities among domestic legislation. For example, the online dissemination of racist and
xenophobic material is prohibited in many European countries, while the same acts might be
protected in the United States.56
While most areas of cybercrime still lack consensus—especially for computer content-related
activities—, cyber child pornography, in particular, is an area where criminalization is generally
accepted. Although specific cyber-pornography laws are sometimes legislated,57 such activity
is more typically criminalized by expanding either the general criminal law58 or the cybercrime
law.59 Amendments tend to make provisions general enough to cover both traditional and online
renderings (i.e., “by any means”),60 or to make specific amendments explicitly speaking to online
child pornography.61
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VI. Cyberstalking
Cyberstalking is a crime that often blurs the line between the real and the virtual, and even between
the physical and the psychological. As such, it deserves space to discuss (A) the concept of stalking
and cyberstalking, (B) how best to combat cyberstalking at the societal level and (C) a brief exposé
of the elements that go into good practice of prosecuting cyberstalking.
A. The Concept of (Cyber)stalking
Stalking is a pattern of behavior involving willful or intentional acts62 which, though often individually
inconsequential, collectively make the victim feel harassed, nervous, anxious, fearful, threatened
or otherwise insecure.63 Behavior amounting to stalking ranges from the repeated sending of
unwanted messages (telephonic, mail or otherwise) or gifts, to the more aggressive activities
of surveying or pursuing the victim. Stalking is committed by those with varying backgrounds,
motivations and psychological disorders64; the majority of perpetrators have a problematic social
life and may suffer from psychosocial problems or disorders, such as schizophrenia paranoid
disorder. In the United States, an estimated 3.4 million persons aged eighteenor older were victims
of stalking during any given twelve-month period.65
While a wide range of acts can be involved in stalking, and while they can result from a wide series
of causes, two critical elements characterize stalking: first, the repetitiveness of the overall behavior
(not necessarily any one type of act); second, the victim’s reasonable perception of that behavior
as unwelcomed and unacceptably invasive. Stalking itself does not involve the infliction of any
direct physical harm by the perpetrator. Rather, antistalking laws operate as a means of providing
law enforcement officials with a mechanism for intervening before violence actually occurs.66
Cyberstalking, the convergence of stalking and cyberspace, is characterized by the repeated use of
unwanted electronic communications—emails, spamming, flaming, online defamation, blogging,
and the like67—sent directly or indirectly, which renders the victim insecure, or which misrepresents
the victim online. Just as with traditional stalking, it is the behavior’s repetitiveness and the
reasonable, subjective apprehension that characterize cyberstalking.
While the medium might be different, stalking done in the virtual world can be just as distressful,
destructive and damaging as that done in the physical world. While cyberstalking may be
complemented by physical-world stalking,68 its effects can be far more destructive.
Case 2.4: Ramm v. Loong (Singapore)69
Leandra Ramm, a US citizen residing the area of San Francisco, California, was the victim of
cyberstalking by Colin Mak Yew Loong, a Singaporean man, residing in Singapore. For six
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years, Loong, who had initially posed as a director of a music festival, made harassing phone
calls and sent some 5,000 emails, in addition to creating hate groups on Facebook and
Twitter and a slanderous blog, through which he made threats of rape and physical violence
against Ramm and her family. Loong even made bomb threats to the opera companies that
engaged her. A promising opera singer, Ramm’s career was destroyed and she suffered
serious psychological episodes, including contemplating suicide, eventually being diagnosed
with post-traumatic stress disorder (PTSD).70
For six years, Ramm was rebuffed by the FBI, the New York Police Department and other
government agencies, and was met with a lack of interest by Singaporean authorities (where
cyberstalking was not criminalized). Eventually, Ramm hired a cybercrime expert with links
to the US Secret Service (USSS), who was able to navigate the US and Singaporean legal
systems.
Eventually, Loong admitted to thirty-one counts of criminal intimidation between 2005 and
2011 (as well as confessing to having harassed two other foreigners (a Ukranian violinst
and the German boyfriend of a Hungarian pianist) and a Singaporean business woman;
to criminally trespassing at St. James Church; and to stealing biscuits from the Church’s
kindergarten. After considering the aggravating factors, the Singapore Subordinate Court
determined that Loong made “vicious threats of violence and extremely vulgar email rants”
against Ramm that was tantamount to “mental assault” as well as repeated acts of aggressive
intrusion, and sentenced Loong to thirty-six months in prison (nine months jail for each of
the fourteen counts, with four of the sentences running consecutively) and to pay a fine of
S$5,000.71
Taking almost nine years, the conviction makes for the first successful prosecution of an
international cyberstalking case.72 In the words of the presiding judge, the case is “a timely
reminder that harassment laws need to keep pace with changes in technology and the
pervasive use of the Internet and social media”. Singapore has subsequently criminalized
cyber-bullying and -stalking.73
B. Combatting Cyberstalking at the Societal Level
Cyberstalking has only relatively recently been seen as a serious crime, and is still not universally
criminalized. In 2014, a European Union-wide survey across the twenty-eight Member States
found that only eleven had specific anti-stalking laws.74 Since then, the CoE’s Istanbul Convention
has substantially worked to harmonize laws on violence against women across Europe, including
stalking (without distinction between physical- and cyber-stalking).75 In the United States, stalking
became an issue of social concern in the 1990s76; the Violence Against Women Act (VAWA)
criminalized stalking under US federal legislation.77 The first jurisdiction in the United States to
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criminalize cyberstalking was California in 199978; thereafter, in 2000, language was added to the
federal law, VAWA, to include cyberstalking.79 While legal definitions vary across jurisdictions,80
thereby complicating prosecution and investigation,81 courts have facilitated legislative hiccups by
extending existing, traditional statutes to include electronic tools.82
Case 2.5: United States v. Baker (USA)83
Defendants, Abraham Jacob Alkhabaz, a.k.a. Jake Baker, and Arthur Gonda, were prosecuted
for electronic mail messages involving sexual and violent behavior towards women and girls.
Baker also posted a reputedly-fictional story describing the torture, rape and murder of a
young woman sharing the name of one of Baker’s classmates at the University of Michigan.
Although the true identity and whereabouts of Gonda, who was operating from a computer
in Ontario, Canada, are still unknown, Baker was arrested and charged under federal statute
18 USC § 875(c), which prohibits interstate communications containing threats to kidnap
or injure another person. The count that had been based on Baker’s story publication was
dismissed as protected as free speech under the First Amendment of the US Constitution.
The other charges, which were based on defendants’ email correspondence, and thus of a
private nature, were deemed not to constitute “true threats” by the district court. While the
US Court of Appeals for the Sixth Circuit upheld the District Court’s decision, it bears noting
that just what constitutes a “true threat” under US law remains unclear.84
Cyberstalking is frequently misconstrued as a crime lacking significance. In order to effectively
combat cyberstalking, the government must, first, build sufficient capacity in order to both conduct
proper investigations and to offer alleged victims the appropriate degree of psychological support
and understanding, and, second, actively work at breaking attitudinal barriers that make such
behavior acceptable.
Overcoming attitudinal barriers is also a necessary part of crime fighting. In stalking at large, and
in cyberstalking in particular, initial contact between perpetrator and victim is generally benign,
and may even be positive. Once communications turn disturbing, however, there is a tendency
of victims to immediately and spontaneously destroy the unwelcomed overtures; such behavior
by victims is typically motivated out of a sudden onset of fear or embarrassment. Unfortunately,
doing so can significantly hinder authorities in their investigating. As such, the battle against (cyber)
stalking begins by breaking attitudinal barriers and educating people so victims are not oblivious to
the signs of stalking and do not destroy evidence.
C. Examples of Good Practice in Prosecuting Cyberstalking
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The first step to a successful prosecution is collecting sufficient information from the victim. If there
are grounds to assume that the act was perpetrated by an acquaintance, investigators may have to
focus on the victim’s internet activity. The investigative process stands or falls on trust: investigators
must give victims ground for putting trust and confidence in them, and for feeling secure enough
in sharing their story, a story that can often be quite disturbing and which can become increasingly
disturbing as more evidence is uncovered and the fuller pictures emerges.85 Having established a
rapport of trust with the victim and having heard the victim’s account, investigators then need to
secure actionable evidence. Having brought the incidences to the attention of law enforcement
authorities, victims must be instructed in how to preserve subsequent communication and content;
as digital evidence can be particularly fragile, (see section 1 D, below), attention to properly
instructing victims should not be undervalued. Further, victims need to be instructed on how best to
cooperate with investigators.
The anonymity of cyberspace often makes it difficult to identify a methodical cyberstalker who
does not wish to be identified. Such is especially complicated by the fact that so many perpetrators
have never had a relationship with the victim. Moreover, investigators usually face difficulties
tracing suspects, as most cyberstalkers do not have material motivation. Technology has created a
whole new space in which crime can occur, and technological developments continue to outpace
anti-cyberstalking laws.86 Such being the case, investigators need to be sufficiently trained and
experienced in more than just psychology and standard evidence collection. For instance, familiarity
should be had in dealing with different subscriber networks, including email, blogs and bulletin
boards, text messaging and telephone and fax networks so as to understand how to piece together
—and preserve—an evidence trail.
As with most cybercrimes, cyberstalking’s frequently transnational, cross-boundary nature, as
combined with technical advances that help perpetrators to remain anonymous, significantly
increase the cost and timing of the combatting this crime. Indeed, the UK’s Crown Prosecution
Service has noted information request result in delays of up to three months, as compared to the
apprehending of physical-world stalkers, which is usually completed within hours.87 In addition to
drawing out the duration of the crime, these delays also give perpetrators valuable time to destroy
evidence.
VII. Financial Cybercrimes
From fraud to forgery, spoofing to spamming, cybercriminals have particularly targeted the financial
services sector.88 As such, it is worth discussing (A) the reasons why the financial sector is especially
vulnerable to cybercrime and (B) the impact of cyberattacks on the financial sector.
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A. Financial Sector Vulnerabilities
Rapid ICT advances have not only allowed financial sector entities to improve their performance
and diversify their offerings, but have also enabled criminal networks to carry out new and
increased criminal activities in the online environment. As a result, the financial services sector has
become particularly dependent, and, correspondingly, susceptible to cybercrime. According to
the PricewaterhouseCoopers’ 2014 Global Economic Crime Survey (GECS), thirty-nine percent
of financial sector respondents said they have been victims of cybercrime, compared to only
seventeen percent in other industries.89 While in the past, a person was needed to physically act
to authorize and initiate fund transfers, increased reliance on ICT creates potential weak points for
cybercriminals to exploit through hacking technology (see section 2 B, box 2.2, above).90 Partly in
light of such potentials, financial sector cybercrime appears to be on the increase.91
There are many reasons why financial institutions are targeted by cybercriminals, but, to use a line
attributed to one infamous bank robber, mostly “because that’s where the money is”.92 There are
various forms of “money”: banks have money in liquid form, credit card companies have it in plastic
form and retailers have it derived from credit card information shared with them by consumers.93
ICT innovations allow customers to access to their finances at any time and from any place.94 As
mentioned earlier, in December 2013, the US retailer Target was the object of a malware attack
that resulted in the theft of personal information of over seventy million customers (see section 2 B,
box 2.2, above).95 Reports show that, each year, financial details of millions are stolen from systems
operated by hotels, retail chains, banks and community service providers.96
Box 2.5: Vulnerabilities in Business Practice beyond Banking97
Business email compromise (BEC) is an exceptionally pervasive and injurious type of
cybercrime. BEC commonly manifests in one of three forms: hacking of employee emails,
hacking of high-level executives or exploitation of supplier relationships. BEC is a method by
which cybercriminals gain the confidence of employees, employers or businesses through
carefully crafted communications that imitates standard operating procedures, masquerading
as legitimate. Once email account relationships are infiltrated, information needed to imitate
communications is taken, thereby enabling the sending of fraudulent transaction requests.
Businesses of all sizes and varieties are targeted using BEC scams, with the amount of funds
stolen depending upon what is typical for that business’s transactions.
Statistics compiled by the Internet Crime Complaint Center (IC3), a partner of the FBI,
indicate that, between October 2013 and December 2014, there were 2126 cases of BEC
amounting to a combined financial loss of US$214,972,503.30. However, as only 45 countries
outside the United States sent complaints to IC3, these figures probably underrepresent
BEC’s global impact.
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As is true of cybercrime at large, BEC scams can be launched from any country and can target
any entity or individual relying upon email communications. The money trail can be as difficult
to follow as the origin of the attack, as funds are frequently transferred multiple times across
several jurisdictions. The nature of this particular type of cybercrime, the number of attacks
and the potentially small amounts taken together make it exceedingly difficult to trace,
prosecute and recover assets of such crimes.
Although cyberattacks may be carried out through malware, phishing or direct hacks, the most
common method is through DDoS attacks,98 which aim to cripple the functions of ICT systems
of targeted business by bombarding their websites with requests until they are unable to cope
and cease to function properly. For instance, in what has been called the “Operation Payback”
campaign, the Anonymous group of hackers targeted firms seen as being anti-WikiLeaks, including
MasterCard and Visa after they withdrew their services from WikiLeaks, using DDoS attacks to
disrupt their web services.99
Although virtual currencies such as Bitcoin are still developing, their implications for financial crime
are significant. Criminal networks have shown great interest in virtual currencies for the ability to
carry out large-scale money laundering.100 In addition, just as with traditional currencies, virtual
currencies are susceptible to cybercrime attacks such as fraud.101
Various approaches have been taken to address financial cybercrime. In the United States,
laws combatting wire fraud have been expanded to prosecute cybercrime. Under the US Wire
Fraud Statute,the prosecution must show:
A scheme to defraud by means of false pretense;
1
Willful and knowing participation with intent to defraud; and
2
Use of interstate wire communications in furtherance of the scheme.102
3
Because computer transmissions are conducted by wire, the Statute remains an effective tool to
fight a wide range of financial cybercrimes.
B. The Impact of Cyberattacks on the Financial Sector
According to the Center for Strategic and International Studies report,103 the estimated annual cost
of cybercrime is between US$375 billion and US$575 billion in losses, primarily borne by the private
sector. This amount represents the total sum of opportunity costs, confidential business information
and market manipulation, and recovery costs for the targeted institutions.104 However, there are also
substantial indirect costs associated with the theft and abuse of financial and personal information
that are kept by financial institutions.
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Case 2.6: United States v. Drinkman (USA)105
The US DoJ indicted Defendants for hacking, wire fraud and unauthorized computer access
of financial institutions with the intention of stealing usernames, personal data and credit
card information.106 On 28 June 2012, Defendants, four Russians and one Ukrainian, were
arrested in the Netherlands. Targeted companies included NASDAQ, 7-Eleven, Carrefour,
JCP, Hannaford, Heartland, Wet Seal, Commidea, Dexia, JetBlue, Dow Jones, Euronet, Visa
Jordan, Global Payment, Diners Singapore and Ingenicard.107
The methods of hacking utilized by Defendants included SQLi attacks, SQLi strings, malware
and tunneling. All of these mechanisms were used to gain access to computer systems of the
corporate victims and to extract customers’ credit card data and personal information either
for direct criminal gang use or for sale on the black market. This scheme mainly targeted
retailers, credit card companies and other businesses by successfully invading their computer
systems that process payment services.108
Between 2005 and 2012, Defendants retrieved information on 160 million credit card numbers
as well as other personal identification information. The information thefts allegedly cost
three of the targeted institutions a collective US$300 million in losses, both in direct costs
from the stolen date and in subsequent remediation. The costs are under-representative,
however, as the effects were not limited to retailers and financial institutions, but also
extended to consumers.109
Cyberattacks on financial institutions are of particular concern because they undermine not only
individual reputations but also consumer confidence both in that entity’s online services, and in
the security of the larger financial sector’s offering of cyber-based services. Undermining consumer
confidence decreases financial activity and, if business is shifted to more traditional means, often
results in increased costs. More dramatically, it results in consumers removing their money from
the financial system and placing it under the proverbial mattress, thereby further hurting the global
financial system and markets. As an alternative, as indicated by Target consumers following that
cyberattack, customers may, where possible, switch to making cash transactions, which also limits
the efficacy and size of the market.110
Left unaddressed, cyberattacks targeting the personal information kept by financial institutions
could have cripplingly severe impact upon economies. These costs go well beyond the immediate
financial institutions that hackers target, extending to the clients of those services and having
subsequent direct (lack of liquidity, opportunity costs, etc.) and indirect effects (lowered credit
scores, loss of system confidence, lowered investment rates, etc.).
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Case 2.7: United States v. Ulbricht (“Silk Road”) (USA)111
Defendant, Ross Ulbricht, was convicted and sentenced to life in prison without the possibility
of parole for conspiracy and money laundering charges stemming from his supposed role
as “Dread Pirate Roberts”, the operator of the online marketplace “Silk Road”. Through
anonymous payments in bitcoin, the Silk Road enabled the sale of, among other things,
controlled substances, pirated software, and fake IDs.112 Run through the Tor network, Silk
Road operated on the Dark Web, a virtual space inaccessible without specialized software or
access authorization.113
Bitcoin is a digital currency manifestation of “blockchain” technology, a method of recording
data that allows for independent recording and verification of “blocks” of digital records
that have been lumped together, and then cryptographically (through a technique known as
“hashing”) and chronologically bound in a “chain” using complex mathematical algorithms.
The recording system can be generically described as a distributed database or “public
ledger”; however, this ledger, to which everyone in the network has access, is not stored
in any one place but rather distributed across multiple computers around the world. The
only recorded data is the fact a transaction’s occurrence and associated hash.114 Not all
blockchains are anonymous, and bitcoin is but one manifestation of blockchain technology.115
Blockchain technology has been described as the most disruptive technology since the
internet.116
Bitcoin transactions, because they are highly secure and highly anonymous, pose certain
challenges to “traditional” forms of combatting financial crimes, particularly with regard to
the finding and extraditing of perpetrators. However, even with bitcoin, anonymity is not
complete: first, as perpetrators must “cash out” of bitcoin to realize their profits, and, second,
as bitcoin’s shared ledger makes transactions public, even if unidentified.
Bitcoin also raises regulatory concerns. While banking is a regulated sector, bitcoin
transactions are not considered part of the banking system in many jurisdictions, often
making it unclear whether banking law or cybercrime law should apply. In banking, various
suspicious activity reporting (SAR) rules require financial institutions to report suspicious
transactions, many, if not all, of which may not apply to bitcoin transactions.117 That said,
the inherent forensic element of bitcoin often lends itself to facilitating investigations once
matters reach that stage.
VIII. Misuse of Devices
The offense of misuse of devices prohibits the use of a device, password or access code in the
furtherance of the afore-enumerated acts.118 Acts criminalizing such offenses have existed for some
time and have typically been used as a means of targeted hacking by targeting the tools enabling
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cybercrime.119 Password trafficking is the sharing or trading accounts—often after passwords have
been stolen through hacking techniques—with potential for immediate financial reward or access
to private information.120 Such behavior is criminalized for all of the reasons discussed above, but
notably because it diminishes the security and reliability of computer data and of cyberspace as a
whole. An example of this crime is computer-related forgery.121 The offense can be difficult to ring-
fence, however.122
As ready-to-exploit kits are becoming widely available, creating, possessing or distributing hacking
software or tools for committing cybercrime must be criminalized.123 Moreover, much technology
developed for legitimate purposes has been coopted in order to facilitate cybercrime.124 Keeping
these dual use devices away from only cybercriminals presents certain legal obstacles.
Case 2.8: Geoffrey Andare v. Attorney General (Kenya)125
In April of 2015, Andare was arrested for violating a Kenyan law criminalizing the misuse of
ICT subsequent to his having posted a message on his social media page reprimanding
an agency official for allegedly exploiting others. Section 29 of the Kenya Information and
Communications Act—“the improper use of an ICT system”—criminalizes the use of any
licensed telecommunication system, such as a mobile phone or computer, to “send[] a
message or other matter that is grossly offensive or of an indecent, obscene or menacing
character”.126 It also imposed a penalty of a fine not exceeding KSh50,000, or imprisonment
for a term not exceeding three months, or both.127
In April of 2016, High Court Judge Mumbi Ngugi struck down that section of the law as
violating the constitutional right to freedom of expression,128 and also as being overly
broad and suffering from vagueness.129 The law, it was determined, had a chilling effect on
legitimate online expression. In reaching her decision, the judge offered that the laws of
Libel are sufficiently robust, referring to a recent case where damages of KSh5 million were
awarded against a blogger for defamation by a separate court which relied on laws of libel.
Conclusion
This section has discussed certain core and evolving cybercrime acts—namely, hacking,
unauthorized monitoring, data alteration, system interference, computer content-related offences,
cyberstalking, financial cybercrimes, ransomware, misuse of devices and intellectual property
infringements (including cybersquatting). Even with regard to these universally-frowned upon
activities, there is not universal consensus that these activities should be criminalized, and, where
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there is consensus, no consensus on how or to what extent. Such is particularly true of content-
related offences. To amplify the capacity-building purposes of the Toolkit, however, a broad net is
cast.
As there is consensus on the appropriate delineation or categorization of cybercrimes—especially
where they have substantial “offline” activities—, it is often difficult to determine which legislative
provisions should govern ICT-related criminal conduct. Moreover, even in instances where the
behavior is considered both undesirable and illegal, it is not always clear that cyber law is the
appropriate governing law, as the Silk Road case shows.130 Those difficulties are further exacerbated
on the international stage, especially when trying to create cooperation among law enforcement
agencies.
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CHAPTER 2
C. Procedural Issues
Table of Contents
Introduction 95
I. Adapting Search & Seizure to the Digital World 96
A. The Challenges of Adapting Existing Procedures 96
B. Delimiting Searching & Seizing e-Evidence 96
C. Examples of Good Practice 99
D. Techniques for Identifying Relevant e-Evidence 101
II. Collecting Evidence with the Assistance of Third Parties 102
III. Cloud Computing 105
A. Technological Complications to Search & Seizures 105
B. Jurisdictional Complications to Search & Seizures 106
Conclusion 108
Introduction
Information security issues are global in nature. However, while cybercrime is
transnational, the means of investigating and prosecuting crimes is territorially defined,
and often defined quite locally at that. In addition to tools and training, investigators
require appropriate investigative powers and procedural instruments in order to identify
offenders and collect evidence. While these measures may not necessarily be cyber-
specific, the possibility of offenders acting remotely from the locus of the victim means
that cybercrime investigations are very frequently conducted differently from traditional
ones.
In looking at the procedural issues1 surrounding the search and seizure of in cyberspace,
this section considers how to (I) adapt traditional search and seizure techniques to
the digital world, (II) the role that third parties play in evidence collection and (III)
the implications of technological developments, notably that of cloud computing, for
evidence collection and in creating jurisdictional conflicts.
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I. Adapting Search & Seizure to the Digital World
In cybercrime, just as in traditional crimes, crucial incriminating evidence is often found during
search and seizure operations. Existing search and seizure procedures can be (A) adapted
to cybercrime searches and seizures, but must also be (B) limited according to the principles
of relevance and effectiveness, which (C) states have done in varying ways. However, while
technological developments have made more work for investigators, (D) advanced forensic tools
can be used as means of identifying relevant e-evidence.
A. The Challenges of Adapting Existing Procedures
“The devil”, it is said, “is in the detail”. While reaching consensus on issues of substantive law is a
complicated matter, difficulties multiply when discussions turn to procedural law: while the purpose
of substantive law is to define the extent of rights and duties, the purpose of procedural law is to
regulate the proceedings providing access to those substantive rights and responsibilities. Thus,
although there may be agreement on the underlying right, defining how that right is accessed,
and what precludes it, requires a greater degree of accord.2 Moreover, the ever-evolving nature of
cybercrime requires that procedural law, just as with substantive law, keep pace with new abuses
and new technologies.3
The challenge is setting regulation that permits rapid transactions around the world but which
relies upon local legal and investigative instruments. Moreover, the swift pace of technological
development and the difficulties this poses for designing, updating and disseminating effective
technical security measures complicate procedural matters in a way that is not necessarily
problematic for substantive law. As discussed further on, arrangements at the international level
might overcome many of these procedural barriers where a formal consensus or an informal
working arraignment can be found (see sections 3 A and 3 B, below). In the short-to-medium term,
cybercrime countermeasures will need to build upon, or at least take into account, existing national
and regional efforts to combat cybercrime and terrorism.4
B. Delimiting Searching & Seizing e-Evidence
Search and seizure procedures play a critical role in securing evidence necessary to proving
culpability. An active mode of investigation, search and seizure involves discovering evidence,
identifying suspects, apprehending offenders and interviewing witnesses. Investigating cybercrime
requires different techniques, not only because of the cross-jurisdictional nature of cybercrime (see
section 1 B, above),5 but also due to the very nature of cyberspace and of e-evidence (see section 2
D, below).6
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The traditional search-and-seizure approach focuses on collecting and cataloging physical material.
Due to rapid developments in cyberspace, however, most evidence, though stored on physical
devices, exists only in a digital format. Legal authority and good practices for executing search and
seizure warrants varies considerably between jurisdictions and criminal justice systems, especially
with regard to rules governing handling e-evidence.7 As such, it is incumbent upon investigators
to consider the appropriateness of previewing and forensically acquiring data at the scene
and whether the circumstances may justify physically seizing equipment for further analysis in a
laboratory.8 Retrieving such information requires augmented investigatory approaches, as well as
different evidence-handling techniques.9
The first major procedural issue in pursuing cybercrimes is legislative: procedural law must be
changed or adapted to authorize investigators to search and seize computer information, and
not only tangible evidence.10 This process presents its own complications. For example, while the
United States first drafted procedural laws for authorities to access electronic communications in
1986, law makers at the time only had the telephone in mind, and, accordingly, drafted a limited law
specifying that it applied to telephone-related crimes.11 The law soon became outdated and had to
be amended to include other existing and anticipated forms of electronic communication; however,
that process of revision caused delay and hindrances, and was only done following the terrorist
attacks of 11 September 2001.12 Computer information, or data,13 is information that is either stored
in a storage device, or which is in transit across virtual networks (see section 2 A, above). First
responders investigating cybercrime frequently seize all relevant devices.14 However, as the storage
capacity of ICT devices has grown—and continues to grow—exponentially,15 and as the nature
of digital documents continues to diversify, much of the information stored on any given device is
ordinary business material or private information lacking any investigatory relevance. This trend16 is
exacerbated by increasing device capacities17 and the falling costs of digital as opposed to physical
storage.18
The principles of relevance and effectiveness are of great importance for the admissibility of
e-evidence.19 Indiscriminate or arbitrary search and seizure techniques risk being excessively
intrusive. Since the data is not the device itself, and since much of the information on the device is
not relevant to the investigation, the device itself should not be seized unless the warrant describes,
with particularity, that such is what agents should search for and seize.20 Otherwise, computer
hardware should only be seized if it itself is contraband, evidence, fruit or an instrumentality of
crime.21 If, by contrast, the probable cause relates only to information, then the warrant should
describe the information to be seized, and then request the authority to seize the information in
whatever form it may be stored (electronic or otherwise).22 Agents seizing hardware should explain
clearly in the supporting affidavit that they intend to search the computer for evidence and/or
contraband after seizure and removal from the site of the search.23 Indeed, indiscriminately seizing
devices would be the equivalent of entering an investigation scene and seizing everything without
any consideration of what was being seized. By contrast, even if the warrant does not describe
hardware itself, identification of a device’s IP address and separate email address linked to same
physical location, for instance, may be sufficient to justify hardware seizure.24
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Case 2.9: Korean Teachers & Education Workers’ Union (2009Mo1190)
(Korea)25
Korean investigators executed a warrant of search and seizure upon the headquarters of
the Korean Teachers & Education Workers’ Union, removing ICT devices containing huge
amounts of digital information back to their police offices, where they made copies of the
files for subsequent search and analysis. The Court held that the action was allowed, as the
quantity of data—over 8,000 files—to exceptional circumstances justifying such removal, even
though there was no explicit ground under the warrant for doing so, and as investigators
made an effort to “to limit the scope of their investigation to those parts bearing relevance to
the charged crimes by copying only those files which had been accessed after a retroactively
determined point of time”, with the parties implicitly agreeing on the appropriateness of
such measures.26
The Court held that, “[i]n principle, a warrant of search and seizure for digital information
must be executed by collecting only parts related to the suspected facts for which the
warrant has been issued[….] In cases where circumstances on the site where the warrant
is to be executed make it impossible or remarkably difficult to carry out the warrant in
this manner, exceptions can be made to allow the storage media itself to be carried off-
site […] when the warrant expressly grants for search and seizure to be performed in this
manner and when such circumstances exist.”27 The Court continued that the subsequent
searching and analyzing of digital information must be “must also be seen as a part of
executing the warrant”.28 Moreover, where investigators seize ICT devices containing private
information extending beyond information pertaining to the suspected facts, the parties
“are continuously guaranteed the right of participation in the process” and not only must
“no viewing or copying of the storage media is performed without [their] involvement”, but
investigators must assure that “proper measures are taken to prevent files or documents from
arbitrary copying or from distortion, misuse or abuse of the digital information”.29
In effect, the ballooning of an individual’s digital footprints may mean that the data—not the
devices—should be screened and searched. While there may be certain circumstances where the
device itself may be seized—for instance, in order to restore deleted data, to recover encrypted
data, or to conduct detailed analyses—, in principle, the relevant data should be extracted from
the storage device, and the device itself left on site. Many field tools are currently available to assist
on-site data extraction.30 As discussed further on, tools alone are insufficient: on-site data extraction
requires sophisticated technical competency and training. Without such capacity, first responders
may find themselves faced with the impossible decision of either seizing the suspect hardware
and risking exceeding the scope of the search warrant, therein both infringing fundamental rights
and risking “tainting” the seized evidence, or leaving the hardware and risking letting evidence
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be lost or destroyed. Prior to commencing a search, investigators should ensure that they abide
by applicable laws or risk having seized exhibits declared inadmissible at trial.31 Identifying and
selecting relevant hardware has become a major part of an investigation.32
Indeed, while the proverbial “smoking gun” might be found in a subsequent review of seized
information, that information may be excluded as illegally obtained evidence.33 In the context of
electronic information, illegally obtained information is usually information that was obtained by
seizing more than what was specified in the warrant—for instance, if the warrant specifies data
and the device was (also) seized. Thus, while investigators may rely on a subsequent review of the
collected evidence, the threat of exclusion of that information as evidence operates as a check on
investigatory abuse.34
C. Examples of Good Practice
A considerable number of countries have prescribed—through legislation, regulation or court
decisions—the scope of searches of digital information.
In the United States, the courts have crafted procedures that differentiate between searching device
and data, and which require explicitness in the warrant, and that the default is a two-stage search
process. The US Federal Rules of Criminal Procedure—drafted, issued and approved by the federal
judiciary35—note the nuance between device and data stored on that device, stipulating that a
warrant must say whether it is authorizing “the seizure of electronic storage media or the seizure
or copying of electronically stored information”.36 The Rule continues by saying that, “[u]nless
otherwise specified, the warrant authorizes a later review of the media or information consistent
with the warrant” and that “[t]he time for executing the warrant […] refers to the seizure or on-site
copying of the media or information, and not to any later off-site copying or review”.37 The notes
to the Rules prepared by the Advisory Committee make it clear that, unless the warrant explicitly
specifies otherwise, the initial search done at the time of seizure need not be more than cursory,
with evidentiary reliance being placed on the subsequent review of the seized or copied materials.
That position has been reiterated and followed by the courts:
“Computers and other electronic storage media commonly contain such large
amounts of information that it is often impractical for law enforcement to review
all of the information during execution of the warrant at the search location. This
rule acknowledges the need for a two-step process: officers may seize or copy
the entire stage medium and review it later to determine what electronically
stored information falls within the scope of the warrant.”38
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The Supreme Court of the Republic of Korea has taken a similar position to that of the United
States, stating that:
“In principle, illegally obtained evidence is not admissible and accordingly,
such evidence cannot be used as an evidence to prove guilt of the criminal
defendant.”
The Court went on to say:
“In order to render a final determination of admissibility of illegally obtained
seized item, comprehensive consideration should be given to the issue of
whether or not violation made by investigative agencies impedes substantial
contents of due process by taking into account following factors including 1) the
substances and degrees of investigative agency’s violations, 2) the intention of
investigative agency, 3) natures and the extent of the infringement of rights or
legal interests protected by procedure rules, and so on.”
Case 2.10: Customs Evasions Case (Korea)39
Korean law enforcement agents searched the offices of Company A on suspicion of tariff
evasion by lowering unit cost for importation, seizing documents and electronic data. In the
process for the search and seizure, documents and electronic data pertaining to Company
B—not specified in the warrant—were also seized. On the basis of the seized information,
Company B was subsequently charged after it was confirmed that Company B had evaded
tariffs in the same manner as Company A based.
The Supreme Court of Korea subsequently excluded the evidence on the basis that, first, the
evidence was not collected in accordance with the procedures as set forth in the Constitution
and Criminal Procedure Act, and, second, the secondary evidence failed to follow legal
procedures for the protection of fundamental human rights: in principle, the Court ruled,
secondary evidence cannot be admitted as evidence to prove guilt. The Court provided
that “[d]ocuments and electronic data relating to Company B which were seized, along with
seizure of those pertaining to Company A, were neither the object to be seized as stipulated
by a search and seizure warrant nor related to the facts of suspicion.”
The Court further censured the investigators lack of discrimination between data and device,
noting that “[a]fter moving the storage device itself into the office of the investigative agency,
and then investigating the electronic information related to facts of suspicion, either the
process of printing the concerned electronic information into documents or the process of
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copying the files included in the execution of a search and seizure warrant. In this case, the
object of the document-printing process or file-copying process should be confined to the
part related to facts of suspicion as specified in the warrant.”
By contrast, some countries have cited the successful extension of general search and seizures
powers. South African representatives, for example, reported favorably on the nation’s Criminal
Procedure Act, which, though not specifically making provision for the seizure of e-evidence,
allowed authorities to seize “anything”.40 Other countries also reported that it was good practice for
investigative powers relating to computers and other devices to “extend to all crimes and not just
traditional computer crimes”, and that relevant procedural laws should be both “comprehensive”
and “precise”.41 While such general extensions of power may be warranted and possibly even
advisable, it bears noting that judicial oversight to disallow evidence obtained as a result of overly-
broad search under more general principles should still be assured and authorized.
D. Techniques for Identifying Relevant e-Evidence
An analysis of available hardware components can, for example, prove that the suspect’s computer
was capable of carrying out a DDoS attack or is equipped with a chip that prevents manipulations
of the operating system. Hardware analysis can also be necessary in the process of identifying
a suspect. However, hardware analysis does not always mean focusing on physical components
attached to a computer system. Most operating systems keep logs of hardware that was attached
to a computer system during an operation.42 Based on the entries in log files such as the Windows
Registry, forensic examiners can even identify hardware that was used in the past but was not
present during the search and seizure procedure.
In addition to hardware analysis, software analysis is a regular task in cybercrime investigations.
Software tools can be installed to match the functioning of computer systems to the demand of the
user. Forensic experts can analyze the functioning of software tools in order to prove that a suspect
was capable of committing a specific crime. An inventory of software tools installed on the suspect’s
computer can also help to design further investigation strategies. If, for example, the investigators
find encryption software or tools used to delete files securely, they can specifically search for
encrypted or deleted evidence.43 Investigators can also determine the functions of computer viruses
or other forms of malicious software and reconstruct software-operation processes.44 In some cases,
where illegal content has been found on suspects’ computers, the suspects have claimed that
they did not download the files but that it must have been done by computer virus. In such cases,
forensic investigations can try to identify malicious software installed on the computer system and
determine its functions. Similar investigations can be carried out if a computer system could have
been infected and turned into part of a botnet.45
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Software analysis can also be important to determine if software is produced solely for committing
crimes or can be used for legitimate as well as illegal purposes (dual use). This differentiation can
be relevant, insofar as some countries limit criminalization of the production of illegal devices to
those that are either solely or primarily designed to commit crimes. Data-related investigations
are not confined to the software function, but also include analysis of non-executable files such
as pdf-documents or video files. File analysis also includes the examination of digital documents
that might have been forged46 as well as metadata investigation.47 Such analysis can determine the
time48 the document was last opened or modified.49 Furthermore, metadata analysis can be used to
identify the author of a file containing a threatening message, or the serial number of the camera
that was used to produce a child-pornography image. Authors can also be identified based on
linguistic analysis, which can assist in determining if the suspect has written articles before and left
information that can help identification in this context.50
As investigators must focus on relevant evidence in order to prevent inadmissibility, special
attention must be given to identifying relevant evidence,51 meaning that forensic experts play an
important role in the design of investigation strategies and the selection of relevant evidence.
They can, for example, determine the location of relevant evidence on large storage systems.
This enables investigators to limit the scope of the investigation to those parts of the computer
infrastructure that are relevant for the investigation and avoid inappropriate and large-scale seizure
of computer hardware.52 This selection process is relevant as various types of storage devices are
available that can make identification of the storage location of relevant evidence challenging.53
This is especially valid if the suspect is not storing information locally but uses means of remote
storage. Forensic analysis can then be used to determine if remote-storage services were used.54
Identification of relevant digital information is not confined to files themselves. Databases of
software tools that are made available by operating systems to quickly identify files might contain
relevant information too. Another example of evidence identification is the involvement of forensic
experts in determining the right procedural instruments. A number of countries enable law-
enforcement agencies to carry out two types of real-time observations—the collection of traffic
data in real time, and the interception of content data in real time. In general, the interception of
content data is more intrusive than the collection of traffic data. Forensic experts can determine
whether the collection of traffic data is sufficient to prove the committing of a crime, and thereby
help investigators to strike the right balance between the need to collect effective evidence and
the obligation to protect the rights of the suspect by choosing the least intensive instrument out of
the group of equally effect options. Both examples show that the role of forensic investigators is not
restricted to the technical aspects of an investigation, but includes a responsibility for protecting the
suspect’s fundamental rights and thereby avoiding inadmissibility of the evidence collected.
II. Collecting Evidence with the Assistance of Third Parties
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To obtain cybercrime evidence, collaborating with third parties, such as ISPs,55 is vital, as
considerable amounts of evidence of cybercriminal activity are stored in information systems
managed by third parties. In order to prevent law enforcement from overstepping its powers in
such data acquisition, it is important to clearly define what type of information might be acquired,
as well as the procedures for requesting and, if necessary, compelling third parties to release that
information. Various factors—including where the ISPs are located (both their servers and other
hardware), available legal mechanisms and terms and conditions of user agreement—will determine
the tone of the third-party cooperation.56 As significant human rights considerations surround such
activities, especially around the freedom of communication, it is incumbent upon both law makers
and authorities to implement laws and regulations appropriately balancing government power
with individual rights. These matters are discussed in greater depth below (see section 4 A, and 4 B
below).
It is important to realize that not all data is the same, and, as such, that there may be varying
degrees of potential privacy considerations, for example. It is also important to distinguish between
areas where voluntary cooperation may be appropriate as opposed to situations where third parties
are compelled to cooperate with law enforcement. Both are discussed below.
Three different classes of stored communication should be differentiated:
1 Subscriber information;
Communication records or logs; and
2
3 Communication content.
Subscriber information is relatively basic, pertaining to identifying information such as the
subscriber’s name, contact and payment details. Such information is typically needed by
investigative authorities in order to make requests to obtain warrants and other public requests.
Attaining subscriber information—the first type of data—typically implicates fewer privacy concerns
than does seeking access to the content of communications, and, as such, this information
is generally subject to fewer safeguards and limitations. To facilitate investigations while also
protecting individual privacy, laws should further distinguish between basic customer information
and information detailing account activity.
The second class of data, communication records or logs, are more detailed, and includes IP
address(es) of device(s) used by person(s) under investigation, time of transmitting and receiving
electric communications, data volume, communication ports, protocol information and the like. As
acquiring this information is a significantly greater infringement of privacy, the law should clearly
define and delineate both the scope of communication records that might be acquired and the
procedures for doing so. Typically, court orders are issued on the basis of “reasonable grounds”
showing that the communication record is relevant to the investigation in progress. Moreover,
these laws frequently require that, upon completion of the investigation or the prosecution, the
investigative agency notify the investigated party of the data acquisition. That said, in some
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countries, notification must be made prior to data acquisition if the communication record is
collected through a court order rather than through a search and seizure warrant.
As communication content, the final type of third-party stored communication, is the most sensitive
form of communications, a search and seizure warrant is invariably required, meaning that the
request must make a showing that the desired information is necessary to clarify the “probable
cause” relating the object of the search and crime. Here, the procedural law should consider
whether all categories of stored content deserve the same kinds of protection. For example, there
is a lower expectation of privacy for information in cloud storage as opposed to the contents of
an email. Therefore, a full search warrant may be appropriate for emails, whereas only a grand jury
subpoena or a court order may be appropriate for cloud-stored information.
Cooperation with the private sector, discussed further on, is an essential element to combatting
cybercrime (see section 6 C, below). With respect to the present discussion, it bears noting that
ISPs, in particular, potentially play an especially important role in many cybercrime investigation
as, in many cases they have the technical capability to detect and prevent crimes to support law-
enforcement agencies. That assistance is especially relevant in connection with identifying suspects.
Obligations discussed range from the mandatory implementation of prevention technology to
voluntary support of investigations.57 Cooperation between law-enforcement agencies and ISPs
requires the application of certain procedures.58
One example is the forensic tool CIPAV (Computer and Internet Protocol Address Verifier), which
was used in the United States to identify a suspect who had been using anonymous communication
services.59 Another example of cooperation between ISPs and investigators is email investigation.
Emails have become a very popular means of communication.60 To avoid identification, offenders
sometimes use free email addresses which they were able to register using fake personal
information. However, even in this case, examination of header information61 and log-files of the
email provider will in some instances enable identification of the suspect.
The need to cooperate and communicate with providers is not limited to ISPs. Since some
crimes such as phishing62 and the commercial distribution of child pornography include financial
transactions, one strategy to identify the offender is to obtain data from financial institutions
involved in the transactions.63 In Germany, for example, investigators worked with credit-card
companies to analyze and identify customers who had purchased child pornography on a specific
website.64 Such investigations are more challenging when anonymous payment methods are used,65
such as bitcoin.66
Law enforcement often require third-parties to provide communications in real-time. Such is
particularly true where there are indications of imminent perpetration or harm, especially in cases of
terrorism, and where real-time collection may offer critical evidence. Furthermore, some information
can only be captured in real-time as it is never stored (instead existing only in the “cloud”). The
communication record (the second class of information) can be had in real-time by monitoring
current IP addresses of transmitters and receivers, thereby helping to geolocate suspects. Such
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information might also be helpful in figuring out party relationships in crimes in progress. More
dramatically, real-time communication content (the third class of information) can be intercepted
with the assistance of third parties. Because of the sensitive nature of both the information, and the
manner in which it is being acquired, the law should specify not only the appropriate requirements
and procedures for such requests by law enforcement, but also which offenses are subject to
interception. Typically, a court’s approval is required, with the requirements for an interception
warrant being stricter than those for a seizure warrant. Due to the sensitivity of such requests,
numerous cases where it is impossible to secure communications data, even where there are
legitimate reasons, exist.67
Lastly, law enforcement may also require the assistance of third parties in preserving data.
Information stored by service providers can easily disappear: intentional deletion by subscribers,
withdrawal of services by subscribers or automatic deletion policy of service providers are but a
few of the ways in which this information can disappear. In order to prevent such evidence loss,
measures for preserving data after detecting a link between the data and crimes must be put in
place. Data preservation is based on the initiation of a compulsory procedure, therein allowing
investigators to obtain the desired data.
III. Cloud Computing
Cloud computing is the use of a network of remote servers hosted on the internet rather than
a local server or a personal computer to store, manage and process data. Evolving cyberspace
technologies—especially cloud computing—result in both (A) technological complications to
search and seizures, as well as more serious (B) jurisdictional complications.
A. Technological Complications to Search & Seizures
Due to the flexibility that cloud computing offers users to rent data storage, software and
network broadband for services ranging from web-mail to data storage, the practice has become
increasingly common. Cloud computing is yet another example of how ever-changing cyberspace
capabilities and usages require the legal framework to change and adapt—in this case moving
away from the traditional, and now no longer relevant, concept “of the place to be seized”. In
cloud computing environments, data subject to search and seizure can be expanded to include
information stored in a remote location by a cloud computing service provider.
Cloud computing also allows for so-called “virtualization” technology. Virtualization creates virtual
computing resources by combining various resources of computers physically existing in different
physical locations. Using this technique, data stored by cloud-computing users appears to be
stored in a virtualized storage device.
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Distributed databases, by which data is copied, maintained and distributed across servers in various
locations, therein offering greater safety and security, complicate localization of data. Through the
use of a centralized distributed database management system (DDBMS), the data is synchronized
and integrated logically, allowing the user to manage it as if it were all stored in the same location.
Distributed databases can be either homogenous or heterogeneous. In a homogenous system, all
of the physical locations have the same underlying hardware and run the same operating systems
and database applications, while in a heterogeneous system, the hardware, operating systems
or database applications may vary at each of the locations. Together with the use of a technique
known as “sharding”—a type of database partitioning by which large databases are separated
into smaller, more manageable parts called data shards—, accessing comprehensible information
can be quite challenging, both for law enforcement and for hackers. Mutual legal assistance
treaties (MLATs) facilitate extra-jurisdictional requests for data (see section 3 A, below), and can be
particularly useful in these circumstances.68 Where a service provider utilizes a foreign cloud data
center (e.g., Amazon Web Services), the data frequently resides in a country other than where the
service provider is registered.
Notwithstanding the fact that data might be fragmented and stored in several servers, and identical
copies may co-exist simultaneously in different places, it is often possible to retrieve that data
intact by relying on service providers’ control of the cloud service mechanism. As such, in a spin on
traditional understanding, the user’s account together with the name and the headquarter address
of the cloud service provider is designated as the “place” subjected to search and seizure rather
than a physical location. The US DoJ has provided examples of how a search and seizure warrant
against an email account might be prepared.69 Consequently, the execution of a search and seizure
warrant in cloud computing environments depends on service providers that control the locations
and methods for data storage. The execution of a search and seizure warrant in cloud computing
environments is conducted by when law enforcement present the warrant to service providers.
Execution of a search and seizure warrant in cloud computing environments can be compared to
general forms of search and seizure that require direct participation of investigative authorities.
An account in the cloud subjected to search and seizure may be designated differently depending
on the internet source used by the offenders: for instance, if webmail is used, the mail account is
designated as the one to be seized; when a web drive is used, the URL address is designated for
seizure; if web hosting servers are being used, then those IP addresses are selected for seizure.
B. Jurisdictional Complications to Search & Seizures
While developing technology complicates procedural aspects of search and seizure, more
fundamental issues arise over jurisdictional conflicts. Although the question of jurisdiction is
discussed in greater depth hereafter (see section 2 E, below), it bears raising the topics here
specifically with regard to procedural matters. Cloud computing has particularly complicated
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matters from a jurisdictional standpoint, as many cloud service providers have centers around the
world; as a result, jurisdictional disputes between the country where cloud service providers are
registered and those where data is stored is growing. Moreover, as discussed, data is frequently
fragmented, with parts and pieces not only in various places but in various countries. Once these
logistical, storage issues are coupled with issues of data privacy (see section 5 B, below), these
jurisdictional conflicts can cause intense disputes.
Case 2.11: Microsoft Corp. v. United States (“Microsoft Ireland”) (USA)70
In connection with the provision of its email and cloud-based services, Microsoft required its
subscribers to provide certain location information when requesting email and other services.
That information was stored in data centers proximate to the location identified by the
subscriber. Much of the metadata related to such subscribers (with the exception of certain
communication content data) was stored in the United States.
In December 2013, the US District Court for the Southern District of New York issued a search
warrant on Microsoft authorizing US law enforcement authorities investigating drug trafficking
operations to obtain communication data of users that had their data stored in datacenters
outside the United States. Microsoft entered a motion to quash the warrant, claiming that the
communication content of the concerned email accounts was stored in a data center located
in Ireland, arguing that such communication content is beyond the scope of the warrant.
On 25 April 2014, the US Magistrate Judge issued an order denying Microsoft’s motion to
vacate the warrant, holding that “an ISP located in the United States would be obligated to
respond to a warrant issued pursuant to Section 2703(a) [of the US Stored Communications
Act (SCA)71] by producing information within its control, regardless of where that information
was stored.”72 On 31 July 2014, the US District Court for the Southern District of New York
affirmed the Magistrate’s Order.73 Microsoft appealed to the US Court of Appeals for the
Second Circuit.
The case quickly became a hotly contested one. Private sector entities (including AT&T,
Apple and Cisco) raised concerns that the warrant would have to their business environments
in amicus curiae briefs; and digital rights groups said it would have been an unwarranted
intrusion.
On 14 July 2016, a three judge appellate panel ruled in favor of Microsoft, concluding that
Congress did not intend that a warrant issued under the SCA to have any extra-territorial
effect. The Government has petitioned for a rehearing en banc.
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Conclusion
Traditional search and seizure procedures focus on the collection of physical evidence. However,
e-evidence has different properties, requiring different search and seizure approaches, which must
be dictated by the legal framework. Careful attention must be paid to creating procedures that
accommodate the difference between digital information and digital storage devices, and which
respect fundamental rights, notably the right to privacy, by limiting the scope of the search and
seizure, as prescribed by the warrant. In many jurisdictions, judicial bodies have been attentive to
excluding information as evidence of guilt where it has been illegally gathered as beyond the scope
of the warrant.
Third parties are often essential to the collection of evidence. In order to collect communication
data managed by third party (e.g., subscriber information, communication records, communication
content), and to do so in real-time, appropriate procedures need to be implemented directing
those parties to offer technical and administrative support to law enforcement. Moreover, ISPs
not only store subscribers’ data but also have their own technologies and metadata that are of
value to law enforcement. Procedures obliging ISPs to cooperate with law enforcement should
be based on (1) the classification of requests for data preservation; (2) the acquisition of the
stored communication data; and (3) the real-time collection of communication data. Provisions
guaranteeing ISPs exemptions from both civil and criminal liabilities that could arise out of third
parties’ provision of data should accompany such procedures. Procedures obliging ISPs to
cooperate must also strike an appropriate balance between respecting fundamental rights and
accounting for cyberspace’s rapidly evolving nature.
Rapid technological advancements, notably cloud computing, make create an ever-evolving
technological morass through which law enforcement must seek to navigate. The development of
cloud computing requires also a legal development with respect to the procedures for search and
seizure. Moreover, even once technological obstructions have been surmounted, jurisdictional ones
often persist given the disparate physical that support the existence of cyberspace; such issues
require an ever-greater push to create a shared, international consensus, if not a single vision. As
discussed further on (see section 5, below), it is important to establish corresponding procedural
safeguards to protect personal data and privacy rights, as well as to the define limits of procedural
powers utilized to investigate cybercrime and to gather e-evidence.
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CHAPTER 2
D. Evidentiary Issues
Table of Contents
Introduction 109
I. Computer Forensics 110
A. The Nature of e-Evidence 110
B. The Law of Evidence 111
C. Computer Forensics 111
1. Investigating Cybercrime 111
2. Identifying, Collecting & Preserving Evidence 112
II. Assuring Authenticity, Integrity & Reliability 113
A. Good Practices for Handling Digital Evidence 113
1. Forensic Expert Training Program 114
2. e-Evidence Management System & Copying Techniques 114
B. Examples of Good Practices 115
1. The KSPO’s Forensic Expert Training Program 116
2. Centralized e-Evidence Management System 116
III. Prosecution and Presentation 116
IV. The “Hearsay” Rule in Cybercrime 117
A. The “Hearsay” Rule 117
B. Korea’s Treatment of the Hearsay Rule 118
C. Exceptions to the Hearsay Rule 118
Conclusion 119
Introduction
Due to the legal tenet of the presumption of innocence—ei incumbit probatio qui
dicit, non qui negat1—, the burden of proof lays with the prosecuting authorities.2 That
burden is met by proffering sufficient evidence to meet the requisite standard of proof
(e.g., beyond reasonable doubt; clear and convincing evidence; preponderance of the
evidence). Cybercrime being governed by criminal law, the standard of proof is higher
than in either administrative or civil proceedings.
Regardless of the type of case, or of the nature of the allegation in question, the case
will be decided by the trier of fact based as much upon the authenticity, integrity and
the reliability of the evidence as on its quality. Digital or e-evidence presents interesting
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challenges. This section (I) explores how best to assure the authenticity, integrity and
reliability of e-evidence, before turning to (II) understanding the “hearsay” rule as it
applies to e-evidence.
I. Computer Forensics
Computer forensics is not only necessary to establishing the appropriate proceedings by which
cybercrimes are investigated (see section 2 C, above), but also necessary to the collection of
e-evidence. To enter into such a discussion, it is important to consider (A) the nature of e-evidence
and (B) the nature of the corpus of law of evidence. On the basis of that understanding, (C) the role
of computer forensics can be discussed.
A. The Nature of e-Evidence
As with so much in cyberspace and cybercrime, there is no single definition of a term “digital” or
“electronic” evidence (“e-evidence”). For purposes of the Toolkit, the term will be used to refer to
“information stored or transmitted in binary form that may be relied in court”.3 E-evidence is used
as a proof of crime in the same way as physical evidence. Indeed, beyond “pure” cybercrimes, the
development of cyber services and the widespread supply of ICT devices have led to increased use
of e-evidence in prosecuting traditional, physical-world crimes.
Digital information is electronic by definition and by nature, and therefore has a “virtual” and
“imaged” existence. As such, and unlike physical evidence, digital information is not “fixed” to a
single device, meaning that it can be easily copied and reproduced onto another device without
any alteration or loss of information. However, as courts have generally required original evidence
when considering physical evidence, and only relatively rarely allow copies to be presented as
evidence, the ease and completeness with which digital data might be reproduced and transposed
has led to discussions about whether copies might, in fact, be presented as identical to the
“original” copy. By and large, it is impractical to present anything other than the copy of the original
e-evidence; indeed, as already discussed,4 sometimes taking a copy of the original digital data is
the only way that investigators can examine the often-vast array of information confronting them.
As e-evidence is effectively an electronic image constructed out of code, it is much more
susceptible to alternation than most physical evidence. Both intentional and unintended alterations
might occur if vigilance is not assured. As this vulnerability might lead to claims of unreliability, it is
especially critical that investigators assure and preserve the authenticity, integrity and reliability of
the original copy of e-evidence throughout the chain of custody, from collection, through analysis
and to submission to the court.
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B. The Law of Evidence
The law of evidence, a procedural body of law, governs how various forms of proof of misdoing
are presented and evaluated, typically for presentation at trial.5 It consists of rules and procedures
governing the proof of a particular set of facts in issue.6 Matters of evidence are concerned with
presenting evidence supporting both the occurrence of events, and the implicated actors thereto.
For the purpose of legal proceedings, the concept of electronic evidence may have specific
recognition, or it may be admitted as analog evidence, such as in the form of a document, with the
meaning of what constitutes a document invariably extending to anything recorded in any form,
which must be right.7
From a legal perspective, electronic evidence needs to be:
1
Admissible, meaning that it conforms to legal rules;
2
Authentic, meaning that the evidence can be shown to be what the proponent claims it is;
3
Complete, meaning that it tells the whole story and not just a particular perspective;
4
Reliable, meaning that there is nothing about how the evidence was collected and handled
that casts doubt about its authenticity and veracity; and
5 C
redible, meaning that it is believable and understandable by a court.8
From a legal perspective, e-evidence can be defined not only on the basis of what it is—that is, as
the legal object constituted by data expressed in electronic format, as defined above—, but also as
a construct—that is, the representation of facts or acts legally relevant to the matter and conducted
by electronic means. Regardless of which aspect is considered, technical and legal analysis is
required in order to show how the evidence was obtained, as well as how to interpret it and show
how it pertains to the criminal matter.
C. Computer Forensics
Computer forensics plays an essential role in both (1) investigating cybercrime and (2) identifying,
collecting and preserving evidence.
1. Investigating Cybercrime
Investigating a cybercrime may involve invasive surveillance, as followed up by search and seizure.9
Prior to any search and seizure, however, investigations typically begin by proving that the suspect
had the ability to commit the crime. Although surveillance of suspects can reveal a great deal—
for instance, establishing the requisite know-how, or observing unusually heavy volumes of data
traffic to a computer that incriminates the alleged perpetrator10—, those initial suspicions and
circumstantial evidence must be corroborated.
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Regardless of the crime, traces of the perpetrator and how the crime was committed are left
behind.11 Forensics is the use of scientific tests or techniques in connection with the detection of
crime.12 Computer forensics refers to the systematic collection of data and analysis of computer
technology and information with the purpose of searching for e-evidence.13 Generally utilized
after the commission of the crime,14 computer forensics is a major part of cybercrime investigation.
Indeed, its centrality to the investigation’s success emphasizes the need for training and capacity-
building in this area, as well as the sharing of resources and of information.15 While forensic
techniques in traditional crimes typically rely upon physical evidence—DNA, splatter patterns,
chemical analysis16—computer forensic techniques rely upon a variety of digital sources—emails,
connection logs, various metadata17—; each present their own unique challenges.18
Computer evidence comes in a variety of forms and can be found in a variety of places. Regardless
of the location of that evidence—be it on a perpetrator’s hard drive, in the records of a third party
provider (such as an ISP) or in fragments scattered around the world (such as in cloud computing)—,
procedures are required for gaining access. As already discussed, traditional search and seizure
procedures already in existence must be adapted to make the accommodate the novelties of
cybercrime investigations (see section 2 C, above). Following search and seizure, forensic experts
are required to examine not only hardware and software but also the various and sundry metadata.19
2. Identifying, Collecting & Preserving Evidence
Collecting digital or e-evidence requires diverse and complex technical skills. For instance,
techniques for accessing and retrieving evidence stored on hard drives differ drastically from those
required to intercept data being transmitted.20 Moreover, time is often of the essence, both due
to the fragility of the evidence, and given the immediacy of actions taken in cyberspace, often
requiring quick decision-making off of investigators. For instance, a common question is whether
investigators should shut down a running computer system. There are reasons for going in either
direction: for instance, shutting down the system might be necessary in order to prevent alteration
of digital information and thereby preserve the integrity of relevant e-evidence.21 That said, “pulling
the plug” may actually result in the loss of other evidence, such as temporary files that require
programs, applications or internet connections to be maintained and kept running or operating.
However, power disruption can activate encryption,22 thereby hindering access to stored data,23
and, if the appropriate security is put in place, possibly even resulting in the destruction of digital
information. Additionally, even after the decision has been reached, the appropriate investigative
procedures must be followed.
First responders, who undertake the first steps to collect e-evidence, bear a significant responsibility
for the entire investigation process, as any wrong decision can have a major impact on the ability to
preserve relevant evidence.24 If they make wrong decisions on preservation, important traces may
be lost. Forensic experts need to ensure that all relevant evidence is identified.25 Doing as much is
often difficult, with various tricks employed by offenders, such as hiding files in separate storage
device or scattered across the cloud in order to prevent law enforcement from finding and analyzing
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their contents. Forensic investigators are essential to identifying hidden files and to making them
accessible.26
Forensic investigators are similarly needed for recovering deleted or destroyed digital information.27
Files that are deleted by simply placing them in a virtual trash bin—even if “emptied”—do not
necessarily render them unavailable to law enforcement, as they may be recovered using special
forensic software tools.28 However, if offenders are using tools to ensure that files are securely
deleted by overwriting the information, recovery is in general not possible.29 Encryption technology
is another common means of hindering investigations.30 Such technology is not only increasingly
common but increasingly effective.31 The situation is a delicate one, for while encryption technology
prevents law-enforcement agencies from accessing and examining often-critical information,32 that
very same technology is increasingly central to sustaining many of the things that societies around
the world have come to consider as normal and necessary to daily life.33
Forensic experts can try to decrypt encrypted files.34 If this is not possible, they can support law-
enforcement agencies in developing strategies to gain access to encrypted files, for example
by using a key logger.35 Involvement in the collection of evidence includes the evaluation and
implementation of new instruments. International cooperative efforts are particularly important in
this regard.36 One example of a new approach is the debate on remote forensic tools.37 Remote
forensic tools enable investigators to collect evidence remotely in real time38 or to remotely monitor
a suspect’s activity39 without the suspect being aware of investigations on his system. Where such
tools are available, they can, on a case-by-case basis, play a decisive role in determining the best
strategy for collecting e-evidence.
II. Assuring Authenticity, Integrity & Reliability
Having considered the nature of e-evidence and of computer forensics, the authenticity, integrity
and reliability of the e-evidence needs to be assured by looking at (A) good practices for handling
e-evidence, and (B) specific instances of the application of those practices.
A. Good Practices for Handling Digital Evidence
Good practices for handling e-evidence begin with (1) the development of a thorough and uniform
forensic expert training program who alone handle e-evidence and (2) the creation of a nation-
wide, e-evidence management system, the integrity of which is assured through copying techniques
(taught in the training program).
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1. Forensic Expert Training Program
The two most important examples of good practices for handling e-evidence are developing
training programs for investigators and experts on techniques for identifying, handling and
analyzing e-evidence. As with physical evidence, the authenticity, integrity and reliability of
e-evidence can best be assured by giving due attention to (1) the examiner’s expertise, (2) the
reliability of tools and equipment and (3) the setting standardized procedures and guidelines:
1
First, law enforcement should assure a specialized training and certification process for
digital forensic examiners, and restrict the handling of any e-evidence to such examiners.
The approach might mirror that taken in the training of forensic scientists dealing with the
physical evidence of a crime scene.40 The procedural expertise of the examiner serves as a
basis for inferring that the evidence has been handled with care, thereby assuring the integrity
of the process—namely, that damage is avoided, alteration or manipulation prevented, and
the outcome of the analysis verified. While courts do not generally require any specific training,
certification or years of experience, a certain level is necessary to assure expertise. Moreover,
just as with other certifications, recertification or continuing training courses are advisable.
2
Second, the collection and analysis of e-evidence requires the use of a variety of tools
and equipment. Using widely-recognized tools (e.g., software) and equipment41 helps to
warrant evidentiary reliability, and facilitates reexamination of evidence by outside experts. In
addition to using such tools and equipment, however, standards exist for testing these forensic
tools and equipment. A number of institutions can inspect ICT forensic tools and equipment.
For instance, the US National Institute of Standards and Technology (NIST) provides standard
testing methods for computer forensic tools and equipment through its Computer Forensics
Tool Testing (CFTT) program.42 Similar processes exist for the testing of other scientific
equipment.
3
Third, and lastly, standardized procedures and guidelines should be prepared and
shared with anyone who might have cause to handle e-evidence. Doing so creates a set,
dependable methodology and approach, thereby helping protect against arbitrary handling of
evidence. These rules should address handling of evidence at all stages of custody.
2. e-Evidence Management System & Copying Techniques
One of the greatest challenges related to e-evidence is the fact that it is highly fragile and can
rather easily be deleted43 or modified.44 One consequence of its fragility is the need to maintain
its integrity.45 Case records are therefore required. In addition to training and qualifying experts in
how to handle evidence, those experts should also be trained in the production of case records.46
There are substantial advantages to storing those records should in a central, online e-evidence
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management system that is accessible to certain, qualified law enforcement from around the
country, if not world. Such a facility could be particularly important for storing data acquired in
incidences where the seizure of hardware is impossible, inadequate or inappropriate, and where
investigators have been permitted to copy files. That said, in addition to being difficult to roll-out
to users beyond the capital, central systems can create high-profile targets and may represent a
security vulnerability. Additionally, special attention needs to be paid to not only protecting the
integrity of copied files against any kind of alteration during the copy process,47 but also to the
uploading process.
In incidences where devices and their original files are not taken into custody, and copies are made
of those files, careful attention must be paid to assuring protocols for copying and uploading data
for storage and analysis.
Methods called “imaging” and “hash-value generation” are used in demonstrating the
authenticity of e-evidence.
Imaging works in one of two ways, both of which rely upon the creation of a copied “image” of
the e-evidence: either (1) by copying the digital data stored in an ICT device to create an image
file using the bit-streaming method;48 or (2) by producing a logic image file after selecting the
files that are to be seized. Imaging allows investigators to preserve the authenticity of the image
files be analyzed, as the data included in the files is not subject to change during the subsequent
analysis.
Hash-value generation works on the same logic of replicating the evidence in order to have a
duplicate version to compare, understand, and analyze. However, rather than taking a duplicate
image of the data, this technique relies on a file’s so-called “hash value”: much like a person’s
finger print or retinal image, the hash value is unique and inherent to each file. Therefore,
reproducing the hash value reproduces the evidence. In a sort of cloning process, that hash
value, which is derived from a hash algorithm, can be replicated along with the to-be analyzed
file. As files that have the same hash value are regarded the same, the e-evidence is preserved
by creating a copy.
Imaging and hash-value generation are both generally included in the e-evidence collection toolkit
and used for on-site evidence collection. With replicas of the data in hand, investigators are then
able to establish authenticity by imaging the seized ICT device itself. Veracity can be ascertained
on-the-spot: the selected files are logic-imaged, their hash values generated and then the values
produced compared with the hash values of the original evidence. That on-site verification is later
submitted to the court.
B. Examples of Good Practices
Working along the lines of the good practices discussed above, the Supreme Prosecutors’ Office
of the Republic of Korea (KSPO) has established a (1) forensic expert training program and (2)
centralized e-evidence management system.
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1. The KSPO’s Forensic Expert Training Program
A number of law enforcement agencies offer training programs not only for their ICT forensic
experts but for any who might have cause to interact with e-evidence. One such example is
the six-month digital Forensic Expert Training Program offered by the KSPO. An esteemed and
competitive process, the KSPO selects a few trainees from a pool of regular investigators. Trainees
receive three months of basic digital forensic training and another three months of on-the-job
training in actual digital forensic divisions. Investigators who complete this six-month program are
certified as “digital forensic investigators” and are subsequently placed in digital forensic divisions
to collect and analyze e-evidence. As discussed above, the KSPO’s program creates national
uniformity and standardization of guidance, protocols and procedures, thereby helping to assure
and convince the court of the authenticity, integrity and the reliability of e-evidence.
The Rule on the Collection and Analysis of Evidence by Digital Forensic Investigator is the KSPO’s
standard set of guidelines.49 The Rule not only lays out the qualifications for becoming a digital
forensic investigator, but also regulates procedure for on-the-crime-scene prodecures, setting
down protocols for who is in charge of collecting and analyzing e-evidence, as well as articulating
e-evidence search-and-seizure procedures, and data registration and management procedures for
working with the Evidence Management System. The establishment of not only general guidelines
but also concrete protocols and procedures make the KSPO’s Rule an excellent example of good
practices that go far towards protecting the authenticity, integrity and reliability of e-evidence.
2. Centralized e-Evidence Management System
Just as physical evidence collected by law enforcement is stored in a secured repository (often
referred to as an “evidence room”), so, too, ought e-evidence to be securely stored in a central
management system. Moreover, as e-evidence can be uploaded from multiple terminals, and even
from various ICT devices, and as the limitations inherent to analogous physical evidence do not
apply, e-evidence might—and should—be stored in one single, online repository, rather than in
several disparate “evidence rooms”.
The KSPO does as much, operating D-Net, its centralized, online evidence management system.
Investigators register evidence collected from search-and-seizure and the results of conducted
analysis directly into D-Net’s central server. The system chronicles, registers and conserves the
entire process. As such, D-Net preserves the entire chain of custody with respect to not only the
e-evidence itself and its life cycle—collection, analysis, submission and disposal—but also work
product. Crucially, it also allows for an established and secure means of timely data disposal.
III. Prosecution and Presentation
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The investigation comes to a close with the presentation of evidence in court.50 While presentation
is customarily undertaken by prosecutors, forensic experts can play an important role in criminal
proceedings as expert witnesses capable of assisting the triers of fact and of law to understand
the evidence-collection procedures undertaken and the nature of the evidence subsequently
generated.51 Given the complexity of e-evidence, there is an increasing need to involve forensic
experts.52
Although computer forensics deals to a large degree with computer hardware and computer
data, it is not necessarily an automated process; indeed, while some processes, such as the search
for suspicious keywords or the recovery of deleted files can be automated using special forensic
analysis tools,53 the vast majority of computer forensic examinations remains to a large extent
manual work.54 Such is especially true with regard to the development of strategies and the search
for possible evidence within search and seizure procedures. The amount of time necessary for such
manual operations and the ability of offenders to automate their attacks underline the challenges
that law enforcement faces, especially in investigations involving a large number of suspects and
large data volumes, and even more so when further complicated by cross-border activities.55
IV. The “Hearsay” Rule in Cybercrime
Some countries, such as the United Kingdom and Belgium, have special laws governing e-evidence
that cover admissibility and authenticity of e-evidence.56 In other countries, such as the United
States and Korea, “traditional” rules of evidence (i.e., the “hearsay rule”) may be extended and
applied.57 The “hearsay” rule takes on a special form in cybercrime.
A. The “Hearsay” Rule
The hearsay rule is the basic evidentiary rule which provides assertions made by those outside of
the court, and such derivative evidence, are generally inadmissible58; one of the most accepted
legal definitions is “a statement not made in oral evidence in the proceedings that is evidence of
any matter stated”.59 The rule has its origins in the notion that the trier of fact could only receive an
objective, unbiased presentation of evidence if both sides have the same opportunity to confront
the source of information (that is, through cross-examination).60 As such, the evidentiary value rests
on the credibility of the out-of-court asserter.61 Essentially, the rule forbids notions of overheard
evidence—that is, someone’s testifying, “I heard him/her tell...”; or, “I heard say that….”62
Due to the confrontational style increasingly favored in the common law tradition, as opposed to
the so-called “inquisitorial” style of the civil law tradition, the hearsay rule has a greater presence
and bearing in the former tradition, with the civil law system being “far more receptive to derivative
evidence generally”.63
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B. Korea’s Treatment of the Hearsay Rule
The admissibility and authenticity of the electromagnetic record that forms e-evidence may be
questioned if its printed form is submitted as evidence into courts. In some countries that do not
have written regulations on these matters (e.g., Korea), their highest courts may render decisions or
judicial interpretations to address these issues. Such issues include the applicability of hearsay rule
to determine authenticity and admissibility of such evidence.64
Case 2.12: Yeong Nam Committee Case (Korea)65
The Supreme Court of Korea has decided that the general hearsay rule, outlined in the
Korean Criminal Procedural Law, does in fact apply to the authenticity and admissibility
of e-evidence.66 Applied to e-evidence, the rule was used to preclude the introduction
as evidence of printed forms of digital files (e.g., electronic documents; emails) saved
in computers, servers or other storage devices. Although underscoring that a digitized
document “is only different in terms of such document’s recording media” and not “in
substance […] significantly different” from a printed document containing the statements,
the Court nonetheless excluded the presentation of the printed material out of concern
for “the possibility of manipulation during the storage and printing process”. As such, and
with “no guarantee for cross-examination”, the Court ruled that “the hearsay rule applies to
authenticity of the content of a document recorded in digital files”, and that, “under Article
313 (1) of the Criminal Procedure Act, it is admissible as evidence only when the writers (or
‘the drafters’) or the declarants (or ‘the staters’) statement authenticates it”.67
As with evidence in general, the Court appears to be concerned with assuring the evidentiary
chain of custody—that is, its authenticity, integrity and reliability—and, therefore, with
demonstrating a proper showing of the printed page as an authentic representation of the
original, e-evidence.
C. Exceptions to the Hearsay Rule
As with any rule, there are exceptions to the applicability of hearsay rules. Such examples might
be implemented through various routes. Korea, which has been used as an example already, has
introduced exemptions through both legislative and judicial mechanisms.68
In Korea, the legislative exception is rather limited and constrained; by contrast, the judicial
exceptions have been more expansive. In the aforecited Korean Supreme Court’s decision, a
printed version of the digital file was deemed admissible only if its authenticity were established by
the testimony of its asserter at a preparatory hearing to during a trial.69
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In addition to such an exception, the Court has given several other exceptions to the general
applicability of the hearsay rule:
1
e-Evidence is not hearsay if digital file itself serves as a direct evidence of the offense.70
For instance, in texted phone messages creating fear or apprehension constitute direct
evidence of crime in some countries criminalizing cyberstalking (e.g., Korea);71 or child
pornography on a computer constitutes a direct evidence of crime in some countries (e.g.,
USA).72
2
e-Evidence is not hearsay if it is submitted to discredit the truthfulness of a statement, or
where it is circumstantial evidence to an indirect fact. For instance, evidence showing that a
certain file was run can be used as circumstantial evidence to indirect facts.73
3
e-Evidence that is automatically generated and which does not incorporate any thoughts
or emotions is not hearsay. For instance, network log records, web history, call history,
GPS navigation information, file meta-information, etc. are all admissible on a showing of
authenticity, integrity and reliability.74
Conclusion
Investigations must be prepared to turn into prosecutions if they are to have any effect. The
evidentiary record, upon which adjudication must turn, being developed from e-evidence,
specialized protocols and certifications ought to be developed. It is important that the established
procedures, recognize the unique nature of e-evidence, and assure its authenticity, integrity, and
reliability. In light of the fragility of e-evidence, law enforcement agencies must look for ways to
preserve e-evidence throughout the entirety of the investigatory and prosecution process, from
collection, through analysis and on to submission to court. Only trained and expert personnel,
with digital forensic expertise, should handle e-evidence. All personnel should work according to
established and standardized guidelines, procedures and protocols. Reliable, regularly-calibrated,
and tested tools and equipment should be used, and all evidence, for the entire chain of custody—
collection, analysis, submission and disposal—, should be uploaded to a central, online e-evidence
management system.
Consideration should be given as to whether international recognition of evidence could be best
facilitated by having an international body dedicated to developing certified training programs,
as well as standardized procedures and guidelines. Such a body might be established in a manner
similar to informal international information sharing and coordination centers (see section 4 B,
below). That body, which, for example, might be housed within INTERPOL75 or UNODC,76 could
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serve as a further vehicle for spreading good practices, as well as mitigating if not eschewing certain
evidentiary concerns that might arise in cross-jurisdictional matters (see section 2 E, below).
In working with e-evidence, it is important to understand how the hearsay rule or similar
exclusionary rules of evidence apply, as well as their exceptions. Hearsay rules exclude the
admission of evidence that might result in bias or preclude the trier of fact’s objectivity.
However, exceptions to hearsay rules may apply to e-evidence where there is no need to be
concerned with bias, notably in the following circumstances:
1 When the digital file itself constitutes direct evidence of a crime;
2 When it is circumstantial evidence to an indirect fact; or
3 When the information automatically generated.
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CHAPTER 2
E. Jurisdicational Issues
Table of Contents
Introduction 121
I. The Traditional Notion of Jurisdiction 122
II. Adaptive Jurisdiction Principles 123
A. Principle of Territoriality 123
B. Principle of (Active) Nationality 124
C. Principle of Passive Nationality 124
D. Protective Principle 125
E. Principle of Universal Jurisdiction 126
III. National Frameworks 126
A. Adaptive Legislative Jurisdictional Definitions 126
B. Informal Cooperation 127
IV. Multilateral Instruments 128
Conclusion 128
Introduction
The inherently transnational and cross-border nature of cybercrime renders investigating
cybercrimes and prosecuting cybercriminals much more difficult than traditional crimes,
largely due to the unique jurisdictional obstacles. Unlike their physical world analogs,
cybercrimes can be committed from virtually anywhere on the globe, with attacks
directed against targets in virtually any part of the world, and with effects potentially
being felt by people the world over. For these reasons, states have found it necessary
to reach beyond the territorial tethers that have been traditionally used to define
sovereignty. While it is important to make space for the theoretical underpinnings to
accordingly adapt to cyberspace, at the same time that increasingly-exerted ability of a
targeted state to reach offenders beyond its territory must be balanced with respect for
the sovereignty of other states.
Jurisdiction, understood in its basic sense as the official power to make legal decisions and
judgments,1 is a multi-faceted notion. Fundamentally, a state’s jurisdiction is understood as
being composed of three different authorities:
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1
Prescriptive authority – that is, authority pertaining to the authority to impose laws;
2
Adjudicative authority – that is, authority pertaining to the authority to investigate and
resolve disputes; and
3
Enforceable authority – that is, authority pertaining to the power to induce or punish
pursuant to its prescriptive authority and subsequent to its adjudicative authority.
Typically, when speaking of a state having jurisdiction, it is with regard to all three of these facets
(although, in exercising its authority, a court may apply the laws of another jurisdiction3). Three
distinct areas of positive4 jurisdictional conflicts exist: jurisdiction over the crime, over the evidence
and over the perpetrator.
This section focuses principally on jurisdiction over the crime and then briefly on jurisdiction
over the perpetrator. Further discussion of jurisdiction over the perpetrator and jurisdiction over
evidence is discussed in sections covering procedural and evidentiary issues,5 and in those covering
the cross-border context.6 This section discusses (I) traditional understandings of jurisdiction and
(II) the adaptive jurisdictional principles that have emerged in international law. Thereafter, it turns
to consider attempts to overcome jurisdictional issues (III) at the national level before (IV) briefly
noting the utility of international instruments in extending that process.
I. The Traditional Notion of Jurisdiction
Jurisdiction of a state to criminalize an act has traditionally been based on its sovereign control
over the specific territory in question—what is known as the principle of territoriality.7 With such
territorial control, the state is theoretically in a position to exert jurisdiction in its fullest extent for
crimes occurring between people in that space, and to do so to the exclusion of all other powers:
as the German sociologist Max Weber put it, the defining characteristic of the modern state is
that it is a “human community that (successfully) claims the monopoly of the legitimate use of
physical force within a given territory”.8 However, the nature of cyberspace often makes such a
facile delineation of jurisdiction exceptionally difficult and even possibly nonsensical due to the
inherent mobility, difficulty in proving location and geographic irrelevance in executing cybercrimes.
Since a cybercrime can be perpetrated from entirely a country while having substantial effects
within another country’s borders, the traditional basis for jurisdiction has become inadequate, if not
irrelevant.
Box 2.6: Inability to Prosecute Creator of the “Love Bug” Virus
On 4 May 2000, the so-called “Love Bug” virus (duly named because it was spread by
opening an email bearing the title of “ILOVEYOU”) rapidly “hopscotched” around the
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world, affecting some fifty million people, from the US Pentagon to the UK Parliament, and
costing an estimated US$10 billion worth of damages in a matter of hours.9 The bug was
programmed to replace all files with media extensions (images, documents, mp3s, etc.) with
copies of itself, and then to send an identical email to all of the contacts of a victim’s Outlook
address book.10
Law enforcement traced the bug to the Philippines and identified a Filipino, Onel de
Guzman, largely on the basis of an unusually heavy volume of data traffic to a computer
located in the home of de Guzman’s sister. The FBI and other authorities moved to take
action against de Guzman. However, progress and prosecution was stymied by the fact
that the Philippines did not, at that time, have laws governing computer crime (attempts
were made to prosecute him under theft, but the charges were dropped due to insufficient
evidence).11 As such, the extradition treaties were rendered ineffectual due to the
requirement of “dual criminality” (see section 2 A, above).
The “Love Bug” shows the limits of traditional notions of jurisdiction in cybercrime: an
individual released a destructive antigen into cyberspace, causing damage and deleterious
effects in some twenty countries, but, because he was physically located in a jurisdiction that
had not criminalized such behavior, no action could be taken by the affected states.
II. Adaptive Jurisdiction Principles
Faced with the increasingly limited applicability of the traditional notion of jurisdiction to
cybercrime, a series of adaptations have been developed, based principles of (A) territoriality, (B)
active nationality, (C) passive nationality, (D) protection and (E) universality.
A. Principle of Territoriality
The principle of territoriality, the notion underpinning so much of our understandings of law, and
especially for international law,12 is the base principle for traditional claims of jurisdiction, as well as
the basis upon which adaptive notions of jurisdiction are built.13 The traditional understanding of
jurisdiction operates on the conceit that the state inherently has complete jurisdiction over crimes
occurring in its territory.14
This principle has been extended to nebulous yet quasi-territorial areas. Under the law of the flag
(or the “flag principle”), vessels on the “high seas” (and those operating them) “possess” the
nationality of the flag that borne by the vessel15 (or where it is registered),16 and thus that state has
jurisdiction.17 In 2014, the North Atlantic Treaty Organisation (NATO) deemed cyberspace to be
sovereign domain akin to air, land and sea.18
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The principle of territoriality has been used in other ways to alter traditional fixed methods
and notions. For example, in one celebrated conflicts of law case, a New York court accepted
jurisdiction over a tort matter that occurred outside of its territory, but in which both parties were
New York residents; more interestingly, the court went on to apply New York law rather than the law
of the place of the tort, as traditional rules would have dictated: the court made this deviation on
the logic that the affected interests were in New York and had nothing to do with the other state.19
Similarly, under an adaptive understanding of the principle of territoriality, a cybercrime “initiated”
in the territory of one state but launched “at” another state, or made to occur “in”, another state’s
territory gives the affected state jurisdiction.20
Another approach to this problem has been to broaden the notion of territoriality to extent to
actions occurring in whole or in part in the prosecuting nation’s territory.21 Such an “occurrence”
can be understood to include use of the affected state’s infrastructure. Thus, this approach would
give the state jurisdiction where both22 or either victim or perpetrator are physically located in the
state when the crime was committed,23 or when any part of the crime was committed, planned or
facilitated in that country.24
The principle of territoriality remains the principal basis for exerting jurisdiction over cybercrimes.
The Budapest Convention, for example, makes it mandatory for signatories to adopt, legislatively
or otherwise, all that is necessary for establishing jurisdiction over listed offences committed from
within the state’s physical territory.25
B. Principle of (Active) Nationality
Under the principle of nationality (or of active nationality), a sovereign may regulate the actions
of its nationals abroad.26 The principle is most typically invoked when a national commits a crime
in a foreign state, and is more commonly found in the civil law tradition than in the common law
tradition.27 Under this principle, nationals of a state are obliged to comply with that state’s domestic
law even when they are outside of its territory.28 When a national commits an offence abroad, the
state is obliged to have the ability to prosecute if that conduct is also an offence under the law of
the state in which it was committed.29 In the instance of cybercrime, the principle is often relevant
in child pornography cases, where the national attempts to perform the illegal action in a location
where it is not a crime with the intent of distributing the subsequent material in his or her home
country. The principle has less relevance in cybercrime than in other areas of criminal law as most
cybercrimes can be effectuated from the perpetrator’s home, while having cross border effects.30
C. Principle of Passive Nationality
The reciprocal of the principle of active nationality the principle of passive nationality (or passive
personality). This principle applies where the national is the victim rather than the perpetrator,
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thereby giving the state jurisdiction over the crime by which its national is victimized. The principle
only takes on relevance when the entirety of the crime has occurred outside of the territory of
the state. The principle is a controversial one, as it not only aggressively expands the notion of a
state’s authority, but, in so doing, it also implies that the law of the state with territorial jurisdiction
is insufficient to remedy the wrong and incapable—or unwilling—to protect the interest of the
victimized national.31
Case 2.13: LICRA v. Yahoo!32 (France) and Yahoo! v. LICRA (USA)33
Plaintiffs, Union des Étudiants Juifs de France (“UEJF”) and La Ligue contre la Racisme et
l’Antisemitisme (“LICRA”), brought a civil action against the French and American entities
of Yahoo! over an internet auction of Nazi-period memorabilia under French criminal law,
the “wear[ing] or exhibit[ing]” of Nazi paraphernalia is prohibited.34 The French court of first
instance ruled that there were sufficient links with France to give the court full jurisdiction,
and proceeded to enjoin Yahoo! to take all necessary measures to dissuade and prevent
French users from accessing the material in question—in other words, to block access to the
online auction.35 Although the competence of the French court was challenged and appealed
in France, the original decision was upheld. Separate criminal proceedings in France were
dismissed and defendants acquitted on all criminal charges; that a verdict that was upheld on
appeal.
Following the French court decisions, Yahoo! brought suit in the United States, asking that
the French judgment be deemed without effect in the United States.36 The US District Court
for the Norther District of California instead found that the French court’s decision was
inconsistent with US constitutional guarantees of freedom of expression. However, the US
Court of Appeals for the Ninth Circuit reversed and remanded, with directions to dismiss the
action on the divided basis of lack of ripeness and of lack of personal jurisdiction.37
D. Protective Principle
The protective principle (also called the “security principle” and “injured forum theory”) is triggered
when the crime—effectuated from beyond the state’s territory—affects not just a national of the
state, but a national security interest (domestic or international), such as the proper functioning
of the government, or threatening the security of the state.38 It is closely related to competition
law’s “effects doctrine” (or, as it is also termed, the “implementation test”),39 which stipulates that
where the economic effects of the anticompetitive conduct experienced on the domestic market
are substantial, the affected state might exert jurisdiction over both foreign offenders and foreign
conduct.40 However, unlike both the effects doctrine and other forms of extraterritorial jurisdiction,
the protective principle is not performed in an ad hoc, case-by-case fashion, but is instead used as
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the basis for adopting statutes criminalizing extraterritorial behavior without regard to where or by
whom the act is committed.41 In the instance of the protective principle, neither perpetrator, nor
victim, nor the implicated infrastructure are necessarily within the state. Such a tenuous, even weak,
connection to the acting state, as well as to the significant,42 often (at least partially) preemptive
nature of the intrusion upon the sovereignty of the other state, makes extraterritorial exertions of
jurisdiction based on this principle particularly controversial, and, as a result, probably the least
used theory for sanctioning jurisdiction.43
E. Principle of Universal Jurisdiction
The principle of universal jurisdiction applies to specific crimes, but requires international—or
universal—consensus: this principle recognizes a sovereign’s right to adopt criminal laws restricting
the behavior, regardless of who commits it, or where it is committed, insofar as restricting that
conduct is recognized by nations as being of universal concern.44 Piracy on the high seas, regarded
as one of the first international crimes, is a classic example.45 The use of this principle in cybercrime
is limited because of the lack of consensus surrounding the criminality of cybercrimes.46 However,
and nonetheless, some states have extended universality to include certain cybercrimes—for
instance, the German where the criminal code authorizes its authorities to prosecute all crimes of
child pornography.47
III. National Frameworks
Regardless of whether international instruments are used to mitigate jurisdictional issues, national
legal frameworks (see sections 5 A, and 5 B, below) might be crafted so as to facilitate cooperation.
There are two means for a state to implement the above principles: either (A) by formally
authorizing adaptive jurisdictional definitions through legislation, or (B) by relying on investigatory
agencies to build relations—of varying degrees of formality—with their counterparts in other
states. Both options, though different, are of great importance and value, each allowing for faster
responses to concerns and better permitting the preservation of evidence.
A. Adaptive Legislative Jurisdictional Definitions
The first method that states might use to facilitate processes for obtaining jurisdiction over
cybercrimes occurring beyond their territory is to legislatively authorize adaptive jurisdictional
definitions discussed above.48 Doing so formally extents the state’s legal understanding of what
constitutes criminal acts, even if conducted beyond that state’s territory. In effect, it also puts would-
be perpetrators on notice.
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One such example of this approach is Australia’s Criminal Code Act of 1995.49 The Act’s coverage
of jurisdiction begins by building a broad basis of territorial jurisdiction (“standard geographical
jurisdiction”).50 The Act provides four different classifications and situations authorizing Australian
authorities with jurisdiction over a crime occurring beyond its territory (“extended geographical
jurisdiction”).51 Furthermore, the Act stipulates that subsequent criminal legislation is to include
a section stating what jurisdictional prescriptions apply.52 By so legislating, Australia has acted
“openly and notoriously”, proclaiming to the world that it is at least entitled to exert jurisdiction
beyond the immediate geographical borders.
B. Informal Cooperation
Additionally, or alternatively, states and authorities might address jurisdictional issues on a case-
by-case basis through informal understandings and shared experiences of cooperation. Such is
most typically done by law enforcement working directly with their counterparts in other states,
therein in building informal bonds. Doing so often results in faster responses to requests for
information sharing. The need for rapid information sharing is heightened at the investigatory
stage, as authorities typically need to work quickly to prevent tampering or destruction of evidence;
as already discussed, such is especially important for cybercrime. Informal cooperation is most
common when dealing with child pornography and trafficking cases.
In order for this informal cooperation to be successful, trust must be built up over time through
cooperation and personal ties. In the United States, the Computer Crime and Intellectual
Property Section (CCIPS) has put forth a policy encouraging and fostering the building of such
bonds.53 Responsible for implementing the US DoJ’s national strategies for combatting cyber and
intellectual property crimes, CCIPS “prevents, investigates, and prosecutes computer crimes by
working with other government agencies, the private sector, academic institutions, and foreign
counterparts”.54 To this effect, CCIPS initiates and participates in international efforts.55 The matter
of informal international cooperation is addressed in greater depth further on (see section 5 B,
below).
It bears noting that such bonds—the basic currency of diplomacy—need not be built exclusively
by working on jurisdictional or even investigatory matters, but also through exchanges, shared
trainings, and other periodic interactions. For instance, in early 2016, the world marveled at the
successful agreement that the United States and Iran managed to reach in securing the release
of ten US sailors captured by Iran after they strayed into Iranian territorial waters: the smooth
resolution to a potentially fraught incident was attributed to the open communications channels
between high-level representatives of each country that had been established during negotiations
over Iran’s nuclear program.56 In that particular case, the personal connections that US Secretary of
State John F. Kerry and Iranian Foreign Minister Javad Zarif had established allowed them to speak
directly at least five times over a ten hour period.57
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Even where formal instruments of international cooperation such as MLATs exist, informal
cooperation is often essential to the successful investigation and prosecution of cybercrime. Major
cybercrime cases frequently affect more than one country—for example, when administrators of
website selling stolen credit cards are arrested. In such cases, several states may be in a position
to exert jurisdiction. However, weighing the particularities and appropriateness is often beyond
the scope or means of MLATs. For instance, rather than take on the matter directly, the Budapest
Convention simply provides that, if appropriate, countries consult with each other to decide which
state should assert jurisdiction.58 At such a crossroads, informal understandings and relationships
often play a larger role in determining the expediency with which matters proceed. Indeed, when
more than one country is interested in a case, law authorities of the affected states will already be
collaborating before any turning point, such as an arrest, is reached. Thus, even if several countries
could claim jurisdiction, there may in fact be no dispute. These informal cooperative arrangements
are often the best milieu for considering which and whether targets will be tried in one country or
another (perhaps on the basis of which sentences are traditionally heavier), or on the order in which
prosecution and sentencing will occur.
IV. Multilateral Instruments
Where cybercriminal matters are concerned, negotiated multilateral instruments—rather than the
afore-discussed jurisdictional theories—are the most effective and important means of establishing
extra-territorial jurisdiction. International instruments are essential to combatting cybercrime as
jurisdictional issues arise frequently and in all forms. As such, international cooperation is crucial to
building effective, comprehensive legal frameworks to combat cybercrime.
While international cooperation comes in various forms, the two most common forms MLATs and
extradition treaties, both of which are discussed in greater depth further on (see section 5 A, below).
It bears noting that the issue of convergence of legislation is highly relevant, as a large number of
countries base their MLA regime on the principle of dual criminality.59
Conclusion
Although there are a number of offences that can be prosecuted anywhere in the world, regional
differences play an important role. Cybercrime offenses cannot be properly prosecuted within
the confines of traditional understandings of jurisdiction. Due to the transnational nature of
cybercrimes, states need to create means for investigating and prosecuting offenses which target
or affect them and which occur, or which are launched, from beyond their borders. Such begins by
developing comprehensive national legal frameworks. However, jurisdictional extensions meet,
and therefore must balance with, the sovereignty of other states. A diversity of legal bases exists
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for exerting jurisdiction, the most important of which is the territorial principle and its adaptive
notions.60
To best deal with the jurisdictional issues arising from cybercrimes, states need to both develop
inclusive definitions of jurisdiction and work on furthering international cooperation in investigations
and prosecutions. Increasing reliance on MLATs and on extradition treaties will assist such a process,
but those international instruments can only have full effect insofar as states develop adaptive legal
national frameworks. Indeed, the biggest obstacle to prosecuting cybercrimes is the dual criminality
requirement. As the dual criminality requirement is important on many levels, international
cooperation is needed so that similar cybercriminal legislation—at least on what constitutes
cybercrime offenses—is implemented.
It bears noting that establishing jurisdiction over the crime opens the door to other issues. A state
having acted formally through legislation to extend its jurisdictional ambit is confronted by two
subsequent challenges: first, as already discussed, that of acquiring personal jurisdiction over the
perpetrator; and, second, that of having sufficient capacity to investigate the crime, a matter that is
significantly complicated by the fact that the crime occurred beyond its own territory. Both of these
complications are best addressed by further developing not only formal levels of cooperation, but
also informal ones.
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CHAPTER 2
F. Institutional Framework
Table of Contents
Introduction 130
I. National Cybersecurity Strategy 130
A. Creating a National Cybersecurity Strategy 131
B. An Example of Good Practice 132
II. Organizing Agencies 133
A. Dealing Overlapping Authorities 133
B. Knowledge Sharing & Joint Taskforces 135
Conclusion 136
Introduction
As discussed,1 effectively fighting cybercrime begins by creating a legal framework,
which begins with effective legislation and subsequent executive action. That framework
must create space for PPPs and increase public awareness. Building upon the basis of
that legal framework, the fight against cybercrime requires an institutional framework
that allows for inputs and communications between and among both national and
international groups and agencies, and which provides at least a base of commonality for
policies, procedures, and processes.
This section addresses some good practices in building institutional frameworks to
combat cybercrime by (I) creating a national cybersecurity strategy (NCS) for safely
structuring, shaping, and developing cyberspace, and by (II) dealing with how to most
effectively organize authorities charged with various and often overlapping aspects
cyberspace.
I. National Cybersecurity Strategy
There is a strong global trend towards developing national cybersecurity strategies, with dozens of
countries across the globe already having done so.2 As such, there is now substantial guidance—
from both national and international sources—for those countries looking to create and tailor
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a national cybersecurity strategy to fit their own unique circumstances and exigencies. This
subsection looks at (A) various aspects that go into forming a comprehensive and effective national
cybersecurity strategy, and (B) considers an example of good practice.
A. Creating a National Cybersecurity Strategy
NCSs are strategic approaches that help states to mobilize and orchestrate resources to
comprehensively and efficiently understand what cyberspace means for them, and to prepare to
face threats coming from that space. An effective NCS is cross-dimensional and cross-cutting,
speaking to questions of policy, cybersecurity’s larger societal place and the nature of that society.
An NCS creates a broad, strategic framework by which relevant government agencies can carry
out national policies, thereby implementing a nationally consistent and systematic cybersecurity
policy. It is typically aspirational and propositional, requiring subsequent implementation. It
comprehensively touches upon all of the diverse factors pertaining to national cybersecurity, such
as specialized investigative units, increasing general institutional capacity, coordinating various
agencies, supporting knowledge-sharing and operational exchanges., As cybersecurity is a shared
responsibility that requires coordinated action from government authorities, the private sector and
civil society, an NCS also seeks to raise public awareness of cyber threats and how such incidents
might be prevented, as well as looking to limit proliferation of cyber weapons, thereby facilitating
prompt response and recovery to attacks. Countermeasures to cybercrimes might also be
discussed.
The NCS should be both inward and outward looking. The strategy must consider how best to
mobilize and coordinate diverse and disparate internal actors, ranging from law enforcement
agencies to those involved in the nation’s infrastructure (e.g., power grid, roads, dams). Doing as
much demands cooperation among all parties, private and public. For instance, one of the reasons
that the alleged US cyberattack on North Korea failed (in contrast to the Stuxnet cyberattack
launched against Iran)3 was North Korea’s severe internet and communications isolation, as well as
the utter secrecy imposed by the regime.4 This situation is highlighted as indicative of the fact that
securing cyberspace requires much more than the mere increase of activity by law enforcement;
Moreover, freedom of information and freedom a free, fluid cyberspace being beneficial to society
at large, it bears making it explicit that the authors are not advocating for the severe, dictatorial
measures imposed by the North Korean government. The NCS should not only be inward but
also must also be outward looking. It should be prepared with sufficient flexibility to facilitate
collaboration with other national and international institutions. Moreover, the NCS should account
and facilitate both formal and informal international inputs (see sections 5 A and 5 B).
Part of the strategy should have an office serving as a “control tower” role, both for implementing
and monitoring the strategy’s implementation, as well as for carrying on operations thereafter. Such
a centralized office is particularly important for coordinating among the diverse actors. This office is
crucial to effectively should bringing together all of the diverse elements that might be implicated
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in fighting cybercrime; while space for improvisation should be allowed, those elements should be
laid out in the NCS itself, rather than being left in an ad hoc fashion to the office. To facilitate and
build momentum, a timeline is typically included.
Given the disparate and developing elements covered, certain states have taken a fragmented
approach, forming the NCS not of one document but of several. Such is not necessarily
problematic, insofar as the fragmented elements forming the NCS can be clearly and coherently
pieced together without effort or confusion.5
B. An Example of Good Practice
The United Kingdom’s Cyber Security Strategy, published on 25 November 2011, provides an
example of good practice in developing a NCS.6 The Strategy begins broadly, being introduced as
“set[ting] out how the UK will support economic prosperity, protect national security and safeguard
the public’s way of life by building a more trusted and resilient digital environment”.7
The Strategy proceeds by setting out its raison d’être in four large and basic goals that
implementation is hoped to accomplish:
1 ackling cybercrime, thereby making Britain one of the most secure places in the world to
T
do business in cyberspace;
2 ncreasing cyberattack resilience, thereby increasing the Britain’s ability to protect interests
I
in cyberspace;
3
Helping shape and open-up cyberspace, thereby making it a stable and vibrant space in
which the public can safely operate, therein contributing to an open society;
4 Eliminating silos, thereby creating cross-cutting knowledge, skills, and capability
needed to underpin cybersecurity at large.
These four, overarching goals—intended to deliver the Strategy’s vision of “a vibrant, resilient
and secure cyberspace”8—are divided into fifty-seven discreet, manageable tasks covering a
full range of issues, including strengthening law enforcement agencies, examining current laws,
sharing information on cyber threats, adopting new procedures for responding to cyber incidents
and strengthening international cooperation.9 Each task is assigned to one of the following six
British agencies in charge of the Strategy’s implementation: the Home Office,10 the Department for
Business, Energy and Industrial Strategy (BEIS),11 the Department for Culture, Media and Sport,12
the Cabinet Office,13 the Ministry of Defence14 and the Foreign and Commonwealth Office (FCO).15
The Strategy’s publication in 2011 led to a four-year implementation period. Momentum was
maintained through annual progress reports, with the Cabinet Office’s Office of Cyber Security
and Information (OCSI) operating as the appraisal and management center.16 At a cost of GB£860
million to date,17 and with the government having committed a further GB£1.9 billion over the next
five years to cybersecurity,18 the Strategy is a robust commitment.
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II. Organizing Agencies
Just like the physical world, safely structuring, shaping, and developing cyberspace so that all
might benefit requires the input of a diversity of actors. As such activity often results in overlapping
competencies and authorities, it is important for states to develop an institutional framework by
(A) laying out a comprehensive NCS that addresses the vast array of cyberspace issues and by (B)
facilitating knowledge sharing among the actors, such as through the creation of joint taskforces.
A. Dealing Overlapping Authorities
A comprehensive NCS goes well beyond cybercrime and cybersecurity, encompassing a variety
of cyberspace issues. It should discuss and develop not only the country’s larger vision and policy
issues, but also should explore approaches for promoting ICT development, implementing
regulations on the misuse of technology, finding solutions to privacy concerns and exploring the
development of investigative and prosecutorial procedures. Due to the cross-cutting nature of
cyberspace and of such concerns, various government agencies and offices necessarily handle
these issues. While each agency should, in accordance with its own mandate, carry out its own
tasks, a timeline and plan for coordinating efforts and for facilitating inter-agency cooperation is
crucial to effective strategy implementation.
Broadly speaking, the development of cyberspace can be divided into four areas:
1 I
CT policies (e.g., regulation, development);
2 C
ybersecurity (e.g., infringements, certifications);
3 U
ser protection (e.g., protecting privacy, personal information); and
4 C
ybercrime (e.g., combatting, investigating, prosecuting).
In mapping responsibilities, it is important that agency roles and responsibilities be clearly assigned.
Doing so will allow for the discreet handling of issues, therein avoiding confusion and overlap, as
well as facilitating resource allocation and nurturing the development of expertise. Furthermore, the
institutional framework should support the legislative and executive mandates created under the
legal framework, appropriately assigning specific roles to various agencies. In order for the overall
institutional framework to function properly, it is essential that involved agencies constantly engage
in self-critical evaluation procedures, as supported and supervised by a central, “control tower”
office. An essential part of this process depends upon appropriate feedback loops that the central
office must consider.
An example of the clear assigning of tasks can be found in the United Kingdom, as discussed
above; a more detailed breakdown of the Korean experience follows:
Page 133 | Chapter 2 | § F. Institutional Framework Table of Contents
Table 2.1: Relevant Cyberspace Laws and Administering Agencies
Categories Agencies in Charge Relevant Statutes
Information Ministry of Science, ICT and Act on Promotion of Information and
Future Planning Communications Network Utilization and
Communications Policies Information Protection
Korea Communications
Commission Digital Signature Act
Act on the Protection, Use, etc., of
Location Information
Telecommunications Business Act
Cybersecurity Ministry of Science, ICT and Act on the Protection of Information and
Future Planning (for the private Communications Infrastructure
sector) Act on Promotion of Information and
KrCERT Communications Network Utilization and
Information Protection
National Intelligence Service
(for the public sector)
User Protection Ministry of Interior Personal Information Protection Act
Korea Communications Act on Promotion of Information and
Commission Communications Network Utilization and
Information Protection
Financial Services Commission
Special Act on Refund of Amount of
Damage Caused by Telecommunications
Bank Fraud
Cybercrime National Police Agency Criminal Act
Prosecutor’s Office Criminal Procedure Act
Ministry of Justice Protection of Communications Secrets
Act
As the above table indicates, various acts and agencies play a role in regulating cyberspace. For
example, the Act on Promotion of Information and Communications Network Utilization and
Information Protection (APICNU), a major statute in Korea’s information communications sector,
has as its purpose “to promote the utilization of information and communications networks, to
protect the personal information of users utilizing information and communications services, and
to build a safe and sound environment for the information and communications networks in order
to improve the citizen’s lives and enhance the public welfare.”19 The two competent authorities for
this Act are the Ministry of Science, ICT and Future Planning (MSIP) and the Korea Communications
Commission (KCC). MSIP mainly deals with facilitating utilization of ICT and maintaining
cybersecurity in the private sector, while KCC is in charge of regulating the telecommunications
business and of protecting personal information in the information communications network.
However, while both MSIP and KCC are the major institutional players, for certain violations, the
APICNU provides criminal sanctions, the triggering of which shifts authority away from MSIP and
KCC to those agencies generally charged with investigative and prosecutorial roles.
Page 134 | Chapter 2 | § F. Institutional Framework Table of Contents
Power sharing schemes similar to that of the APICNU exist both in most of the other Korean laws,
as well as in the laws of many other states. As such, it is all the more important that both a clear
institutional framework and a targeted NCS be developed, with competencies and responsibilities
being clearly assigned and delineated on the basis of the legal framework.
B. Knowledge Sharing & Joint Taskforces
Knowledge sharing is a key corollary to any power-sharing scheme, regardless of how formal or
informal. Just as a certain degree of flexibility and imprecision should be left in the law in order
to accommodate the fast-paced and ever-evolving nature of cybercrime, it is also important that
assignations of power not be excessively limiting, and that appropriate inter-agency and inter-
departmental communication plans and paths be opened and employed. While the cybersecurity
“control tower” office can facilitate information sharing, it is important that each agency realizes
and acts on the understanding that information on threats can come through different routes,
thereby facilitating investigation, prosecution and overall threat detection.
One way of connecting various agencies is through joint investigative taskforces. In forming joint
taskforces, each participating agency assigns contact officers to the joint taskforce. In certain cases,
those officers may even be seated in the same physical location or otherwise obliged to maintain
frequent contact, and may even jointly participate in criminal investigations. A joint taskforce
might be organized on a temporary basis in order to resolve a particular case, or established on
a more permanent basis. In any case, longer-term arrangements that open up regular channels
of communications, and which encourage direct and frequent interactions between agency point
persons are helpful in developing a continuous cooperative system between the agencies.
Joint taskforces are used by a number of countries. For instance, in the United States, the DoJ has
organized the National Cyber Investigative Joint Task Force (NCIJTF) under the purview of the
FBI Cyber Division. Separately, the Department of Homeland Security (DHS) has organized more-
disparate and localized the Electronic Crimes Task Forces (ECTFs) under the auspices of the Secret
Service.20 Formed in 2008, the NCIJTF is the primary US agency responsible for coordinating cyber
threats investigations and liaisons among the FBI, Central Intelligence Agency (CIA), Department of
Defense (DoD), DHS, and NSA.21 The ECTFs, originally created in New York in 1996 to combine the
resources of academia, the private sector and local, state, and federal law enforcement agencies
in combating computer-based threats to the nation’s financial payment systems and critical
infrastructures,22 was expanded by federal legislative action23 to create a nationwide network (with
two offices abroad) that focuses on identifying and locating international cyber criminals connected
to cyber intrusions, bank fraud, data breaches, and other computer-related crimes.24
Similarly, in Korean, the KSPO established the Joint Personal Information Investigation Team (JPIIT)
in April 2014 following the theft of extremely sensitive personal data—including identification
numbers, addresses and credit card numbers, which affected over twenty million South Koreans
Page 135 | Chapter 2 | § F. Institutional Framework Table of Contents
equal to roughly forty percent of the population.25 While the massive breach on Target Corporation
was due to malware on point-of-sale systems,26 the Korean banks were compromised by a third-
party worker; these two disparate cyberthreats underscore the wide variety of threats facing
consumers.27
JPIIT is composed of personnel from eighteen different groups, eleven of which are government
agencies and six of which come from the private sector. Different types of tasks are assigned to
different agencies. For instance, private actors, including the Online Privacy Association (OPA),
communications companies and portal companies, deal with collecting and analyzing illegal
personal information. Additionally, the Korean Internet and Security Agency (KISA) deals with
infringements. The Ministry of the Interior deals with inspecting personal information security. KSPO
and the National Police Agency handle investigations and prosecution. The National Tax Service
addresses recovery of criminal proceeds. The Ministry of Strategy and Finance (MOSF), MSIP and
the Personal Information Protection Commission (PIPC) address the improvement of policy and
regulation. Supervising business communications is done by the Financial Services Commission
(FSC) and the Financial Supervisory Service (FSS) supervises the finance sector, while MSIP and the
Korea Communications Commission (KCC) supervises communications in the ICT sector.
Crucially, JPIIT sits with the High-Tech Crimes Investigation Division 1 of the Seoul Central District
Prosecutor’s Office. As this Division is charged with investigating cybercrimes, the joint taskforce
participates both directly and indirectly in cybercriminal investigations, should matters escalate
to such a level. The participation of a diversity of actors, and the intense degree of information
sharing between them, facilitates management of tasks pertaining to personal information, be it
the prevention and monitoring of personal information crimes, investigation and prosecution or
the recovery of criminal proceeds. Because JPIIT operates at the case-intake point, members can
immediately report to their respective agencies upon encountering an issue that falls under their
group’s particular purview.
Private sector actors play a crucial role in JPIIT by collecting various types of illegally distributed
personal information from their regular business operations and handing them over to law
enforcement agencies. In so doing, the methods in which cybercriminals use the information
system is better understood and directly reported to law enforcement, thereby facilitating repair of
vulnerabilities at the earliest stage possible.
Conclusion
Countries are increasingly establishing NCS as part of their institutional frameworks. Doing so
facilitates a robust, organized and structured response to insecurity in cyberspace. These strategies
contribute to mobilizing government action—by eliciting wider agency participation, facilitating
capacity building and knowledge sharing and helping to assure consistent implementation of
Page 136 | Chapter 2 | § F. Institutional Framework Table of Contents
cybersecurity policies—, while also facilitating public awareness and engagement. Strategy
implementation can be facilitated and accelerates by designating an office to manage and
periodically assess progress.
The institutional framework should take a holistic approach to dealing with cyberspace. As so many
divergent actors are required to safely structure, shape, and develop cyberspace for everyone’s
benefit, it is vital to share accumulated information and expertise. Joint investigative task forces that
bring together relevant actors: agencies involved in systems’ administration, as well as investigatory
and prosecutorial proceedings, need to be brought together on a regular basis. Space should also
be made to periodically bring key private sector actors, such as data privacy groups and ISPs, to the
table.
Page 137 | Chapter 2 | § F. Institutional Framework Table of Contents
End Notes
Referenced in: § A. Working 7. On the basis of the legal principle of nulla 13. Ibid. See also, ITU Understanding
Definition of Cybercrime poena sine lege (Latin for “no penalty Cybercrime, supra § 1 B, note 1, at 11 &
without a law”), it is generally understood 41 (“For example, a person who produces
that crimes must be defined with USB devices containing malicious
1. Brenner, “Thoughts, Witches and appropriate certainty (legal certainty) and software that destroys data on computers
Crimes,” supra § 1 B, note 2. definiteness (both in the committed act when the device is connected commits
and the requisite mental state), and with a crime.”); UNODC Cybercrime Study,
2. “Cybercrime refers to any crime that can
appropriate notice given, in order for the supra § 1 B, note 7 (“In practice, computer
be committed by means of a computer
rule of law to exist. data or information likely includes data
system or network, in a computer system
or information stored on physical storage
or network or against a computer system. 8. Generally speaking, laws are interpreted media (such as hard disk drives, USB
In principle, it encompasses any crime by courts according to their “plain” or memory sticks or flash cards), [….]”).
capable of being committed in an “literal” meaning, by which judges are
electronic environment.” Background to read the letter of the law in a textual, 14. See, e.g., League of Arab States, Arab
Paper for the Workshop on Crimes word-for-word sense without diverting Convention on Combatting Information
Related to the Computer Network, 10th from its true meaning, with words given Technology Offences (21 Dec. 2010),
UN Congress on the Prevention of Crime their plain, ordinary and literal meaning. [hereafter, “Arab Convention”], Art. 2(6);
and the Treatment of Offenders, (10–17 See, e.g., United Kingdom: Fisher v Budapest Explanatory Report, supra § 1
Apr. 2000) A/CONF.187/10, [hereafter, Bell [1961] 1 QB 394; United States: D, note 14.
“UNODC Conference Paper”] p. 4, at Connecticut Nat’l Bank v. Germain,
https://www.unodc.org/documents/ 112 S. Ct. 1146, 1149 (1992). The rule 15. CoE’s Cybercrime Convention Committee
congress//Previous_Congresses/10th_ of “narrow” or “strict” construction of (T-CY) notes that “the definition of
Congress_2000/017_ACONF.187.10_Crim criminal statutes, the opposite of “liberal” ‘computer system’ in Article 1.a [of the
es_Related_to_Computer_Networks.pdf. or “broad” construction, means that a Budapest Convention] covers developing
criminal statute may not be expanded forms of technology that go beyond
3. UN Secretariat, “Background Paper: traditional mainframe or desktop
by implication or intent beyond the fair
Workshop 3 on Strengthening Crime computer systems, such as modern
meaning of the statute’s language; its
Prevention and Criminal Justice mobile phones, smart phones, PDAs,
corollary, the rule of lenity, holds that
Responses to Evolving Forms of Crime, tablets or similar”. “Guidance Note # 1:
ambiguity should be resolved in the
Such as Cybercrime and Trafficking in On the Notion of ‘Computer System’:
defendant’s favor. See, e.g., United
Cultural Property, Including Lessons Art. 1.a, Budapest Convention,” adopted
States v. Granderson, 114 S. Ct. 1259,
Learned and International Cooperation,” by the T-CY at its 8th Plenary, (5 Dec.
1263 (1994). The result of this approach
13th UN Congress on Crime Prevention 2012) CoE, T-CY at https://rm.coe.int/
is that “when choice has to be made
and Criminal Justice, (2 Feb. 2015) A/ CoERMPublicCommonSearchServices/D
between two readings of what conduct
CONF.222/12, p. 6, at http://www.unodc isplayDCTMContent?documentId=09
[a legislature] has made a crime, it is
.org/documents/congress/Docume 000016802e79e6. UNODC Cybercrime
appropriate, before [choosing] the harsher
ntation/A-CONF.222-12_Workshop3/ Study, supra § 1 C, note 7 (“Based on the
alternative, to require that [the legislature]
ACONF222_12_e_V1500663.pdf. core concept of processing computer
should have spoken in language that is
clear and definite.” Dowling v. United data or information, it is likely that
4. In addition, a cybercrime may be
States, 473 U.S. 207, 214 (1985) (internal provisions typically apply to devices such
prosecutable under the general criminal
quotations and citations omitted). as mainframe and computer servers,
code. A standard forgery statute may
desktop personal computers, laptop
stretch to cover electronic forgery, theft
9. Basic information on international and computers, smartphones, tablet devices,
via electronic systems may be covered by
regional instruments on cybercrime is and on-board computers in transport and
a standard theft statute, and so on.
provided in appendix 9 A (Multilateral machinery, as well as multimedia devices
5. COMSEC, “Report of the Commonwealth Instruments on Cybercrime). such as printers, MP3 players, digital
Working Group on Experts on cameras, and gaming machines.”).
10. Oxford English Dictionary.
Cybercrime,” Meeting of Commonwealth
16. Kristin Finklea & Catherine A. Theohary,
Law Ministers and Senior Officials, 11. UNODC Cybercrime Study, supra § 1 B, “Cybercrime: Conceptual Issues for
Gaborone, Botswana (5–8 May note 7. Congress and Law Enforcement,” US
2014), Annex A, pp. 13–14, at http://
Congressional Research Service (CRS), (15
thecommonwealth.org/sites/default/files/ 12. See, e.g., Budapest Convention, supra § 1
Jan. 2015), p. 3, at https://fas.org/sgp/crs/
news-items/documents/Report_of_the_ B, note 32, at Art. 1.b.
misc/R42547.pdf.
Commonwealth_Working_Group_of_
Experts_on_Cybercrime_May_2014.pdf. 17. See supra § 1 C.
6. See, e.g., Wall, “Policing Cybercrimes,”
supra § 1 B, note 33.
Page 138 | Chapter 2 | End Notes Table of Contents
18. “An Electronic Trail for Every 28. See, e.g., Avaneesh Pandey, “Energy- 40. See infra § 2 E. See also Sunil
Crime,” Homeland Security Efficient ‘Biocomputer’ Provides Viable Kumar Gupta, “Extradition Law and
Newswire, (19 Apr. 2011), at http:// Alternative to Quantum Computers,” IBT, the International Criminal Court,”
homelandsecuritynewswire.com/ (28 Feb. 16), at http://www.ibtimes.com/ Berkeley Journal of Criminal Law,
electronic-trail-every-crime. energy-efficient-biocomputer-provides- VOl. 3 (2000), at http://scholarship.
viable-alternative-quantum-computers law.berkeley.edu/cgi/viewcontent.
19. Sarah Gordon & Richard Ford, “On -2326448. cgi?article=1072&context=bjcl.
the Definition and Classification of
Cybercrime,” Journal of Computer 29. Alex Hern, “Google Says Machine 41. See, e.g., “Long-Arm Statute,” LII, Cornell
Virology, Vol. 2 (2006), pp. 15–19. Learning Is the Future. So I Tried It University Law School, at https://www.law.
Myself,” Guardian, (28 Jun. 2018), cornell.edu/wex/long-arm_statute.
20. John Lasseter, dir. Toy Story. Walt Disney at https://www.theguardian.com/
Pictures & Pixar Animation Studios. 1995. technology/2016/jun/28/google-says- 42. “Cybercrime,” INTERPOL, at http://www.
Film. machine-learning-is-the-future-so-i-tried- interpol.int/Crime-areas/Cybercrime/
it-myself/. Cybercrime.
21. ITU, “Overview of the Internet of Things,”
Recommendation ITU-T Y.2060 (Jun. 30. See supra § 1 C for a discussion of the 43. UNODC Conference Paper, supra note 2.
2012), Internet of Things Global Standards debate on the strength of encryption.
Initiative, at http://www.itu.int/ITU-T/ 44. Ibid.
recommendations/rec.aspx?rec=y.2060. 31. David R. Johnson & David Post, “Law and
45. See, e.g., Portugal: Cybercrime Law, Law
Cf. US Federal Trade Commission Borders: The Rise of Law in Cyberspace,”
No. 109 (15 Sep. 2009), Art. 11, at http://
(FTC), “Internet of Things: Privacy and Stanford Law Review, Vol. 48 (May 1996),
www.wipo.int/edocs/lexdocs/laws/en/pt/
Security in a Connected World,” FTC 1367, at https://cyber.harvard.edu/is02/
pt089en.pdf.
Staff Report, (Jan. 2015) [hereafter, “FTC readings/johnson-post.html.
Report”], at https://www.ftc.gov/system/ 46. Supra Budapest Convention, supra § 1
files/documents/reports/federal-trade- 32. The basis for international public law
B, note 32 and Arab Convention, supra
commission-staff-report-november- is by and large built upon the notion
note 14.
2013-workshop-entitled-internet-things- of the sovereignty of the Westphalian
privacy/150127iotrpt.pdf. state. See, e.g., Andreas Osiander, 47. CIS, Agreement on Cooperation
“Sovereignty, International Relations, among the States Members of the
22. Ibid. See, also, “Internet of Things (IoT),” and the Westphalian Myth,” International Commonwealth of Independent States
Cisco, at http://www.cisco.com/c/en/us/ Organization, Vol. 55 (2001), p. 251–87. (CIS) in Combating Offences Related to
solutions/internet-of-things/overview. For a fuller discussion, see infra § 2 E. Computer Information (2001) (entered
html. into force on 14 Mar. 2002) [hereafter,
33. See Johnson & Post, supra note 31, at p.
“CIS Agreement”], Art. 5, at https://cms.
23. “How Hackers Could Use Doll to Open 1379.
unov.org/documentrepositoryindexer/
Your Front Door,” BBC News, (14 Feb.
34. BI Intelligence, “Samsung Is Building a GetDocInOriginalFormat.drsx?DocID=
2017), at http://www.bbc.com/news/
Smart Cities Network in South Korea,” 5b7de69a-730e-43ce-9623-9a103f5cabc0.
technology-38966285.
Business Insider, (25 May 2016), at http://
48. African Union, African Union Convention
24. See, e.g., FTC Report, supra note 21. www.businessinsider.com/samsung-is-
on Cyber Security and Personal Data
building-a-smart-cities-network-in-south-
25. See, e.g., Luke Simmons, “What Is the Protection, EX.CL/846(XXV) (27 Jun.
korea-2016-5.
Difference between the Internet of 2014) [hereafter, “AU Convention”], Art.
Everything and the Internet of Things,” 35. See, e.g., “Brief: Smart Cities,” World 28, para. 1 & 2, at http://pages.au.int/
CloudRail, (14 Oct. 2015), at https:// Bank (8 Jan. 2015), at http://www. infosoc/cybersecurity. The AU Convention
cloudrail.com/internet-of-everything-vs- worldbank.org/en/topic/ict/brief/smart- is also sometimes referred to as the
internet-of-things/. cities; Smart Cities Council, at http:// “Malabo Convention”. Although a
smartcitiescouncil.com/. positive step in the progress of the fight
26. See, e.g., Tim Bajarin, “The Next against cybercrime, the AU Convention
Big Thing for Tech: The Internet of 36. See, e.g., European Network of Living is deficient in certain areas. See, e.g.,
Everything,” Time, (13 Jan. 2014), at Labs, at http://www.openlivinglabs.eu/. Mailyn Fidler, “The African Union
http://time.com/539/the-next-big-thing- Cybersecurity Convention: A Missed
for-tech-the-internet-of-everything/. 37. See Johnson & Post, supra note 31, at p. Human Rights Opportunity,” Council of
1369. Foreign Relations Blog, (22 Jun. 2015), at
27. See, e.g., “Intelligent Machines Quantum http://blogs.cfr.org/cyber/2015/06/22/the-
Computing Now Has a Powerful Search 38. See supra § 1 A. See also Shearer,
african-union-cybersecurity-convention-
Tool,” MIT Technology Review, (5 Apr. Extradition in International Law,
a-missed-human-rights-opportunity/.
2017), at https://www.technologyreview. (Manchester: Manchester University
This matter is discussed in greater depth
com/s/604068/quantum-computing-now- Press, 1971), p. 137; Schultz, “The Great
further on; see infra § 5 A.
has-a-powerful-search-tool/. Framework of Extradition and Asylum,” in
Treatise on International Criminal Law, Vol. 49. UNODC Cybercrime Study, supra § 1 B,
2 (1973), p. 313. note 7.
39. See FTC Report, supra note 21. 50. See e.g., United Kingdom: Computer
Misuse Act, 1990.
51. See, generally appendix 9 C.
Page 139 | Chapter 2 | End Notes Table of Contents
52. As indicated in appendix 9 C, 196 58. See, e.g., Kosovo: Law on Prevention and 65. OAS provides that “For the purposes of
countries are targeted. As of 2 Fight of the Cyber Crime (2010), Art. 3, this diagnosis, ‘cybercrime’ is defined as
October 2015, approximately 76.0% which defines “cybercrime” as a criminal a criminal activity in which information
(149 countries) have domestic law that activity carried out in a network that has technology systems (including, inter
comprehensively or partially governs as objective or as a way of carrying out alia, telecommunications and computer
cybercrime irrespective of having draft the crime, misuse of computer systems systems) are the corpus delicti or means
law on cybercrime. Specifically, 137 and computer data, at http://www. of committing an offense.” Final Report
countries adopted domestic law that kuvendikosoves.org/common/docs/ of the Second Meeting of Government
holistically or partly covers cybercrime, ligjet/2010-166-eng.pdf. Experts on Cyber Crime, (2000), OAS,
and another 12 countries had or have p. 2, at http://www.oas.org/juridico/
a draft law that deals with cybercrime, 59. ITU Understanding Cybercrime, supra § 1 english/cybGE_IIrep.pdf (in English).
along with having other laws that address B, note 1, at 12. See also Thomas Weigend, Preparatory
cybercrime. Further, 12 countries had or Colloquium for the 20th International
60. UNODC Cybercrime Study supra § 1 C,
have a draft cybercrime law in progress. Congress of Penal Law on “Information
note 7, at 11.
However, 33 countries have no domestic Society and Penal Law” (organized by
legislation pertaining to cybercrime, while 61. CIS Agreement provides that “offences AIDP), § I (Criminal Law, General Part),
2 countries have no data to assess their against computer information” is § 1: Concept paper and questionnaire,
legislative statuses. defined as a criminal act of which (2012), AIDP, p. 1 (articulating that “The
target is computer information. Supra term ‘cybercrime’ is understood to cover
53. Examples of domestic law concerning criminal conduct that affects interests
note 33, at Art. 1(a). See also Budapest
cybercrime whose name explicitly uses associated with the use of information
Convention, supra § 1 B, note 32; AU
the term “cybercrime” can be found in, and communication technology (ICT)
Convention, supra note 48; and the
among others, Botswana, Cybercrime (emphasis added) [….]. The common
Directive on Fighting Cyber Crime within
and Computer Related Crimes, 2007 and denominator and characteristic feature of
Economic Community of West African
Philippines, Cybercrime Prevention Act, all cybercrime offences and cybercrime
States [hereafter, “ECOWAS Directive”],
(2012). investigation can be found in their relation
at https://ccdcoe.org/sites/default/
files/documents/ECOWAS-110819- to computer systems, computer networks
54. See Russia: Criminal Code, ch. 28, Crimes
FightingCybercrime.pdf. and computer data (emphasis added)
in the Sphere of Computer Information, at
[….]”), at http://www.penal.org/IMG/pdf/
http://www.wipo.int/edocs/lexdocs/laws/
62. See SCO, Agreement between the Section_I_EN.pdf.
en/ru/ru006en.pdf.
Governments of the Member States of
the SCO on Cooperation in the Field of 66. David Wall, “Cybercrimes: New Wine, No
55. A list of domestic legislation regarding
International Information Security (2009) Bottles?,” in Pamela Davies, Peter Francis
concerning cybercrime whose name
[hereafter, “SCO Agreement”], Art. 2., at & Victor Jupp (eds.), Invisible Crimes:
provides the term similar to “cybercrime”
http://www.ccdcoe.org/sites/default/files/ Their Victims and their Regulation, (New
includes, but is not limited to, Antigua
documents/SCO-090616-IISAgreement. York: Macmillan, 1999). See also Peter
and Barbuda: Electronic Crimes Act,
pdf (considering “information crime” N. Grabosky, “Virtual Criminality: Old
(2013); Sri Lanka: Computer Crime
as one of the major threats in the field Wine in New Bottles?,” Social & Legal
Act, (2007); Bahrain: Law concerning
of ensuring international information Studies, Vol. 10 (2001), p. 243 (adapting
Information Technology Crimes, (2014);
security); Annex 1, ibid. (stating that the phrase be more of a matter of “old
and Dominican Republic: Law on High
“information crime” means use of and/ wine in new bottles”). The origin of the
Technology Crimes, (2007).
or attack on information resources in the phrase is Biblical: “No one sews a piece
56. See, e.g., China: Criminal Law, (2016), information space for illegal purposes). of unshrunk cloth on an old cloak, for the
Art. 286 (“Whoever, in violation of State patch pulls away from the cloak, and a
regulations, cancels, alters, increases 63. CIS Agreement, supra note 47. worse tear is made. Neither is new wine
or jams the functions of the computer put into old wineskins; otherwise, the
64. See SCO Agreement, supra note 62.
information system, thereby making it skins burst, and the wine is spilled, and
impossible for the system to operate the skins are destroyed; but new wine
normally, if the consequences are is put into fresh wineskins, and so both
serious, shall be sentenced to fixed- are preserved.” The Bible, Mat. 9:16–17
term imprisonment of not more than (NRSV).
five years or criminal detention.”). See,
67. Ian Walden, Computer Crimes and Digital
e.g., Abhishek Pratap Singh, “China’s
Investigations (2d ed.), (Oxford: Oxford
First Cyber Security Law,” Institute
University Press, 2016), para. 2.27.
for Defense Studies and Analyses,
(23 Dec. 2016), at http://www.idsa.in/ 68. Anne Flanagan, “The Law and Computer
backgrounder/china-first-cyber-security- Crime: Reading the Script of Reform,”
law_apsingh_231216#footnote5_w4sr2kl. International Journal of Law & Information
Technology, Vol. 13, Issue1 (2005), pp.
57. See, e.g., Oman: Royal Decree Issuing
98–117.
the Cyber Crime Law, (2011), which states
that “cybercrime refers to crimes referred
to in this law,” at http://www.qcert.org/
sites/default/files/public/documents/
om-ecrime-issuing_the_cyber_crime_law-
eng-2011.pdf.
Page 140 | Chapter 2 | End Notes Table of Contents
69. For instance, it has been noted at 83. AU Convention, supra note 48. As with 95. See “About UNODC,” UNODC, supra
UNICRI proceedings that “Due to the the other instruments covered in this note 93.
rapidly evolving nature of cybercrime, section, the AU Convention is discussed
many governments and international as a means of illustrating the diverse ways 96. UNODC Cybercrime Study, supra § 1 B,
organizations have shied away from that cybercrime has been classified. A note 7.
adhering to a strict definition of the deeper discussion of various international
97. Ibid., at 16.
term.” UNICRI, “Cyber Crime: Risks instruments can be found in § 5 B.
for the Economy and Enterprises”: 98. UNICRI, “Cybercrime: Risks for the
Proceedings of UNICRI roundtable, (29 84. Ibid., Ch. I: Electronic Transactions (Art.
Economy and Enterprises,” at http://www.
Nov. 2013), p. 7, at http://www.unicri.it/ 2–7); Ch. II: Personal Data Protection (Art.
unicri.it/in_focus/on/Cybercrime_Lucca.
in_focus/on/Cybercrime_Lucca. 8–23); Ch. III: Promoting Cyber Security
and Combating Cybercrime (Art. 24–38). 99. See Michele Socco, “European
70. UNODC Cybercrime Study, supra § 1 B, Commission, Fight against Cybercrime: A
note 7, at 14–15. 85. Ibid., including the following offenses: (1)
European perspective,” presented at the
attacks on computer systems (Art. 29.1);
UNICRI roundtable on “Cybercrime and
71. For additional information, Policing (2) computerized data breaches (Art. 29.2);
the risks for economy and enterprises”
Cybercrimes: Situating the Public Police in (3) content related offences (Art. 29.3);
(2013).
Networks of Security within Cyberspace, and (4) offences relating to electronic
supra § 1 B, note 30, at 183–205, and message security measures (Art. 29.4). 100. See “Our Member States,” CoE, at
Weigend, supra note 65. http://www.coe.int/en/web/about-us/our-
86. Ibid., including the following offenses:
member-states.
72. See “Secretariat,” United Nations, at (1) property offences (Art. 30.1); and (2)
http://www.un.org/en/sections/about-un/ criminal liability for legal persons (Art. 101. Statute of the Council of Europe (5 May
secretariat/index.html. 30.2). 1949), ETS No. 1 [hereafter, “Treaty
of London”], Art. 1(a), at http://www.
73. UN Secretariat, “Comprehensive and 87. Ibid., at Member States.
coe.int/en/web/conventions/full-list/-/
balanced approaches to prevent and
88. Treaty of Economic Community of West conventions/treaty/001.
adequately respond to new and emerging
forms of transnational crime Working African States (ECOWAS), (28 May 1975),
102. Ibid. See also “About Us,” CoE, at https://
paper,” (27 Jan. 2015) A/CONF.222/8, Lagos, Nigeria, at http://www.ecowas.int/
www.coe.int/web/about-us/who-we-are.
13th UN Congress on Crime Prevention ecowas-law/treaties/.
and Criminal Justice, at http://www. 103. See “Conventions,” CoE, at http://
89. See, e.g., “African Economic Community
unodc.org/documents/congress// www.coe.int/en/web/conventions/.
(AEC),” South African Dept. of
Documentation/A-CONF.222-8/ Conventions and agreements opened for
International Relations and Cooperation,
ACONF222_8_e_V1500538.pdf. signature between 1949 and 2003 were
at http://www.dfa.gov.za/foreign/
published in the “European Treaty Series”
74. UN Secretariat, supra note 3, at 6. Multilateral/africa/aec.htm. See also
(ETS No. 1 to 193 included). Since 2004,
Abuja Treaty Establishing The African
this Series is continued by the “Council of
75. See “Commonwealth Secretariat,” Economic Community, (3 Jun. 1991),
Europe Treaty Series” (CETS No. 194 and
The Commonwealth, at http:// at http://www.wipo.int/edocs/lexdocs/
following). Ibid.
www.commonwealthofnations.org/ treaties/en/aec/trt_aec.pdf.
commonwealth/commonwealth- 104. UNODC Cybercrime Study, supra § 1 B,
secretariat/. 90. ECOWAS Directive (2011), supra note 61.
note 7.
76. See “About Us,” The Commonwealth at 91. Similarly, in criminalizing cybercrime, the
105. Ibid.
http://thecommonwealth.org/about-us. AU Convention distinguishes between
“offences specific to information and 106. See “Summary,” Details of ETS No.
77. “Commonwealth Secretariat,” supra note communication technologies” (Art. 29) 185, at https://www.coe.int/en/web/
75. and those “adapting certain offences conventions/full-list/-/conventions/
to information and communication treaty/185.
78. COMSEC, supra note 5. technologies” (Art. 30). See AU
Convention, supra note 48. 107. UNODC Cybercrime Study, supra § 1 B,
79. Ibid., at 11–12.
note 7, including the following offenses:
92. Morris Odhiambo, Rudy Chitiga (1) illegal access (Art. 2); (2) illegal
80. Constitutive Act of the African Union, (11
& Solomon Ebobrah, The Civil interception (Art. 3); (3) data interference
Jul. 2000), Lomé, Togo, CAB/LEG/23.15,
Society Guide to Regional Economic (Art. 4); (4) system interference (Art. 5); and
Art. 2, at http://www.au.int/en/sites/
Communities in Africa (Oxford: African (5) misuse of devices (Art. 6).
default/files/ConstitutiveAct_EN.pdf.
Books Collective Limited, 2016), p. 57.
81. See “AU in a Nutshell,” African Union, at 108. Ibid., including the following offenses: (1)
93. See “About UNODC,” UNODC, at computer-related forgery (Art. 7); and (2)
http://www.au.int/en/about/nutshell.
https://www.unodc.org/unodc/about- Computer-related fraud (Art. 8).
82. Ibid. unodc/index.html?ref=menutop.
109. Ibid., at Art.9.
94. See UN General Assembly, United
Nations Millennium Declaration, (8 Sep. 110. Ibid., at Art.10.
2000) A/RES/55/2, at http://www.un.org/
111. Ibid., at Art.12.
millennium/declaration/ares552e.htm.
112. Ibid., at Art.13.
Page 141 | Chapter 2 | End Notes Table of Contents
113. UNODC Conference Paper, supra note
2, at 5.
114. AU Convention, supra note 48.
115. ECOWAS Directive, supra note 44.
116. COMSEC, supra note 5, at http://
thecommonwealth.org/media/news/
communique-commonwealth-law-
ministers-meeting-2014.
Page 142 | Chapter 2 | End Notes Table of Contents
Referenced in: § B. Criminalized 14. Budapest Convention, supra § 1 B, note 27. See, e.g., Laboratory of Cryptography and
Conduct 32. System Security (CrySyS Lab), “sKyWIper
(a.k.a. Flame a.k.a. Flamer): A Complex
15. United States v. Marcel Lehel Lazar, (E.D. Malware for Targeted Attacks,” Budapest
1. See supra § 2 A. Va. 2016). See also US Dept. of Justice University of Technology and Economics,
“Romanian Hacker ‘Guccifer’ Pleads (31 May 2012), at https://www.crysys.hu/
2. But see Wall, supra § 1 B, note 33, at 6 Guilty to Computer Hacking Crimes,” US skywiper/skywiper.pdf.
(noting that “[t]here is global agreement Attorney’s Office, E.D. Va., (25 May 2016),
in attitudes and rules condemning the at https://www.justice.gov/usao-edva/pr/ 28. David Kushner, “The Real Story of Stuxnet
distribution of child pornography”). romanian-hacker-guccifer-pleads-guilty- How Kaspersky Lab Tracked Down the
computer-hacking-crimes. Malware That Stymied Iran’s Nuclear-Fuel
3. See, e.g., ITU Understanding Cybercrime,
Enrichment Program,” IEEE Spectrum, (26
supra § 1 B, note 1, which provides, 16. Pete Williams, “Guccifer, Hacker Who Feb. 2013), at http://spectrum.ieee.org/
“[t]here is much lack of agreement Says He Breached Clinton Server, Pleads telecom/security/the-real-story-of-stuxnet.
regarding the content of material and Guilty,” NBC News, (25 May 2016), at
to what degree specific acts should be http://www.nbcnews.com/news/us-news/ 29. Gallagher, supra note 26.
criminalized.” guccifer-hacker-who-says-he-breached-
clinton-server-pleads-guilty-n580186. 30. CrysSyS Lab, supra note 27.
4. For instance, the Budapest Convention
makes hacking (termed “illegal access”) 17. Budapest Convention, supra § 1 B, note 31. See supra § 2 B, box 2.4.
the very first substantive crime. Budapest 32.
Convention, supra § 1 B, note 32, Art. 2. 32. Gallagher, supra note 26.
See also ITU Understanding Cybercrime, 18. US Dept. of Justice, supra note 15.
33. CrysSyS Lab, supra note 27.
supra § 1 B, note 1.
19. Budapest Convention, supra § 1 B, note
34. Ibid.
5. See supra § 2 B, box 2.2. 32.
35. Ibid.
6. See, e.g., David Bisson, “5 Social 20. “Monitoring” is an ambiguous term
Engineering Attacks to Watch Out for,” internationally; some jurisdictions use it to 36. See, e.g., “Data Diddling,” Cyber
Tripwire, (23 Mar. 2014), at https://www. mean taking content, while others use it Crime and Forensics Blog, at http://
tripwire.com/state-of-security/security- to mean tracing. cybercrimeandforensic.blogspot.
awareness/5-social-engineering-attacks- com/2009/02/data-diddling.html.
to-watch-out-for/. 21. Sarb Sembhi, “How to Defend Against
Data Integrity Attacks,” Computer 37. US Dept. of Justice, National Institute
7. See, e.g., “Injection Attacks,” Phpsecurity, Weekly, (Feb. 2009), at http://www. of Justice, Office of Justice Program,
at http://phpsecurity.readthedocs.io/ computerweekly.com/opinion/How-to- Computer Crime: Criminal Justice
en/latest/Injection-Attacks.html; “SQL defend-against-data-integrity-attacks. Resource Manual (2d ed.), OJP-86-C-002
Injection,” Acunetix, at http://www. (Aug. 1989).
acunetix.com/websitesecurity/sql- 22. See, e.g., “Edward Snowden: Leaks that
injection/. Exposed US Spy Programme,” BBC 38. See, e.g., supra § 1 B, case 1.3.
News, (17 Jan. 2014), at http://www.bbc.
8. Vick Hargrave, “Hacker, Hacktivist or com/news/world-us-canada-23123964. 39. See, e.g., Massimo Calabresi, “Election
CyberCriminal?,” Trend Micro Simply Hackers Altered Voter Rolls, Stole Private
Security, (17 Jun 2012), at http://blog. 23. See, e.g., “Snowden Designs Phone Case Data, Officials Say,” Time, (22 Jun. 2017),
trendmicro.com/whats-the-difference- to Spot Hack Attacks,” BBC News, (22 at http://time.com/4828306/russian-
between-a-hacker-and-a-cybercriminal/. Jul. 2016), at http://www.bbc.com/news/ hacking-election-widespread-private-
technology-36865209. data/.
9. Stephanie Koons, “Researchers
Examine Role of ‘White Hat’ Hackers 24. Bunnie Huang, “Against the Law: 40. See, e.g., PM, “Could a New Case Stop
in Cyber Warfare,” Penn State Countering Lawful Abuses of Digital Your Phone from Being Hacked?,” BBC
News, (21 Jan. 2015), at http://news. Surveillance,” PubPub, (26 Jul. 2016), at News, (22 Jul. 2016), at http://www.bbc.
psu.edu/story/341564/2015/01/21/ https://www.pubpub.org/pub/direct- co.uk/programmes/p0428n3p.
research/ist-researchers-examine-role- radio-introspection.
41. But see, France’s Légifrance, le service
%E2%80%98white-hat%E2%80%99- 25. See, e.g., Gordon Corera, “CIA Taps public de l’accès au droit, which, in
hackers-cyber-warfare. Huge Potential of Digital Technology,” addition to making publically available
10. Budapest Convention, supra § 1 B, note BBC News, (29 Jun. 2016), at http:// all sorts of basic legal documents
32, at Art. 2. See generally, ibid. www.bbc.com/news/world-us- (constitution, laws, regulations, court
canada-36462056. decisions, etc.), verifies the authenticity
11. Ibid. of the information published with each
26. See, e.g., Kevin M. Gallagher, “Private
download.
12. Weigend, supra § 1 B, note 25, at 55. Spies Deserve More Scrutiny,” Huffington
Post, (18 Jun. 2014), at http://www.
13. The principle is captured by the Latin huffingtonpost.com/kevin-m-gallagher/
dictum “actus reus non facit reum nisi private-sector-surveillance_b_5171750.
mens sit rea” (“the act is not culpable html.
unless the mind is guilty”). See, e.g.,
Oxford Reference Dictionary.
Page 143 | Chapter 2 | End Notes Table of Contents
42. See, e.g., Hans A. von Spakovsky, “The 49. As already noted, some acts that might 58. See, e.g., China rendered a judicial
Dangers of Internet Voting,” The Heritage otherwise constitute cybercrime, or that interpretation whose provisions allow
Foundation, at http://www.heritage.org/ with the passage of time are revealed to application of pre-existing legislative
research/reports/2015/07/the-dangers-of- be acts of states against states, and that provisions on traditional form of obscenity
internet-voting; Michael Agresta, “Will the might be characterized as cyberterrorism offences (Art. 363(1)1 & Art. 364(1)1
Next Election Be Hacked?,” Wall Street or cyberwarfare, are beyond the scope of of the Criminal Law) to cover criminal
Journal, (17 Aug. 2012), at http://www.wsj. this Toolkit. See WDR, supra § 1 A, note behaviors involving obscene electronic
com/articles/SB10000872396390444508 10, at 222 et seq. information concretely depicting sexual
504577595280674870186. But see, e.g., acts by minors under 18 years of age.
Nicole Kobie, “Why Electronic Voting 50. Andrea Peterson, “The Sony Pictures For details, see (1) China: Criminal Law,
Isn’t Secure – but May Be Safe Enough,” Hack, Explained,” Washington and (2) China: Interpretation of Some
Guardian, (30 Mar. 2015), at https://www. Post, (18 Dec. 2014), at https://www. Questions on Concretely Applicable Law
theguardian.com/technology/2015/ washingtonpost.com/news/the-switch/ in the Handling of Criminal Cases of Using
mar/30/why-electronic-voting-is-not- wp/2014/12/18/the-sony-pictures-hack- the Internet or Mobile Communication
secure. explained/. Terminals and Voicemail Platforms to
Produce, Reproduce, Publish, Sell (also
43. People v. Ressin, No. 1978CR9793, Colo. 51. Ibid.
translated as “Peddle”) or Disseminate
Super. Ct. (Denver Dt.). For a broader Obscene Electronic Information (Sept.
52. See, e.g., Aisha Harris, “Sony Really
position situating this crime in the time 2004), at https://chinacopyrightandmedia.
Should Release The Interview Online,
and in its context, see Jay Becker, “The wordpress.com/2004/09/09/interpretation
and Soon,” Slate, (17 Dec. 2014),
Trial of a Computer Crime,” Computer -of-some-questions-on-concretely-applic
at http://www.slate.com/blogs/
Law Journal. Vol. 2 (1980), p. 441, at http:// able-law-in-handling-criminal-cases-of-usi
browbeat/2014/12/17/the_interview_
repository.jmls.edu/cgi/viewcontent. ng-the-internet-or-mobile-communication
pulled_from_theaters_due_to_north_
cgi?article=1610&context=jitpl. -terminals-and-voicemail-platforms-to-pro
korea_s_apparent_data_hack.html.
duce-reproduce-publish-2/#more-1700.
44. See supra § 1 B.
53. David E. Sanger & Nicole Perlroth,
“US Said to Find North Korea Ordered 59. See, e.g., Kosovo: Law on Prevention
45. Viano, § 1 B, note 39.
Cyberattack on Sony,” New York Times, and Fight of the Cyber Crime (11 Mar.
46. Terry Chia, “Confidentiality, Integrity (17 Dec. 2014), at http://www.nytimes. 2010), Art. 16 (Child pornography
and Availability (CIA): The Three com/2014/12/18/world/asia/us-links- through computer systems), at http://
Components of the CIA Triad,” IT Security north-korea-to-sony-hacking.html?_r=1. mzhe.rks-gov.net/repository/docs/
Community Blog, (20 Aug. 2012), at LIGJIPERPARANDALIMINDHE_LUFT
http://security.blogoverflow.com/2012/08/ 54. See infra § 4 B. IMINE_KRIMITKIBERNETIKE2010166-
confidentiality-integrity-availability-the- alb2010-166-eng.pdf; India: Information
55. Accepted freedom of expression
three-components-of-the-cia-triad/. Technology (Amendment) Act, (2008),
restrictions range from child pornography, § 67B (Punishment for publishing or
47. One form of cybersabotage technique direct and public indictment, the transmitting of material depicting
is cyber-bombing, wherein in malicious commitment of genocide, the children in sexual explicit act, etc., in
code, often called a “logic bomb” or dissemination of hate speech, and electronic form) which was inserted
“slag code”, is programmed to execute incitement to terrorism. See, e.g., into the Information Technology Act,
under certain circumstances, such upon Promotion and Protection of the Right (2000), at https://cc.tifrh.res.in/webdata/
failure to appropriately respond to a to Freedom of Opinion and Expression, documents/events/facilities/IT_act_2008.
program command, or after the lapsing Report of the Special Rapporteur on the pdf.
of a certain period of time. Such a Promotion and Protection of the Right
technique is common in cyberwar and/or to Freedom of Opinion and Expression 60. See, e.g., “Argentina, Penal Code (as
cyberterrorism. See, e.g., Sct’y. Carter & to UN General Assembly, Frank La Rue, amended by Act No. 26388 of 2008),
Gen. Dunford, US Dept. of Defense Press A/66/290 (10 Aug. 2011), pp. 8–13, at Article 128” (in English),” from: UN
Briefing, Pentagon Briefing Room, (29 http://www.ohchr.org/Documents/Issues/ Committee on the Rights of the Child,
Feb. 2016), at http://www.defense.gov/ Opinion/A.66.290.pdf. “Consideration of Reports Submitted by
News/News-Transcripts/Transcript-View/ States Parties under Art. 12, para. 1, of
56. See, e.g., ITU Understanding Cybercrime,
Article/682341/department-of-defense- the Optional Protocol to the Convention
supra § 1 B, note 1, at 21.
press-briefing-by-secretary-carter- on the Rights of the Child on the Sale
and-gen-dunford-in-the. Those topics 57. Cf. Jamaica: Child Pornography of Children, Child Prostitution and Child
are beyond the scope of the Toolkit. (Prevention) Act, § 5 (Processing Pornography: Argentina,” (10 Mar. 2010)
Nonetheless, it bears noting that the lines or accessing child pornography), CRC/C/OPSC/ARG/1, at pp. 18–19, at
between acts of cybercrime and cyberwar at http://moj.gov.jm/sites/default/ http://www.refworld.org/pdfid/50b3526a2.
or cyberterrorism are increasingly blurred, files/laws/Child%20Pornograph%20 pdf.
especially, as the World Development %28Prevention%29%20Act.pdf.
Report has noted, “acts that might
previously have been considered civilian
attacks are now being uncovered as acts
of states against states via nonstate actor
proxies”. See WDR, supra § 1 A, note 10.
48. Weigend, supra § 1 B, note 26, at 54.
Page 144 | Chapter 2 | End Notes Table of Contents
61. See, e.g., Brunei Darussalam: Penal 71. Claire Huang Jingyi, “3 Years’ Jail, S$5,000 79. The added language criminalized the
Code (Amendment) Order, (2012), which Fine for Man Who Harassed US Singer,” “use [ of…] any interactive computer
inserted §§ 293A (Possession of Indecent TodayOnline, (21 Dec. 2013), at http:// service or electronic communication
Photograph of Child), 293B (Taking, www.todayonline.com/singapore/3-years- service or electronic communication
Distribution, Showing, Advertisement and jail-s5000-fine-man-who-harassed-us- system of interstate commerce”.
Access of Indecent Photograph of Child), singer?page=1. USC Title 18, § 2261A - Stalking, at
293C (Interpretation of §§ 293A and https://www.law.cornell.edu/uscode/
293B), and 293D (Defense) into the Penal 72. Mark Albertson, “Singapore Cyberstalker text/18/2261A. The most recent
Code, at http://www.agc.gov.bn/AGC%20 Convicted, but Others Roam Free,” reauthorization was signed into law
Images/LAWS/Gazette_PDF/2012/EN/ Examiner, (6 Dec. 2013), at http:// in 2013. See “1 is 2 Many:, Resources
S026.pdf. www.examiner.com/article/singapore- Violence Against Women Act,” The White
cyberstalker-convicted-but-others-roam- House of President Barack Obama, at
62. “Cyberstalking, a New Crime: Evaluating free. https://www.whitehouse.gov/1is2many/
the Effectiveness of Current State and resources.
Federal Laws,” Missouri Law Review, Vol. 73. See Protection from Harassment Act
72 (2007), p. 125, at http://scholarship. (Ch. 256A). See also Mong Palatino, 80. While all fifty states, the District of
law.missouri.edu/cgi/viewcontent. “Singapore Criminalizes Cyber Bullying Columbia and US Territories have
cgi?article=3985&context=mlr. and Stalking,” Diplomat, (24 Mar. 2014), criminalized stalking, cyberstalking
at http://thediplomat.com/2014/03/ has only been specifically addressed
63. See, e.g., US Dept. of Justice, National singapore-criminalizes-cyber-bullying- by some thirty-five jurisdictions. See,
Institute of Justice, “Domestic Violence, and-stalking/. e.g., Working to Halt Online Abuse, at
Stalking, and Antistalking Legislation: http://www.haltabuse.org/resources/
An Annual Report to Congress under 74. EU Agency for Fundamental Rights,
laws/; “Stalking Technology Outpaces
the Violence Against Women Act,” (Apr. “Violence Against Women: An EU-wide
State Laws,” National Center for Victims
1996), p. 1, at https://www.fas.org/sgp/ Survey” (Mar. 2014), at http://fra.europa.
of Crime, at https://victimsofcrime.
crs/misc/R42499.pdf. Lisa N. Sacco, “The eu/en/publication/2014/violence-against-
org/docs/src/stalking-technology-
Violence Against Women Act: Overview, women-eu-wide-survey-main-results-
outpaces-state-laws17A308005D0C.
Legislation, and Federal Funding,” US report.
pdf?sfvrsn=2. This fact is troubling as
Congressional Research Service (CRS) (26 the constitutional limits on US federal
75. See CoE, Convention on Preventing and
May 2015), at https://www.fas.org/sgp/crs/ law mean that VAWA does not apply
Combating Violence Against Women
misc/R42499.pdf. to cyberstalking conducted exclusively
and Domestic Violence, (11 May 2011)
CETS No. 210, [hereafter, “Istanbul within the jurisdiction of any one state or
64. See US Dept. of Justice, National Center
Convention”], at http://www.coe.int/en/ territory and must involve the interstate
for Victims of Crime, Problem-Oriented
web/conventions/full-list/-/conventions/ or foreign commerce. See USC TItle 18,
Guides for Police Problem-Specific
treaty/210. However, cyberstalking is § 2261A(1)- Stalking, at https://www.law.
Guides Series Guide: Stalking, No. 22
not listed as a punishable offense in the cornell.edu/uscode/text/18/2261A. That
(5 Jan. 2004), at https://victimsofcrime.
Budapest Convention. Ibid. much said, the inherently cross-border
org/docs/src/stalking-problem-oriented-
nature of electronic communications
policiing-guide.pdf?sfvrsn=0.
76. California led the way, becoming, in makes it is likely that US federal law
65. Katrina Baum, Shannan Catalano, 1990, the first jurisdiction to specifically would be applicable. Moreover, courts
Michael Rand & Kristina Rose, “Stalking criminalize stalking in response to the have facilitated legislative hiccups by
Victimization in the United States,” murder of the television star Rebecca extending existing, traditional statutes
US Dept. of Justice, Office of Justice Schaeffer. See, e.g., Berkman Center for to include electronic tools. See, e.g.,
Programs, Bureau of Justice Statistics Internet & Society, “State and Federal Colorado v. Sullivan, 53 P.3d 1181 (Colo.
Special Report, (Jan. 2009) at https:// Stalking Laws,” Harvard University, at Ct. App. 2002).
www.justice.gov/sites/default/files/ovw/ https://cyber.law.harvard.edu/vaw00/
cyberstalking_laws.html. 81. Katrina Baum, Shannan Catalano, Michael
legacy/2012/08/15/bjs-stalking-rpt.pdf.
Rand & Kristina Rose, “National Crime
66. Supra note 60. 77. See “Factsheet: The Violence Against Victimization Survey Stalking Victimization
Women Act,” The White House of in the United States,” US Dept. of Justice,
67. Paul Mullen, Michele Pathé & Rosemary President Obama, at https://www.nvcc. Bureau of Justice Statistics Special
Purcell, “Cyberstalking,” Stalking Risk edu/support/_files/Violence-Against- Report (Jan. 2009), p. 3, at https://www.
Profile, at https://www.stalkingriskprofile. Women-Act-Fact-Sheet.pdf. justice.gov/sites/default/files/ovw/
com/victim-support/impact-of-stalking- legacy/2012/08/15/bjs-stalking-rpt.pdf.
on-victims. 78. California also became the first
state to specifically criminalize 82. See, e.g., Colorado v. Sullivan, supra note
68. Ibid. cyberstalking. See Naomi Harlin 77 (where a Colorado court ruled that
Goodno, “Cyberstalking, a New Crime: the phrase “under surveillance” in the
69. Leandra Ramm v. Colin Mak Yew Loong, Evaluating the Effectiveness of Current state’s stalking law included electronic
NRIC No. S7524695A (20 Dec. 2013). State and Federal Laws,” Missouri Law surveillance and that a Colorado
Review (2007), at http://scholarship. man’s installation of a GPS device in
70. Katharine Quarmby, “How the Law
law.missouri.edu/cgi/viewcontent. his estranged wife’s car to check on
Is Standing Up to Cyberstalking,”
cgi?article=3985&context=mlr. her whereabouts during their divorce
Newsweek, (13 Aug. 2014), at http://www.
newsweek.com/2014/08/22/how-law- proceedings constituted stalking).
standing-cyberstalking-264251.html. 83. United States v. Jake Baker, 104 F.3d 1492
(6th Cir. 1997).
Page 145 | Chapter 2 | End Notes Table of Contents
84. Elonis v. United States, 575 U.S. (2015). 94. A.R. Raghavan & Latha Parthiban, 105. United States v. Drinkman, Kalinin,
“The Effect of Cybercrime on a Bank’s Rytikov, Smilianets, & Rytikov (Criminal
85. See, e.g., “Building Your Case,” End Finances,” International Journal of No. 09-626 (JBS) (S-2)).
Stalking in America, Inc., at http://www. Current Research and Academic Review,
esia.net/Building_your_Case.htm. Vol. 2, No. 2, (Feb. 2014), pp. 173–78, at 106. Indictment: United States v. Vladimir
http://www.ijcrar.com/vol-2-2/A.R.%20 Drinkman, Aleksandr Kalinin,
86. See “Stalking Technology Outpaces Roman Kotov, Mikhail Rytikov, and
Raghavan%20and%20Latha%20Parthiban.
State Laws,” supra note 77, at Dmitriy Smilianets, (D.N.J. 2009),
pdf.
https://victimsofcrime.org/docs/src/ at http://www.justice.gov/iso/opa/
stalking-technology-outpaces-state- 95. Lucian Constantin, “Target Point-of-Sale resources/5182013725111217608630.pdf.
laws17A308005D0C.pdf?sfvrsn=2. Terminals Were Infected with Malware,”
PC World, (13 Jan. 2014), at http://www. 107. United States v Drinkman, Kalinin, Kotov,
87. Quoted in Katharine Quarmby, supra note Rytikov, Smilianets, UNODC Cybercrime
pcworld.com/article/2087240/target-
70. Repository, at https://www.unodc.org/cld/
pointofsale-terminals-were-infected-with-
malware.html. case-law-doc/cybercrimecrimetype/usa/
88. Martin Evans, “Fraud and Cyber
us_v_drinkman_kalinin_kotov_rytikov_
Crime are Now the Country’s Most
96. See, e.g., The 2014 Symantec Internet smilianets.html?&tmpl=cyb.
Common Offences,” Telegraph, (19 Jan.
Security Threat Report, Symantec, (Mar.
2017), at http://www.telegraph.co.uk/ 108. Targeted institutions included, among
2014), at http://www.symantec.com/
news/2017/01/19/fraud-cyber-crime-now- others, Heartland Payment Systems
content/en/us/enterprise/other_resourc
countrys-common-offences/. Inc., Euronet, Global Payment Systems,
es/b-istr_main_report_v19_21291018.en-
us.pdf. See also, Kamala Harris, the 2014 7-Eleven, Carrefour S.A., JC Penney
89. PricewaterhouseCoopers, PWC’s 2014
California Data Breach Report, California Inc., Hannaford Brothers Co., Wet Seal
Global Economic Crime Survey: Economic
Office of the Attorney General, (Oct. Inc., Commidea Ltd., JetBlue Airways,
Crime, A Threat to Business Globally
2014), at https://oag.ca.gov/sites/all/files/ Visa Inc., Diners, Ingenicard US, Inc.,
(2014) [hereafter, “PWC 2014 Global
agweb/pdfs/privacy/2014data_breach_ NASDAQ, Dow Jones Inc., ‘Bank A’
Economic Crime Survey”], at https://www.
rpt.pdf. (a major UAE bank), and Dexia Bank
pwc.at/publikationen/global-economic-
Belgium.
crime-survey-2014.pdf.
97. “Business Email Compromise, Public
Service Announcement,” Internet Crime 109. Report on Cyber Security in the Banking
90. Gordon M. Snow, Statement before the
Complaint Center & Federal Bureau of Sector, supra note 99.
House Financial Services Committee,
Subcommittee on Financial Institutions Investigation, (2015), at https://www.
110. Paula Rosenblum, “In the Wake of
and Consumer Credit, (Washington: FBI, ic3.gov/media/2015/150122.aspx; Brian
Target Data Breach,” Forbes, (17 Mar.
2011), at https://archives.fbi.gov/archives/ Krebs, “FBI: Businesses Lost $215M to
2014), at http://www.forbes.com/sites/
news/testimony/cyber-security-threats-to- Email Scams,” Krebs on Security, (2015),
paularosenblum/2014/03/17/in-wake-of-
the-financial-sector at http://krebsonsecurity.com/2015/01/fbi-
target-data-breach-cash-becoming-king-
businesses-lost-215m-to-email-scams/.
again/.
91. See PWC 2014 Global Economic Crime
Survey, supra note 89. 98. See supra § 2 B, box 2.2.
111. United States v. Ross William Ulbricht,
99. “Anonymous Hacktivists Say Wikileaks 79 F.Supp. 3d 466 (S.D.N.Y. 2015). Silk
92. Albin Krebs, “Willie Sutton Is Dead at 79,”
War to Continue,” BBC News, (9 Dec. Road was tried under a number of
New York Times, (19 Nov. 1980). Although
2010), at http://www.bbc.com/news/ legal theories including US banking,
lore would have it that Sutton said it in
technology-11935539. narcotics trafficking, criminal conspiracy
response, Sutton himself denies having
and “cybercrime”. Ulbricht’s appeal
actually made the statement, writing that,
100. David Carlisle, “Virtual Currencies and of his conviction on the grounds of
“The credit belongs to some enterprising
Financial Crimes,” RUSI Occasional corruption of DEA agents interfering with
reporter who apparently felt a need to fill
Paper, Royal United Services Institute evidence and other procedural issues
out his copy. I can’t even remember when
for Defence and Security Studies (RUSI), at trial was denied in May 2017, see
I first read it. It just seemed to appear
(March 2017), at https://rusi.org/sites/ United States v. Ulbricht, No. 15-1815,
one day, and then it was everywhere. If
default/files/rusi_op_virtual_currencies_ (2d Cir. 2017), at https://cases.justia.
anybody had asked me, I’d have probably
and_financial_crime.pdf com/federal/appellate-courts/ca2/15-
said it[…] it couldn’t be more obvious.”
1815/205494850/0.pdf?ts=1496418409.
Willie Sutton with Edward Linn, Where 101. Ibid. This case is highlighted again further on
the Money Was: The Memoirs of a Bank
as an example of the procedural aspects
Robber, (New York: Crown/Archetype, 102. USC Title 18, § 1343 “Fraud by Wire,
surrounding search and seizure. See infra
2004). Radio, or Television.” See also United
§ 4 A, case 4.1.
States v. Cassiere, 4 F.3d 1006 (1st Cir.
93. Andrew M. Cuomo & Benjamin M. Lawsky, 1993); United States v. Ames Sintering
“Report on Cyber Security in the Banking Co., 927 F.2d 232 (6th Cir. 1990).
Sector,” New York State Dept. of Financial
Services, (New York: New York State Dept. 103. “Net Losses: Estimating the Global
of Financial Services, 2014), at http://www. Cost of Cybercrime,” McAfee & CSIS,
dfs.ny.gov/reportpub/dfs_cyber_banking_ (June 2014), at http://csis.org/files/
report_052014.pdf. attachments/140609_rp_economic_
impact_cybercrime_report.pdf.
104. Ibid.
Page 146 | Chapter 2 | End Notes Table of Contents
112. Ibid. As noted, the Silk Road case is 115. Ibid. 122. A review of the global state of cybercrime
highlighted in the Toolkit for a number legislation by the CoE found that only
of reasons. Ibid. More generally, it bears 116. See Don Tapscott & Alex Tapscott, 70% of studied countries had legislation
noting that “dark web” markets— “The Impact of the Blockchain Goes in place targeting the misuse of devices;
where drugs, weapons, malware, toxic Beyond Financial Services,” Harvard dual use of devices was not considered,
chemicals, stolen data and the like are Business Review (10 May 2016), at with focus being on the production of
traded—is unlikely to go away. Rather, https://hbr.org/2016/05/the-impact-of- some specific devices; misuse of devices
as cyberspace continues to gain both the-blockchain-goes-beyond-financial- was found to be criminalized only in
commercial and social importance, the services (“where not just information relation with illegal access or system
place for such dark markets is only likely but anything of value – money, titles, interference. See Cristina Schulman, “The
to grow. Indeed, by all indications, that deeds, music, art, scientific discoveries, Global State of Cybercrime Legislation,”
growth is very substantial: recently, two intellectual property, and even votes Workshop 1: Cybercrime legislation
additional dark web marketplaces— – can be moved and stored securely (Strasbourg: Octopus Conference,
AlphaBay and Hansa—were shut down by and privately. On the blockchain, 6–8 Jun. 2012), at https://rm.coe.
FBI-led, global police efforts. See Chris trust is established, not by powerful int/16802f240b. See also Geoffrey Andare
Baraniuk, “AlphaBay and Hansa Dark intermediaries like banks, governments v. Attorney General & 2 others, [2016]
Web Markets Shut Down,” BBC News, and technology companies, but through eKLR, Petition No.149 of 2015, High Court
(20 Jul. 2017), at http://www.bbc.com/ mass collaboration and clever code. of Kenya at Nairobi Milimani Law Courts,
news/technology-40670010. In terms Blockchains ensure integrity and trust Constitutional and Human Rights Division,
of both traffic and value, AlphaBay and between strangers. They make it difficult at http://kenyalaw.org/caselaw/cases/
Hansa dwarfed Silk Road: while Silk Road to cheat.”). view/121033/.
only had 14,000 listings for illicit items of
117. See, e.g., US Currency and Foreign 123. EU Directive 2013/40/EU, at Art. 7.
various kinds when it was seized in 2013,
Transactions Reporting Act of 1970 (see
the DoJ said that AlphaBay had more
USC Title 18, §§ 5311–5330 and 31 CFR 124. For example, quantum computing
than 350,000 listings, with US$450m was
Chapter X [formerly 31 CFR Part 103] is expected to both revolutionize
spent via the marketplace between May
(“Bank Secrecy Act” or “BSA”). computing and unravel modern
2015 and February 2017. Ibid. While the
encryption technology. See supra § 1 C,
impact of shutting down AlphaBay and 118. Ibid., at para. 71. box 1.3.
Hansa is unclear, there are indications
that trade on several of the other dark 119. See, e.g., United Kingdom: Computer 125. Andare, supra note 122.
web’s illegal markets has increased, Misuse Act 1990, (criminalizing three acts:
though the sales of some goods appear (1) Unauthorized access to computer 126. See Kenya: Information and
to have been reduced. See, e.g., Leo material; (2) unauthorized access with Communications Act, Chapter 411A
Kelion, “Dark Web Markets Boom after intent to commit or facilitate commission § 29, at https://www.unodc.org/res/
Alphas Bay and Hansa busts,” BBC of further offences; (3) unauthorized cld/document/ken/1930/information-
News, (1 Aug. 2017), at http://www.bbc. modification of computer material), and-communications-act_html/Kenya_
com/news/technology-40788266. The at http://www.legislation.gov.uk/ Information_and_Communications_
growing dark side of cyberspace is a ukpga/1990/18/contents. It should be Act_2_of_1998.pdf.
matter with which society at large will— noted that amendments to the Computer
Misuse Act were introduced in the 127. Ibid.
constructively and collectively—have to
grapple; fighting cybercrime and assuring Police and Justice Act 2006, http://www.
128. Supra note 114, (stating “the provisions
cybersecurity are central elements legislation.gov.uk/ukpga/2006/48/part/5/
of section 29 are so wide and vague
therein. See, e.g., Ronald Deibert, “The crossheading/computer-misuse.
that they offend the requirements
Growing Dark Side of Cyberspace (… with regard to law that carries penal
120. USC Title 18, § 1030(a)(6)(A) & (B)
and What to Do About It),” Penn State consequences and do not meet the
Journal of Law & International Affairs, 121. Ibid., at para. 81. criteria set in Art. 24 of the Constitution
Vol. 1, Issue 2 (Nov. 2012), at http:// which provides instances when rights
elibrary.law.psu.edu/cgi/viewcontent. can be limited), para. 80 & 99. Art.33(2),
cgi?article=1012&context=jlia. For a Constitution of Kenya, (2010), at https://
provocative, fictional depiction of the role www.kenyaembassy.com/pdfs/the%20
of cyber exchanges, see Jennifer Haley, constitution%20of%20kenya.pdf.
“The Nether”, supra § 1 B, note 7.
129. Ibid. (stating “Section 29 imposes a
113. Tamara Tabo, “United States v. The limitation on the freedom of expression
Internet: America’s Most Wanted May in vague, imprecise and undefined terms
Look a Lot Like You,” AbovetheLaw.com, […]”).
(12 Jun. 2015), at http://abovethelaw.
com/2015/06/united-states-v-the-internet- 130. See supra § 2 B, case 2.6. See also infra §
americas-most-wanted-may-look-a-lot- 4 A, case 4.1.
like-you/
114. See, e.g., “How Blockchain Tech Could
Change the Way We Do Business,” BBC
News, (22 Jan. 2016), at http://www.bbc.
com/news/business-35370304.
Page 147 | Chapter 2 | End Notes Table of Contents
Referenced in: § C. Procedural 8. Thomas K. Clancy, Cyber Crime and 15. Regarding the need for a formalization of
Issues Digital Evidence: Materials and Cases computer forensics, see Ryan Leigland &
(New York: Lexisnexis, 2011); Cameron S. Axel W. Krings, “A Formalization of Digital
D. Brown, “Investigating and Prosecuting Forensics,” International Journal of Digital
1. This section focuses on investigative and Cyber Crime: Forensic Dependencies and Evidence, Vol. 3, Issue 2 (2004), p. 2.
prosecutorial “procedural” issues; “due Barriers to Justice,” International Journal
process” issues are treated in § 5 A, infra. of Cyber Criminology, Vol. 9, Issue1 (2015), 16. Michell Lange & Kristin Nimsger,
Issue 55, pp. 66–67. Electronic Evidence and Discovery
2. In practice, procedural issues are (Chicago: Section of Science &
never entirely detached from the 9. ITU Understanding Cybercrime, supra § 1 Technology Law, American Bar
substantive specification of an offense. B, note 1, at 251–56. Association, 2004), p. 6.
The specification of the elements and
seriousness of the offense are important 10. See, e.g., Budapest Explanatory Report, 17. With regard to developments, see
in determining whether cognizance it supra § 1 D, note 14, at para. 12 (“[T] Danny Abramovitch, “A Brief History of
taken of a suspected violation, and, if here are some differences with respect to Hard Drive Control,” Control Systems
so, what level of intrusiveness will be the search of computer data, which may Magazine, EEE, Vol. 22, Issue 3 (2002), p.
permitted during investigation. necessitate different or special procedural 28 et seq.; Tom Coughlin, Dennis Waid,
provisions to ensure that computer data & Jim Porter, “The Disk Drive, 50 Years
3. See, e.g., Budapest Explanatory Report, can be obtained in a manner that is of Progress and Technology Innovation,”
supra § 1 D, note 14, at para. 132 (“Not equally effective as a search and seizure Coughlin Associates, (2005), at www.
only must substantive criminal law keep of tangible data. […] Some changes may tomcoughlin.com/Techpapers/DISK%20
abreast of these new abuses, but so must be required to domestic law to ensure DRIVE%20HISTORY,%20TC%20Edits,%20
criminal procedural law and investigative that intangible data can be searched 050504.pdf.
techniques”). and seized. […D]ue to the connectivity
of computer systems, data may not be 18. Scott Giordano, “Electronic Evidence and
4. Tonya Putnam & David Elliot, Chapter the Law,” Information Systems Frontiers,
stored in the particular computer that is
2- International Responses to Cyber Vol. 6, No. 2 (2006), p. 161; Stephen
searched, but such data may be readily
Crime, (Stanford: Hoover Institution Willinger & Robin Wilson, “Negotiating
accessible to that system. […Allowing
Press, 2001), pp. 1–2, at http://www. the Minefields of Electronic Discovery,”
such searches may] require new laws
hoover.org/sites/default/files/uploads/ Richmond Journal of Law & Technology,
to permit an extension of the search to
documents/0817999825_35.pdf. Vol. 10, Issue 5 (2004), at http://jolt.
where the data is actually stored (or the
retrieval of the data from that site to richmond.edu/v10i5/article52.pdf.
5. For instance, the offender is based in one
or more different countries, the services the computer being searched), or the
19. Malaga, “Requirements for the
utilized are in different countries, the use traditional search powers in a more
Admissibility in Court of Digital
technology protects is anonymous, the coordinated and expeditious manner at
Evidence,” in: Syllabus to the European
communications are encrypted. both locations.”). See, e.g., American Law
Certificate on Cybercrime and
Institute, “Model Code of Cybercrime
E-Evidence, (2008), p. 208 et seq.
6. Most tellingly, it bears emphasizing Investigative Procedure,” at http://www.
that e-evidence is information stored crime-research.org/library/Model_Code. 20. See, e.g., Searching and Seizing
or transmitted in binary form (“0” and htm. Computers and Obtaining Electronic
“1”), and that that binary code assigns a Evidence in Criminal Investigations,
bit string to each symbol or instruction. 11. USC Title 18, §§ 3123 (1986).
supra note 7; US Dept. of Justice,
Such being the case, the evidence is in Criminal Division, Office of Professional
12. USA PATRIOT Act, supra § 1 C, note 10.
many ways both illusionary and illusive: Development and Training, “Federal
the “original” evidence can be identically 13. See supra § 1 B. Guidelines for Searching and Seizing
copied with no difference between the Computers,” Bureau of National
two except the time of their existence, 14. Korea: Criminal Procedure Act, No. Affairs, Criminal Law Reporter, Vol. 56
and its integrity can be very easily 12784 (15 Oct. 2014) [hereafter “Korean (1994), p. 5, at https://epic.org/security/
compromised. For deeper discussion, see Criminal Procedure Act”], at http:// computer_search_guidelines.txt; Korean
supra § 2 B. elaw.klri.re.kr/eng_mobile/viewer. Constitution, Art.12(1) & 12(3); Korean
do?hseq=33081&type=sogan&key=9 (in Criminal Procedure Act, supra note 14, at
7. US Dept. of Justice, Searching and English), Art. 106(3), (“Where the object to Arts. 114 & 215. See also infra § 2 C, case
Seizing Computers and Obtaining be seized is a computer disc or other data 2.9.
Electronic Evidence in Criminal storage medium similar thereto […], the
Investigations (Washington: Office court shall require it should be submitted 21. In US law, contraband, an instrumentality
of Legal Education, 2009) [hereafter, after the data therein are printed out or of a crime or fruits of crime and therefore
“Searching and Seizing e-Evidence”], it is copied within the specified scope may be physically seized. See Rule 41,
at https://www.justice.gov/sites/default/ of the data stored: Provided, That the Federal Rules of Criminal Procedure, at
files/criminal-ccips/legacy/2015/01/14/ data storage medium or such may be https://www.law.cornell.edu/rules/frcrmp/
ssmanual2009.pdf; UNODC Cybercrime seized, when it is deemed substantially rule_41. See also Giordano, supra note 18.
Study, supra § 1 C, note 7. impossible to print out or copy the
specified scope of the data or deemed 22. Ibid.
substantially impracticable to accomplish
23. Ibid., at 71.
the purpose of seizure.”).
24. See, e.g., United States v. Huitt, 2007 WL
2355782, at *4, (D. Idaho 2007).
Page 148 | Chapter 2 | End Notes Table of Contents
25. Supreme Court of Korea, Order 38. United States v. Austin Ayers Winther, 48. Regarding the ability to manipulate
2009Mo1190 (26 May 2011), at http:// (E.D. Pa. 2011), p. 21, at http://www. the time information and the response
library.scourt.go.kr/SCLIB_data/ paed.uscourts.gov/documents/ in forensic investigations, see Pavel
decision/15-2009Mo1190.htm (summary opinions/11d1281p.pdf (quoting the US Gladyshev & Ahmed Patel, “Formalizing
in English). Federal Rules of Criminal Procedure, Event Time Bounding in Digital
supra note 36). Investigations, International Journal of
26. Ibid. at para.2. Digital Evidence,” Vol. 4, No. 1 (2005);
39. Supreme Court of Korea, Order Regarding dynamic time analysis, see
27. Ibid. at para.1. 2011Do10508 (29 Mar. 2012), at Michael C. Weil, “Dynamic Time & Date
http://www.law.go.kr/precInfoP. Stamp Analysis,” International Journal of
28. Ibid.
do?mode=0&evtNo=2011%EB%8F Digital Evidence, Vol. 1, Issue 2, (2002).
29. Ibid. %8410508 (in Korean). See also
UN Committee against Torture, 49. Eoghan Casey, Digital Evidence and
30. Field tools include Cellebrite, UltraDock, “Consideration of reports submitted Computer Crime, (London: Academic
EnCase Portable, etc. For more by States parties under article 19 of the Press, 2004), p. 16.
information, see “22 Popular Computer Convention pursuant to the optional
Forensics Tools,” InfoSec Institute, at reporting procedure,” Third to Fifth 50. Carole Chaski, “Who’s at the Keyboard?
http://resources.infosecinstitute.com/ Periodic Reports of States Parties Authorship Attribution in Digital Evidence
computer-forensics-tools/. due in 2012, Korea, (29 Feb. 2016), at Investigations,” International Journal of
http://docstore.ohchr.org/SelfServices/ Digital Evidence, Vol. 4, No. 1 (2005).
31. Brown, supra note 8. FilesHandler.ashx?enc=6Q
51. Brown, supra note 8.
32. Gon Ruibin & Mathias Gaertner, “Case- kG1d%2FPPRiCAqhKb7yhsvF6hiQLJAnp
Relevance Information Investigation: G6iplFwLNHHRo0OD78WS4LFAhS78yb 52. For guidelines on how to carry out the
Binding Computer Intelligence to the K9cAdJ5ZfbR4liAXIyMG4l6gfS%2BNuCz6 seizure of computer equipment, see,
Current Computer Forensic Framework,” URY2YsRMgaSD1rC4Di8J1OSunD47yX e.g., General Guidelines for Seizing
International Journal of Digital Evidence, d4UH. Computers and Digital Evidence, US
Vol. 4, No. 1 (2005). State of Maryland, Maryland State
40. UNODC Cybercrime Study, supra § 1 C,
Police, at https://www.coursehero.com/
33. Giuseppe Vaciago, Digital Evidence note 7, at 159.
file/8005384/Article-Maryland-Seize-
(Torrino: Giappichelli, 2012), “Situation Computers-1/.
41. Ibid.
Report on the Admissibility of Electronic
Evidence in Europe,” (Ch. II.1), in: 42. Richard Nolan, Colin O’Sullivan, Jake 53. Lange & Nimsger, supra note 16, at 24.
Syllabus to the European Certificate on Branson & Cal Waits, First Responders
54. Gladyshev & Patel, supra note 48, at 283
Cybercrime and E-Evidence, (2008), p. Guide to Computer Forensics, (Arlington,
et seq.
220. VA: SEI, 2005), p. 64, at https://
resources.sei.cmu.edu/asset_files/ 55. The Toolkit uses the term “ISP” to include
34. See Weeks v. United States, 232 U.S. Handbook/2005_002_001_14429.pdf. all electronic communications service
383 (1914). See also, H. Frank Way,
providers, and not only internet service
Jr., “Exclusion of Evidence Illegally 43. Leigland & Krings, supra note 14, at 9.
providers.
Obtained,” Tennessee Law Review, Vol.
26 (1959) (noting that this “rule […] holds 44. See John Vacca, Computer Forensics,
56. UNODC Cybercrime Study, supra § 1 C,
that an individual, whose rights have been Computer Crime Scene Investigation, (2d
note 7, at 144.
violated under the Fourth Amendment, ed.), (Hingham, MA: Charles River Media,
can prohibit the introduction in a trial 2005), p. 30. 57. For an overview of the debate, see Marco
against him of any evidence seized as a Gercke, “The Role of Internet Service
45. Botnets is a short term for a group
result of the illegal search and seizure. The Providers in the Fight Against Child
of compromised computers running
rule generally works through mechanics Pornography,” Computer Law Review
programs that are under external
of a pre-trail motion for the exclusion International, (2009), p. 65 et seq.
control. For more details, see Clay
and/or suppression of the illegally seized
Wilson, Botnets, Cybercrime, and Cyber 58. See Cormac Callanan & Marco Gercke,
evidence.”).
Terrorism: Vulnerabilities and Policy Issues Study on the Cooperation Between
35. US Rules Enabling Act, USC Title 28, §§ for Congress, (Washington, DC: US Dept. Service Providers and Law Enforcement
2072, 2074. of State, 2007), p. 4, www.fas.org/sgp/crs/ Against Cybercrime: Towards Common
terror/RL32114.pdf. See also collected Best-of-Breed Guidelines?, (Strasbourg:
36. US Federal Rules of Criminal Procedure resources, and links in the ITU Botnet CoE, 2008), at https://rm.coe.int/
(eff. 16 Dec. 2016), Rule 41(e)(2)(B) Mitigation Toolkit, (2008), at www.itu.int/ CoERMPublicCommonSearchServices/D
(Warrant Seeking Electronically Stored ITU-D/cyb/cybersecurity/projects/botnet. isplayDCTMContent?documentId=
Information), at http://www.uscourts. html. 09000016802f69a6.
gov/rules-policies/current-rules-practice-
procedure. 46. Nolan et al., supra note 42, at 29.
37. Ibid. 47. Lange & Nimsger, supra note 16.
Page 149 | Chapter 2 | End Notes Table of Contents
59. John Leyden, “FBI Sought Approval to 66. “Is Bitcoin Turning into a Cyber 73. Loretta A. Preska, Chief US District Judge,
Use Spyware against Terror Suspects”, Crime Currency?,” Cyberoam, (6 Dec. Memorandum and Order, In the Matter
Register, (8 Feb. 2008), at www.theregister. 2012), at https://web.archive.org/ of a Warrant to Search a Certain Email
co.uk/2008/02/08/fbi_spyware_ploy_app/; web/20160404100125/http://www. Account Controlled and Maintained by
Declan McCullagh, “FBI Remotely Installs cyberoam.com/blog/is-bitcoin-turning- Microsoft Corporation, (S.D.N.Y. 2014), at
Spyware to Trace Bomb Threat,” CNet, into-a-cyber-crime-currency-2/ (“The http://online.wsj.com/public/resources/
(18 Jul. 2007), at https://www.cnet.com/ trouble becomes obvious when creators documents/microsoftstay.pdf.
news/fbi-remotely-installs-spyware-to- of dreaded Zeus Botnet start using
trace-bomb-threat/; Bogdan Popa, “FBI Bitcoins for transactions, the anonymous
Fights against Terrorists with Computer drug sites do brisk business through
Viruses,” Softpedia, (19 Jul. 2007), at Bitcoins, hacktivists are quick to Tweet
http://news.softpedia.com/news/FBI- their gratitude on anonymous Bitcoin
Fights-Against-Terrorists-With-Computer- donation and Wikileaks openly proclaims
Viruses-60417.shtml. acceptance of Bitcoin donation. So is the
currency turning into a crime currency?
60. Gaurav Gupta, Chandan Mazumdar, The inherent structure of Bitcoin system is
& M.S. Rao, “Digital Forensic Analysis based on P2P network that lacks a central
of E-Mails: A Trusted E-Mail Protocol,” server making it very difficult to detect
International Journal of Digital Evidence, criminal transactions, discover the identity
Vol. 2, No. 4 (2004). of users or acquire full transaction records
of illicit money transfers. The security
61. For more information, see Larry Crumbley,
companies are forever racing against
Lester Heitger & Stevenson Smith,
cybercrime in securing businesses and
Forensic and Investigative Accounting,
institutions. And in case of breaches, the
(2005), § 14.12; Michael Caloyannides,
security companies provide electronic
Privacy Protection and Computer
trail, which the law applies to trace the
Forensics, (2004), p. 149.
activities in real world that finally nails
62. The term “phishing” describes an act that them. By leveraging the decentralized
is carried out to make targets disclose Bitcoin system, criminals not only make it
personal/secret information. It originally hard to trail electronically, but leave very
described the use of emails to “phish” for few foot prints in the real world, making
passwords and financial data from a sea prosecution almost impossible.”); See
of Internet users. The use of “ph” is linked also Goodman, supra note 65.
to popular hacker naming conventions.
67. See, e.g., UNODC Cybercrime Study,
See Marco Gercke, “The Criminalization
supra § 1 C, note 7.
of Phishing and Identity Theft,” Computer
und Resht, (2005), p. 606; Gunter Ollmann, 68. Ibid., at xxv.
“The Phishing Guide: Understanding &
Preventing Phishing Attacks,” IBM, (8 Jun. 69. Searching and Seizing e-Evidence, supra
2005), at http://pdf.textfiles.com/security/ note 7. For example, the United States
nisrphishing.pdf. Code does not require participation of
a law enforcement officer in the scene
63. Gladyshev & Patel, supra note 48, at 19. when executing the search and seizure
on the communication data stored by
64. For more information, see Von Jens
the service provider. For details, see
Todt, Fahnder ueberpruefen erstmals
USC Title 18, § 2703(g) - Presence of
alle deutschen Kreditkarten, Spiegel
Officer Not Required, at http://stanford.
Online, (8 Jan. 2007), at www.spiegel.de/
edu/~jmayer/law696/week7/Stored%20
panorama/justiz/0,1518,457844,00.html (in
Communications%20Act.pdf.
German).
70. Microsoft Corp. v. United States, No.
65. Marc Goodman, “Why the Police Don’t
14-2985 (2d Cir. 2016), at http://law.justia.
Care About Computer Crime,” Harvard
com/cases/federal/appellate-courts/
Journal of Law & Technology, Vol. 10, No.
ca2/14-2985/14-2985-2016-07-14.html.
3 (1997), p. 472.
71. USC Title 18, §§ 2701–2712.
72. James C. Francis IV, Magistrate Judge,
Memorandum and Order, In the Matter
of a Warrant to Search a Certain Email
Account Controlled and Maintained by
Microsoft Corporation, (S.D.N.Y. 2014), at
http://pdfserver.amlaw.com/nlj/microsoft-
warrant-sdny.pdf; USC Title 18, § 2703 (a),
supra note 64.
Page 150 | Chapter 2 | End Notes Table of Contents
Referenced in: § D. Evidentiary 13. See ITU Understanding Cybercrime, 16. See, e.g., “10 Modern Forensic
Issues supra § 1 B, note 1; Giordano, supra § Science Technologies,” Forensic
2 C, note 18, at 162; Vacca, supra § 2 C, Colleges & Universities, at http://www.
note 44, at 21; Ruibin & Gaertner, supra forensicscolleges.com/blog/resources/10-
1. Latin: “The burden of proof is on the one § 2 C, note 32; Mark Reith, Clint Carr modern-forensic-science-technologies.
who declares, not on one who denies.” & Gregg Gunsch, “An Examination of
Digital Forensic Models,” International 17. For an overview of different forensic
2. Semper necessitas probandi incumbit ei investigation techniques related to
Journal of Digital Evidence, Vol. 1, Issue
qui agit (Latin: “The necessity of proof the most common technologies, see
3 (2002), p. 3; Ashok Patel & Séamus Ó
always lies with the person who lays Megan Carney & Marc Rogers, “The
Ciardubhain, “The Impact of Forensic
charges”). Trojan Made Me Do It: A First Step in
Computing on Telecommunication,”
IEEE Communications Magazine, Vol. 38, Statistical Based Computer Forensics
3. “Digital Evidence and Forensics,”
No. 11 (2000), p. 64, at http://ieeexplore. Event Reconstruction,” International
National Institute of Justice (NIJ), at
ieee.org/document/883490/. See also Journal of Digital Evidence, Vol. 2,
http://www.nij.gov/topics/forensics/
Mathew Hannan, “To Revisit: What Issue 4 (2004); Eoghan Casey, “Practical
evidence/digital/Pages/welcome.
Is Forensic Computing,” Australian Approaches to Recovering Encrypted
aspx. See also Stephen Mason (ed.),
Computer, Network & Information Digital Evidence,” International Journal
Electronic Evidence: Disclosure, Discovery
Forensics Conference, (Perth, Western of Digital Evidence, Vol. 1, Issue 3 (2002),
& Admissibility, (London: Lexis Nexis
Australia, 25 Nov. 2004), at https://www. at www.utica.edu/academic/institutes/
Butterworths, 2007), para. 2.03 (defining
semanticscholar.org/paper/To-Revisit- ecii/publications/articles/A04AF2FB-
digital or e-evidence as “data comprising
What-is-Forensic-Computing-Hannan BD97-C28C-7F9F4349043FD3A9.pdf; Orin
the output of analogue devices or
/7fc8d1c9d7fbdb7368685368954c24fc Kerr, “Searches and Seizures in a Digital
data in digital format that is created,
20139cc2 Barbara Etter, “The Forensic World,” Harvard Law Review, Vol. 119
manipulated, stored or communicated by
Challenges of E-Crime,” Australasian (2005), p. 531 et seq.; Nolan et al., supra
any device, computer or computer system
Centre for Policing Research, No. 3 (2001), § 2 C, note 42; Jason Siegfried, Christine
or transmitted over a communication
p. 4, at https://pdfs.semanti Siedsma, Bobbie-Jo Countryman &
system, which is relevant to the process of
cscholar.org/15c3/5e8721507feee65d59 Chester D. Hosmer, “Examining the
adjudication”).
27bf9d909c9ed1497a.pdf. Regarding Encryption Threat,” International Journal
4. See supra § 2 C. the need for standardization, see of Digital Evidence, Vol. 2, Issue 3 (2002),
Matthew Meyers & Marc Rogers, at www.utica.edu/academic/institutes/
5. See, e.g., Wex, “Evidence,” LII, Cornell “Computer Forensics: The Need for ecii/publications/articles/A0B0C4A4-
University Law School, at https://www.law. Standardization and Certification,” 9660-B26E-12521C098684EF12.pdf;
cornell.edu/wex/evidence. International Journal of Digital Evidence, Benjamin Turnbull, Barry Blundell, & Jill
Vol. 3, Issue 2 (2004), at www.utica.edu/ Slay, “Google Desktop as a Source of
6. ITU Understanding Cybercrime, supra § 1 Digital Evidence,” International Journal
B, note 1, at 251–56. academic/institutes/ecii/publications/
articles/A0B7F51C-D8F9-A0D0- of Digital Evidence, Vol. 5, Issue 1 (2006);
7. Brown, supra § 2 C, note 8. 7F387126198F12F6.pdf; Carrie Morgan Matthew Kiley, Tim Shinbara & Marcus
Whitcomb, “An Historic Perspective of Rogers, “iPod Forensics,” International
8. Donique Brezinski & Tom Killalea, Digital Evidence: A Forensic Scientist’s Journal of Digital Evidence, Vol. 4, Issue
Guidelines for Evidence Collection and View,” International Journal of Digital 2 (2007); Gaurav Gupta & Chandan
Archiving, (RFC3227, 2002). Evidence, Vol. 1, Issue 1 (2002), at https:// Mazumdar, “Digital Forensic Analysis
www.utica.edu/academic/institutes/ of E-Mails: A Trusted E-Mail Protocol,”
9. Robert O’Harrow, No Place to Hide, International Journal of Digital Evidence,
ecii/publications/articles/9C4E695B-
(New York: New York Free Press, (2005); Vol. 2, Issue 4 (2007); Mayank R. Gupta,
0B78-1059-3432402909E27BB4.pdf;
Peter Stephenson, “A Comprehensive Michael D. Hoeschele & Marcus K.
Gregory Hall & Wilbon Davis, “Towards
Approach to Digital Incident Rogers, “Hidden Disk Areas: HPA and
Defining the Intersection of Forensic and
Investigation,” Information Security DCO,” International Journal of Digital
Information Technology,” International
Technical Report, Vol. 8, Issue 2 (2005), Evidence, Vol. 5, Issue 1 (2006); Carole
Journal of Digital Evidence, Vol. 4,
pp. 42–54; Aleš Završnik, “Towards an E. Chaski, “Who’s at the Keyboard?
Issue 1 (2005), at https://www.utica.edu/
Overregulated Cyberspace,” Masaryk Authorship Attribution in Digital Evidence
academic/institutes/ecii/publications/
University Journal of Law & Technology, Investigations,” International Journal of
articles/B49F0174-F1FB-FE05-
Vol. 4, Issue 2 (2010), pp. 173–90. Digital Evidence, Vol. 4, Issue 1 (2005);
EBBB4A8C87785039.pdf; Ryan Leigland &
Axel W. Krings, “A Formalization of Digital Ty Howard, “Don’t Cache Out Your
10. See infra § 2 E, box 2.7.
Forensics,” International Journal of Digital Case: Prosecuting Child Pornography
11. For an overview of different kinds of Forensics, Vol. 3, Issue 2 (2004), at http:// Possession Laws Based on Images
evidence that can be collected by people.cs.ksu.edu/~sathya/formalizing-df. Located in Temporary Internet Files,”
computer forensic experts, see Nolan et pdf. Berkeley Technology Law Journal, Vol. 19
al., supra § 2 C, note 42. (2004), p. 1233; Dario Forte, “Analyzing
14. See Vacca, supra § 2 C, note 44, at 21. the Difficulties in Backtracing Onion
12. Oxford English Dictionary. Router Traffic,” International Journal of
15. See infra § 3 B for a discussion of informal Digital Evidence, Vol. 1, Issue 3 (2002), at
methods of international cooperation, www.utica.edu/academic/institutes/ecii/
including 24/7 networks and information publications/articles/A04AA07D-D4B8-
sharing and coordination centers. 8B5F-450484589672E1F9.pdf.
Page 151 | Chapter 2 | End Notes Table of Contents
18. Warren Harrison, George Heuston, Mark 34. Siegfried, supra note 17. Regarding 41. Kerr, supra note 17, at p. 538.
Morrissey, Aucsmith & Sarah Mocas, “A the decryption process in forensic
Lesson Learned Repository for Computer investigations, see Gordon et al., supra 42. “Computer Forensics Tool Testing
Forensics,” International Journal of Digital note 28, at 59. Project,” National Institute of Standards
Evidence, Vol. 1, Issue 3 (2002). and Technology (NIST), at http://www.cftt.
35. Ibid. Regarding the forensic software nist.gov.
19. Ruibin & Gaertner, supra § 2 C, note 32. magic lantern, developed as a keylogger
used by law enforcement in the United 43. Moore, supra note 26, at 58.
20. ITU Understanding Cybercrime, supra § 1 States, see Christopher Woo and Miranda
B, note 1. 44. See Casey, supra § 2 C, note 49, at 16;
So, “The Case for Magic Lantern,
Vacca, supra § 2 C, note 44, at 39.
Highlights the Need for Increased
21. Nolan et al., supra § 2 C, note 42, at 171.
Surveillance,” Harvard Journal of Law & 45. Chet Hosmer, “Proving the Integrity of
22. Regarding the challenges of encryption, Technology, Vol. 15, No. 2 (2002), p. 521 Digital Evidence with Time,” International
see § 1 D; see also Siegfried, supra note et seq.; Spyware: Background and Policy Journal of Digital Evidence, Vol. 1,
17. issues for Congress, US Congressional No. 1 (2001), p. 1, at www.utica.edu/
Research Service (CRS) Report, (2007), academic/institutes/ecii/publications/
23. Regarding possible counter strategies for p. 3; Thomas Green, “FBI Magic Lantern articles/9C4EBC25-B4A3-6584-C38C5
law enforcement, see J. Alex Halderman, reality check,” Register, (12 Mar. 2001), 11467A6B862.pdf.
Seth D. Schoen, Nadia Heninger et al., at www.theregister.co.uk/2001/12/03/
Lest We Remember: Cold Boot Attacks fbi_magic_lantern_reality_check/; Alex 46. Whitcomb, supra note 13.
on Encryption Keys, Proc. 17th USENIX Salkever, “A Dark Side to the FBI’s Magic
Security Symposium, (San Jose, CA, 47. Regarding the related procedural
Lantern,” Bloomberg, (27 Nov. 2001),
Jul. 2008), at http://citp.princeton.edu/ instrument, see Art. 19.3, Budapest
at https://www.bloomberg.com/news/
memory. Convention, supra § 1 B, note 32.
articles/2001-11-26/a-dark-side-to-the-
fbis-magic-lantern; Bob Sullivan, “FBI 48. The bit-streaming method consecutively
24. Nolan et al., supra § 2 C, note 42, at 88. Software Cracks Encryption Wall,” NBC duplicates digital data in its minimum
25. Vaciago, supra § 2 C, note 33. News, (20 Nov. 2001), at http://www. unit–bit. This method enables replication
nbcnews.com/id/3341694/ns/technology_ of all data, including those hidden or
26. See Vacca, supra § 2 C, note 44, at 43; and_science-security/t/fbi-software- deleted from the original storage device.
Robert Moore, “To View or Not to View: cracks-encryption-wall; Elinor Abreu, “FBI
Examining the Plain View Doctrine and Confirms ‘Magic Lantern’ Project Exists,” 49. Korea: “Rule on the Collection and
Digital Evidence,” American Journal of Rense, (13 Dec. 2001), at http://www. Analysis of Evidence by Digital Forensic
Criminal Justice, Vol. 29, No. 1 (2004), p. rense.com/general17/FBIconfirmsmagic. Investigator,” at http://www.law.go.kr/
59. htm. main.html (in Korean).
27. Moore, ibid., at 58. 36. See infra § 3 B for discussion informal 50. ITU Understanding Cybercrime, supra § 1
international cooperation encouraging B, note 1, at 251–79.
28. Lange & Nimsger, supra § 2 C, note 14, at information sharing and coordination
6; Gary Gordon, Chet Hosmer, Christine centers. 51. See Nolan et al., supra § 2 C, note 42, at
Siedsma & Don Rebovich, Assessing 12.
Technology, Methods, and Information for 37. Regarding the plans of German law-
Committing and Combating Cyber Crime, enforcement agencies to develop 52. Tom Talleur, “Digital Evidence: The Moral
(Washingtong, DC: US Dept. of Justice, a software to remotely access a Challenge,” International Journal of
Jan. 2003), p. 38, at https://www.ncjrs.gov/ suspect’s computer and perform search Digital Evidence, Vol. 1, Issue 1 (2002),
pdffiles1/nij/grants/198421.pdf. procedures, see John Blau, “Debate p. 1 et seq., at https://www.utica.edu/
Rages over German Government Spyware academic/institutes/ecii/publications/
29. Ibid. Plan,” Infoworld, (5 Sep. 2007), at http:// articles/9C4E398D-0CAD-4E8D-
www.infoworld.com/article/2649377/ CD2D38F31AF079F9.pdf; Eoghan Casey,
30. Consider, for instance, the issue of the FBI “Error, Uncertainty, and Loss in Digital
security/debate-rages-over-german-
attempting to unlock a recovered Apple Evidence,” International Journal of
government-spyware-plan.html; Anne
iPhone. See supra § 1 B, case 1.3. Digital Evidence, Vol. 1, Issue 2 (2002), at
Broache, “Germany Wants to Sic Spyware
on Terror Suspects,” CNet News, (31 Aug. www.utica.edu/academic/institutes/ecii/
31. Casey, supra note 17.
2007), at https://www.cnet.com/news/ publications/articles/A0472DF7-ADC9-
32. Lange & Nimsger, supra § 2 C, note 16, at germany-wants-to-sic-spyware-on-terror- 7FDE-C80B5E5B306A85C4.pdf.
473; Gordon et al., supra note 28; Marco suspects.
53. See UNODC Cybercrime Study, supra §
Gercke, “Challenges Related to the Fight
38. Erin Kenneally, “Confluence of Digital 2 C, note 42, at 39 et seq.; Nolan et al.,
against Cybercrime,” Multimedia und
Evidence and the Law: On the Forensic supra § 2 C, note 42, at 85; Gordon, supra
Recht, (2008), p. 297.
Soundness of Live-Remote Digital note 28, at 41 et seq.
33. See, e.g., Vindu Goel, “Encryption Is Evidence Collection,” UCLA Journal of
54. Ruibin & Gaertner, supra note 13.
More Important, and Easier, Than Ever Law & Technology, Vol. 9, No. 2 (2005).
By,” New York Times, (14 Oct. 2015), at 55. Gordon, supra note 28, at 62.
http://bits.blogs.nytimes.com/2015/10/14/ 39. See Vacca, supra § 2 C, note 42, at 52.
encryption-is-more-important-and-easier-
40. See, e.g., “About Us,” American Board of
than-ever/?_r=0.
Criminalistics, at http://www.criminalistics.
com/.
Page 152 | Chapter 2 | End Notes Table of Contents
56. UNODC Cybercrime Study, supra § 1 C 66. For details, Korean Criminal Procedure
note 7, at 159, provides that “Hearsay Act, supra § 2 C, note 14, at Art. 310-2.
is often defined as ‘evidence given of a
statement made on some other occasion, 67. Supreme Court of Korea, supra note 65.
when intended as evidence of the truth
68. Korean Criminal Procedure Act, supra § 2
of what was asserted’ (Halbury’s Laws,
C, note 14, at Art. 316. (“(1) If a statement
Vol. 17). Certain types of digital evidence
made by a person other than a criminal
may strictly constitute hearsay, but could
defendant […] at a preparatory hearing
be admitted under exceptions such
or a trial conveys a statement of the
as ‘business records.’” For details, see
criminal defendant, such statement shall
Leigland & Krings, supra § 2 C, note 11.
be admissible as evidence only if it is
57. See, e.g., ibid., at 167. proved that the statement was made
in a particularly reliable state. (2) Oral
58. See, e.g., John H. Wigmore, “The History testimony given by a person other than
of the Hearsay Rule,” Harvard Law Review, the criminal defendant at a preparatory
Vol. 17, No. 7 (1904), pp. 437–58. hearing or during a trial, the import of
which is the statement of a person other
59. United Kingdom: § 114(1) Criminal Justice than the criminal defendant, shall be
Act 2003. admissible as evidence only when the
person making the original statement
60. Ibid.
is unable to testify because he/she is
61. See, e.g., Charles T. McCormick, et al., dead, ill, or resides abroad, his/her
McCormick on Evidence, 4th ed., (St. whereabouts is not known, or there is any
Paul, MN: West Pub, 1992), p. 428. other similar reason, and only when there
exist circumstances which lend special
62. Korean Criminal Procedure Act, supra § 2 credibility to such testimony.”).
C, note 14, at Art. 310 et seq., (“[…] any
document which contains a statement 69. Ibid., Pre-trial hearings are to be
in place of the statement made at a conducted pursuant to Art. 313(1).
preparatory hearing or during trial, or
70. Supreme Court of Korea, Decision
any statement the import of which is
2006Do2556 (25 Nov. 2008), at http://www.
another person’s statement made outside
law.go.kr/precInfoP.do?precSeq=125192
preparatory hearing or at the time other
(in Korean). See also Blumenthal, supra
than the trial date, shall not be admitted
note 63, at 72.
as evidence.”).
71. See, e.g., Korea: Act on Promotion
63. See, e.g., Jeremy A. Blumenthal,
of Information and Communications
“Shedding Some Light on Calls for
Network Utilization and Information
Hearsay Reform: Civil Law Hearsay Rules
Protection, Art. 44-7, at http://elaw.
in Historical and Modern Perspective,”
klri.re.kr/kor_service/converter.
Pace International Law Review, Vol. 13,
do?hseq=7288&type=PDF (in English).
No. 1 (2001), at http://digitalcommons.
pace.edu/cgi/viewcon 72. See Jang, supra note 64, at 72.
tent.cgi?article=1205&context=pilr.
73. Supreme Court of Korea, Decision
64. Junsik Jang, “The Current Situation and 99Do1252 (25 Feb. 2000), at http://www.
Countermeasures to Cybercrime and law.go.kr/%ED%8C%90%EB%A1%80/
Cyber-Terror in the Republic of Korea,” (99%EB%8F%841252) (in Korean).
140th International Training Course
Visiting Experts’ Papers. Resource 74. Lee Sook-yeon, “Admissibility and
Material Series, No. 79 (2008), UNAFEI, Examination of Digital Evidence: With
p. 52, at http://www.unafei.or.jp/english/ a Focus on the Criminal Procedure,”
pdf/RS_No79/No79_08VE_Jang1.pdf (in Supreme Court Law Journal, Vol. 2, No. 2
English). (2012), p. 77, at http://library.scourt.go.kr/
SCLIB_data/publication/m_531306_v.2-2.
65. Supreme Court of Korea, Decision, pdf (in English).
99Do2317 (3 Sep. 1999), at http://www.
law.go.kr/%ED%8C%90%EB%A1%80/ 75. As discussed further on, INTERPOL has
(99%EB%8F%842317) (in Korean). See already established information sharing
Oh Gi-du, “Statement of Defendant and and coordination centers, which might
Authentication of Electronic Documents,” be used as places of instruction and
Supreme Court Law Journal, Vol. 3, No. knowledge sharing. See § 3 B, below.
2 (Dec. 2013), p. 73, at http://library.
scourt.go.kr/SCLIB_data/publication/ 76. UNODC already sets evidentiary
m_531306_v.3-2.pdf (in English). standards.
Page 153 | Chapter 2 | End Notes Table of Contents
Referenced in: § E. Jurisdictional 8. Max Weber, “Politics as a Vocation,” Max 22. See, e.g., Budapest Explanatory Report,
Issues Weber: Essays in Sociology, (Oxford: supra § 1 D, note 4, at para. 233.
Oxford University Press, 1946), pp. 77–128,
at http://polisci2.ucsd.edu/foundation/ 23. Ibid.
1. Oxford English Dictionary. documents/03Weber1918.pdf.
24. See, e.g., Abraham D. Sofaer, Seymour
2. Kim Soukieh, “Cybercrime–The Shifting 9. Mark Landler, “A Filipino Linked to ‘Love E. Goodman, Mariano-Florentino Cuéllar
Doctrine of Jurisdiction,” Canberra Law Bug’ Talks about his License to Hack,” et al., “A Proposal for an International
Review, Vol. 10 (2011), pp. 221–38. New York Times, (21 Oct. 2000), at http:// Convention on Cyber Crime and
www.nytimes.com/2000/10/21/business/a- Terrorism,” Hoover Institution, CRISP,
3. See, e.g., Babcock v. Jackson, 191 N.E.2d CISAC & Stanford University (Aug.
filipino-linked-to-love-bug-talks-about-his-
279 (N.Y. 1963). The collective corpus of 2000), at http://cisac.fsi.stanford.edu/
license-to-hack.html.
procedural law devoted to the matter sites/default/files/sofaergoodman.pdf.
determining the legal system and the 10. Lorenzo Franceschi-Bicchierai, “Love Transnational fraud, for example, has led
law of jurisdiction applying to a given Bug: The Virus That Hit 50 Million People to decisions by national courts assuming
legal dispute is known as conflicts of Turns 15,” Motherboard, (4 May 2015), at jurisdiction on the basis of any significant
laws at large, although (especially in civil http://motherboard.vice.com/read/love- connection to the conduct involved.
law jurisdictions) those matters are often bug-the-virus-that-hit-50-million-people- Among these are the states where a fraud
addressed in private and, to a lesser turns-15. was planned, where an effort to defraud
extent, in public international law. See, was initiated, where individuals worked at
e.g., Robert C. Lawrence, III, International 11. Landler, supra note 9. implementing the fraud, where or through
Tax and Estate Planning (3d ed. 1999), which communications were made that
Ch. 1. The ability and means of a court of 12. The basis for international public law
were intrinsic to the fraud, where the
the forum jurisdiction to resolve conflicts is by and large built upon the notion
victims were located, and where the
of laws is in and of itself an exertion of of Westphalian sovereignty. See, e.g.,
fraud had material and intended effects.
jurisdiction. See ibid. For that and other Andreas Osiander, “Sovereignty,
The widespread recognition of fraud as
reasons, the Budapest Convention does International Relations, and the
criminal activity leads states readily to
nothing more than allow, “When more Westphalian Myth,” International
find jurisdiction over such activity, despite
than one Party claims jurisdiction over an Organization, Vol. 55, (2001), pp. 251–87.
the significant relationship particular
alleged offence established in accordance 13. See, e.g., Budapest Convention, supra § 1 frauds may have to other states. They
with this Convention, the Parties involved B, note 32, at Art. 22.1 et seq.,. tend to assume that punishing fraud will
shall, where appropriate, consult with a be supported by other affected states,
view to determining the most appropriate 14. Korea: Criminal Act, (30 Dec. 2014) rather than opposed as violating their
jurisdiction for prosecution.” Budapest [hereafter, “Korean Criminal Act”], at sovereignty. At the very least, leaving
Convention, supra § 1 B, note 32, at Art. http://www.oecd.org/site/adboecdanti- aside the heightened dangers posed
22.5 (emphasis added). See also Budapest corruptioninitiative/46816472.pdf, Art. 2. by cybercrime, the same rationale that
Explanatory Report, supra § 1 D, note 14, supports such a broad assertion of
at para. 239. 15. See, e.g., Budapest Convention, supra § 1
jurisdiction over fraud supports a similar
B, note 32, at Art. 22.1.b.
assertion of jurisdiction over cybercrime.
4. It bears noting that while there are
positive jurisdictional conflicts—where 16. Ibid., at Art. 22.1.c. 25. Budapest Convention, supra § 1 B, note
several states seek jurisdiction over the 32, at Arts. 2–11.
17. Convention on the Law of the Sea, (10
same crime—, negative ones, where
Dec. 1982) UN Doc A/Conf.62/122, UN
no state claims jurisdiction, also exist. 26. See, e.g., 1999 Revision of the Model
Reg. No I-31363, Part VII High Seas, §
To limit the occurrence of the latter State Computer Crimes Code, supra note
1 General Provisions, Art. 87; see also,
scenario for cybercrimes—which could 21; see also Budapest Convention, supra
e.g., Budapest Convention, supra § 1 B,
potentially leave would-be plaintiffs § 1 B, note 32, at Art. 22.1.d.
note 32, at Art. 4., (“This Act shall apply
without any recourse—, the Budapest
to aliens who commit crimes on board a 27. See Budapest Explanatory Report, supra §
Convention, for one, lists the bases
Korean vessel or Korean aircraft outside 1 D, note 14, at para. 236.
on which a country may or must assert
the territory of the Republic of Korea.”).
jurisdiction over a crime covered (Arts. 28. Ibid.
2–11), as well as obliging signatories to 18. Ibid. See Warsaw Summit Communiqué,
establish those acts as criminal offenses supra § 1 A, note 12. 29. See infra for discussions of dual
in their jurisdictions (Art. 22 et seq.). See criminality. Also, in order to avoid a
Budapest Convention, supra § 1 B, note 19. Budapest Convention, supra § 1 B, note case of negative jurisdiction, where no
32. Principles of sovereignty allows that 32. state claims jurisdiction, the Budapest
Parties to the Convention are in no way Convention allows that the principle of
limited in asserting jurisdiction over other 20. ITU Understanding Cybercrime, supra § nationality might be used to prosecute
crimes pursuant to their domestic law, 1 B, note 1, at 235–38; Brenner & Koops, an offender acting in a “place outside the
and independent of the Convention. See, “Approaches to Cybercrime Jurisdiction,” territorial jurisdiction of any State”. See
e.g., ibid., at Art. 22.4. p. 6. Budapest Explanatory Report, supra § 1
21. See, e.g., 1999 Revision of the Model D, note 14.
5. See §§ 2 C, 2 D & 3 C.
State Computer Crimes Code, § 1.03 (A- 30. Supra ITU Understanding Cybercrime,
6. See § 3 D. E), http://www.crime-research.org/library/ supra § 1 B, note 1, at 237; see also,
Model.htm.
7. Brenner, supra § 1 B, note 2. Korean Criminal Act, supra note 14, at
Arts. 3 & 5.
Page 154 | Chapter 2 | End Notes Table of Contents
31. Ibid., ITU Understanding Cybercrime, at 41. See, e.g., USC Title 18,§§ 792–99 (the 56. See Karen DeYoung, “Intense Diplomacy
237. “Espionage Act”). between Secretary of State Kerry and His
Iranian Counterpart to Secure Sailors,”
32. LICRA and UEJF v. Yahoo! Inc. and Yahoo 42. Budapest Explanatory Report, supra § 1 Washington Post, (13 Jan. 2016), at
France, Tribunal de grande instance de D, note 14, at para. 237. https://www.washingtonpost.com/news/
Paris, Ordonnance de référé (11 Aug. checkpoint/wp/2016/01/13/intense-
2000); see also, LICRA and UEJF vs. 43. Armando Cottim, “Cybercrime,
diplomacy-between-secretary-of-state-
Yahoo! Inc. and Yahoo France, Tribunal de Cyberterrorism and Jurisdiction: An
kerry-and-his-iranian-counterpart-to-
grande instance de Paris, Ordonnance de Analysis of Article 22 of the COE
secure-sailors-release/.
référé (22 May 2000). Convention on Cybercrime,” European
Journal of Legal Studies, Vol. 2, Issue 57. Jamie Crawford, “Kerry Tells Iran in Long
33. Yahoo! Inc. v. LICRA and UEJF, 433 F.3d 3 (2010), at http://www.ejls.eu/6/78UK. Day of Calls: This Can be ‘a Good Story
1199 (9th Cir. 2006). htm#_ftnref34. for Both of Us’, ” CNN, (13 Jan. 2016), at
http://www.cnn.com/2016/01/13/politics/
34. France: Code pénal, Art. R645-1 44. See, e.g., France: Code de procédure
john-kerry-iran-zarif-sailors/.
(prohibiting the wearing or exhibiting pénal, Art. 689 (authorizing French courts
in public uniforms, insignias, and to exert jurisdiction for committing of 58. Budapest Convention, supra § 1 B, note
emblems that recall those used by (i) any of the following acts beyond the 32, at Art. 22.5.
an organization that declared illegal in French territory: torture, terrorism, nuclear
application of Art. 9 of the Nuremberg smuggling, naval piracy, and airplane 59. “Dual criminality” (also known as “double
Charter, or (ii) an individual who found hijacking); see also, Xavier Philippe, criminality”) refers to a requirement that
guilty of crimes against humanity). “The Principles of Universal Jurisdiction the act subject to a request for extradition
and Complementarity: How Do the Two or mutual legal assistance must be a
35. Ibid. Principles Intermesh?,” International criminal offence under the laws of both
Review of the Red Cross, Vol.88, No. 862 custodial and requesting States. See,
36. Yahoo! Inc. v. UEJF and LICRA, Order
(2006), at https://www.icrc.org/eng/assets/ supra § 2 A.
Denying Motion to Dismiss, (N.D.
files/other/irrc_862_philippe.pdf.
Cal. 2001), at http://cyber.law.harvard. 60. For a detailed discussion of other
edu/stjohns/Yahoo.html; Yahoo! Inc. 45. Philippe, ibid. jurisdictional possibilities, see Budapest
v. UEJF and LICRA, Order Granting Explanatory Report, supra § 1 D, note 14,
Motion for Summary Judgment, 46. See supra § 2 A. at para. 234–35.
(N.D. Cal. 2001), at http://law.justia.
com/cases/federal/district-courts/ 47. Budapest Explanatory Report, supra § 1
FSupp2/169/1181/2423974/. D, note 14, at para. 237–38.
37. Yahoo! Inc. v. LICRA and UEJF, supra note 48. Budapest Convention, supra § 1 B, note
33. 32, at Art. 22. The Budapest Convention
allows that each signatory might alter its
38. See Italy: Codice penale, Art. 7; France: bases for setting jurisdiction, and that
Code pénal, Art. 113-10; Germany: those provided in the Convention are not
Strafgesetzbuch, § 6; and Spain: Código exclusive. Budapest Explanatory Report,
penal, Art. 5, No. 1, which specifically supra § 1 D, note 14, at para. 238.
deals, inter alia, with computer crime. See
also, United States v. Zehe, 601 F. Supp. 49. Australia: Australian Criminal Code Act,
196 (D. Mass. 1985) (where, under the Art.14 & 15, at http://www.austlii.edu.au/
Espionage Act (USC Title 18, §§ 792–99), au/legis/cth/consol_act/cca1995115/sch1.
the government brought criminal charges html.
against an East German citizen for alleged
50. Ibid., at Art. 14(1).
acts of espionage—a threat to national
security—against the United States 51. Ibid., at Art.15 (14); see also ibid., at Art.
committed in Mexico and in Germany); 16 et seq.
see also, Korean Criminal Act, supra note
14, at Art. 6. 52. Ibid., at Art. 14.1.
39. See, e.g., Damien Geradin, Marc Reysen 53. Gregor Urbas, “Cybercrime, Jurisdiction
& David Henry, “Extraterritoriality, Comity and Extradition,” Journal of Internet Law,
and Cooperation in EC Competition (2012), pp. 9–10.
Law,” SSRN, (Jul. 2008), at http://papers.
54. “About the Computer Crime &
ssrn.com/sol3/papers.cfm?abstract_
Intellectual Property Section,” US Dept.
id=1175003.
of Justice, at https://www.justice.gov/
40. See, e.g., J. P. Griffin, “Extraterritoriality criminal-ccips.
in US and EU Antitrust Enforcement,”
55. Ibid.
Antitrust Law Journal, Vol. 67 (1999), p.
159. For a class case, see United States v.
Aluminum Company of America (Alcoa),
148 F.2d 416 (2d Cir. 1945).
Page 155 | Chapter 2 | End Notes Table of Contents
Referenced in: § F. Institutional 6. UK Cabinet Office and UK National 16. UK National Security Secretariat, supra
Framework Security Secretariat, “The UK Cyber note 6.
Security Strategy – Protecting and
Promoting the UK in a Digital World,” 17. See UK Cabinet Office & UK National
1. See supra § 2 C. (London: Crown, 2011), at https://www. Security Secretariat, “The UK Cyber
gov.uk/government/uploads/system/ Security Strategy 2011-2016: Annual
2. See, e.g., “National Cyber Security Report,” (14 Apr. 2016), at https://www.
uploads/attachment_data/file/60961/uk-
Strategies in the World,” European Union gov.uk/government/publications/the-uk-
cyber-security-strategy-final.pdf.
Agency for Network and Information cyber-security-strategy-2011-2016-annual-
Security (ENISA), at https://www.enisa. 7. See UK Cabinet Office and UK National report.
europa.eu/activities/Resilience-and-CIIP/ Security Secretariat, “Cyber Security
national-cyber-security-strategies-ncsss/ Strategy: Progress So Far,” (London: 18. UK Cabinet Office, supra note 7.
national-cyber-security-strategies-in-the- Crown, 2013), at https://www.gov.uk/
world. 19. Korea: Act on Promotion of Information
government/collections/cyber-security-
and Communications Network Utilization
strategy-progress-so-far--2.
3. Stuxnet virus was the name of and Data Protection, etc., Act 1, at
sophisticated malicious code, believed 8. See The Rt Hon Matt Hancock MP, UK http://www.worldlii.org/int/other/
to have been developed by US and Cabinet Office & UK National Security PrivLRes/2005/2.html (in English).
Israeli governments, that was used to Secretariat, “UK Cyber Security Strategy:
force the failure of nuclear centrifuges 20. See “United States Secret Service
Statement on the Final Annual Report,”
of the Natanz uranium enrichment plant Electronic Crimes Task Forces,” at
(14 Apr. 2016), at https://www.gov.uk/
in Iran. Rather than hijack computers https://www.dhs.gov/sites/default/files/
government/speeches/uk-cyber-security-
themselves or steal information stored publications/USSS%20Electronic%20
strategy-statement-on-the-final-annual-
thereon, Stuxnet targeted the equipment Crimes%20Task%20Force.pdf.
report.
and infrastructure controlled by those 21. Michael Kraft & Edward Marks, US
computers. Understood as the “world’s 9. ITU Understanding Cybercrime, supra § 1
Government Counterterrorism: A Guide
first digital weapon,” the air-gap—a B, note 1.
to Who Does What, (Boca Raton, FL: CRC
network security measure used to Press, 2012).
ensure that a secure computer network 10. The UK Home Office is the government
is physically isolated from unsecured department responsible for immigration,
22. See “Electronic Crimes Task Forces
ones—was overcome, and Stuxnet counter-terrorism, police, drugs policy
(ECTF),” The White House of
introduced into the physically-isolated and related science and research. See
President Barack Obama, at https://
Natanz plant, through contaminated USB “Home Office,” Gov.uk, at https://www.
obamawhitehouse.archives.gov/files/
keys. It is believed to have been used as a gov.uk/government/organisations/home-
documents/cyber/United%20States%20
model for the failed cyberattack on North office.
Secret%20Service%20-%20Electronic%20
Korean. See, e.g., Kim Zetter, Countdown 11. “Department for Business, Energy Crimes%20Task%20Forces.pdf
to Zero Day: Stuxnet and the Launch of and Industrial Strategy (BEIS),” Gov.
the World’s First Digital Weapon, (New 23. USA PATRIOT Act, supra § 1 C, note 10,
uk, at https://www.gov.uk/government/
York: Crown Publishers, 2014). Kim Zetter, at § 105.
organisations/department-for-business-
“An Unprecedented Look at Stuxnet, the innovation-skills. The UK Cyber Security 24. See “Combatting Cyber Crime,” US Dept.
World’s First Digital Weapon,” Wired, Strategy speaks of the Department for of Homeland Security, at https://www.dhs.
(3 Nov. 2014), at https://www.wired. Business, Innovation and Skills (BIS); gov/topic/combating-cyber-crime.
com/2014/11/countdown-to-zero-day- however, that office and the Department
stuxnet/. See also, Rachael King, “Stuxnet of Energy and Climate Change 25. Sophia Yan & K.J. Kwon, “Massive Data
Infected Chevron’s IT Network,” Wall (DECC) have since merged to form the Theft Hits 40% of South Koreans,”
Street Journal, (8 Nov. 2012), at http:// Department for Business, Energy and CNNTech, (21 Jan. 2014), at http://money.
blogs.wsj.com/cio/2012/11/08/stuxnet- Industrial Strategy (BEIS). Ibid. cnn.com/2014/01/21/technology/korea-
infected-chevrons-it-network/. data-hack/.
12. “Department for Culture, Media and
4. Joseph Menn, “Exclusive: US Tried Sport,” Gov.uk, at https://www.gov.uk/ 26. See supra § 2 B, box 2.3.
Stuxnet-Style Campaign Against North government/organisations/department-
Korea but Failed—Sources,” Reuters, 27. Yan § Kwon, supra note 25.
for-culture-media-sport.
(29 May 2015), at http://www.reuters.
com/article/us-usa-northkorea-stuxnet- 13. ”Cabinet Office,” Gov.uk, at https://
idUSKBN0OE2DM20150529. www.gov.uk/government/organisations/
cabinet-office.
5. See, e.g., “National Strategies,” ITU, at
www.itu.en/ITU-D/Cybersecurity/Pages/ 14. ”Ministry of Defence,” Gov.uk, at https://
National-Strategies.aspx. www.gov.uk/government/organisations/
ministry-of-defence.
15. ”Foreign and Commonwealth Office,”
Gov.uk, at https://www.gov.uk/
government/organisations/foreign-
commonwealth-office.
Page 156 | Chapter 2 | End Notes Table of Contents
CHAPTER 3
National Legal Frameworks
Building on the procedural, evidentiary,
jurisdictional and institutional issues discussed
in chapter 2, this chapter provides an overview
of substantive criminal aspects of cybercrime
and how they are expressed in national legal
frameworks.
In this Chapter
A. Substantive Law 158
Page 157 | Chapter 3 | National Legal Frameworks
CHAPTER 3
A. Substantive Law
Table of Contents
Introduction 158
I. Existing National Cybercriminal Legislation 159
A. Illegal Access 159
B. Illegal Acquisition of Computer Data 160
C. Illegal Interception of Computer Data 161
D. Illegal Interference with Computer Data 161
E. Illegal System Interference 162
F. Misuse of Devices 162
G. Fraud 163
H. Forgery 163
I. Spamming 164
J. Child Pornography Offences 165
K. Copyright & Trademark Offences 166
II. Safeguards 166
A. General Due Process Considerations 167
B. Privacy & Data Protection 167
C. Freedom of Expression 167
Conclusion 167
Introduction
In chapter 2, above, the various aspects of cybercrime are addressed at a high level—
first, laying out a working definition of cybercrime (see section 2 A), then having
discussed what conduct is criminalized (see section 2 B), and going on to consider
procedural (see section 2 C), evidentiary (see section 2 D), jurisdictional (see section 2
E) and institutional (see section 2 F) issues. This chapter tries to give a more concrete
understanding of those matters. This subsection shows how the already-discussed
offences appear in national laws. It also introduces the idea of the how certain
safeguards—general due process issues as well as data protection and freedom of
expression - appear in national law. Just as there is no one, globally accepted definition
of cybercrime (see section 2 A, above), similarly, acts constituting cybercrime differ from
state to state, with each state determining the various constitutive elements through
Page 158 | Chapter 3 | § A. Substantive Law Table of Contents
its own domestic processes. As a result of this fragmentation, certain behavior that is
understood as criminal in one country may not necessarily be classified as criminal
in another; accordingly, perpetrators may not necessarily be subject to criminal
punishment largely due to the absence of dual criminality (see section 2 A, above).1 In
instances where criminal sanctions may not be available, civil or administrative measures
may exist for specific types of individual cybercrime acts.2
I. Existing National Cybercriminal Legislation
While various cybercrimes have been discussed in section 2 B, above, this section, following
the same construction, considers how national laws have addressed such concerns by looking
at the following cybercrimes: (A) the unauthorized access to a computer system, or hacking, (B)
illegal acquisition of computer data, (C) illegal interception of computer, (D) illegal access to, and
interfering with, computer data, (E) illegal system interference, (F) misuse of devices, (G) fraud, (H)
forgery, (I) spamming, (J) child pornography and (K) copyright and trademark offenses.
A. Illegal Access
Illegal access to a computer system, is, in many ways, one of the most basic cybercrimes as it
enables subsequent (cyber)criminal behavior (see section 2 B, above). Correspondingly, that
behavior is now widely, though not universally, criminalized. Many countries criminalize hacking
through cyber-specific legislation,3 while others criminalize such acts by way of a general offence.4
Depending on the jurisdiction’s chosen approach, the perpetrator must have a certain “guilty”
mental state, or mens rea, in order to be found culpable of this offense.5 Some states take an
approach that expands this offense beyond unauthorized access to include continued or remained
access to the computer system beyond that initial unauthorized trespass, or, if authorization existed,
then presence beyond the period or purposes for which that authorization was granted. Other
jurisdictions classify “illegal access”—what is often termed as “unauthorized monitoring”6—as
a separate offense under separate provisions. Some national laws make illegal access a criminal
offense only if it is paired with interference to or with that data— for instance, the copying,
blocking, destroying, modifying or deleting of the data7; others criminalize the activity only if such
illegal access is committed in connection with one of the components of illegal data or system
interference. It is considered good practice to avoid adding further elements to the base-level
crime, as doing so might lead to difficulties in distinguishing between other offences (e.g., data
espionage, illegal data or system interference), as well as limiting interoperability.8
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Box 3.1: Saint Vincent and the Grenadines
Example of Legislation Criminalizing Hacking
A person who intentionally, without lawful excuse or justification, accesses the whole or any
“
part of an information system commits an offence and is liable on conviction [….]”9
B. Illegal Acquisition of Computer Data
The illegal acquisition of computer data refers to obtaining computer data intentionally without
authorization. The offense generally lies in the intentional unauthorized possession of such data
alone; it does not depend on what may have been done with either that data or to the original data.
However, the statutes in some countries require additional elements, such as that a person has
breached security measures, or has a specific dishonest intent.
Box 3.2: Kazakhstan
Example of Legislation Criminalizing Illegal Access to Computer Data
“Illegal access to computer information which is protected by law, that is information on
a storage medium, in a computer, computer system, or computer network, and equally
violation of the rules for operation of a computer, computer system or their network by
persons, [by persons and through the creation of programs for computers] who have access
to the computer, computer system or their network, if this action entailed destruction,
blocking, modification, or the copying of information, or disruption of the work of a given
computer, computer system, or computer network [….]”10
In Germany, a wider net is cast, with any data, regardless of its status or of the acquirer’s purpose,
being protected from unauthorized acquisition.11
Box 3.3: Germany
Example of Legislation Criminalizing Illegal Access to Computer Data
Whosoever unlawfully obtains data for himself or another that were not intended for him and
“
were especially protected against unauthorized access, if he has circumvented the protection,
shall be liable [….]”12
Page 160 | Chapter 3 | § A. Substantive Law Table of Contents
“[…] above data shall only be those stored or transmitted electronically or magnetically or
otherwise in a manner not immediately perceivable.”13
C. Illegal Interception of Computer Data
Illegal interception of computer data refers to acts involving intercepting data during transmission
without authorization. At the national level, while many states cover illegal interception of computer
data transmitted by cyber-specific legislation, others apply existing laws that criminalize unlawful
interception of communications.14 Further, while, in some states, the scope of the offence is
unrestricted, in others it is limited to private transmissions.15
Box 3.4: Botswana
Example of Legislation Criminalizing Illegal Interception of Computer Data
A person who intentionally and by technical means, without lawful excuse or justification,
“
intercepts— (a) any non-public transmission to, from or within a computer or computer
system; or (b) electromagnetic emissions that are carrying data, from a computer or
computer system, commits an offence [….]”16
D. Illegal Interference with Computer Data
Quite similar to illegal access to computer data, illegal data interference refers to the unauthorized
or unjustified interference with computer data (e.g., inputting, transmitting, damaging, deleting,
deteriorating, altering or suppressing).17
Box 3.5: Portugal
Example of Legislation Criminalizing Illegal Data Interference
Whoever, without legal permission or authorization from the owner or holder of the
“
right over the full system, or part thereof, deletes, alters, fully or partially deteriorates,
damages, suppresses or renders unusable or inaccessible other people’s programmes or
other computer data or by any other means seriously hinders their functioning, shall be
punishable[….]”18
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E. Illegal System Interference
Another variant of illegal interference, this offense criminalizes interference that substantially
hinders the functioning of a computer system without authorization or justification.19 Some states
have special statutory provisions governing illegal interference with computer systems of critical
national infrastructure.20 According to UNODC, seventy percent of the countries reported the
existence of a variant of this cyber-specific offence.21 An additional twenty-two percent indicated
that this act was criminalized by way of a general offence.22
Box 3.6: The Gambia
Example of Legislation Criminalizing Illegal System Interference
A person who, without lawful authority or lawful excuse, does an act which causes directly or
“
indirectly
A degradation, failure, interruption or obstruction of the operation of a computer system
A
A denial of access to, or impairment of any program or data stored in, the computer
B
system, commits an offence.”23
F. Misuse of Devices
Criminalization of the misuse of tools existed well before the development of ICTs. Misuse of
devices refers to acts involving computer tools to commit cybercrimes. In the cybercriminal
context, the term “tools” is broadly understood, possibly covering not only software or devices,
but also passwords or codes that enable access to computer systems and data (also called “access
codes”).24
In response to growing underground markets for trading information, software and other tools used
to commit crimes in cyberspace, many national laws have adopted provisions specifically targeting
acts concerning computer misuse tools.25 UNODC found that approximately sixty-seven percent
of responding had cyber-specific offences concerning the misuse of computer tools.26 About ten
percent of responding countries indicated that such acts act were criminalized by way of a general
offence.27 Domestic laws typically require both that the tool be either designed or adapted for the
purpose of the committing the prescribed offence, and that the perpetrator have the requisite
intent.28 Other laws, by contrast, are more expansive, either requiring only that the tool’s purpose
be the furtherance of a cybercriminal,29 or that perpetrator presents the requisite mens rea.30
The production, distribution, making available or possession of “computer misuse tools” may also
be criminalized.31 Relatedly, the unauthorized disclosure of passwords or access codes is often also
criminalized.32
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Box 3.7: Ghana
Example of Legislation Criminalizing Misuse of Devices33
“A person who intentionally, recklessly, without lawful excuse or justification, possesses,
produces, sells, procures for use, imports, exports, distributes or otherwise makes available
A device, including a computer programme, that is designed or adapted for the purpose
A
of committing an offence
A computer password, access code or similar electronic record by which the whole or
B
any part of a computer system is capable of being accessed with the intent that it be
used by a person for an offence commits an offence and is liable [….]”
G. Fraud
Fraud is generally understood as consisting of some deceitful practice or willful device intentionally
used to deprive another of his or her right, or to cause him or her some other harm.34 For instance,
the World Bank, which, working in an administrative system, understands the term more broadly
than most, describes “fraudulent practice” as “any act or omission, including misrepresentation,
that knowingly or recklessly misleads, or attempts to mislead, a party to obtain financial or other
benefit or to avoid an obligation”.35 As traditional notions of fraud require the direct deception of
a physical person, transitioning to cyberspace can cause legal complication since ICT-related fraud
typically involves acts of data or system manipulation or interference. In order to address potential
legal issues, many countries have introduced cyber-specific provisions.36 Relatedly, while some
countries incorporate unauthorized use of electronic payment tools into provisions on fraud, others
criminalize such acts under stand-alone offences.37
Box 3.8: Korea
Example of Legislation Criminalizing ICT-related Fraud38
Any person who acquires any benefits to property or has a third person acquire them, by
“
making any data processed after inputting a false information or improper order, or inputting
or altering the data without any authority into the data processor, such as computer, etc.,
shall be punished [….]”
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H. Forgery
The crime of forgery is typically understood as the false-making, with intent to defraud, of a writing
(through construction, alteration or false signature), which, if genuine, would be of legal efficacy or
the foundation of a legal liability.39 ICT-related forgery is an act involving interference with computer
data resulting in inauthentic data with specific intent to cause such data to be relied upon as if it
were authentic.40 According to UNODC, some countries reported having criminalizing computer-
related fraud or forgery through a general offense41; others indicate that this act was criminalized by
way of a cyber-specific offence.42
Similar to traditional fraud offences, forgery offences often require modification of a writing or other
visual representation. That requirement often presents legal difficulties in covering ICT-related
forgery which involve manipulation or alteration of computer data. To address such difficulties,
some countries extend the legal definition of “document”or “writing” to include data stored on a
computer system,43 while other systems have introduced provisions explicitly addressing computer-
related forgery.44 Some countries enumerate different punishments depending on whether public or
private data are subject to forgery.45
Box 3.9: Samoa
Example of Legislation Criminalizing ICT-related Forgery46
A person is liable to […] who intentionally and without authorisation, inputs, alters, deletes, or
“
suppresses electronic data, resulting in inauthentic data with the intent that it be considered
or acted upon for legal purposes as if it were authentic, regardless of whether or not the data
is directly readable and intelligible.”
I. Spamming
Spamming—that is, using the internet to indiscriminately send unsolicited messages (typically
to a large numbers of recipients)—is a phenomenon unique to cyberspace because of the free
exchange of information and messages. According to UNODC, twenty-one percent of countries
have criminalized the sending of spam.47 A further fourteen percent of the responding countries
indicated that this act was criminalized by way of a general offence.48 Anti-spam laws typically
criminalize the transmission of unsolicited, multiple electronic messages and the manipulation of
either the message header or of the originating information.49 In some countries, the unauthorized
access to a protected computer and initiation of the transmission of multiple commercial electronic
mail messages is also criminalized.50
Page 164 | Chapter 3 | § A. Substantive Law Table of Contents
Box 3.10: United States of America
Example of Legislation Criminalizing Sending Spam51
“(a) In general. —Whoever, in or affecting interstate or foreign commerce, knowingly—
(1)
Accesses a protected computer without authorization, and intentionally initiates
the transmission of multiple commercial electronic mail messages from or
through such computer
(2)
Uses a protected computer to relay or retransmit multiple commercial electronic
mail messages, with the intent to deceive or mislead recipients, or any Internet
access service, as to the origin of such messages
(3)
Materially falsifies header information in multiple commercial electronic mail
messages and intentionally initiates the transmission of such messages
(4)
Registers, using information that materially falsifies the identity of the actual
registrant, for five or more electronic mail accounts or online user accounts or two
or more domain names, and intentionally initiates the transmission of multiple
commercial electronic mail messages from any combination of such accounts or
domain names
(5)
Falsely represents oneself to be the registrant or the legitimate successor
in interest to the registrant of 5 or more Internet Protocol addresses, and
intentionally initiates the transmission of multiple commercial electronic mail
messages from such addresses
or conspires to do so, shall be punished as provided in subsection (b).”
J. Child Pornography Offences
ICT-related child pornography offences criminalize the use of ICT to produce, distribute, access,
store or possess child pornography. According to UNODC, sixty-five percent of responding
countries reported generally criminalizing child pornography—for instance, by including language
such as “by any means” or “in any manner”.52 A further fourteen countries indicated that the
offence was criminalized by way of a cyber-specific instrument or element—for instance, by having
language such as “through computer systems”.53 Other countries have criminalized ICT-related
child pornography through judicial interpretation of general obscenity laws, or by extending a legal
definition of “child pornography” to cover child pornographic material in the form of computer
data.54
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Box 3.11: Estonia
Example of Legislation Criminalizing ICT-related Child Pornography Offence55
A person who manufactures, stores, hands over, displays or makes available in any other
“
manner pictures, writings or other works or reproductions of works depicting a person of less
than 18 years of age in a pornographic situation, or a person of less than 18 years of age in a
pornographic or erotic situation shall be punished [….]”
K. Copyright & Trademark Offences
Copyright and trademark laws protect a party’s branding and good name from unauthorized
usage—trademarks, by identifying and distinguishing the source of the goods, and copyrights, by
protecting original works of authorship. Analogs in cyberspace do much the same thing, focusing
on limiting those who can claim to have authored or created a work, as well as who can posture as
producing products.56 Roughly seventy-one percent of countries responding to UNODC’s survey
reported having criminalized computer-related copyright and trademark offence.57 An additional 14
percent indicated that cyber-specific provisions were in place.58
Box 3.12: United States of America
Example of Legislation Criminalizing ICT-related Copyright Offence59
In general. —Any person who willfully infringes a copyright shall be punished as provided
“(1)
under section 2319 of title 18, if the infringement was committed—
(A)
For purposes of commercial advantage or private financial gain
(B)
By the reproduction or distribution, including by electronic means, during any
180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted
works, which have a total retail value of more than $1,000
(C)
By the distribution of a work being prepared for commercial distribution, by
making it available on a computer network accessible to members of the public,
if such person knew or should have known that the work was intended for
commercial distribution.”
II. Safeguards
Page 166 | Chapter 3 | § A. Substantive Law Table of Contents
The other key area to be reflected in national legislation are the safeguards accompanying the
criminal sanctions. Although these are discussed more at length in greater depth in the sections 4 A
and 4 B, below, it bears highlighting here that ensuring that fundamental rights are protected is as
important as criminalizing certain behaviors. Fundamental freedom requiring protection include (A)
due process, (B) privacy and data and (C) freedom of expression.
A. General Due Process Considerations
A number of procedural issues related to investigations and prosecutions are considered in section
2 C; other issues related to due process, such as the rights of the accused to counsel and to being
present in connection with certain digital investigations. A vast area for consideration, the Toolkit
does not exhaustively deal with the full range of due process issues related generally to criminal
law; rather it focuses on specific issues related to cybercrime.
B. Privacy & Data Protection
According to UNODC, almost all responding countries indicated that existing privacy protections
extended to computer data and electronic communications.60 A balance is struck by protecting the
privacy of personal data collected and processed by third parties, while allowing, in exceptional
circumstances, that these third parties could be obliged to make disclosures to law enforcement.61
C. Freedom of Expression
Freedom of expression must be taken into account in criminalizing the dissemination of information
via computer systems or cyberspace either because the underlying content is illegal (e.g., child
pornography, or because the actor is unauthorized to do so (e.g., copyright).62 Relatedly, the
responsibility of facilitators (e.g., ISPs) must be taken into account, with many countries limiting
liability.63
Conclusion
There is a diversity of ways in which states have defined, criminalized and instituted procedural,
evidentiary, jurisdictional and institutional aspects in fight against cybercrime. This section has
highlighted just a few of the very many options by which national substantive law has criminalized
various cybercrimes, with selection being based on good practices and with an eye to furthering
international interoperability. In addition to appropriately empowering authorities to combat
cybercrime, it is important to ensure that corresponding safeguards—notably for due process,
privacy and data and freedom of expression—are also implemented.
Page 167 | Chapter 3 | § A. Substantive Law Table of Contents
End Notes
Referenced in: § A. Substantive Law 12. Ibid., at § 202a(1). 27. UNODC Cybercrime Study, supra § 1 C,
note 7, at 93 (Figure 4.16: Criminalization
13. Ibid., at § 202a(2). of production, distribution, or possession
1. See supra § 2 E, box 2.7 (discussing the
of computer misuse tools).
inability of domestic law enforcement to 14. See, e.g., Korea: Protection of
prosecute the creator of the “love bug” Communications Secrets Act, No. 6626 28. See, e.g., Ghana: Electronic Transactions
virus, and of foreign law enforcement (2002),Arts. 3 & 16(1)(1), at https://www. Act, No. 772 (2008) [hereafter, “Ghanian
authorities to arrange for extradition, imolin.org/doc/amlid/Republic_of_Korea_ Act”], § 135 (Illegal devices), at http://
due to the absence of domestic law Protection_of_Communications_Secrets_ www.researchictafrica.net/countries/
criminalizing computer hacking). Act.pdf. See also, UNODC Cybercrime ghana/Electronic_Transactions_Act_
Study, supra § 1 C, note 7, at 86. no_772:2008.pdf.
2. UNODC Cybercrime Study, supra § 1 C,
note 7, at 78. 15. UNODC Cybercrime Study, supra § 1 C, 29. Gambian Act, supra note 23, at § 10
note 7, at 87. (Unlawful possession of devices or data).
3. UNODC, “Cybercrime Questionnaire
for Member States”, (2012) [hereafter, 16. Botswana: Cybercrime Act, No. 22 (2007), 30. See, e.g., Sri Lanka: Computer Crimes
“UNODC Questionnaire”], Q25, at Ch. 08:06: Cybercrime and Computer Act, No. 24 (2007), § 9, at http://www.
https://cms.unov.org/DocumentReposit Related Crimes, § 9, at https://hingx.org/ slcert.gov.lk/Downloads/Acts/Computer_
oryIndexer/GetDocInOriginalFormat. Share/Details/711. Crimes_Act_No_24_of_2007(E).pdf;
drsx?DocID=f4b2f468-ce8b-41e9-935f- UNODC Cybercrime Study, supra § 1 C,
17. UNODC Cybercrime Study, supra § 1 C,
96b1f14f7bbc. note 7, at 94.
note 7, at 89–90.
4. UNODC Cybercrime Study, supra § 1 C, 31. UNODC Cybercrime Study, supra § 1 C,
18. Portugal: Cybercrime Law, No. 109 (15
note 7, at 82. note 7, at 95.
Sep. 2009), Art. 4.1, at http://www.wipo.
5. The principle is captured by the Latin int/edocs/lexdocs/laws/en/pt/pt089en. 32. See, e.g., Antigua and Barbuda:
dictum “actus reus non facit reum nisi pdf. Electronic Crimes Act, No. 14 (2013) § 9,
mens sit rea” (“the act is not culpable at http://laws.gov.ag/acts/2013/a2013-14.
19. UNODC Cybercrime Study, supra § 1 C,
unless the mind is guilty”). See, e.g., pdf.
note 7, at 90–91.
Oxford Reference. For an overview of the
different legal approaches to criminalize 33. Ghanaian Act, supra note 28, at § 135.
20. See, e.g., Korea: Act on the Protection
illegal access to computer systems, see of Information and Communications 34. Black’s Law Dictionary.
Stein Schjolberg, The Legal Framework Infrastructure, No. 11690 (23 Mar.
– Unauthorized Access to Computer 2013), Art. 12 (Prohibition against 35. See, e.g., “What is Fraud and
Systems: Penal Legislation in 44 Countries Intrusion, etc. of Critical Information Corruption?,” Integrity Vice Presidency,
(Moss District Court, Norway, 2003), at and Communications Infrastructure) World Bank, at http://www.worldbank.
http://www.mosstingrett.no/info/legal. and Art. 28 (Penal Provisions), at http:// org/en/about/unit/integrity-vice-pres
html#24. elaw.klri.re.kr/eng_mobile/viewer. idency/what-is-fraud-and-corruption.
do?hseq=28812&type=part&key=43.
6. See supra § 2 B. 36. See, e.g., Korean Criminal Act, supra §
21. UNODC Questionnaire, supra note 3, at 2 E, note at 14, at Art. 347-2; UNODC
7. See, e.g., Kazakhstan: Criminal Code, No.
Q27. Cybercrime Study, supra § 1 C, note 7, at
167 (16 Jul. 1997), Art. 227.1, at http://
98–99.
www.parliament.am/library/Qreakan/ 22. UNODC Cybercrime Study, supra § 1 C,
kazakstan.pdf. note 7, at 88 (Figure 4.9: Criminalization 37. See, generally, supra § 2 B.
of illegal data interference or system
8. Supra note 2, at 83–84. 38. Korean Criminal Act, supra § 2 E, note 14,
damage).
at Art. 347-2.
9. Saint Vincent and the Grenadines:
23. Gambia: Information and
Electronic Transactions Act, (2007), § 66, 39. Black’s Law Dictionary.
Communications Act, (2009), [hereafter,
at http://www.oas.org/juridico/spanish/
“Gambian Act”] § 167(1), at http://www.
cyb_svg_electronic_act_2007.pdf. 40. UNODC Cybercrime Study, supra § 1 C,
wipo.int/edocs/lexdocs/laws/en/gm/
note 7, at 98–99.
10. See, e.g., Kazakhstan Criminal Code, gm006en.pdf.
supra note 7 at Arts. 227.1–227.4 (applying 41. UNODC Questionnaire, supra note 3, at
24. UNODC Cybercrime Study, supra § 1 C,
to persons (Art. 227.1), to groups of Q 30.
note 7, at 93.
person (Art. 227.2) and to computer
programs (Art. 227.3)) (emphasis added). 42. UNODC Cybercrime Study, supra § 1 C,
25. Ibid., at 92–93.
note 7, at 97 (Figure 4.21: Criminalization
11. See, e.g., Germany: Criminal Code, § 26. UNODC Questionnaire, supra note 3, at of computer-related fraud or forgery).
202a, at http://www.gesetze-im-internet. Q28.
de/englisch_stgb/german_criminal_code.
pdf.
Page 168 | Chapter 3 | End Notes Table of Contents
43. See, e.g., Zimbabwe: Criminal Law 60. Ibid., at Q21.
(Codification and Reform) Act (No. 23
of 2004), § 135 (Interpretation in Part IV 61. See, e.g., Korea: Personal Information
of Chapter VI) and § 137(1) (Forgery), Protection Act, No. 11990 (6 Aug.
at https://www.unodc.org/tldb/pdf/ 2013) Arts. 3(6) & 18(2)(7), at http://
Zimbabwe/ZIM_Crim_Law_2004.pdf. elaw.klri.re.kr/eng_mobile/viewer.
do?hseq=28981&type=part&key=4. See
44. See, e.g., Korean Criminal Act, supra § 2 also, UNODC Cybercrime Study, supra § 1
E, note 14, at Art. 227-2 (False Preparation C, note 7, at 135–36.
or Alteration of Public Electromagnetic
Records) and Art. 232-2 (Falsification or 62. See, e.g., Schjolberg, supra note 5, at 21.
Alteration of Private Electromagnetic
63. See, e.g., Korea: Copyright Law, No.
Records).
9625 (22 Apr. 2009), Arts. 102 & 104(1), at
45. Ibid. http://www.copyright.or.kr/eng/laws-and-
treaties/copyright-law/chapter06.do. See
46. Samoa: Crimes Act, No. 10 (2013), § UNODC Cybercrime Study, supra § 1 C,
216, at https://www.unodc.or.g/res/cld/ note 7, at 253.
document/wsm/2013/crimes_act_2013_
html/Samoa_Crimes_Act_2013.pdf.
47. UNODC Questionnaire, supra note 3, at
Q 33.
48. UNODC Cybercrime Study, supra § 1 C,
note 7, at 95 (Figure 4.20: Criminalization
of the sending or controlling of the
sending of SPAM).
49. Ibid., at 96.
50. See, e.g., United States: USC, Title 18,
§ 1037. See also, ITU Understanding
Cybercrime, supra § 1 B, note 1, at 208.
51. USC, Title 18, § 1037.
52. UNODC Questionnaire, supra note 3, at
Q36.
53. UNODC Cybercrime Study, supra § 1 C,
note 7, at 101 (Figure 4.23: Criminalization
of computer-related production,
distribution or possession of child
pornography”).
54. For details, see ibid.
55. Estonia: Penal Code, (6 Jun. 2001), §
178(1), at https://www.unodc.org/res/
cld/document/estonia-criminal-code-as-
amended-2013_html/Estonia_Criminal_
Code_as_amended_2013.pdf.
56. See, e.g., United States: USC Title 17, §
506 (Criminal offenses), at https://www.
gpo.gov/fdsys/pkg/USCODE-2010-
title17/pdf/USCODE-2010-title17-chap5-
sec506.pdf.
57. UNODC Questionnaire, supra note 3, at
Q32.
58. UNODC Cybercrime Study, supra § 1 C,
note 7, at 105 (Figure 4.29: Criminalization
of computer-related copyright and
trademark offences).
59. UNODC Questionnaire, supra note 3, at
Q32.
Page 169 | Chapter 3 | End Notes Table of Contents
CHAPTER 4
Safeguards
While issues of procedural due process,
protection of data and privacy and freedom of
expression could be included in a discussion
of national legal frameworks, they are treated
separately in this chapter because of the
importance of such legal “safeguards”. This
chapter examines procedural due process, data
protection/privacy and freedom of expression as
they relate to cybercrime.
In this Chapter
A. Due Process 171
B. Data Protection & the Right to Communicate 178
Page 170 | Chapter 4 | Safeguards
CHAPTER 4
A. Due Process
Table of Contents
Introduction 171
I. Concept of Due Process 172
II. Due Process in Investigation & Prosecution of Cybercrimes 172
A. Obtaining Evidence 172
B. Search & Seizure 173
III. Budapest Convention & Due Process 175
A. Safeguards 175
B. Treatment of Stored Computer Data 176
C. Treatment of Traffic Data 176
Conclusion 177
Introduction
As stated in the WDR,1 for an ICT ecosystem to be vibrant and to contribute to
economic development, it needs to be built around a “trust” environment. Part of that
trust environment is ensuring the security of networks, systems and data; but the trust
environment is equally built around preserving the individual’s privacy and protecting
data about those individuals, as well as ensuring rights of online expression. Efforts
at combatting cybercrime tend to aim at the security part; however, as part of the
overall trust environment, a cybercrime regime must also pay due regard to preserving
individual rights in a balanced way.
This section considers due process issues generally, and then focuses on data protection
and freedom of expression in subsequent sections. A comprehensive overview of due
process rights in investigating and prosecuting crimes is beyond the scope of this
Toolkit writ large, and this section in particular. The Toolkit generally operates and is
constructed from the perspective that whatever due process rights exist in the case of
“conventional” crimes would also apply to cybercrimes. This section attempts to put due
process rights of general application in the specific cybercrime context by looking at
how such rights were handled in recent high-profile cases, as well as how one country,
Korea, has attempted to grapple with these issues.
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I. Concept of Due Process
The concept of due process of law and respect for the rule of law is recognized as fundamental
to both common and civil law systems.2 Many constitutions offer explicit due process guarantees.
For example, the Fifth and the Fourteenth Amendments to the US Constitution provide that “No
person shall be […] deprived of life, liberty or property, without due process of law.” Likewise, Korea,
which has a more civil law-oriented legal system, has similar clauses in its Constitution. Specifically,
Article 12 of the Korean Constitution provides that,“All citizens shall enjoy personal liberty. No
person shall be arrested, detained, searched, seized or interrogated except as provided by Act.
No person shall be punished, placed under preventive restrictions or subject to involuntary labor
except as provided by Act and through lawful procedures. Warrants issued by a judge through due
procedures upon the request of a prosecutor shall be presented in case of arrest, detention, seizure
or search.”
In terms of the scope of due process, both substantive and procedural due process components
are recognized by the Supreme Court of the United States.3 Unsurprisingly, greater emphasis is
put on the procedural due process aspects of judicial proceedings in that context. However, due
to the potential for the loss of liberty if convicted, there is a substantial need for due process in
criminal cases because of the potential for the sovereign coercive is bringing its power to bear on
individuals.4
This section will discuss peculiar due process issues in investigation and prosecution of cybercrimes
and also review relevant arguments linked with the Budapest Convention.
II. Due Process in Investigation & Prosecution of Cybercrimes
General due process requirements apply when investigating and prosecuting crimes include, inter
alia, the right of the defendant to confront his or her accuser, the right to counsel and the right to a
speedy trial. As mentioned, this section focuses on more specific and frequent cybercrime-related
issues, notably (A) imbalance of obtaining evidence and (B) search and seizure.
A. Obtaining Evidence
Issues of the admissibility of evidence in court, such as the requirements of authenticity, integrity
and reliability of digital evidence, have already been discussed (see sections 2 C and 2 D,
above). From a procedural due process point of view, even though cybercriminals operate in
a sophisticated and cross-border environment, there can still be a power imbalance between
investigative agencies and defendants: compared to individual defendants, investigators and
prosecutors have more negotiating power, especially when searching and securing evidence.
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Moreover, once an investigation reaches the prosecutorial phase, there is likely more inculpatory
evidence in favor of the state than exculpatory evidence in favor of the defendant. Yet justice
systems, beholden to the rule of law, need to be fair and neutral.
B. Search & Seizure
If the search and seizure violates the criminal procedure law and/or the constitutional law in
principle, the evidence that is seized ought to be excluded from evidence.
In the United States, there are various federal statues which set a limit on the investigatory
power:
Wiretap Act (19 USC § 2510): This Act governs the seizure of the content of digital messages.
It places a general prohibition on intercepting the contents of wire, oral or electronic
communications. Violation of the Act can cause criminal punishment or/and civil damages. Only
by an order of a federal judge can interception be permitted or justified.5
Pen Register and Trap and Trace Statue (18 USC § 3121): This statute governs the seizure
of real-time traffic data—dialing, routing, addressing and signaling information provided by a
communications service provider. It generally prohibits the nonconsensual real-time acquisition
of non-content information by any person by wire or electronic communication unless a statutory
exception applies.6
Electronic Communications Privacy Act (18 USC § 2701): This Act protects individuals’ privacy
and proprietary interests, which applies when law enforcement officials seek to obtain records
about a customer or subscriber from a communication service provider.7 Specifically, it looks to
protecting stored communications.
Fourth Amendment of US Constitution: This constitutional provision—part of the original set
of amendments to the US Constitution, collectively known as the Bill of rights—is construed
as prohibiting the search or seizure of an individual or their property, unless a warrant is first
obtained from a judge or the circumstances fall within very limited number of situations where a
warrant is deemed unnecessary.8
The United Kingdom has recently broadened the surveillance capacities of its law
enforcement authorities, relying on a so-called “double-lock” procedure to limit potential
government abuse:
In the United Kingdom, the Investigatory Powers Act 20169 significantly expanded the surveillance
power of law enforcement, granting authorities unprecedented surveillance powers to access
private data of individuals.10 The controversial law11 was advanced to support law enforcement
agencies in prevention and prosecution of modern crimes.12 Specifically, the Act requires
communication service providers to preserve their customers’ data for a year. In addition to the data
retention obligations, businesses are legally mandated to remove any encryption that interferes
with warrants. Moreover, the Act enables authorities to intercept and store all forms of data, even
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where techniques include hacking and surveilling individuals’ electronic devices.13 Lastly, bulk-data
collection is permitted for the purpose of acquiring intelligence relating to individuals beyond the
UK territorial border, as long as a warrant is issued.
Oversight for the Act, and thus for the releasing of these vast and intrusive powers, is controlled
through what is called a “double-lock”; that “double-lock” requires a warrant to be approved by
both government ministers and the specially-created judicial panel called the Investigatory Powers
Commission.14 In case of urgency, a warrant can be issued without the Commission’s involvement
insofar as it is subject to review by the Commission within three working days.15 Already a heavily
surveilled population,16 UK authorities are now, along with Chinese and Russian authorities, a
“global leader” in bulk surveillance of its citizens.17
Among other jurisdictions, Korean law guarantees the right of the defendant to participate
in the search and seizure of an information storage device such as a computer. For example,
Articles 121 & 122 of the Korean Criminal Procedure Act provide as follows:
“A prosecutor, the criminal defendant, or his/her defense counsel may be present
when a warrant of seizure or of search is being executed. Where a warrant of
seizure or of search is to be executed, the persons listed in the preceding Article
shall be notified of the date and place of execution in advance. [...T]his shall
not apply in cases where a person prescribed in the preceding Article, clearly
expresses his/her will in advance to the court that he/she does not desire to be
present or in case of urgency.”
The Korean Supreme Court has strictly interpreted the above provisions, ruling that the seizure and
search procedure of information storage device was illegal for failing to guarantee the participation
right of those subject to seizure in the review procedure conducted after taking out information
storage device.18
Case 4.1: United States v. Ulbricht (“Silk Road”) (USA)19
On 29 May 2015, a Manhattan federal court somewhat controversially20 sentenced Ross
William Ulbricht to life in prison in connection with his operation and ownership of Silk Road
between January 2011 and October 2013.21 Silk Road was a hidden “darkweb” website
that enabled users to buy and sell illegal drugs and other unlawful goods and services
anonymously and beyond the reach of law enforcement;22 the black market was designed “as
an online utopia beyond law enforcement’s reach”.23
During the court proceedings, Ulbricht claimed that, although he had initially been involved
in the site, and although he even averred that illicit activities may have been conducted
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on the site, he had sold this stake and was no longer involved in Silk Road. With regard to
the evidence that the state presented, the defense argued that government surveillance
of Ulbricht’s online accounts was overboard and amounted to a violation of defendant’s
constitutional, Fourth Amendment rights, which protects against undue search and seizure.24
It was further argued that evidence favorable to the defendant regarding corrupt officials had
been improperly suppressed and tainted the case and evidence.
Ulbricht appealed his conviction saying, “The court abused its discretion and denied Ulbricht
his Fifth and Sixth Amendment rights to due process, the right to present a defense, and a
fair trial by (A) precluding the defense from using at trial the evidence relating to DEA Special
Agent Carl Force’s corruption; (B) refusing to order the government to provide additional
discovery and ‘Brady’ material regarding corruption; and (C) denying Ulbricht’s motion for
new trial based on additional post-trial disclosures regarding Force and another corrupt law
enforcement agent involved in the Silk Road investigation.”25
While Ulbricht lost his appeal in May 2017,26 the arguments made are ones that might well be
raised by defendants charged with cybercrimes.
III. Budapest Convention & Due Process
A general discussion of multilateral and international agreements in cybercrime can be found in
section 4 B, below. While the Budapest Convention is discussed in more detail in that section, it is
worth noting here that the Convention is alone among multilateral and international instruments
in specifically addressing safeguards and due process issues. That said, the provisions of the
Convention show the inherent tension among information gathering and investigative powers and
requirements of due process. With regard to due process safeguards, the Convention has specific
provisions on (A) general conditions and safeguards, (B) expedited preservation of stored computer
date and search and seizure of stored computer data and (C) expedited preservation and partial
disclosure of traffic data and expedited disclosure of preserved traffic data.
A. Safeguards
Article 15 of the Budapest Convention provides, inter alia, that domestic law shall implement
“conditions and safeguards [... that] provide for the adequate protection of human rights and
liberties”. Although binding on its Member States, a treaty mechanism alone as a source of due
process is insufficient without local law implementation.27 To that end, Member States are bound by
the Convention to transpose implementing provisions into their national laws.
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B. Treatment of Stored Computer Data
The safeguards referred to in article 15 are balanced against, for example, articles 16 and 29 of the
Convention which provide, respectively, that “Each Party shall adopt such legislative and other
measures as may be necessary to enable its competent authorities to order or similarly obtain the
expeditious preservation of specified computer data, including traffic data, that has been stored by
means of a computer system”,28 and that “[a] Party may request anther Party to order or otherwise
obtain the expeditious preservation of data stored by means of a computer system, located within
the territory of that other Party and in respect of which the requesting Party intends to submit
a request for mutual assistance for the search or similar access, seizure or similar securing, or
disclosure of the data.”29 How the investigative authorities of each Member State carry out effective
search and seizure will also be a matter of national law, and the duration of evidance preservation
could be confined since the purpose of a preservation order is to get enough time to carry out legal
procedures such as issuing warrant.30
C. Treatment of Traffic Data
Similarly, articles 17 and 30 of the Budapest Convention set up tools to secure expedited
preservation of traffic data and require traffic data to be disclosed to the investigation agency so
that routes of transmission can be identified.
Article 17 provide that “Each Party shall adopt […] such legislative and other measures as may
be necessary to:
“(a) Ensure that such expeditious preservation of traffic data is available
regardless of whether one or more service providers were involved in the
transmission of that communication; and
“(b) Ensure the expeditious disclosure to the Party’s competent authority, or a
person designated by that authority, of a sufficient amount of traffic data to
enable the Party to identify the service providers and the path through which the
communication was transmitted.”31
Article 30 complements this language:
“[T]he requested Party shall expeditiously disclose to the requesting Party a
sufficient amount of traffic data to identify that service provider and the path
through which the communication was transmitted.”32
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Conclusion
For a vibrant online community that fosters robust economic growth and development to exist, a
“trust” environment must be nurtured and developed. As discussed, doing as much means, first,
building secure systems, and creating the enabling environment—legal and institutional—that
empowers authorities to combat cybercrime, be it from domestic or international sources.
However, securing cyber systems against crime and empowering government authorities is only
part of the puzzle: for the ecosystem to thrive, it must be trusted by users in larger sense than
for commercial purposes and the sort. The cyberworld must be a place in which individuals and
communities desire to constructively and completely engage, and where they are comfortable
expressing themselves. To that end, protections safeguarding individual rights and guarding
against government abuse or overreach must be built in. Doing so requires ensuring that due
process rights are respected, which means that defined procedures—with limits and controls—must
be developed for those occasions where authorities seek to obtain evidence or engage in search
and seizure. Among international instruments, the Budapest Convention alone includes robust
safeguards, which are to be transposed into national substantive law by each Member State.
The next section continues this discussion, looking to the government’s responsibility to assure the
protection of data and to guarantee the right to communicate. In creating and keeping cyberspace
safe and secure, human rights must also be respected and protected.
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CHAPTER 4
B. Data Protection & the Right to
Communicate
Table of Contents
Introduction 178
I. Applicable International Law & Good Practice 179
II. Data Protection & Privacy 182
A. The Security-Privacy Debate 182
B. Legal Instruments Guaranteeing Data Protection & Privacy 182
C. The Special Place for Anonymity 186
III. The Right to Communicate 186
Conclusion 188
Introduction
Up to this point, the Toolkit has focused on ways to effectively combat cybercrime, with
only the last section looking to expand the responsibilities of the government to include
factors requisite for create a “trust” environment (see section 4 A, above). It has done
so from a series of different perspectives, including those of protecting not only ICT
networks and systems, but also protecting the content and personal data stored therein.
However, as the internet becomes an increasingly important platform for not only
commercial but also non-commercial purposes, and as societies become increasingly
dependent upon the interconnectivity that cyberspace allows, governments have
increasingly deployed powers to seek to secure it. Such security must be balanced with
the rights of individuals in the community, and must not hamstring the internet as a
flexible, decentralized, open and neutral platform. As such, it is important to ensure that,
in addition to providing the kind of security that comes from an effective cybercrime
regime, the power of the state is deployed in a measured manner that effectively
balances security with basic human rights. That balance perhaps most notably applies to
assuring the protection of users’ data and their right to privacy which also assures both
access to information and freedom of expression.1 At the same time, the state is obliged
to defend basic human rights by investigating those who violate the privacy of others’
communications, personal data and the like.
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Apart from having a grounding in international law, assuring respect for human rights in the
cybercrime context is a matter of good policy.2 Recent scholarship squarely identifies and makes
the link between advancing rights of privacy and expression in the ICT context, on the one hand, to
achieving development objectives, on the other.3 It is generally accepted that free speech facilitates
the creation of a so-called “marketplace of ideas”; in turn, free speech encourages growth, be
it commercial, intellectual, artistic or political.4 Balancing stakeholder interests of security and of
stability, on the one hand, and promoting human rights, on the other, is essential to promoting the
enabling “trust” environment needed for building a digitally interconnected cyber-society (see
section 4 A, above).5
Just as society has expanded into cyberspace, so, too, have authorities, and law enforcement in
particular, expanded into and taken advantage of technological developments. Law enforcement
and national security agencies need access to ICT, and therefore utilize “wiretapping” (and
similar targeted-surveillance techniques), call center data registry and other metadata reporting
measures to investigate criminal activity.6 While the use of any and all of these tools poses
certain privacy concerns, their deployment with appropriate safeguards, including the external
seeking of appropriate and independent authorization, has largely resulted in the building of
secure, commercially robust, internet-based societies where human rights still manage to flourish.
Fundamental principles of “legality”, “necessity” and “proportionality” feature in this debate and
in creating such a “trust” environment that is so central to building a robust cyber society (see
section 1 B, above).
One of the key drivers in the digital economy is the flow of data, much of which is personal data.
Indeed, the amount of that data has increased by an estimated ninety percent in the last few years.7
This trend has in part been fueled “big data” applications for monitoring and manipulating data.8
Big data refers to both structured and unstructured data which is both of such a volume and which
is also communicated at such a high rate that it is difficult to process using traditional database and
software techniques.9 Big data applications can be found in both the public and private sectors.
While probably most commonly associated with private sector applications (such as Facebook and
Google), it is conceivable that these same, big-data analytical techniques could be used in the
fight against cybercrime; if so, attention would need to be paid to the prospect of intrusions into
individuals’ privacy.
The issue goes beyond simply having and enforcing national laws protecting personal data. As is
the case with cyberspace in general, data flows (whether legitimate or not) are global. As such, in
order to be effective, privacy regimes need to both enable and further facilitate legitimate internet
usage, as well as to assure individuals’ rights in the case of combatting cybercrime.
I. Applicable International Law & Good Practice
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First, before exploring the application of any rights in detail, it merits clarifying that guaranteeing
the protection of human rights on the internet has been recognized in recent years through a series
of statements emanating from the United Nations.
Beginning in 2011, in a report to the to the UN Human Rights Council (UNHRC) on the promotion
and protection of the right to freedom of opinion and expression on the internet, Special
Rapporteur, Frank La Rue, concluded that “states [are] providing inadequate protection of the right
to privacy and data protection”.10 In the following year, the UNHRC “affirmed that people have the
same rights online that they have offline […] in particular [regarding] freedom of expression”.11
In 2016, the UNHRC reaffirmed “the importance of promoting, protecting and enjoying human
rights on the internet, including privacy and expression”.12 In June 2016, the UN General Assembly
subsequently adopted a Resolution announcing the following:
“Calls upon all States to address security concerns on the Internet in accordance
with their international human rights obligations to ensure protection of freedom
of expression, freedom of association, privacy and other human rights online,
including through national democratic, transparent institutions, based on the
rule of law, in a way that ensures freedom and security on the Internet so that it
can continue to be a vibrant force that generates economic, social and cultural
development [....]”13
With the question of government responsibility for adhering to human rights standards in
implementing cybersecurity born in mind, the UNHRC concluded as follows:
“Decides to continue its consideration of the promotion, protection and
enjoyment of human rights, including the right to freedom of expression, on
the Internet and other information and communication technology, as well as of
how the Internet can be an important tool for fostering citizen and civil society
participation, for the realization of development in every community and for
exercising human rights, in accordance with its programme of work.”14
Second, and specifically in the cybercrime context, frameworks for generally safeguarding rights
while also providing security exist, the most notable of which is perhaps that promulgated by article
15 of the Budapest Convention. That basic framework provides as follows:
(1) Each Party shall ensure that the establishment, implementation and
application of the powers and procedures provided for in this Section are subject
to conditions and safeguards provided for under its domestic law, which shall
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provide for the adequate protection of human rights and liberties, including
rights arising pursuant to obligations it has undertaken under the 1950 Council
of Europe Convention for the Protection of Human Rights and Fundamental
Freedoms, the 1966 United Nations International Covenant on Civil and Political
Rights, and other applicable international human rights instruments, and which
shall incorporate the principle of proportionality.
(2) Such conditions and safeguards shall, as appropriate in view of the nature
of the procedure or power concerned, inter alia, include judicial or other
independent supervision, grounds justifying application, and limitation of the
scope and the duration of such power or procedure.
(3) To the extent that it is consistent with the public interest, in particular the
sound administration of justice, each Party shall consider the impact of the
powers and procedures in this section upon the rights, responsibilities and
legitimate interests of third parties.15
The Explanatory Report to the Budapest Convention discusses the principle of proportionality
referenced in article 15.1, as follows:
“[A]nother safeguard in the Convention is that the powers and procedures shall
incorporate the principle of proportionality. Proportionality shall be implemented
by each Party in accordance with relevant principles of its domestic law. For
European countries, this will be derived from the principles of the 1950 Council
of Europe Convention for the Protection of Human Rights and Fundamental
Freedoms, its applicable jurisprudence and national legislation and jurisprudence,
that the power or procedure shall be proportional to the nature and
circumstances of the offence. Other States will apply related principles of their
law, such as limitations on over breadth of production orders and reasonableness
requirements for searches and seizures.”16
Thus, the basis for assuring human rights, even as cyberspace is secured, is soundly and explicitly
provided for in international law. The rest of this section delves in more detail into the concrete
application of privacy rights and data protection, as well as the right to communicate (i.e.,
freedom of expression and the right to access to information). As data protection and the right to
communicate are closely interlinked, they are treated together in this section; that said, they also
have different features that need to be understood on their own.
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II. Data Protection & Privacy
The discussion around data protection and privacy merits (A) an introductory discussion of
security-privacy debate that can be used to set up a fuller discussion of (B) good practices in legal
instruments guaranteeing data protection and privacy.
A. The Security-Privacy Debate
Data protection speaks to the provision of reasonable assurances that individuals’ rights regarding
their personal data and privacy are observed and protected. It extends not only to those under
investigation and prosecution but also to potentially innocent third parties who may become
involved, or whose data might be touched upon.
The policy, legal and technical differences between “security” and “privacy” merit clarifying at this
stage. There are a variety of ways in which the two terms can be understood. Generally speaking,
“security” can be understood as a set of technological measures that mediate access to personal
data stored or transmitted via ICT systems or networks, while “privacy” is the normative framework
for allocating who has access to that data, including the right to alter any of it.17 Some posit the two
values as running counter to each other, a conception out of which the overly-simplistic argument
“if you’ve got nothing to hide, then you’ve got nothing to worry about surveillance” emerges.18
Others posit that the two are not in the same plane, and that there is a false trade-off between
privacy and security that has resulted from an incorrect framing of the debate as a zero-sum game
in which one value is pitted against the other.19 Still others posit that implementation of good data
protection principles is not merely a matter of securing human rights but actually contributes to
reducing certain kinds of cybercrime.20 The concern here is how the security aspects of ensuring an
effective cybercrime regime impact upon privacy of an individual’s data.
B. Legal Instruments Guaranteeing Data Protection & Privacy
The right to privacy can be found in both article 12 of the Universal Declaration of Human Rights
(UDHR) and in the International Covenant on Civil and Political Rights (ICCPR).
Article 12 of the UDHR provides as follows:
“No one shall be subjected to arbitrary interference with his privacy, family, home
or correspondence, nor to attacks upon his honour and reputation. Everyone has
the right to the protection of the law against such interference or attacks.”21
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Similarly, article 17 of the ICCPR provides as follows:
(1) No one shall be subjected to arbitrary or unlawful interference with his privacy,
family, or correspondence, nor to unlawful attacks on his honour and reputation.
(2) Everyone has the right to the protection of the law against such interference
or attacks.22
Importantly, these rights are not absolutes, and, as also reflected in article 15.3 of the Budapest
Convention, are subject to certain limits.
Figure 4.1: Current Membership in the ICCPR23
While rights to privacy and expression have evolved over time over the past three hundred years24,
and, when set down in 1948 in the case of the UDHR, and in 1966 in the case of the ICCPR, were
certainly not drafted with the internet or cybercrime in mind, the UN Human Rights Council recently
reaffirmed the importance of promoting, protecting and enjoying human rights on the internet,
including privacy and expression.25 In 2013, the UN General Assembly adopted a Resolution,
introduced by Brazil and Germany, on the Right to Privacy in the Digital Age.26 Today, the UN
Conference on Trade and Development (UNCTAD) reports that 107 countries have privacy laws in
place, sixty-six of which are developing countries.27
Regional initiatives have built upon these international instruments. In Europe, the European
Convention on Human Rights (and related caselaw) sets the legal base for understanding and
guaranteeing fundamental human rights, including those to privacy and expression. While there are
a number of other relevant instruments, the Convention for the Protection of Individuals with
regard to Automatic Processing of Personal Data (Convention 108)28 is the single most significant
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instrument. Opened for signature on 28 January 1981 and entering into force on 1 October 1985,
the Convention was the first legally binding international instrument in the data protection field.
Under the Convention, Parties are required to take the necessary steps in their domestic legislation
to apply the Convention’s principles ensuring respect for the fundamental human rights of all
individuals with regard to processing of personal data.
Convention 108 is open for accession by any State, regardless of geographic location, or of CoE
membership. Uruguay (in 2013) and Mauritius (in 2016) were the first non-European countries to
become Parties to the Convention. Today, the Convention has fifty Parties, seven of which are
non-Members of the Council of Europe.29 It is indicative that countries seeking to implement the
Budapest Convention on Cybercrime also show strong interest in Convention 108, or are enacting
their own domestic data protection regimes.30
An additional Protocol to Convention 108 (Convention 181) covers supervisory authorities
and transborder data flows.31 The additional Protocol requires Parties to set up supervisory
authorities and, among other things, that those authorities exercise their functions in “complete
independence”.32 That independence is understood as an element central to the effective
protection of individuals with regard to the processing of personal data.33
Still in the European context, a related soft law instrument is CoE’s Recommendation R(87) 15
on data protection in the police sector.34 Bearing in mind the “sectoral approach” taken to data
protection up till that time,35 the Recommendation puts forth principles that might guide Member
States in their domestic law and practice. Those basic principles include address data control and
notification; collection; storage; usage by police; communication between public and private
bodies; publicity and right to access, rectify and appeal data; length of storage and updating data;
and data security.36 Although soft law, the Recommendation, created on 17 September 1987, has
been widely adopted across Europe “to an extent that many European states prima facie already
regulate[d] police use of personal data in a way comparable but not necessarily identical to that
envisaged in the European Commission’s proposal […] for a Directive” on the same matter.37 While
not obviating the utility and advantages of having a suitable new binding legal instrument, the high
degree of de facto adherence highlights, first, the degree of influence that even soft law can have,
and, second, the degree to which states are both working and able to comfortably balance security
and privacy obligation even in the police context.
An additional source of international good practice of the principal features of a data protection/
privacy regime can be found in the Organization for Economic Cooperation and Development
(OECD) Guidelines for the Security of Information Systems and Networks (“OECD
Guidelines”).38 The Guidelines provide measures direction in ensuring the quality of data collected;
the scope of the purposes for which data may be collected and used; the setting of strict limits on
the use of collected data; the setting of safeguards in terms of data collection, storage and usage;
and covers rights of data subjects to correct or erase erroneous data.
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Box 4.1: Basic Information Security Principles from OECD Guidelines
Collection Limitation Principle: There should be limits to the collection of personal data and
any such data should be obtained by lawful and fair means and, where appropriate, with the
knowledge or consent of the data subject.
Data Quality Principle: Personal data should be relevant to the purposes for which they are
to be used, and, to the extent necessary for those purposes, should be accurate, complete
and kept up-to-date.
Purpose Specification Principle: The purposes for which personal data are collected should
be specified not later than at the time of data collection and the subsequent use limited to
the fulfilment of those purposes or such others as are not incompatible with those purposes
and as are specified on each occasion of change of purpose.
Use Limitation Principle: Personal data should not be disclosed, made available or
otherwise used for purposes other than those specified in accordance with the purpose
specification principle except: a) with the consent of the data subject; or b) by the authority of
law.
Security Safeguards Principle: Personal data should be protected by reasonable security
safeguards against such risks as loss or unauthorised access, destruction, use, modification or
disclosure of data.
Openness Principle: There should be a general policy of openness about developments,
practices and policies with respect to personal data. Means should be readily available of
establishing the existence and nature of personal data, and the main purposes of their use,
as well as the identity and usual residence of the data controller.
Individual Participation Principle: Individuals should have the right:
to obtain from a data controller, or otherwise, confirmation of whether or not the data
(a)
controller has data relating to them;
to have communicated to them, data relating to them (i) within a reasonable time; (ii)
(b)
at a charge, if any, that is not excessive; (iii) in a reasonable manner; and (iv) in a form
that is readily intelligible to them;
to be given reasons if a request made under subparagraphs (a) and (b) is denied, and
(c)
to be able to challenge such denial; and
to challenge data relating to them and, if the challenge is successful to have the data
(d)
erased, rectified, completed or amended.
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Accountability Principle: A data controller should be accountable for complying with
measures which give effect to the principles stated above.
Collectively, these international and regional instruments, as well as the principles and guidelines,
provide a rich source of international good practice for how to balance security with data
protection and privacy. The flexible, open and decentralized nature of the internet augurs in favor
of a principles-based approach (with notion of proportionality at its core) that balances state
interventions and intrusions with individual human rights. As the internet functions on the basis
of the creation of a “trust” environment, it is essential that such considerations and be weighed
openly.
C. The Special Place for Anonymity
Anonymity can be seen as an essential component of protecting privacy on the internet.39 Not
infrequently, this same anonymity is also highly problematic for public safety, due in part to
legal and technical reasons. Particularly in the digital context, those same basic human rights
protections that make the internet such a compelling and exciting tool for development and
social advancement can also lead to problems of authentication in general, and attribution—
that is, the connecting of a criminal actor to the act perpetrated—in particular. From a technical
perspective, encryption is perhaps the most obvious issue.40 From a larger, legal perspective,
particular difficulties exist where there is a divergence of legal frameworks, especially in light of
a still-evolving MLAT framework. The latter obstacle is in part overcome by shared adherence to
multilateral instruments, such as the Budapest Convention, which, among other things, creates such
a framework.41
The issue of privacy and data protection in the context of surveillance, especially “mass”
surveillance, is a particularly thorny issue.42 While the topic of “surveillance”, generally, is beyond
the scope of the Toolkit, surveillance is an important tool for law enforcement in investigating
crime, including cybercrime. The technological advances that have enabled cybercrime to expand
have also enabled expanded surveillance tools and methodologies. All of these developments
have resulted in unresolved questions of what are, and how to define, the appropriate limits on the
collection of data relevant to an investigation.
III. The Right to Communicate
The “right to communicate”, as already discussed, speaks to the complementary rights of “freedom
of expression” and “access to information” (see section 1 C, above). Communication, one of the
Page 186 | Chapter 4 | § B. Data Protection & the Right to Communicate Table of Contents
most basic of human rights and of human behaviors,43 is addressed in the UDHR and is more fully
expressed in the ICCPR, as described below. These rights are also reflected in a number of regional
instruments.44
The UDHR provides in Article 19 as follows:
“Everyone has the right to freedom of opinion and expression; this right includes
freedom to hold opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of frontiers.”
The ICCPR goes somewhat further, providing a specific framework for addressing the balance
of security versus rights. The ICCPR not only provides for the right itself (articles 19.1 &
19.2), but also provides factors that should be considered in “balancing” this right with other
governmental prerogatives (article 19.3):
(1) Everyone shall have the right to hold opinions without interference.
(2) Everyone shall have the right to freedom of expression; this right shall
include freedom to seek, receive and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or in print, in the form of art, or
through any other media of his choice.
(3) The exercise of the[se] rights […] carries with it special duties and
responsibilities. It may therefore be subject to certain restrictions, but these shall
only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others; [and]
(b) For the protection of national security or of public order (“ordre public”), or
of public health or morals.
Among human rights, the right to communicate is a particularly interesting one, as it is not only
substantively fundamental (the right to communicate is a right in itself), but it is also procedurally
fundamental (as it also an “enabler” of other fundamental rights). In addition, freedom of
expression and access to information are both and equally essential to the enjoyment of economic,
social and cultural rights, such as the right to education and the right to partake in cultural life or
benefits of scientific progress, as well as civil and political rights, such as the rights to freedom
of association and assembly. In this sense, the right to communicate is also part of the “trust”
Page 187 | Chapter 4 | § B. Data Protection & the Right to Communicate Table of Contents
equation discussed above; illegitimate efforts to repress expression in the name of security could
have deleterious effects on internet usage for legitimate purposes.45
The internet thrives on the open exchange of information—that is, the so-called “marketplace of
ideas”—which, in equal measure, requires both access to information and freedom of expression.46
For example, innovation, and the incentive to innovate, depends on striking an appropriate balance
between providing access to information, on the one hand, and rewarding inventors by protecting
intellectual property rights, on the other.
Rapid cyber and ICT developments have allowed the internet to be a particularly powerful driver
of economic, social and even political changes. Those changes have been accompanied by a wide
array of legal and regulatory initiatives, some of which indirectly or even unintentionally place limits
on the right to communicate but which nonetheless may have a chilling effect on expression.47 For
example, governments frequently regulate access to certain content in order to reduce criminal
activity. In other circumstances, it is possible that governments have incidentally criminalized
online expression by failing to keep laws regulating broadcasting current with technological
developments.48 A recent study by UNESCO on the issue of preserving online freedom of
expression advocated promoting a balance between security and expression. According to that
study, governments should take a pragmatic approach that minimizes online restrictions yet which
addresses issues arising out of legitimate societal values.49 Such an approach helps to ensure a
vibrant future of the internet, preserving its role as a place for the exchange of ideas that has made
it such a unique and powerful platform for economic, social and political progress.
Conclusion
In designing and implementing legal frameworks to combat cybercrime, states should reconcile
the different interests that are to be protected. Although data protection/privacy and security may
be construed as competing, even mutually-exclusive concerns, there is a rich body of international
good practices showing that, at minimum, the privileging of one need not result in the significant
diminution of the other. In any case, where one right is curtailed, it should be done on the basis of
the principle of proportionality. If a state compiles, stores, uses or discloses personal information—
for example, in a police register—, such interference or intrusion into a person’s private life should
meet certain conditions under law, that respect due process and re-enforce the “trust” principle
by being both proportionate to the legitimate aims pursued and necessary. To ensure that the
internet’s full potential is reached, and in order to avoid having a chilling effect on communication—
both in personal expression, and in the seeking and acquiring of information—, the laws and their
application, whether inadvertently or purposefully, must be kept open and pragmatic.
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End Notes
Referenced in: § A. Introduction & 10. Law enforcement authorities only need a 18. Korean Supreme Court, 2011MO1839 (16
Due Process “retention notice”, not a warrant, which Jul. 2015), en banc ruling.
requires telecommunications operators to
retain specified items of communications 19. Ulbricht, supra § 2 B, note 111. This case
1. See WDR, supra § 1 A, note 10, at 222 et data for the period or periods set out is highlighted above as an exposé of the
seq. in the notice (limited to twelve months). diversity of technology and its enabling
Although there are safeguards and effect on cybercrime. See supra § 2 B,
2. Although these notions have been most box 2.6.
matters that must be considered before
broadly developed in common law
the giving of a retention notice, the
traditions, similar notions are at play in 20. Andy Greenberg, “Judges Question
procedural threshold is lower than
the civil law tradition in, for example, the Ross Ulbricht’s Life Sentence in Silk Road
that for a traditional warrant. See UK
concept of respect pour l’Etat de droit Appeal,” Wired, (6 Oct. 2016), at https://
Home Office, Investigatory Powers Bill:
(“respect for the state of the law”). See, www.wired.com/2016/10/judges-question-
Explanatory Notes to the Investigatory
e.g., “Traités et Affaires institutionnelles: ulbrichts-life-sentence-silk-road-appeal/.
Powers Bill as brought from the House
Respect de l’état de droit – La
of Commons on 8 June 2016 (HL Bill 40), 21. See US Dept. of Justice, “Ross Ulbricht,
Commission, soutenue par une majorité
para. 232, at https://www.publications. A/K/A ‘Dread Pirate Roberts,’ Sentenced
du Parlement européen, maintient la
parliament.uk/pa/bills/lbill/2016- in Manhattan Federal Court to Life in
pression sur Varsovie,” EuropaForum, (13
2017/0040/17040en.pdf. Prison,” Press Release, (29 May 2015), at
Sept. 2016), at http://www.europaforum.
public.lu/fr/actualites/2016/09/pe- https://www.justice.gov/usao-sdny/pr/
11. Ewen MacAskill, “‘Extreme Surveillance’
pologne-etat-de-droit/index.html. At the ross-ulbricht-aka-dread-pirate-roberts-
Becomes UK Law with Barely a Whimper,”
international level, these notions have sentenced-manhattan-federal-court-life-
Guardian, (19 Nov. 2016), at https://www.
been evoked in, for example, the ICCPR prison. See also Andy Greenberg, “Silk
theguardian.com/world/2016/nov/19/
(Art. 14) and in the ECHR (Art. 6). Road Creator Ross Ulbricht Sentenced
extreme-surveillance-becomes-uk-law-
to Life in Prison,” Wired, (29 May 2016),
with-barely-a-whimper.
3. Miriam F. Miquelon-Weismann, at https://www.wired.com/2015/05/silk-
“The Conversation on Cybercrime: 12. Andrew Griffin, “Investigatory Powers road-creator-ross-ulbricht-sentenced-life-
A Harmonized Implementation of Act Goes into Force, Putting UK Citizens prison/.
International Penal Law: What Prospects under Intense New Spying Regime,”
for Procedural Due Process?,” John 22. Joshua Bearman & Tomer Hanuak, “The
Independent, (31 Dec. 2016), at http://
Marshall Journal of Computer & Rise & Fall of Silk Road,” Wired, (May
www.independent.co.uk/life-style/
Information Law, Vol. 23 (2005), p. 355; 2015), at https://www.wired.com/2015/04/
gadgets-and-tech/news/investigatory-
Schriro v. Summerlin, 124 S. Ct. 2510, 2523 silk-road-1/.
powers-act-bill-snoopers-charter-spying-
(2004). law-powers-theresa-may-a7503616.html. 23. Greenberg, supra note 20.
4. Michael Farbiarz, “Accuracy and 13. Emma Woollacott, “UK Joins 24. US Constitution, IV Amend.: “The right of
Adjudication: The Promise of Russia and China in Legalizing Bulk the people to be secure in their persons,
Extraterritorial Due Process,” Columbia Surveillance,” Forbes, (16 Nov. 2016), houses, papers, and effects, against
Law Review, Vol. 116, Issue 3, (Apr. 2016), at https://www.forbes.com/sites/ unreasonable searches and seizures,
pp. 636–37. emmawoollacott/2016/11/16/uk-joins- shall not be violated, and no Warrants
russia-and-china-in-legalizing-bulk- shall issue, but upon probable cause,
5. Chief Judge B. Lynn Winmill, David L.
surveillance/#718b3a2b58ca supported by Oath or affirmation, and
Metcalf & Michael E. Band, “Cybercrime:
Issues and Challenges in the United particularly describing the place to be
14. UK Investigatory Powers Act, supra note
States,” Digital Evidence & Electronic searched, and the persons or things to be
9, at Art. 23.
Signature Law Review, Vol. 7 (2010), p. 31. seized.”
15. Ibid., at Art. 24.
6. Ibid. 25. See, e.g., John Zorabedian, “Ross
16. See, e.g., David Barrett, “One Ulbricht Appeals Silk Road Conviction—
7. Ibid., at 32. Surveillance Camera for Every 11 People Did He Get a Fair Trial?,” Naked Security,
in Britain, Says CCTV Survey,” Telegraph, (18 Jan. 2016), at https://nakedsecurity.
8. Ibid. sophos.com/2016/01/18/ross-ulbricht-
(10 Jul. 2013), at http://www.telegraph.
co.uk/technology/10172298/One- appeals-silk-road-conviction-did-he-get-
9. See United Kingdom: Investigatory
surveillance-camera-for-every-11-people- a-fair-trial/.
Powers Act 2016 [hereafter, “UK
Investigatory Powers Act”], Ch. 25, in-Britain-says-CCTV-survey.html; Paul
at: http://www.legislation.gov.uk/ Lewis, “You’re Being Watched: There’s
ukpga/2016/25/pdfs/ukpga_20160025_ One CCTV Camera for Every 32 People
en.pdf. See also, “Investigatory Powers in UK,” Guardian (2 Mar. 2011), at https://
Act 2016”, UK Parliament, at http:// www.theguardian.com/uk/2011/mar/02/
services.parliament.uk/bills/2015-16/ cctv-cameras-watching-surveillance.
investigatorypowers.html.
17. Griffin, supra note 12.
Page 189 | Chapter 4 | End Notes Table of Contents
26. See United States v. Ulbricht, No. 15-1815,
(2d Cir. 2017), at https://cases.justia.
com/federal/appellate-courts/ca2/15-
1815/205494850/0.pdf?ts=1496418409.
Also see, Greenberg, supra note 20;
Andrew Blake, “Attorney for Silk Road
Mastermind Ross Ulbricht Challenges
Conviction in Federal Appeals Court,”
Washington Times, (7 Oct. 2016), at http://
www.washingtontimes.com/news/2016/
oct/7/appeals-court-hears-case-against-
ross-ulbricht-con/.
27. Miquelon-Weismann, supra note 3, at
356–57.
28. Budapest Convention, supra § 1 B, note
32, at Art. 16.
29. Ibid., at Art. 19.
30. Hyun Wook Chun & Ja Young Lee,
“Convention on Cybercrime and Due
Process of Law: on Preservation and
Partial Disclosure of Stored Data,” Korean
Criminological Review, Vol. 25, Issue ii,
(2014), p. 98.
31. UK Investigatory Powers Act, supra note
9, at Art. 17.
32. Ibid., at Art. 30.
Page 190 | Chapter 4 | End Notes Table of Contents
Referenced in: § B. Data Protection 6. Data about a communication, as opposed 18. See, e.g., Moxie Marlinspike, “Why ‘I
& The Right to Communicate to the content of the communication. The Have Nothing to Hide’ Is the Wrong Way
aggregation of information commonly to Think about Surveillance,” Wired,
referred to as “metadata” may give (13 Jun. 2013), at https://www.wired.
1. A full exposition of privacy/data an insight into an individual’s behavior, com/2013/06/why-i-have-nothing-to-
protection and access to information/ social relationships, private preferences hide-is-the-wrong-way-to-think-about-
freedom of expression is beyond the and identity that go beyond even that surveillance/.
scope of the Toolkit. In its limited conveyed by accessing the content of
discussion, while the Toolkit uses the a private communication. As the CJEU 19. See Daniel J. Solove, Nothing to Hide:
terms “privacy” and “data protection” recently observed, communications’ The False Tradeoff between Privacy and
interchangeably, both terms are intended metadata “taken as a whole may allow Security, (New Haven, Connecticut: Yale
to refer to the protection of digital very precise conclusions to be drawn University Press, 2011).
data about a person, and not to other concerning the private lives of the
normative constructs about what privacy 20. See Maria Grazia Porcedda, Data
persons whose data has been retained.”
might mean. In addition, there is very Protection and the Prevention of
See, e.g., Seitlinger, supra note 2.
little in the literature (a few sources Cybercrime: The EU as an Area of
appear in this chapter) specifically about 7. Science News, “Big Data, for Better or Security?, (Florence: European University
the intersection of the security that Worse: 90% of World’s Data Generated Institute, 2012), at http://cadmus.eui.eu/
comes with a cybercrime regime and Over Last Two Years,” Science Daily, (22 handle/1814/23296.
the tensions that security may place on May, 2013), at https://www.sciencedaily.
21. UDHR, supra § 1 C, note 105, at Art. 12.
rights such as privacy and the right to com/releases/2013/05/130522085217.htm.
communicate. 22. UN General Assembly, International
8. See Seitlinger, supra note 2.
Covenant on Civil and Political Rights,
2. See, e.g., Recent jurisprudence from both United Nations, Treaty Series, Vol. 999 (16
the Court of Justice of the European 9. Vangie Beal, “Big Data,” Webopedia, at
http://www.webopedia.com/TERM/B/ Dec. 1966), [hereafter ICCPR], p. 177, at
Union (CJEU) and the European Court of https://treaties.un.org/doc/publication/
Human Rights (ECtHR) support striking big_data.html.
unts/volume%20999/volume-999-i-14668-
this balance. In: Digital Rights Ireland 10. UN Human Rights Council, “Report english.pdf.
Ltd v. Ireland and Seitlinger and Others, of the Special Rapporteur on the
joined cases C-293/12 & C-594/12 (8 Apr. Promotion and Protection of the Right to 23. UN Treaties Collection, “Status:
2014) [hereafter, “Seitlinger”], the CJEU Freedom of Opinion and Expression,” A/ International Covenant on Civil and
ruled the EU Data Retention Directive HRC/17/27 (16 May 2011), at http://www2. Political Rights,” United Nations, at
to be in violation of the EU Charter of ohchr.org/english/bodies/hrcouncil/ https://treaties.un.org/pages/ViewDetails.
Fundamental Rights. Similarly, in: S and docs/17session/A.HRC.17.27_en.pdf. aspx?src=TREATY&mtdsg_no=IV-
Marper v. United Kingdom, the ECtHR, 4&chapter=4&lang=en
using a proportionality analysis, found 11. UN Human Rights Council, “The
the United Kingdom to be in breach of Promotion, Protection and Enjoyment 24. Early records of the foundational
Article 8 of the European Convention on of Human Rights on the Internet” (20th principles of individualism that form
Human Rights, holding that the long-term Session), A/HRC/20/L.13 (29 Jun. 2012), at the basis of many of these rights first
retention of both fingerprints and DNA http://ap.ohchr.org/documents/alldocs. appeared in the French Déclaration
samples interfered with an individual’s aspx?doc_id=20280. des droits de l’homme et du citoyen
right to privacy. S and Marper v. United (“Declaration of the Rights of Man and of
Kingdom, 30562/04 [2008] ECtHR 1581 (4 12. UN Human Rights Council, “The the Citizen”) adopted in 1789.
Dec. 2008). Promotion, Protection and Enjoyment
of Human Rights on the Internet” (32d 25. UN Human Rights Council, supra note 12,
3. WDR, supra § 1 A, note 10, at 222 et seq. Session), A/HRC/32/L.20 (27 Jun. 2016), at para. 8 & 15.
In particular, the WDR notes “[…] that at http://daccess-ods.un.org/access.nsf/
26. UN General Assembly, “The Right to
getting the data protection and privacy Get?Open&DS=A/HRC/32/L.20&Lang=E.
Privacy in the Digital Age,” A/RES/68/167
piece of the puzzle right is, together
13. Ibid. (18 Dec. 2013), at http://www.un.org/
with cybersecurity, a key element in
ga/search/view_doc.asp?symbol=A/
engendering trust in and confidence in
14. Ibid. RES/68/167.
use of the internet” Ibid., at page p. 227.
15. Budapest Convention, supra § 1 B, note 27. See UN Conference on Trade and
4. See e.g, Stanley Ingber, “The Marketplace
32. Development (UNCTAD), “Data
of Ideas: A Legitimizing Myth,” Duke Law
Protection and Privacy Legislation
Journal, Vol. 33 (1987), p. 1. 16. Budapest Explanatory Report, supra § 1 Worldwide,” United Nations, at http://
D, note 14, at para. 251 unctad.org/en/Pages/DTL/STI_and_ICTs/
5. WDR, supra § 1 A, note 10, at p. 222
et seq. The WDR notes that “getting ICT4D-Legislation/eCom-Data-Protection-
17. See Derek Bambauer, “Privacy Versus
the data protection and privacy Laws.aspx
Security,” Journal of Criminal Law &
piece of the puzzle right is, together Criminology, Vol. 103 (3) (2013), p. 28. CoE, Convention for the Protection of
with cybersecurity, a key element in 667, at http://scholarlycommons.law. Individuals with regard to Automatic
engendering trust in and confidence in northwestern.edu/cgi/viewcontent. Processing of Personal Data, CETS
use of the internet”. Ibid., at p. 227. cgi?article=7454&context=jclc No. 108 (28 Jan. 1981), at http://www.
coe.int/en/web/conventions/full-list/-/
conventions/treaty/108
Page 191 | Chapter 4 | End Notes Table of Contents
29. Additional Protocol to the Convention for 40. For a fuller discussion of issues of 45. The importance of the right to
the Protection of Individuals with Regard encryption, see supra § 1 C. communicate is also inhered in the
to Automatic Processing of Personal Sustainable Development Goals (SDGs).
Data, Regarding Supervisory Authorities 41. For a fuller discussion of issues The SDGs recognize that sustainable
and Transborder Data Flows, CoE, CETS surrounding multilateral instruments and development includes “public access to
181 (8 Nov. 2001), [hereafter, “Additional cross-border cooperation, see supra § 3 information and fundamental freedoms”
Protocol”], at http://www.coe.int/en/ A. as part of a wider goal (number 16) to:
web/conventions/full-list/-/conventions/ “Promote peaceful and inclusive societies
42. See generally, Gus Hosein & Caroline
treaty/181. for sustainable development, provide
Wilson Palow, “The Second Wave of
access to justice for all and build effective,
30. For example, Morocco and Senegal Global Privacy Protection: Modern
accountable and inclusive institutions
have also requested accession to both Safeguards for Modern Surveillance:
at all levels.” See UN Sustainable
treaties, and the Philippines have enacted An Analysis of Innovations in
Development, “Open Working Group
domestic data protection laws. Communications Surveillance
Proposal for Sustainable Development
Techniques,” Ohio State Law Journal, Vol.
Goals,” UN Sustainable Development, at
31. Additional Protocol, supra note 29. 74 (2013), p. 1071.
https://sustainabledevelopment.un.org/
32. Ibid., at Art.1.3. 43. Many social scientists have spoken of focussdgs.html
the centrality of communication and
33. Ibid. 46. See generally, WDR, supra § 1 A, note 10,
communicating in what it means to be
at p. 221.
human. For instance, Aristotle called
34. See CoE Committee of Minsters,
humans “social” or “political animals.” 47. See, e.g., William H. Dutton, Anna
“Regulating the Use of Personal Data
Politics, Book 1, § 1253a. At the same Dopatka, Michael Hills, Ginette
in the Police Sector,” Recommendation
time, James Baldwin, in relating the Law & Victoria Nash, Freedom of
No. R(87) 15 (17 Sep. 1987), at https://
role of the novelist—an important form Connection, Freedom of Expression;
www.privacycommission.be/sites/
of communication—, has said that the Changing Legal and Regulatory
privacycommission/files/documents/
humankind “is not […] merely a member Ecology Shaping the Internet, (Paris:
aanbeveling_87_15.pdf.
of a Society or a Group or a deplorable UNESCO, 2011) [hereafter, “UNESCO
35. See ibid., at Explanatory Memorandum to conundrum to explained by Science. He is 2”], at http://unesdoc.unesco.org/
Recommendation No. R(87) 15, para. 2. […] something more than that, something images/0019/001915/191594e.pdf.
resolutely indefinable, unpredictable.
36. Ibid., at Appendix to Recommendation In overlooking, denying, evading his 48. See UNESCO 1, supra note 39, at p. 41.
No. R(87) 15, para. 1–8. complexity […] we are diminished and we In some cases, these inhibitory laws may
perish; only within the web of ambiguity, have been designed for an analog media
37. Joseph A. Cannataci & Mireille M. paradox, this hunger, danger, darkness, environment, making their application in
Caruana, Consultative Committee of can we find at once ourselves and the the digital, internet context potentially
the Convention for the Protection of power that will free us from ourselves.” problematic.
Individuals with Regard to Automatic “Everybody’s Protest Novel,” in Notes of
Processing of Personal Data (T-PD), 49. See UNESCO 2, supra note 47, at p. 79.
a Native Son (Boston, MA: Beacon Press,
(Strasbourg: CoE, 2014), at https://rm.coe. 1955).
int/CoERMPublicCommonSearchServices/
DisplayDCTMContent?documentId=090 44. For example, see Organization of
00016806ae16a American States (OAS), American
Convention on Human Rights (22 Jan.
38. OECD, Guidelines for the Security of 1969), Art. 13; CoE, European Convention
Information Systems and Network, (Paris: for the Protection of Human Rights and
OECD, 2013), at https://www.oecd.org/ Fundamental Freedoms (4 Nov. 1950),
sti/ieconomy/privacy-guidelines.htm. Art. 11; Organization of African Unity
First promulgated in the 1980s, they were (OAU), African Charter on Human and
updated in 2013. The principles contained Peoples’ Rights (27 Jun. 1981), Art. 9;
in the OECD Guidelines form the basis of League of Arab States, Arab Charter
most data protection/privacy laws around on Human Rights (15 Sep. 1994), Art.
the world. See, e.g., Françoise Gilbert, 32; and Association of Southeast Asian
Global Privacy & Security Law, (Palo Alto, Nations (ASEAN), ASEAN Human Rights
CA: Wolters Kluwer, 2017). Declaration (18 Nov. 2012), Art. 23.
39. See UN Educational, Scientific, and
Cultural Organization (UNESCO),
“Keystones to Foster Inclusive
Knowledge Societies: Access to
information and Knowledge, Freedom
of Expression, Privacy and Ethics on a
Global Internet”, (France: UNESCO,
2015), [hereafter, “UNESCO 1”], p.
43, at http://unesdoc.unesco.org/
images/0023/002325/232563E.pdf.
Page 192 | Chapter 4 | End Notes Table of Contents
CHAPTER 5
International Cooperation
This chapter discusses both formal and informal
aspects of international cooperation to combat
cybercrime.
In this Chapter
A. Multilateral Instruments & Cross-border Cooperation 194
B. Establishing Informal International Cooperation 205
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CHAPTER 5
A. Multilateral Instruments & Cross-border
Cooperation
Table of Contents
Introduction 194
I. Multilateral Treaties on Cybercrime 196
A. Budapest Convention 196
B. Commonwealth of Independent States Agreement 197
C. Shanghai Cooperation Organization Agreement 197
D. League of Arab States Convention on Combating Information Technology Offences 198
E. African Union Convention on Cyber Security and Personal Data Protection 198
F. Areas of Improvement for Formal International Agreements 198
II. Mutual Legal Assistance Treaties 199
A. General Aspects of MLATs 199
B. Budapest Convention’s MLA Provisions 202
III. Extradition Treaties 202
A. General Aspects of Extradition Treaties 203
B. Budapest Convention’s Extradition Provisions 203
Conclusion 204
Introduction
The global, trans-national, cross-border nature of cyberspace raises substantial
jurisdictional issues (see section 2 E, above). Operating from a Westphalian nation-state
concept of sovereignty, states—and their territorially-based cybercrime legislation—have
been “plagued” by the boundary-defying fluidity of cyberspace and of cybercrime.1
Further, different legal systems, with their own unique anomalies and idiosyncrasies,
often present major obstacles to countries seamlessly and effectively fighting cybercrime
across borders.
Although there are a number of offences that can be prosecuted anywhere in the world, regional
differences play an important role in the effectiveness of combatting cybercrime. For example,
different kinds of content are criminalized in different countries, which means that material that can
lawfully be made available on a server in one country might be considered illegal in another (see
section 2 E, case 2.3). The issue of convergence of legislation is highly relevant, as a large number
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of countries base their mutual legal assistance (MLA) regimes on the principle of dual criminality
(see section 2 A, above).2 This means that, outside of mechanisms created by instruments such as
the Budapest Convention (discussed below), if the “criminal” act for which the MLA request is only
criminalized in one country that has acceded to the mutual legal assist stance treaty (MLAT), then
the country being requested to provide assistance may not be authorized to do so.
Formal international cooperation aims at addressing three basic problems:
Gap-fill national criminal laws that are either incomplete (insofar as they do not deal with
1
cybercrime) or that do not contemplate the kind of cross-border cooperation so often
required in combatting cybercrime;
Proffer procedural powers where nations are not appropriately equipped to combat
2
cybercrime; and
Create enforceable MLA provisions that would facilitate and expedite sharing and
3
assistance in cybercrime matters.3
Effectively fighting cybercrime requires addressing each of these three areas, which demands both
efforts at the national level, in developing an appropriate legal framework, and, at the international
level, in creating mechanisms for the interoperability of those national frameworks. Failing to
address both dimensions could result in the creation of safe havens for cybercriminals.4 Formal
international measures, mainly in the form of treaties, attempt to address these concerns by getting
states to agree on how to address all of these issues.
Where cybercrimes are concerned, complete jurisdiction—that is, over the crime, the evidence
and the alleged perpetrators (see section 2 E, above)—is frequently not obtained; as such, states
must act beyond their territorial borders and, very frequently, cooperate with others in order to
investigate and prosecute cybercrimes. Actions taken through the mechanisms of multilateral
instruments, rather than by unilateral effort, are the most effective and important means of
establishing extra-territorial jurisdiction over cybercrimes. Once a state has developed the
appropriate legal framework for combatting cybercrime (see section 3 A, above), international
cooperation is necessary to expand national territorially-based purview and to gap-fill, thereby
building effective networks of interoperability that can function coherently and cohesively. That
said, even where such formal instruments exist, effective implementation largely depends
upon developing informal international relations, typically through additional mechanisms and
interactions (see section 5 B, below).
Formal and informal modes of cooperation facilitate state consent for conducting foreign law
enforcement investigations that affect a state’s sovereignty. For example, law enforcement might
access data stored extraterritorially where investigators use an existing live connection from a
suspect’s device, or where they use (lawfully-obtained) data-access credentials. Investigators may,
on occasion, obtain data from extraterritorial ISPs through an informal direct request, although ISPs
usually require due legal process (see section 2 C, case 2.11).
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Formal international cooperation comes in various forms. The most targeted means are (I) cyber-
specific multilateral treaties.5 Globally, more than eighty states have signed and/or ratified one
or more binding cybercrime instruments,6 and many of those states have national cybercrime
legislation.7 More generally, formal yet non-cyber-specific mechanisms for international cooperation
include (II) MLATs and (III) extradition treaties. These instruments set up frameworks for
cooperation, encouraging or requiring states to look more closely at their own domestic legislation.
The value of these instruments goes beyond their formal membership, however; notably, by
providing a benchmark for states not bound to such instruments,8 Including when taken together
with other sources of good practice, these instruments provide important guidance when preparing,
for example, model laws.9
I. Multilateral Treaties on Cybercrime
Five major cybercrime-specific, multilateral treaties exist: (A) the CoE’s Budapest Convention, (B)
the CIS Agreement, (C) the SCO Agreement, (D) the Arab Convention and (E) the AU Convention.
Despite these accomplishments and the fact that approximately eighty countries are party to one
or more of the four major multilateral treaties on cybercrime in force,10 the still-relatively limited
coverage of existing multilateral treaties led the Twelfth UN Congress on Crime Prevention and
Criminal Justice in 2010 to conclude that serious consideration ought to be given to developing
a further convention to combat cybercrime.11 That call prompted a discussion on (F) what lessons
have been learned that could enhance membership in formal international instruments. For State
Parties, binding multilateral instruments on cybercrime, as well as other more general anti-crime
instruments with international cooperation provisions that can be used to combat cybercrime,
provide the basic normative framework for addressing cybercrime.
While treaties are, by and large, a positive, their proliferation can be of an issue. One underlying
purpose of a treaty is to encourage cooperation among its Member States or Contracting Parties
on the subject matter of the treaty. However, the growing number of treaties and international
agreements regarding cyberspace poses challenges to ensuring interoperability of the various
instruments, as well as effective cooperation among countries that may be members of different
instruments and may have different obligations regarding cooperation, especially regarding MLA
(discussed below). A more in-depth comparison of the contents of the various cybercrime treaties
can be found in appendix 9 B.
A. Budapest Convention
The Budapest Convention of 2001 is the foremost international instrument on cybercrime, in part
because it is the only truly “global” instrument, being open to signature by non-CoE Member
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States.12 A great deal of great value has already been written about the Budapest Convention;
through a few observations are warranted, the Toolkit does not attempt to either repeat or
summarize those commentaries.
The Budapest Convention combines a comprehensive set of rules on different aspects of
cybercrime including substantive, procedural, jurisdictional and international cooperation issues.13
The Convention is legally binding on its Member States. Its clear definition of criminal offenses as
balanced against procedural safeguards14 is an excellent example of good practice. In addition, it
contains important provisions requiring Contracting Parties to observe due process and human
rights while combatting cybercrime.15 While accession is not limited by geography, accession
of non-CoE Member States is restricted to those “invited” upon the unanimous consent of the
Contracting Parties to the Convention16; understandably, eighty-four percent of the Convention’s
signatories are CoE Member States.17 Saying that, the Convention was developed with the
participation of four states that are not CoE Member States,18 and another seventeen non-Member
States have either acceded to the Convention or have been invited to do so.19
B. Commonwealth of Independent States Agreement
The CIS Agreement of 200120 seeks to encourage cooperation in assuring the effective prevention,
detection, suppression, uncovering and investigation of cybercrime offences. To do so, Parties
agree to adopt such organizational and legislative measures as may be necessary to implement
the provisions of this Agreement, and to strive to ensure the harmonization of their national
legislation concerning the combating of offences relating to computer information. While, as with
the Budapest Convention21 and the SCO Agreement (discussed below),22 accession is not limited
by geography, accession is contingent upon the agreement of all Parties.23 Unlike the Budapest
Convention, however, the CIS Agreement was developed by all of its twelve Member States24; thus,
it is unsurprising that only CIS Member States have acceded. However, while all twelve CIS Member
States signed, only six have ratified,25 with one other state (Russia) having sent notification in 2004
that internal procedures for ratification are underway.26
C. Shanghai Cooperation Organization Agreement
With the SCO Agreement of 2009,27 the heads of government of the six SCO Member States
reaffirmed that current science and technology conditions warranted cooperation in order to
enhance the capability of SCO Member States to confront global challenges and threats.28 Like the
Budapest Convention29 and the CIS Agreement,30 accession to the SCO Agreement is not limited
by geography.31 All six SCO Members States have signed the Agreement.32
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D. League of Arab States Convention on Combating Information
Technology Offences
The Arab Convention.33 The Arab Convention adopts a common criminal policy, which serves to
enhance and strengthen cooperation in the area of combating information technology offenses
that threaten security and interests of Member States and the safety of their communities with
specific reference to the importance of Islamic law.34 Parties agree to implement procedural and
legislative policies, which both criminalize technology offences, and which facilitate the prosecution
of cybercrimes, and the tracking and collection of digital evidence. There is noted deference
to equality of the regional sovereignty of states and noninterference in the internal affairs of
other states.35 Unlike the Budapest Convention,36 the SCO Agreement37 or the CIS Agreement,38
accession is contingent on membership to the League of Arab States.39 Of the twenty-two member
States (with Syria’s membership having been indefinitely suspended), eighteen have signed.40
E. African Union Convention on Cyber Security and Personal Data
Protection
The most recent of international instruments is the AU Convention of 2014.41 Although the AU
Convention is a positive step in the progress of the fight against cybercrime, and an undeniable
statement of regional political expression, it diverges substantially from other instruments (both
international and domestic); as such, that make the AU Convention is a less useful or desirable
model upon which to build, notably in terms of safeguards (see sections 4 A and 4 B, above) and
the binding legal nature of the AU Convention in the area of MLATs, for example.42 Moreover, of the
fifty-four AU Member States, only right have signed the AU Convention, and none have ratified it.43
The AU Convention requires fifteen instruments of ratification in order to enter into force.44
F. Areas of Improvement for Formal International Agreements
Many of the formal international instruments combatting cybercrime have been in existence for
up to fifteen years. In the age of the internet, this is, if not a lifetime, certainly a generation. The
instruments have proved both flexible and encouraged signatories and non-signatories alike to
take action to ensure greater interoperability of legal frameworks.45 That said, while more and
more countries from more and more places around the globe are adhering to cybercrime treaties,
coverage is still far from universal. Furthermore, there are substantive divergences among those
instruments.
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Some areas for consideration in the next generation of international instruments follow:
Inclusion. To attract interest—and ownership—from all states, space needs to be created to
include them in the consideration of the instrument from an early stage.
Multi-stakeholdersim. Stakeholders have grown and diversified. In particular, in recognition of
the role that private sector actors increasingly play in the fight against cybercrime, effective ways
of encouraging cooperation with law enforcement should be explicitly addressed.
Incorporating lessons learned. Cybercrime is evolving. Cybercrime is evolving. Many of the
existing instruments may need modification or renewal. There is an inherent tension in any
instrument between being sufficiently flexible to accommodate evolving cybercrime, and being
too vague or general; each dimension may require different types of adjustment.
Overcoming persistent limitations in coverage. Perhaps related to inclusion, uptake of
membership in international instruments, despite the openness of the Budapest Convention
and the proliferation of regional and sub-regional instruments while growing, is still relatively
low.
National implementation. Joining any of the instruments is not in and of itself the ultimate
goal; it is only the starting point. What is really required, ultimately, is national domestication
of the terms of those instruments, and subsequent implementing and practicing those
requirements by appropriate authorities.
International instruments aggravate differences among states. Because of the variability
of implementation of national laws to reflect treaty-based obligations (that is, differences in
national laws), cooperation obligations in treaties may exacerbate different approaches. For
example, rights of the accused may vary from country to country, but MLA provisions may
require assistance, thus potentially facilitating abuses, especially in areas of dual criminality.
Safeguards. Not all the instruments provide safeguards for protecting due process (see section
4 A, above) and other fundamental rights, notably in matters of privacy and/or data protection
and of freedom of expression (see section 4 B, above).
II. Mutual Legal Assistance Treaties
This subsection first provides a (A) general overview of the nature and general aspects of MLATs,
and then (B) examines how these aspects are treated in multilateral instruments using the example
of the Budapest Convention’s MLA provisions.
A. General Aspects of MLATs
MLATs are agreements between two or more countries for the purpose of gathering and
exchanging information in order to enforce public or criminal laws. While binding multilateral
instruments provide an important basis for international cooperation,46 even non-binding MLATs
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(which have been particularly influential in Caribbean and African countries) offer valuable guidance
on international or regional standards for dealing with cybercrime.47 Moreover, states having
entered into MLATs tend to adopt domestic law on cybercrime.48 In addition, there are a number of
regional instruments dealing with MLA in the broader criminal context.49
According to UNODC, extra-territorial evidence in cybercrime cases is obtained through traditional
forms of cooperation, with over seventy percent of reporting countries using formal MLA. Within
such formal cooperation, almost sixty percent of requests use bilateral MLATs as the legal basis.
Multilateral MLATs are used in twenty percent of cases. Response times for formal mechanisms
were reported to be of the order of months, for both extradition and MLA requests, a timescale that
presents particular in the cybercrime context, as electronic evidence is typically volatile by nature.50
Initiatives for furthering informal cooperation and for facilitating existing formal cooperation, such
as 24/7 networks, offer important potential for faster response times (see section 5 B, below).51
While MLATs can be formed at a multilateral or bilateral level, unfortunately, over sixty percent
of countries are not party to any multilateral cybercrime instrument, meaning that they have no
international legal obligation to either include specialized cybercrime investigative powers in
national procedural laws, or to carry out specialized investigations in response to cooperation
requests.52 Indeed, UNODC has noted “modes of informal cooperation are possible for around
two-thirds of reporting countries, although few countries have a policy for the use of such
mechanisms.”53
Box 5.1: Korea
Example of Legislation on International Judicial MA in Criminal Matters54
“Art. 5: The scope of mutual assistance shall be as follows: (1) Investigation into the
whereabouts of a person or object; (2) Provision of documents and records; (3) Service of
documents, etc.; (4) Gathering of evidence, seizure, search, and verification; (5) Transfer of
objects, such as evidence; (6) Hearing of statements, and other measures to make any person
testify or cooperate with an investigation in the requesting country.
“Art. 6: Mutual assistance may not be provided in any of the following cases: (1) Where it
might be detrimental to the sovereignty, national security, public peace and order, or public
morals, of the Republic of Korea; (2) Where it is deemed that the criminal might be punished,
or subject to an unfavorable penalty disposition, due to his/her race, nationality, gender,
religion, social status, or the fact that he/she is a member of a specified social organization, or
by the reason that he/she has a different political view; (3) Where it is deemed that the crime
under mutual assistance is of a political nature, or a request for mutual assistance is made
for the purpose of an investigation or trial on another crime of a political nature; (4) Where
the crime under mutual assistance does not constitute a crime, or it is a crime against which
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no public action may be instituted, under any Act of the Republic of Korea; (5) Where the
requesting country fails to give a guarantee although this Act prescribes that the requesting
country should do so.”
With mechanisms for requesting and obtaining evidence for criminal investigations and
prosecutions, MLATs remain one of the most comprehensive tools for building an interoperable
legal framework at the international level, and, therefore, for overcoming jurisdictional issues.
MLATs allow signatories to shift from strict territorial views to more comprehensive and cooperative
views,55 providing them with reciprocal abilities to obtain jurisdictional power over offenses (see
section 2 E, above).
MLATs, though effective tools, are far from perfect. Frequently, they are not particularly extensive,
and, in order for them to have effect, signatories typically must first introduce and domesticate the
treaty’s provisions into their own legal systems through legislation or other appropriate means.56
Moreover, it is commonly lamented that MLAT facilitation mechanisms are difficult and take time to
effectuate.57 While efforts are underway globally to improve these processes, many factors combine
to impede progress. Such hindrances are of particularly great concern in combatting cybercrime,
where evidence is often fragile and fleeting, and where it is found in a world—cyberspace—where
identity and anonymity are easily created and recreated. Similarly, as the location of the perpetrator
may be difficult to identify, determining which entities have control over the desired data may be
complicated. Indeed, even once the perpetrator’s location has been identified, the desired data
may not be so easy to identify and locate, a matter complicated both by the facile manner in which
data might be moved, and by technology developments, such as cloud computing, that allow the
fragmenting and (re)routing of data through several countries (see section 2 C, above).
All of the above elements together frequently make it unclear which state has legal jurisdiction
over the data. As a result, an increasing number of states are asserting jurisdiction to continue
electronic investigations even when, in the physical world, that action might be considered an
infringement of another state’s sovereignty. For instance, antitrust investigators of Belgium, Brazil,
and the EU, among others, assert the right to conduct electronic searches in certain circumstances,
even where they are aware that the search will take place outside of the physical territory in
which they have authority and know to which country an MLA request could be sent. While these
assertions of investigative jurisdiction may be proper under the law of the states or organizations
that undertaking such actions, they may be considered as improper by the states where the data is
located, or by the investigated party. As such, some states disallow such searches entirely, creating
further obstacles to interoperability.
As the principle challenge to MLA requests is typically lenghty response times,58 three of the major
multilateral treaties on cybercrime—the Budapest Convention,59 the CIS Agreement60 and the
Arab Convention61—seek to expedite matters by requiring Member States to designate points-
of-contact for MLA requests. Relatedly, in order to facilitate the gathering of electronic evidence,
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the same three instruments provide rules on expedited means of communication or other urgent
channels for MLA requests.62 However, as these treaties are only binding on their Member States,
non-Member States are less likely to have such urgent (or clear) channels for MLA requests in place
in comparison to Member States of those treaties.63
B. Budapest Convention’s MLA Provisions
The Budapest Convention is the most extensive MLAT on cybercrime. Designed with the purpose
of fostering cooperation on cybercrime,64 the Convention comprehensively covers those actions
that Parties are to criminalize in their domestic law as cybercrimes (see section 2 B, above), before
going on to address procedural and evidentiary issues. The Convention stipulates that each Party is
to implement laws giving it jurisdiction over offenses committed: (1) within its territory; (2) on board
a ship flying its flag; (3) on board an aircraft registered under its laws; or (4) by one of its nationals.65
In so doing, the Convention combines the principle of territorialty with that of active nationality.
It does not, however, utilize other available principles for extending jurisdiction (see section 2 E,
above). That said, the Convention does not exclude Parties from unilaterally using such principles to
expand jurisdictional requirements.66
In addition to obliging Parties to criminalize the offenses that it enumerates, the Budapest
Convention also obliges Parties to ensure that that procedural tools are available to investigate
the enumerated crimes, as well as other crimes not listed in the Convention.67 Doing so is a
recognition of the importance of electronic investigations in any type of crime, and at any stage
of development. For instance, mobile-phone data may be indispensable to combatting human
trafficking, corruption, narcotics or child exploitation. The Convention’s procedural tools are tailored
to avoid violations of sovereignty and human rights, while still enabling states to adequately
investigate crimes.68
Of particular note is the matter of expediency. The Convention makes significant strides towards
improving the timeliness with which cybercriminal matters are addressed between Parties. One
such mechanism is had by requiring each state to create a “24/7 Network”,69 a matter that, though
introduced through formal means, sets up substantial opportunities for developing the often-more
effective methods of informal cooperation (see section 5 B, below).
III. Extradition Treaties
This subsection discusses (A) the general nature and aspects of extradition treaties, and then (B)
uses the provisions of the Budapest Convention as an example.
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A. General Aspects of Extradition Treaties
While MLATs focus on the cross-jurisdictional gathering and exchanging of information, extradition
treaties aim to create a means for giving jurisdiction over the perpetrator—what is frequently called
physical or personal jurisdiction—to the state desiring to prosecute (referred as the “requesting
state”). Extradition treaties are the most common form of international cooperation for obtaining
jurisdiction over the alleged perpetrator, who is often referred to as the “target”. Although
extradition is frequently included as an element in MLATs,70 separate, standalone agreements
are often agreed upon. The core provisions of an extradition agreement create assurances and
procedures for the custodial state to honor a warrant issued by the requesting state, thereby
obliging the custodial state to take the target into custody and arrange transfer to the requesting
state.71
Extradition treaties operate under the principle of aut dedere aut judicare—“extradite or
prosecute”.72 However, and notwithstanding that guiding principle, extradition agreements are
often limited by crime type,73 and have carve-outs and disallowances—for instance, the European
Convention on Extradition disallows extradition where the offense for which extradition is sought
is considered political in nature, or where it is punishable by death under the law of the requesting
state.74 In instances where the target is a national of the custodial state, or where the custodial state
has created some other legal basis necessary for prosecuting the target, that state may prosecute
and punish before extraditing to the requesting state.75
Where cybercrime is concerned, the effectiveness of extradition treaties may be hindered by the
requirement of what is called “dual criminality”. Dual criminality is the concept that extradition can
only be allowed if the allegedly illegal act is a crime in both states.76 For instance, in the case of the
“Love Bug” virus, the absence of legislation criminalizing computer crimes in the custodial state (in
this case, the Philippines) not only precluded local prosecution of the believed-Filipino hacker, but
also prevented foreign authorities (notably, the FBI) from seeking extradition under the applicable
agreement due to the requirement of dual criminality (see section 2 E, box 2.7, above).
B. Budapest Convention’s Extradition Provisions
The Budapest Convention includes specific provisions for extraditing a target.77 However, the
obligation to extradite is limited, first, to offenses established in accordance with the Convention,
second, by the principle of dual criminality, and, third, to offenses that are punishable by the
deprivation of liberty for a maximum period of at least one year or by a more severe penalty.78 This
last element—the threshold penalty—was introduced because it was not considered appropriate
to require that each of the offences be considered per se extraditable, as Parties might, in their
own sovereign discretion, prescript different incarceration periods.79 It bears noting that the
determination of whether an offender is extraditable hinges upon the maximum period that
may legally be imposed for a violation, not upon the actual penalty imposed.80 Moreover, the
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Convention allows for coupling with other extradition treaties: where another extradition treaty
exists, the offenses of the Budapest Convention might be deemed extraditable offences under
that other treaty,81 thereby potentially expediting matters, especially with states not party to the
Convention.
Conclusion
The inherently transnational, cross-border nature of cybercrime has led to jurisdictional issues—over
the crime, the evidence and the alleged perpetrators—that require international cooperation if
they are to be overcome. The most effective and efficient means of doing so is through formal
instruments, as supplemented through informal mechanisms. There is a threefold lack that these
formal instruments attempt to overcome, namely: lack of criminal laws, lack of procedural powers
and lack of enforceable MLA provisions.82 The three major means for filling-in these gaps comes
through cyber-specific multilateral MLATs, more general MLATs and extradition treaties.
The most comprehensive and influential cyber-specific instrument is the Budapest Convention. A
leading example of how to address the most urgent issues in the domain of cybercrime, its binding
nature on Parties has increased its efficacy and suits its aspirational goal of harmonization—an
ambition somewhat beyond interoperability—in this area. Moreover, the indirect impact of the
Convention has unquestionably been far-reaching, serving as a model for legislation, offering
general guidance and sparking substantial debate the world over. The Convention has done much
to further international cooperation, even among states that already enjoyed good relations.83
Notwithstanding its limitations, the Budapest Convention has many strengths, leading one
commentator to say that:
“[I]t is likely to remain the most significant international legal instrument in the
field for the foreseeable future.”84
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CHAPTER 5
B. Establishing Informal International
Cooperation
Table of Contents
Introduction 205
I. The Place for Informal Cooperation 206
II. 24/7 Networks 206
A. G8 24/7 Network for Data Preservation 207
B. Budapest Convention 24/7 High Tech Crime Points of Contact Network 208
C. INTERPOL I-24/7 Global Police Communications System 208
III. Information Sharing & Coordination Centers 209
A. INTERPOL’s Global Complex for Innovation 209
B. Europol’s European Cybercrime Center 210
C. EU’s Judicial Cooperation Unit 211
D. US National Cyber-forensics & Training Alliance 212
E. Commonwealth Cybercrime Initiative 214
F. OAS Initiatives 214
IV. Inter-institutional Collaboration 215
V. Standardizing Requesting Procedures 215
Conclusion 216
Introduction
This chapter begins, and much of the Toolkit has discusses, the place of formal,
international agreements, it does so on the understanding that sovereignty resides
with states; however, it does so while keeping an eye to finding global consensus and
to promoting international interoperability. However, and for various reasons, formal
mechanisms of international cooperation have generally only sketched out the larger
cooperative space, leaving a great deal for states to fill in through informal and ad hoc
cooperation.
As the division between the formal and the informal is often subtle, the Toolkit uses
the more clearly delineated provisions of international instruments as indicative of
formal mechanisms of international cooperation, leaving the unspoken spaces where
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cooperative acts have occurred to the realm of informal cooperation. Notwithstanding
that distinction, this section begins by (I) acknowledging that calls for informal
cooperation often come from international sources, a reality that deserves discussion
in order to better understand and contextualize the environment in which informal
international cooperation is situated. In considering informal mechanisms of
international cooperation, particular note should be paid to (II) 24/7 networks and
(III) information sharing and coordination centers, the skeleton of which formal
instruments have laid out, but the meat of which is largely left to states to put on as
they see fit. Somewhat separately, it should be recalled that (IV) inter-institutional
collaboration can achieve important results. Less visible but also important are
(V) efforts to improve interoperability by standardizing information requests and
authentication procedures.
I. The Place for Informal Cooperation
Governments, international organizations and non-governmental organizations alike have all
proposed various options supporting international interoperability. For example, in 1990 the UN
General Assembly adopted a resolution dealing with computer crime legislation.1 In 1997, the G8
released a Ministers’ Communiqué that included an action plan and principles for combatting
cybercrime and protecting data and systems from unauthorized impairment.2 In 2003, the World
Summit on the Information Society (WSIS) issued the Geneva Declaration of Principles and Plan
of Action, which highlighted the importance of cooperative measures in building confidence and
security in the use of ICTs.3
As discussed,4 formal measures, notably the Budapest Convention, the Council of Europe’s 2001
contribution to the quest for international interoperability, help lay a shared framework upon which
other informal efforts might be laid. European efforts have particularly focused on overcoming
procedural obstacles that pertain to the principles of territoriality and of national sovereignty,
and that hamper international computer crime investigations.5 While the highly visible Budapest
Convention may largely set the structure,6 much of the work is done through a number of general
EU-instituted7 measures to facilitate police cooperation at the operational level.8
II. 24/7 Networks
With borders serving as no hindrance to cybercriminals, and with time zones often helping to
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cloak their illegal activities from immediate notice, effectively combatting cybercrime requires an
internationally-tasked, constantly-active response network that integrates national law enforcement
agencies. Because “crime never sleeps”, individual countries should designate directly reachable
point-persons for every hour of every day, with contact information kept current. In order for 24/7
networks to operate effectively, national point-persons must understand their own legal and policy
framework; how their domestic arrangements intersect and interact with the larger international
systems function; have the minimum technical knowledge to understand cybercriminal behavior;
and must be capable of communicating in foreign languages, with English language skills being a
minimum.9
Several authorities have created such a network, three of which are of particular note: (A) the G8,10
(B) the Budapest Convention and (C) INTERPOL.
Table 5.1: Various 24/7 Networks
Network Name Date Members Organizing Authority
G8 24/7 Network for High-Tech Jun. 2015 70 G8 High-Tech Crime
Crime Subgroup
Budapest Cybercrime 24/7 Network Sep. 2015 55 CoE
INTERPOL Global Police Jun. 2015 136 INTERPOL
Communications System
A. G8 24/7 Network for Data Preservation
Through its Lyon-Roma11 High Tech Crime Subgroup (HTCSG),12 the G8 proposed its 24/7 Network
for Data Preservation.13 Becoming operative in 1999,14 and gaining further impetus from the G8
Deauville summit in 2011,15 the network has seventy members today. Its focus is on creating cyber-
specialized points-of-contact for incidences requiring urgent assistance with investigations involving
electronic evidence. The Computer Crime and Intellectual Property Section (CCIPS) of the US DoJ
manages new memberships for the HTCSG and is responsible for periodic updates of information
on the point-of-contacts. Further efforts to develop a training initiative will further develop not
only the necessary cybersecurity capacity-building, but also boost international understanding and
cooperation.16 An example of informal international cooperation facilitated through international
instruments, such trainings are not only a vital part in the fight against cybercrime, but also an
example of the propulsive effect that international agreements and instruments—even if not
formalized at the level of a treaty—can have.
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B. Budapest Convention 24/7 High Tech Crime Points of Contact Network
The Budapest Convention requires Parties to create a 24/7 High Tech Crime Points of Contact
Network.17 Parties are required to “designate a point of contact available on a twenty-four hour,
seven-day-a-week basis, in order to ensure the provision of immediate assistance for the purpose
of investigations or proceedings concerning criminal offences related to computer systems and
data, or for the collection of evidence in electronic form of a criminal offence.”18 That assistance is
intended to facilitate the provision of technical assistance, data preservation, evidence collection,
legal aid and assistance locating suspects.19 The Convention goes so far as to permit those
measures to be directly carried out by the requesting state, its domestic law and practice allowing.20
The 24/7 Network has proven quite effective, with its “services [proving…] invaluable in helping to
ensure that investigators could preserve and seek the information they needed to investigate the
emergency”.21
C. INTERPOL I-24/7 Global Police Communications System
INTERPOL’s I-24/7 Global Police—which it calls the “foundation of information exchange between
the world’s police”—is a worldwide communications system connecting law enforcement officers
in INTERPOL Member States.22 Through each state’s domestically-staffed National Central Bureau
(NCB), authorized users—typically frontline law enforcement officers—can share sensitive and
urgent police information with their counterparts around the globe on a 24-hour-a-day, 365-day-
a-year basis with direct access to INTERPOL’s range of criminal databases, including databases on
suspected criminals or wanted persons, stolen and lost travel documents, stolen motor vehicles,
fingerprints, DNA profiles, stolen administrative documents and stolen works of art.23 Preparations
are underway to extend access to INTERPOL services beyond the NCB to additional frontline
officers, including immigration and customs officials.24 In order to further expedite assistance, each
state’s NCB designates a National Central Reference Point for Computer-Related Crime (NCRP),
who is available through an INTERPOL-managed hotline. Among other things, it features an early
warning system between cybercrime investigation units.
Box 5.2: Korea Activates 24/7 Network to Secure e-Evidence
On 23 December 2014, cybercriminals successfully hacked the computer systems of South
Korea’s state-run nuclear operator, Korea Hydro and Nuclear Power Co. Ltd. (KHNP).25 KHNP,
which operates Korea’s twenty-three large reactors and its many hydroelectric plants, is
responsible for about forty percent of the country’s electric power supply.26 Although there
was no evidence that the nuclear controls systems were hacked, sensitive information,
including blueprints of nuclear plant equipment, electricity flow charts and estimates of
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radiation exposure among local residents, was stolen, some of which was posted on the
internet via Twitter.27 The hackers demanded that three of the reactors be shut down, as well
as an unspecified amount of money, threatening, in a message posted on Twitter, to “bring
destruction” to the power plants if the demands were not met.28
Utilizing the G8 24/7 Network, the Korean point-of-contact sent email and telephone
requests to the US point-of-contact asking that digital evidence in the relevant Social
Networking Service (SNS) accounts to be preserved. The US point-of-contact subsequently
turned to the ISPs managing the relevant accounts, activating protocols enabling the
disclosure of evidence in emergency situations. Within twenty-four hours after the request,
information on the offenders’ SNS accounts and access logs had been delivered to the
Korean investigative team.
III. Information Sharing & Coordination Centers
While cooperative 24/7 networks can help preserve digital evidence located in other jurisdictions,29
law enforcement has repeatedly lamented the absence of mechanisms to enter electronic networks
and to expeditiously preserve computer data, such as connection logs.30 Due to cybercrime’s
inherently transnational and cross-jurisdictional nature, at any moment, and from any part of the
world, cybercriminals can attack multiple targets. As such, leaving a country’s law enforcement
to independently conduct investigations could end up with only partial findings. Moreover,
operating independently might inadvertently—and inopportunely—influence investigations in
other countries, for instance, by alerting targets, disclosing information, or destroying evidence.
Furthermore, the deterrent effect is limited where only certain members of multinational crimes
are prosecuted; such is especially true in instances where a state lacks the capacity or resources to
investigate and prosecute, thereby encouraging cybercriminals to act with impunity.
Several global information sharing and coordination centers have emerged, notably (A)
INTERPOL’s Global Complex for Innovation, (B) Europol’s European Cybercrime Center, (C) the
EU’s Judicial Cooperation Unit, (D) the US National Cyber-Forensics and Training Alliance, (E) the
Commonwealth Cybercrime Initiative and (F) OAS initiatives.
A. INTERPOL’s Global Complex for Innovation
Recognizing that technological developments mean police worldwide face an increasingly
challenging operational and cross-global landscape, the INTERPOL Global Complex for Innovation
(IGCI) opened in Singapore in June 2015.31 A cutting-edge research and development facility for
the identifying of crimes and criminals, providing innovative training, offering operational support
and nurturing partnerships, IGCI places an emphasis on developing and enhancing open-source
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forensics cyber tools for local law enforcement. Recent technical innovations have transformed
the nature of crime fighting, and open-source forensics tools are particularly favorable as they
are so useful for police departments in poor and developing nations. In addition to improving
formal, national capacity-building by encouraging and supporting domestic development, IGCI
also supports informal cooperation by stationing police officials from various countries at its
headquarters. As such, IGCI not only furthers both information sharing but also the larger object of
inter-governmental coordination. IGCI is the product of the recognition that combatting cybercrime
requires interoperability in both formal and informal ways.
Effectively, IGCI is a space for law enforcement to learn about the latest cybercrimes, and to
have their work supported by state-of-the-art digital forensics laboratories and research stations.
Moreover, as real-time access to criminal data is crucial in today’s technologically innovative and
rapidly changing world, private sector and academia, IGCI also serves as an important means for
building innovative public-private partnerships by integrating the private sector and academia
into its activities. The digital forensic laboratory conducts analysis of criminal trends, tests forensic
devices, develops good practices and supports empowerment training. The cyber fusion center
analyzes information from the private sector and academia, which it provides to Member States in
support of their investigations.
The placement of IGCI in Asia was not merely a piece of savvy politicking32 but a conscientious
decision: by working in coordination with INTERPOL’s General Secretariat, seated in Lyon, France33
and its recently established Command and Coordination Centre (CCC) in Buenos Aires, Argentina34
constant, global coverage is guaranteed.35 This strategic geographic placement facilitates the
combatting of cybercrimes that have targets, not only in multiple jurisdictions, but also in multiple
and differing time zones, and which often take place using co-conspirators located in various
countries, using ICT systems sitting in equally divergent countries.
B. Europol’s European Cybercrime Center
Another model for information sharing and coordination is Europol’s European Cybercrime Center
(EC3).36 Set up in January 2013, EC3 is tasked with following cybercrimes committed by organized
groups (especially, for instance, online fraud); that cause serious harm to the victim (e.g., online
child sexual exploitation); and that affect critical EU infrastructure and information systems (e.g.,
cyberattacks).37 As with the IGCI, EC3 collects criminal information, supports investigation, assists in
digital forensics, pursues research and development provides and education and training.
Strategically situated within Europol both to draw on Europol’s existing law enforcement capacity
and to expand Europol’s existing capabilities, EC3 serves as the central EU hub for criminal
information and intelligence, while also supporting Member States’ operations, providing
strategic analysis products and providing highly specialized technical and digital forensic support
capabilities.38 Staffed by cyber liaisons officers and analysts seconded from EU Member States, as
well as from certain non-Member States, EC3 also supports training and capacity-building, and
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serves as a comprehensive outreach function connecting cybercrime-related law enforcement
authorities with the private sector, academia and other non-law enforcement partners.39
The value of coordination and cooperation has been recognized, leading to the creation of the
Joint Cybercrime Action Taskforce (J-CAT). Launched in September 2014 as a six-month project to
facilitate joint investigations, the Taskforce has the objective of proactively driving intelligence-led,
coordinated action against key cyberthreats and top targets.40 J-CAT is specifically involved with
high-tech crimes (such as malware, botnets and intrusion), crime facilitation (such as bulletproof
hosting, counter-anti-virus services, infrastructure leasing and rental, money laundering, including
virtual currencies), online fraud (online payment systems, carding, social engineering) and the
various aspects of child sexual exploitation online.41
C. EU’s Judicial Cooperation Unit
Police-to-police efforts are not the only forms of international information sharing and operational
coordination. The EU’s Judicial Cooperation Unit (Eurojust) is an example of international judicial
coordination. Set up in February 2002 (but with its origins going back to 1999),42 it is composed of
national prosecutors, magistrates and police officers of equivalent competence that are detached
from each Member State according to their own legal system. Its mission, enshrined at the heart
of the European Union by the Treaty of Lisbon, is “to support and strengthen coordination and
cooperation between national investigating and prosecuting authorities in relation to serious crime
affecting two or more Member States [….]”43 In particular, it assists by facilitating the execution of
MLATs and extradition treaties.44 Eurojust has been central to negotiating cooperation agreements
with third states and among EU agencies, allowing the exchange of judicial information and
personal data.45
Eurojust maintains a network of contact points worldwide that serve as “active intermediaries”,
including the twenty-eight EU Member States, as well as contact points in twenty-three non-
Member States.46 It also has privileged relationships with the European Judicial Network (EJN),
Europol, the European Anti-Fraud Office (OLAF) and Liaison Magistrates.47 In this discussion, the
relationship with EJN, which is composed of more than three hundred national contact points
throughout the EU Member States, is of particular note.48 Although not an EU entity, it bears noting
that the Global Prosecutors E-crime Network (GPEN) of the International Association of Prosecutors
(IAP)49 provides networks of national contact points for the facilitation of judicial cooperation,
with which Eurojust frequently communicates. These networks focus on personnel exchanges
designated by nations and interchanges of expertise by organizing regular conferences and
meetings, as well as publishing relevant materials.
Now permanently seated in The Hague alongside Europol,50 Eurojust’s competence covers the
same types of crime and offences for which Europol has competence, including terrorism, drug
trafficking, trafficking in human beings, counterfeiting, money laundering, computer crime, crime
against property or public goods including fraud and corruption, criminal offences affecting
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the European Union’s financial interests, environmental crime and participation in a criminal
organization.51 For matters beyond those for which it has competence, Eurojust may be called to
assist in investigations and prosecutions at the request of a Member State.52 Eurojust serves as an
organizational and orchestrating authority for cross-Member State matters, with power to ask the
competent authorities of concerned Member States concerned to investigate or prosecute specific
acts, to coordinate with one another, to determine that one state is better placed to prosecute than
another, to set up a Joint Investigation Team, and to provide Eurojust with information necessary to
carry out its tasks.53
In December 2008, Ministers of Member States at the Justice and Home Affairs Council adopted
a revised Council Decision on the strengthening of Eurojust, notably by increasing information
interchange, and by making Eurojust available to national authorities on a 24/7 basis.54
Box 5.3: Operation BlackShades
BlackShades was an organization developing and selling malware that enabled buyers
to infect and take control of computers—for instance, one buyer infected at least 2,000
computers, controlling the victims’ webcams to take pictures of women and girls.55 A US
FBI investigation revealed links to several EU Member States,56 certain of which had already
begun their own independent investigations.57 Sellers and users of BlackShades malware
were targeted by judicial and law enforcement authorities in sixteen states during this
worldwide investigation.58
Eurojust, supported by EC3, subsequently coordinated a common operation. Beginning
in November 2013 with information sharing and the coordinating of actions, the operation
culminated in May 2014 with a two-day strike involving actions in sixteen countries (the
Netherlands, Belgium, France, Germany, the United Kingdom, Finland, Austria, Estonia,
Denmark, Italy, Croatia, the United States, Canada, Chile, Switzerland and Moldova).59 Over
those two days, 359 house searches were carried out worldwide, 97 people arrested and over
1,100 data storage devices suspected of being used in the illegal activities were seized.60
Substantial quantities of cash, illegal firearms and drugs were also seized, as was the domain
of the BlackShades website.61 Eurojust assisted the involved states by delivering overviews
of the status of the investigations in each state and by providing judicial assistance, with EC3
providing real-time analytical support. Eurojust also played a key role in determining the
optimal country for prosecution.
D. US National Cyber-forensics & Training Alliance
The National Cyber-Forensics & Training Alliance (NCFTA)62 was established in 2002 as a non-
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profit corporation focused on identifying, mitigating and ultimately neutralizing cyberthreats
through strategic alliances and partnerships with Subject Matter Experts in the public, private and
academic sectors.63 Jointly founded by the FBI, the investigative branch of the DoJ,64 and InfraGard,
a partnership between the FBI and the private sector that operates as an association of persons
representing businesses, academic institutions, state and local law enforcement agencies and other
participants dedicated to sharing information and intelligence to prevent hostile acts against the
United States.65 Headquartered in Pittsburgh, Pennsylvania, the NCFTA has offices in Los Angeles,
California and New York, New York66 and has strategic partnerships with institutions around
the world.67 The NCFTA shares information on emerging cyberthreats and resources, including
Subject Matter Experts, on a real-time basis across all sectors and with all partners via multiple
communication channels.68 Foreign cyber law enforcement officers are embedded at NCFTA for
extended periods.
The most valuable and effective means of communications of NCFTA network is verbal, face-to-
face communication that happens daily, in the neutral environment of trust that NCFTA has built.
Such efforts are proactive and preventative, thereby enabling NCFTA to give early warnings relating
to cyberthreats and cyber transactions, as well as to assist partners in protecting their brand,
reputation, shareholder value, economic losses and customer confidence.
In an effort to streamline intelligence exchange, NCFTA regularly organizes interaction into threat-
specific initiatives. Once a significant cybercrime trend is realized and a stakeholder consensus
defined, an initiative is developed wherein NCFTA manages the collection and sharing of
intelligence with industry partners, appropriate law enforcement and other cross-sector SMEs.
Each initiative analyzes real-time resources to identify threats, threat actors and provide actionable
intelligence to industry and law enforcement to neutralize the threats. Through NCFTA initiatives,
hundreds of criminal (and some civil) investigations have been launched which would not otherwise
have been addressed. Currently, NCFTA has aided in successful prosecutions of more than three
hundred cyber criminals worldwide. Furthermore, NCFTA has produced more than eight hundred
cyberthreat intelligence reports over the past three years alone to support these initiatives.
Law enforcement and private sector entities are co-located at NCFTA.69 In this regard, if, for
example, a private sector entity, such as a bank or credit card company, is a victim of a cyberattack,
then that entity can immediately pass any relevant information on to other NCFTA members.
With the support of law-enforcement agency representatives who are also located at NCFTA
headquarters, members can then use that information to open or advance existing investigations
in concert with global partners. NCFTA supports specialized and targeted programs, including
the Cyber Financial Program (CyFin), which is dedicated to the identification, mitigation and
neutralization of cyberthreats to the financial services industry70; the Brand and Consumer
Protection (BCP) Program, which focuses on keeping the internet as a safe place for the sale of
retail goods71; and the Malware and Cyber Threats (MCT) Program, which researches, identifies
and provides timely alerts through data feeds and proactive intelligence on cyberthreats under
analysis.72
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The success of NCFTA is in large measure due to the relationships it has engendered between
the public and private sectors. Indeed, collaboration and cooperation among private industry,
academia and law enforcement has been critical to their continued success and effectiveness.73
E. Commonwealth Cybercrime Initiative
The Commonwealth Cybercrime Initiative (CCI)74 is a capacity-building program of the
Commonwealth Secretariat aiming to assist member states through multi-stakeholder partnership
providing coherent, comprehensive and sustainable assistance to reduce cybercrime.75 Bringing
together forty international organizations—including INTERPOL, OAS, CoE, the Commonwealth
Telecommunications Organisation (CTO) and ITU—to form the CCI Consortium, it helps put
on multidisciplinary programs in Commonwealth countries.76 It brings additional resources to
the Commonwealth Model Law on Cybercrime and to the Harare Scheme for MLA.77 The CCI
deserves notable attention for, while it and both the Model Legislation and the Harare Scheme are
voluntary and non-binding,78 Commonwealth Heads of Government have given it an unambiguous
mandate,79 thereby providing CCI with unique political buy-in.80
The Commonwealth Secretariat is the focal point for CCI, with a representative from its Rule of
Law Division sitting on CCI’s Executive Management Committee81 and providing secretariat.82 CCI
operates by deploying a mission team upon a member state’s request. As an example of the good
practices discussed above (see sections 2 C and 2 D, above) is that teams include both at least
one technical and one criminal justice expert.83 The team, which is drawn from CCI Consortium
Member States best placed to donate the requisite resources, conducts a gap analysis based on
the CCI Checklist,84 from which a needs assessment report is produced.85 The report’s outcomes,
which are agreed upon with the Member State, outlines priorities and capacities for reform, which
the Consortium will then seek to develop. The program regional in its approach, has been active in
both the Caribbean (e.g., Trinidad and Tobago) and Africa (e.g., Ghana, Botswana, Kenya, Uganda
and Tanzania). Notable regional approaches to tackling cybercrime in which CCI has been central
include the EAC Justice Network on Cybercrime and Electronic Evidence (in collaboration with
UNODC)86 and a still-nascent Caribbean organization.87
F. OAS Initiatives
Bringing together all thirty-five independent states of the Americas, the OAS constitutes the main
political, juridical and social governmental forum in the Western Hemisphere, as well as the oldest
regional organization in the world (dating to the First International Conference of American States,
held in Washington, DC, from October 1889 to April 1890).88
OAS addresses cybercrime through two different projects. First, its Inter-American Committee
against Terrorism has a launched the Cyber Security Program.89 Tackling cybersecurity more
broadly, and within the context of cyberterrorism,90 it has established CIRTs in each country to
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create a Hemispheric watch and warning network providing guidance and support, to cultivate and
support NCSs (see section 2 F, above), and to promote a culture and awareness of cybersecurity.91
While cybercrime is an element of that overall approach, it is relatively small one, with emphasis
being placed on legislative criminalization and the implementation of appropriate legal tools.92
Second, as part of the 1997 Reunión Extraordinaria de los Ministros de Justicia de las Americas,
OAS set up, under the auspices of the Department of Legal Cooperation, both the Inter-American
Cooperation Portal on Cyber-Crime and the Working Group on Cyber-Crime, which together aim
at strengthening hemispheric cooperation in the investigation and prosecution of cybercrimes.93
Among other things, this project has resulted in the creation of directory of national points of
contact, cybercrime questionnaires and training for building capacity for combatting cybercrime.94
IV. Inter-institutional Collaboration
Informal international cooperation can also be had at the inter-institutional level. One example of
inter-institutional collaboration can be seen in the East African Networking Meeting on Cybercrime
and Electronic Evidence was held in Nairobi, Kenya from 19 to 20 August 2015. Organized by
UNODC and COMSEC under the auspices of CCI (discussed above), the event was an important
cooperative moment for both states and international organizations. The meeting’s objective
was to bring together criminal justice officials and key stakeholders from Member States of the
EAC and other African states, as well as representatives of relevant intergovernmental and other
organizations, to discuss and exchange information on national practices in, and experiences with,
the prevention, investigation and prosecution of cybercrime.
The meeting devoted its main focus to the establishment of the East African Criminal Justice
Network on Cybercrime and Electronic Evidence. The objectives were kept in line with the relevant
action points set forth in the “Kampala Outcomes on Strengthening Regional Cooperation”, as
agreed at the EAC Regional Meeting on Preventing and Combating Cybercrime, held in Kampala,
Uganda, in May 2014. The participants discussed a range of procedural and substantive aspects for
the launching and operationalization of such a network, including its membership, chairmanship
and functions, as well as its objectives and modus operandi. The network is to aim at (1) promoting
the exchange of information and evidence between criminal justice and law enforcement
counterparts; (2) facilitating working relationships between the criminal justice and law enforcement
sectors and other key stakeholders; and (3) assisting formal and informal cooperation. As a result of
the meeting, the participants agreed on the final text of the terms of reference of the network.
V. Standardizing Requesting Procedures
As a whole, improving interoperability on a procedural level requires at least as great a degree
of understanding as it does on a substantive level. In addition to developing sufficiently robust
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laws that allow for domestic authorities to conduct cybercrime investigations (see sections 2 C
and 2 D, above), it is important for legislative measures to allow for foreign electronic evidence
to be admissible in legal proceedings, as long as such evidence is gathered in a way of satisfying
procedural legality. While legislative action will be required, it can be facilitated through informal
arrangements, such as bilateral agreements, but also through the standardization of requesting
procedures.
Developing standardized procedures for making information requests and authentication would
greatly advance international interoperability.95 While such would be especially the case once
formal international instruments and systems have been put in place (see section 5 A, above),
those arrangements might also be reached on a more informal level. Such procedures and
understandings operate by building upon principles such as the flag principle, by which jurisdiction
is somewhat more malleably understood (see section 2 E, above).
Control and possession of data has become an increasingly sensitive issue. For instance, the EU-US
Safe Harbor Framework on transatlantic data flows was invalidated by the CJEU on the grounds
that the scheme “enables [... US] public authorities [to interfere] with the fundamental rights of
persons”.96 The fanfare—even alarm97—with which the decision was received, testifies to the
ever-increasing importance of data—for both commercial and investigatory purposes—; and the
rapidity with which a new EU-US arrangement (the so-called “Privacy Shield”) was crafted98 and
adopted99 reinforces that notion (see sections 4 A, and 4 B, above). In that sense, even attempts by
some states to mandate that data pertaining to its citizens be stored on domestic servers, or made
otherwise made automatically accessible (so-called “data localization”), could be construed by
some to facilitate domestic law enforcement agencies. Moves towards data localization, however,
would likely also multiply information requests, pacing burdens on both sides Additionally, while
challenges to managing cross-border jurisdiction might be mitigated by data localization, the
cross-border nature of cybercrime all but ensures that there will be continued need for cross-border
exchanges.
As with efforts to improve MLA (see section 5 A, above), efforts are underway globally to speed-
up international electronic investigations, while ensuring that they do not violate human rights.
However, just as with efforts to improve MLA, efforts to speed-yet-constrain, remote cross-border
electronic investigation have not yielded a resolution. For many years, the Council of Europe has
been active in researching and discussing the issue of cross-border evidence collection, in which
there is opportunity for participation by states not having acceded to the Budapest Convention in
these discussion.100
Conclusion
Cybercrime can only be effectively investigated and prosecuted when supported through
international cooperation. Formal means of such cooperation include multilateral treaties on
Page 216 | Chapter 5 | § B. Establishing Informal International Cooperation Table of Contents
cybercrime, the most prominent of which is the Budapest Convention, as well as general MLATs
treaties and extradition treaties. These instruments facilitate and further international investigations
and prosecutions. However, those international instruments can only have full effect insofar as
parties develop adaptive legal national frameworks (see sections 2 A, 2 B, 2 C, 2 D, 2 E and 2
F, above). Indeed, the biggest obstacle to international prosecution of cybercrimes is the dual
criminality requirement.
Formal instruments of international cooperation are insufficient and must be supplemented through
informal mechanisms. While the bones that arrange for informal interactions are often laid out
in formal agreements, such as the Budapest Convention’s 24/7 Network, it is for the individual
states to truly put the meat on that skeletal framework. The informal communication encouraged
through most 24/7 networks might be used prior to making a formal request for assistance, or in
seeking expedited measures, such as data preservation, a matter typically not conducive to the
more plodding procedures of MLATs. Moreover, by making use of 24/7 networks, law enforcement
officials become accustomed to working with their counterparts, therein facilitating and furthering
cooperation and capacity.
Information-sharing centers are another important means of rendering substance to the often-
barebones mechanisms of cooperation. Through such centers, crucial cybercrime research and
development can be conducted, shared resources brought to bear to support less resource-rich
countries (including digital forensics laboratories), capacity-building developed and closer relations
through personnel exchange had. Collectively, centers such as those created by INTERPOL (in
Lyon, France, in Buenos Aires, Argentina and in Singapore) allow for global coverage at all hours
of the day and night. Moreover, and no less importantly, such collaborations need not only be
police-to-police, as the judicial collaborations of Eurojust and EC3 have effectively proven. Further,
it bears noting that, in a world where real-time information is often crucial, finding analogues and
partnerships for involving the private sector will be no less important to combatting cybercrime.
Lastly, stardardizing requesting procedures could serve to significantly further formal international
cooperation and interoperability.
Page 217 | Chapter 5 | § B. Establishing Informal International Cooperation Table of Contents
End Notes
Referenced in: § A. Multilateral 9. COMSEC, “Model Law on Computer 10. Of these multilateral treaties, only the
Instruments & Cross-border and Computer Related Crime,” in 2002 AU Convention has not yet entered into
Meeting of Commonwealth Law Ministers force, as, per Article 36 of the Convention,
Cooperation and Senior Officials: Kingstown, St Vincent the requisite threshold of fifteen ratifying
and the Grenadines, 18–21 November AU Member States has not been
1. See generally Johnson & Post, supra § 2002, (London: Commonwealth achieved: to date, only eight Member
2 A, note 31 (arguing that cyberspace Secretariat,2003), at http://www.oecd- States have signed the AU Convention,
cannot be governed by laws that rely on ilibrary.org/commonwealth/governance and none have ratified it. See “List of
traditional territorial borders). /2002-meeting-of-commonwealth-law-mi Countries Which Have Signed, Ratified/
nisters-and-senior-officials/model-law-on- Acceded to the AU Convention,” African
2. “Dual criminality” (also known as computer-and-computer-related-crime Union, (1 Jun. 2016), at https://www.au.int/
“double criminality”) refers, in the _9781848598188-16-en; COMSEC, “Draft web/sites/default/files/treaties/29560-
context of international cooperation, to Model Law on Electronic Evidence,” sl-african_union_convention_on_cyber_
a requirement that the act subject to a in 2002 Meeting of Commonwealth security_and_personal_data_protection.
request for extradition or MLA must be a Law Ministers and Senior Officials: pdf.
criminal offence according to the criminal Kingstown, St Vincent and the
law of both not only the state making the Grenadines, 18–21 November 2002, 11. UN Congress on Crime Prevention,
request, but also according to the law of (London: Commonwealth Secretariat, supra § 2 A, note 3, at 15, (discussing
the state of which assistance is requested. 2003), at http://www.oecd-ilibrary.org/ recent developments in the use of
See, e.g., UNODC Cybercrime Study, commonwealth/governance/2002- science and technology by offenders
supra § 1 C, note 7, at 202. meeting-of-commonwealth-law- and by competent authorities in fighting
ministers-and-senior-officials/ cybercrime).
3. Amalie M. Weber, “The Council of
draft-model-law-on-electronic-
Europe’s Convention on Cybercrime,” 12. Budapest Convention, supra § 1 B, note
evidence_9781848598188-11-en;
Berkeley Technology Law Journal, Vol. 18, 32, at Preamble. Nine non-Member
UN Conference on Trade and
(2003), p. 426, at http://scholarship.law. States of the CoE (Australia, Canada,
Development (UNCTAD) and Eastern
berkeley.edu/btlj/vol18/iss1/28 Dominican Republic, Israel, Japan,
African Community, “Draft EAC
Mauritius, Panama, Sri Lanka and the
4. See US Dept. of State, Bureau of Legal Framework,” (2008), at http://
United States) have acceded to the
Counterterrorism, “Ch. 5: Terrorist Safe repository.eac.int:8080/bitstream/
Budapest Convention. See “Chart of
Havens” (listing certain “safe-havens”), handle/11671/1815/EAC%20
Signatures and Ratifications of Treaty
in: Country Reports on Terrorism Framework%20for%20Cyberlaws.
185,” CoE, at http://conventions.
(2014), at http://www.state.gov/j/ct/rls/ pdf?sequence=1&isAllowed=y; Common
coe.int/Treaty/Commun/ChercheSig.
crt/2014/239412.htm. Market for Eastern and Southern Africa
asp?NT=185&CM=8&DF=&CL=ENG.
(COMESA), “Cybersecurity Draft Model
These countries were not all part of
5. At the same time, it is useful to consider Bill,” (2011); ITU, “HIPSSA-Southern
the process when provisions of the
the applicability of the United Nations African Development Community
Convention were elaborated. A further
Convention against Transnational Model Law on Computer Crime and
thirteen countries (Argentina, Chile,
Organized Crime (UNTOC), a global Cybercrime,” (2013); ITU, CARICOM
Colombia, Costa Rica, Israel, Mexico,
instrument reaching almost universal & CTU, “Model Legislative Text on
Morocco, Paraguay, Peru, Philippines,
adherence with 187 States Parties, Cybercrime/e-Crimes and Electronic
Senegal, Sri Lanka and Tonga), none of
which takes into account “cyber” crimes Evidence,” (2010); ITU and Secretary
which are Member States of the Council
committed by organized criminal groups. of the Pacific Community, Model Law
of Europe, and none of which participated
on Cybercrime, (2011). See ibid, for
6. See UNODC Cybercrime Study, supra § 1 in the Convention’s elaboration,
selected examples of implementation of
C, note 7, at 67. have been invited to accede to this
non-binding multilateral instruments on
Convention.
7. Some form of national cybercrime cybercrime.
legislation exists in 149 countries, either in 13. See supra §§ 4 A & 4 B for a fuller
existing (137) or draft (24) form. See, e.g., discussion of the issues of safeguards,
appendix 9 C. including due process issues, data
protection, and access to information and
8. See, e.g., Zahid Jamil, “Cybercrime freedom of expression.
Model Laws: Discussion Paper Prepared
for the Cybercrime Convention 14. Ibid. See also Budapest Convention,
Committee (T-CY),” Council of Europe, (3 supra § 1 B, note 32, at Art. 15.
Dec. 2014), at https://www.coe.int/t/dghl/
15. Budapest Convention, supra § 1 B, note
cooperation/economiccrime/Source/
32, at Art. 15.
Cybercrime/TCY/2014/3021_model_law_
study_v15.pdf.
Page 218 | Chapter 5 | End Notes Table of Contents
16. Ibid., at Art. 37.1 (“the Committee of 36. Budapest Convention, supra § 1 B, note 49. See, e.g., ECOWAS, Convention
Ministers of the Council of Europe, 32, at Art. 37.1. A/P.1/7/92 on Mutual Assistance
after consulting with and obtaining the in Criminal Matters, at http://
unanimous consent of the Contracting 37. SCO Agreement, supra § 2 A, note 62, documentation.ecowas.int/download/
States to the Convention, may invite at Art.12.3, (“This Agreement, upon its en/legal_documents/protocols/
any State which is not a member of the entering into force, shall be open for Convention%20on%20Mutual%20
Council and which has not participated accession by any State that shares the Assistance%20in%20Criminal%20
in its elaboration to accede to this goals and principles of this Agreement.”). Matters.pdf; EU, “Convention on
Convention”). Mutual Assistance in Criminal Matters
38. CIS Agreement, supra § 2 A, note 47, at
between the Member States of the
17. “Chart of Signatures and Ratifications of Art. 17.
European Union,” at http://eur-lex.
Treaty 185,” supra note 12. europa.eu/legal-content/EN/TXT/
39. Arab Convention, supra § 2 A, note 14,
at Ch. 5, Final Provision 4 (providing that HTML/?uri=URISERV:l33108&from=EN;
18. Ibid.
“Any State of the League of Arab States “SADC Protocol on Mutual Legal
19. Ibid. that has not signed this Convention may Assistance in Criminal Matters,” SADC, at
accede to it”). http://www.sadc.int/files/8413/5292/8366/
20. CIS Agreement, supra § 2 A, note 47. Protocol_on_Mutual_Legal_Assistance_
40. Ibid. in_Criminal_Matters_2002.pdf.
21. Budapest Convention, supra § 1 B, note
32 , at Art. 37.1. 41. AU Convention, supra § 2 A, note 48. 50. UNODC Cybercrime Study, supra § 1 C,
note 7, at xxv.
22. CIS Agreement, supra § 2 A, note 47. 42. See, e.g., Mailyn Fidler, “The African
Union Cybersecurity Convention: A 51. Ibid.
23. Budapest Convention, supra § 1 B, note Missed Human Rights Opportunity,”
32. Council of Foreign Relations Blog, 52. Ibid., at 201.
(22 Jun. 2015), at http://blogs.cfr.org/
24. The following are the twelve CIS Member 53. Ibid.
cyber/2015/06/22/the-african-union-
States: Armenia, Azerbaijan, Belarus,
cybersecurity-convention-a-missed- 54. Korean Criminal Act, supra § 2 E, note 14.
Georgia, Kazakhstan, Kyrgyzstan,
human-rights-opportunity/; Eric Tamarkin,
Moldova, the Russian Federation,
“The AU’s Cybercrime Response: A 55. “Double Criminality Law & Legal
Tajikistan, Turkmenistan, Ukraine and
Positive Start, but Substantial Challenges Definition,” US Legal.com, at http://
Uzbekistan.
Ahead,” Institute for Security Studies, definitions.uslegal.com/d/double-
25. The following are the six CIS Member (Jan. 2015), at https://www.files.ethz.ch/ criminality/.
States having ratified the CIS Agreement: isn/187564/PolBrief73_cybercrime.pdf.
56. Urbas, supra § 2 E, note 53, at 12–13.
Armenia, Azerbaijan, Belarus, Kazakhstan,
43. See “List of Countries Which Have
Moldova and Tajikistan. 57. See, e.g., Budapest Convention, supra §
Signed, Ratified/Acceded to the AU
Convention,” supra note 10. 1 B, note 32.
26. “Geneva Internet Platform,” Digital
Watch, at https://dig.watch/instruments/ 58. UNODC Cybercrime Study, supra § 1
44. AU Convention, supra § 2 A, note 48, at
agreement-cooperation-combating- C, note 7, at 206–07 (noting “the (often
Art. 36.
offences-related-computer-information- necessary) interplay between a range
commonwealth. 45. See, e.g., Anahita Mathai, “The Budapest of government institutions can, in some
Convention and Cyber Cooperation,” cases, contributed to the long timescales
27. SCO Agreement, supra § 2 A, note 62.
ORF Cyber Monitor, (12 Mar. 2015). reported for responses to requests”).
28. Budapest Convention, supra § 1 B, note
46. UNODC Cybercrime Study, supra § 1 C, 59. Budapest Convention, supra § 1 B, note
32; see e.g., Constance Johnson, “Global
note 7, at 199. 32, at Art. 27.2.
Legal Monitor,” US Library of Congress,
at http://www.loc.gov/law/foreign- 47. Ibid., at 202. 60. CIS Agreement, supra § 2 A, note 47, at
news/article/shanghai-cooperation- Art. 4.
organization-agreements-signed/. 48. Approximately 150 countries have
domestic laws (either enacted or in draft) 61. Arab Convention, supra § 2 A, note 14, at
29. Budapest Convention, supra § 1 B, note governing cybercrime. See appendix 9 C. Art. 34.2.
32, at Art. 37.1.
62. CIS Agreement, supra § 2 A, note 47, at
30. CIS Agreement, supra § 2 A, note 47. Art. 6.2; Budapest Convention, supra § 1
B, note 32, at Art. 25.3 and 27.9; and Arab
31. SCO Agreement, supra § 2 A. note 62.
Convention, supra § 2 A, note 14, at Art.
32. “About SCO,” SCO, at http://rus.sectsco. 32.3 and 34.8, respectively.
org/about_sco/.
33. Arab Convention, supra § 2 A, note 14.
34. Ibid., at Art. 1.
35. Ibid., at Art. 4.1.
Page 219 | Chapter 5 | End Notes Table of Contents
63. While not specific to the above- 72. “The Obligation to Extradite or
mentioned three multilateral treaties Prosecute” (“aut dedere aut judicare”),
on cybercrime with fast means of Final Report of the UN International
communications for urgent MLA requests, Law Commission, (2014), at http://
UNODC provides as follows, “Being legal.un.org/ilc/texts/instruments/
party to an international or regional english/reports/7_6_2014.pdf; Budapest
instrument envisaging urgent mutual Convention, supra § 1 B, note 32, at Art.
legal assistance channels appears to 24.6. See also Budapest Explanatory
have a moderate effect – 55 percent of Report, supra § 1 D, note 14, at para. 251.
responding countries that were not party
to any multilateral cybercrime instrument 73. See, e.g., Urbas, supra § 2 E, note 53, at
did not have channels for urgent 13–14.
requests, compared with 40 per cent of
74. European Convention on Extradition,
countries that were party to a multilateral
Paris, ETS No. 24 (13 Dec. 1957), Arts.
cybercrime instrument.” See also UNODC
3 & 11, at https://www.coe.int/en/web/
Cybercrime Study, supra § 1 C, note 7, at
conventions/full-list/-/conventions/
207–208.
treaty/024.
64. Budapest Convention, supra § 1 B, note
75. See, e.g., Lazar, supra § 2 B, case 2.2.
32, at Preamble.
76. See, e.g., Budapest Convention, supra §
65. Ibid., at Art. 22.3. With regard to offenses
1 B, note 32, at Art. 24. Dual criminality is
committed by the national of a state,
intended to protect individuals from state
the Convention is only applicable if the
persecution for political crimes.
offense is criminally punishable where
committed, or if the offense is committed 77. Ibid., at Art. 22 & 24.
outside the territorial jurisdiction of any
state (thereby avoiding the possibility of 78. Ibid., at Art. 24.1.b.
negative jurisdiction). Ibid., at Art. 22.3.d.
79. See Budapest Explanatory Report, supra §
66. Ibid., at Art.22.4. 1 D, note 14, at para. 245.
67. Ibid., at Art. 14–15 (discussing the scope 80. Ibid.
of, and safeguards for, these tools).
81. Budapest Convention, supra § 1 B, note
68. States bound by the European 32, at Art. 24.1.
Convention on Human Rights violate
82. Amalie M. Weber, “The Council of
their duty to their citizens and victims’
Europe’s Convention on Cybercrime,”
human rights if privacy laws prevent law
Berkeley Technology Law Journal, Vol. 18
enforcement authorities from conducting
(2003), p. 426, at http://scholarship.law.
adequate electronic investigations in
berkeley.edu/btlj/vol18/iss1/28.
criminal cases. K.U. v. Finland, 2872/02
[2008] ECtHR 1563, at http://www. 83. See, e.g., Statement of US Attorney
echr.coe.int/Documents/Reports_ General Alberto R. Gonzales on the
Recueil_2008-V.pdf. Although this is a Passage of the Cybercrime Convention,
ECtHR decision, it is instructive for other US Dept. of Justice, at http://www.justice.
regions. gov/archive/opa/pr/2006/August/06_
ag_499.html (“This treaty provides
69. Budapest Convention, supra § 1 B, note
important tools in the battles against
32, at Art. 25.
terrorism, attacks on computer networks
70. See, e.g., ibid., at Art. 22 & 24 (especially and the sexual exploitation of children
noting at Art. 24.1.3, “If a Party that makes over the Internet, by strengthening U.S.
extradition conditional on the existence of cooperation with foreign countries in
a treaty receives a request for extradition obtaining electronic evidence.”).
from another Party with which it does not
84. Walden, supra § 2 A, note 67.
have an extradition treaty, it may consider
this Convention as the legal basis for
extradition with respect to any criminal
offence referred to in paragraph 1 of this
article.”).
71. Oxford Dictionary of Law.
Page 220 | Chapter 5 | End Notes Table of Contents
Referenced in: § B. Establishing 8. See e.g., Budapest Convention, supra § 11. This subgroup, often referred to as
Informal International Cooperation 1 B, note 32; EU, Joint Action of 29 Nov. the Roma-Lyon group, is the result of
1996 adopted by the Council on the Basis a meeting in Rome in October 2001 of
of Article K.3 of the Treaty on European senior representatives of G8 Justice and
1. UN General Assembly, “Eighth United Union, Concerning the Creation and Home Affairs Ministries to discuss steps
Nations Congress on the Prevention of Maintenance of a Directory of Specialized for the G8 to take to combat international
Crime and the Treatment of Offenders, Competences, Skills, and Expertise in terrorism, and which combined the
68th Plenary Meeting,” (14 Dec. 1990), at the Fight against International Organized G8’s Lyon Group (fighting transnational
http://www.un.org/documents/ga/res/45/ Crime, in Order to Facilitate Law organized crime) and the G8’s Roma
a45r121.htm. Enforcement Cooperation between the Group (fighting international terrorism).
Member States of the European Union, See “G8 Background,” US Dept. of
2. Weiping Chang, Wingyan Chung,
96/747/JHA (29 Nov. 1996), at http:// Justice, (11 May 2004), at https://www.
Hsinchun Chen & Shihchieh Chou, “An
eur-lex.europa.eu/legal-content/EN/ justice.gov/ag/g8-background. While
International Perspective on Fighting
TXT/?uri=CELEX%3A31996F0747; EU, continuing important work to combat
Cybercrime,” ISI’03 Proceedings of the 1st
Joint Action of 29 Jun. 1998 Adopted transnational organized crime, the group
NSF/NIJ Conference on Intelligence and
by the Council on the Basis of Article uses its resources to combat terrorism
Security Informatics, (2003).
K.3 of the Treaty on European Union, through such avenues as enhancements
3. ITU, “Geneva Declaration of Principles on Good Practice in Mutual Legal to legal systems, transport security and
and the Geneva Plan of Action,” (Geneva: Assistance in Criminal Matters, OJ L tools for investigating terrorist uses of the
ITU, 2003), para. 35–37, at https://www.itu. 191 (7 Jul. 1998), pp. 1–3, at http:// internet. Ibid.
int/net/wsis/docs/promotional/brochure- eur-lex.europa.eu/legal-content/EN/
TXT/?uri=CELEX%3A31998F0427; EU, 12. With the goal of ensuring that no
dop-poa.pdf.
Act of the Management Board of Europol criminal receives safe havens anywhere
4. See supra § 3 A. of 15 Oct. 1998 concerning the Rights in the world, the G8 States established
and Obligations of Liaison Officers, OJ the Subgroup of High-Tech Crime in
5. Budapest Convention, supra § 1 B, note C 026 (30 Jan. 1999), pp. 86–88, at http:// 1997 at a meeting in Washington, DC,
32. eur-lex.europa.eu/legal-content/EN/ adopting Ten Principles in the combat
TXT/?uri=CELEX%3A31999F0130(08); and against computer crime, G8, “The
6. The Budapest Convention, though Washington Communiqué,” Meeting
perhaps the most visible instrument, is the EU, Draft Council Act Establishing
the Convention on Mutual Assistance of Justice and Interior Ministers of
not the only one. See EU Convention on the Eight, (10 Dec. 1997), at https://
Simplified Extradition Procedure Member in Criminal Matters between the
Member States of the European Union, www.justice.gov/sites/default/files/ag/
States, Council Act of 10 March 1995, OJ legacy/2004/06/08/97Communique.pdf.
C 78 (30 Mar. 1995). OJ C 251 (2 Sep. 2, 1999), at http://
eur-lex.europa.eu/legal-content/EN/
13. “G8 – 24/7 Network,” Organization of
7. For instance, even before the Budapest TXT/?uri=CELEX%3A51999AG0902(01).
American States (OAS), at http://www.oas.
Convention, the European Union had org/juridico/english/cyber_g8.htm.
been encouraging its member States 9. See, e.g., “The G8 24/7 Network of
to enact national legislation to facilitate Contact Points, Protocol Statement,”
14. Global Monitoring and ECPAT
mutual legal assistance in the search and Organization of American States (OAS),
International, Status of Action against
seizure of evidence from organized crime (2007), p. 2, at http://www.oas.org/
Commercial Sexual Exploitation of
and high-tech crime. See e.g., EU, Act juridico/english/cyb_pry_G8_network.pdf.
Children: Israel (2016), (Bangkok: ECPAT
of 12 March 1999 on Adopting the Rules 10. A multilateral political forum, the G8 International, 2016), at http://www.ecpat.
Governing the Transmission of Personal addresses a wide range of international org/wp-content/uploads/2016/06/A4A_
Data by Europol to Third States and economic, political, and security issues. V1_ISARAEL_2016June.pdf.
Third Bodies, OJ C 088 (30 Mar. 1999), at It is formed of representation from eight
http://eur-lex.europa.eu/legal-content/ 15. See, e.g., Kjell Engelbrekt, High-
countries, with responsibility for hosting
EN/TXT/?uri=CELEX%3A31999F0330. Table Diplomacy: The Reshaping of
the G8 rotating through the Member
See also EU Council Resolution of 17 International Security Institutions,
States in the following order: France,
Jan. 1995, on the Law Interception (Washington, DC: Georgetown University
United States, United Kingdom, Russia,
of Telecommunications, OJ C 329 Press, 2016), p. 135. See also “G8
Germany, Japan, Italy and Canada.
(11 Nov. 1996), at http://eur-lex. Declaration Renewed Commitment For
The European Commission attends G8
europa.eu/legal-content/EN/ Freedom And Democracy,” G8 Summit
meetings as an observer. Although,
TXT/?uri=CELEX%3A31996G1104. of Deauville, (26–27 May 2011), at http://
with Russia’s 2014 suspension (following
www.nato.int/nato_static/assets/pdf/
its annexation of Crimea), the G8 was
pdf_2011_05/20110926_110526-G8-
reduced in number and became the
Summit-Deauville.pdf.
G7, the 24/7 Network remains named
after the G8, though membership is 16. See, e.g., Office of the Spokesperson,
open to all. Alison Smale & Michael D. “Media Note: G8 Foreign Ministers’
Shearmarch, “Russia Is Ousted from Meeting Statement,” US Dept. of State,
Group of 8 by US and Allies,” New York (11 Apr. 2013), at http://www.state.gov/r/
Times, (24 Mar. 2014), at http://www. pa/prs/ps/2013/04/207354.htm.
nytimes.com/2014/03/25/world/europe/
obama-russia-crimea.html?_r=0. 17. Budapest Convention, supra § 1 B, note
32, at Art. 35.
18. Ibid.
Page 221 | Chapter 5 | End Notes Table of Contents
19. Ibid., at Art. 35.1(a–c). 31. “The INTERPOL Global Complex for 46. Contact points in non-Member States
Innovation,” INTERPOL, at http:// include Albania, Argentina, Bosnia and
20. Ibid., at Art. 35. www.interpol.int/About-INTERPOL/ Herzegovina, Canada, Egypt, the former
The-INTERPOL-Global-Complex-for- Yugoslav Republic of Macedonia, Iceland,
21. “Assistant Attorney General Leslie
Innovation/About-the-IGCI. Israel, Japan, Korea, Liechtenstein,
R. Caldwell Speaks at the CCIPS-
Moldova, Mongolia, Montenegro,
CSIS Cybercrime Symposium 2016: 32. It bears noting that INTERPOL’s then- Norway, the Russia, Serbia, Singapore,
Cooperation and Electronic Evidence president, Khoo Boon Hui (2008–2012), Switzerland, Thailand, Turkey, Ukraine
Gathering Across Borders,” US Dept. is Singaporean. See “Khoo Boon Hui,” and the United States. Korea is the most
of Justice, (6 Jun. 2016), at https:// INTERPOL, at http://www.interpol. recent addition. See “Mission and Tasks,”
www.justice.gov/opa/speech/assistant- int/About-INTERPOL/Structure-and- supra note 44.
attorney-general-leslie-r-caldwell-speaks- governance/KHOO-Boon-Hui.
ccips-csis-cybercrime-symposium-2016. 47. Ibid.
33. See “Structure and Governance,”
22. “Data Exchange,” INTERPOL, at http:// INTERPOL, at http://www.interpol. 48. Judicial Network & Eurojust, “Joint Task
www.interpol.int/INTERPOL-expertise/ int/About-INTERPOL/Structure-and- Force Paper Assistance in International
Data-exchange/I-24-7. There are 190 governance/General-Secretariat. Cooperation in Criminal Matters for
INTERPOL member countries. See Practitioners European,” Press Release,
“World: A Global Presence,” INTERPOL, 34. See “Command and Coordination Council of the European Union, (6 May
at http://www.interpol.int/Member- Centre—Aires,” INTERPOL, at http:// 2014), at http://www.consilium.europa.eu/
countries/World. www.interpol.int/INTERPOL-expertise/ ueDocs/cms_Data/docs/pressdata/en/
Command-Coordination-Centre/ jha/104584.pdf.
23. Ibid. Command-and-Coordination-Centre-
Buenos-Aires. 49. For details about Global Prosecutors
24. Ibid.
E-Crime Network (GPEN), see “Global
35. INTERPOL’s Secretariat has seven regional Prosecutors E-Crime Network,”
25. “Hacker Demands Money for
offices: (1) Buenos Aires, Argentina; (2) International Association of Prosecutors,
Information on S. Korean Nuclear
Yaoundé, Cameroon; (3) Abidjan, Côte (11 Jun. 2012), at
Reactors,” Yonhap, (12 Mar. 2015),
d’Ivoire; (4) San Salvador, El Salvador; (5) https://rm.coe.int/CoERMPublicComm
at http://english.yonhapnews.co.kr/
Nairobi, Kenya; (6) Bangkok, Thailand; onSearchServicesDisplayDCTMContent?d
national/2015/03/12/40/03020000
and (7) Harare, Zimbabwe. ocumentId=09000016802f240e.
00AEN20150312008051320F.html;
Justin McCurry, “South Korean Nuclear 36. “European Cybercrime Center,” Europol, 50. “History of Eurojust,” supra note 42.
Operator Hacked Amid Cyber— at https://www.europol.europa.eu/about-
Attack Fears,” Guardian, (23 Dec. europol/european-cybercrime-centre-ec3. 51. “Mission and Tasks,” supra note 44.
2014), at https://www.theguardian.
com/world/2014/dec/22/south-korea- 37. “Combating Cybercrime in a Digital 52. Ibid.
nuclear-power-cyber-attack-hack; Age,” Europol, European Cybercrime
Sohee Kim & Meeyoung Cho, “South Centre (EC3), at https://www.europol. 53. Ibid.
Korea Prosecutors Investigate Data europa.eu/ec3.
54. Ibid.
Leak at Nuclear Power Plants,” Reuters,
(21 Dec. 2014), at http://www.reuters. 38. Ibid.
55. “Operation BlackShades: An Evaluation,”
com/article/us-southkorea-nuclear- Eurojust, (2015), at https://www.gccs2015.
39. Ibid.
idUSKBN0JZ05120141221. com/sites/default/files/documents/Bijlage
40. “Joint Cybercrime Action Taskforce %202%20-%20Eurojust%20(10%2004%20
26. Ibid.
(J-CAT),” Europol, European Cybercrime 15)%20Blackshades-Case-Evaluation.pdf.
27. Caroline Baylon, Roger Brunt & David Centre (EC3), at https://www.europol.
europa.eu/ec3/joint-cybercrime-action- 56. “International Blackshades Malware
Livingstone, “Cyber Security at Civil
taskforce-j-cat. Takedown-Coordinated Law Enforcement
Nuclear Facilities Understanding the
Actions Announced,” FBI, (2014), at
Risks,” Chatham House, (Sep. 2015), at
41. Ibid. https://www.fbi.gov/news/stories/
https://www.chathamhouse.org/sites/files/
international-blackshades-malware-
chathamhouse/field/field_document/2015 42. “History of Eurojust,” Eurojust, at takedown-1.
1005CyberSecurityNuclearBaylonBrunt http://www.eurojust.europa.eu/about/
Livingstone.pdf. background/Pages/history.aspx. 57. “Operation BlackShades: An Evaluation,”
supra note 55.
28. Pierluigi Paganini, “South Korea—Hacker 43. EU, Treaty of Lisbon Amending the
Requests Money for Data on Nuclear Treaty on European Union and the Treaty 58. Ibid.
Plants,” Security Affairs, (18 Mar. 2015), at Establishing the European Community,
http://securityaffairs.co/wordpress/35013/ (13 Dec. 2007) 2007/C 306/01 [hereafter, 59. Ibid.
cyber-crime/hacker-south-korean-nuclear- “Lisbon Treaty”], Ch. 4, Art. 85, at http://
60. Ibid.
plants.html. eur-lex.europa.eu/legal-content/EN/
TXT/?uri=uriserv%3Aai0033. 61. Ibid.
29. See supra table 5.1.
44. “Mission and Tasks,” Eurojust, at 62. “National Cyber-Forensics and Training
30. UNODC Cybercrime Study, supra § 1 C,
http://www.eurojust.europa.eu/about/ Alliance,” NCFTA, at http://www.ncfta.
note 7, at 124–25.
background/Pages/mission-tasks.aspx. net/.
45. “History of Eurojust,” supra note 42.
Page 222 | Chapter 5 | End Notes Table of Contents
63. See “Who We Are,” NCFTA, at http:// 79. CCI was created in 2011 under the 90. The topic of cyberterrorism is beyond
www.ncfta.net/. auspices of the Commonwealth Connects the scope of the Toolkit. Nonetheless,
program that was created by the Heads of it bears noting that the lines between
64. See “Agencies,” US Dept. of Justice, at Government during their 2005 meeting in acts of cybercrime and cyberwar or
https://www.justice.gov/agencies. Malta to bridge the digital divide. CCI was cyberterrorism are increasingly blurred,
formally endorsed by the Commonwealth especially, as the World Development
65. See “About InfraGard,” InfraGard, at
Heads of Government Meeting (CHOGM) Report has noted, “acts that might
https://www.infragard.org/.
during their 2011 meeting in Perth, previously have been considered civilian
66. See “NCFTA in the News: The National Australia. attacks are now being uncovered as acts
Cyber-Forensics and Training Alliance of states against states via nonstate actor
80. “Commonwealth Cybercrime Initiative,” proxies.” See WDR, supra § 1 A, note 10,
to Open New Offices in Los Angeles
supra note 74. at 222.
and New York,” NCTFA, (8 Jan. 2016), at
https://www.ncfta.net/Home/News. 81. Executive Management Committee 91. “Cyber Security,” OAS, at https://www.
(EMC) Country Members include Canada, sites.oas.org/cyber/en/Pages/default.
67. See “NCFTA in the News: International
India, Malta, New Zealand, Trinidad & aspx.
Alliance Against Counterfeiting,” NCTFA,
Tobago, Uganda and the United Kingdom
(18 Jul. 2016), at https://www.ncfta.net/
(current chair); EMC Institutional Members 92. “Best Practices for Establishing a National
Home/News.
include COMSEC, ComNet, Interpol and CSIRT,” OAS, (2016), at https://www.sites.
68. “Who We Are,” NCFTA, supra note 63. ICANN; the US Dept. of State is an EMC oas.org/cyber/Documents/2016%20-%20
Observer. See “The Commonwealth Best%20Practices%20CSIRT.pdf.
69. For a further discussion of cooperation Cybercrime Initiative: A Quick Guide,”
between the public and private sector, supra note 75. 93. Inter-American Cooperation Portal on
see infra § 6 F. Cyber-Crime, “Welcome,” OAS, at http://
82. COMSEC, ibid. www.oas.org/juridico/english/cyber.htm.
70. “CyFin,” NCFTA, at http://www.ncfta.net/
Home/Cyfin. 83. “Commonwealth Cybercrime Initiative,” 94. Ibid.
supra note 74.
71. “BCP,” NCFTA, at http://www.ncfta.net/ 95. See e.g., “Progress Report 2013-
Home/BCP. 84. Ibid. 2014,” Internet & Jurisdiction, (2014),
at http://www.internetjurisdiction.net/
72. “MCT,” NCFTA, at http://www.ncfta.net/ 85. Ibid. uploads/pdfs/Annual-Reports/Internet-
Home/Malware. Jurisdiction-2013-14-Report.pdf.
86. Carolin Weisser, “Eastern African Criminal
73. For a further discussion of cooperation Justice Network on Cybercrime and 96. Schrems v. Data Protection
between the public and private sector, Electronic Evidence,” Cybersecurity Commissioner, CJEU, Case C-362/14
see infra § 6 F. Capacity Portal, Oxford University, (4 (6 Oct. 2015), at http://curia.europa.
Nov. 2015), at https://www.sbs.ox.ac. eu/juris/document/document.
74. “Commonwealth Cybercrime Initiative,” uk/cybersecurity-capacity/content/ jsf?docid=169195&doclang=EN; See also
The Commonwealth, at http:// eastern-african-criminal-justice-network- CJEU, “The Court of Justice Declares
thecommonwealth.org/commonwealth- cybercrime-and-electronic-evidence. That the Commission’s US Safe Harbour
cybercrime-initiative. Decision Is Invalid,” Press Release, (6 Oct.
87. See CCI, “Gros Islet Communiqué,”
75. “The Commonwealth Cybercrime 2015), at http://curia.europa.eu/jcms/
The Caribbean Stakeholders Meeting
Initiative: A Quick Guide,” The upload/docs/application/pdf/2015-10/
on Cybersecurity and Cybercrime
Commonwealth (2014), at http://www. cp150117en.pdf.
(CSM-II), (16–18 Mar. 2016), at http://
securityskeptic.com/CCI%20Quick%20 thecommonwealth.org/sites/default/ 97. See e.g., Dave Lee, “How Worried Is
Guide.pdf. files/news-items/documents/6%20 Silicon Valley about Safe Harbour?,” BBC
FinalCastriesDeclaration170316. News, (7 Oct. 2015), at http://www.bbc.
76. Ibid., “Commonwealth Cybercrime pdf; “Caribbean to Tackle Escalating com/news/technology-34461682; Kelli
Initiative,” supra note 74. Cybercrime with Regional Approach,” Clark, “The EU Safe Harbor Agreement
77. See supra § 3 A for further discussion of The Commonwealth, (15 Mar. 2016), at Is Dead, Here’s What To Do about It,”
the Harare Scheme. http://thecommonwealth.org/media/ Forbes, (27 Oct. 2015), at http://www.
press-release/caribbean-tackle-escalating- forbes.com/sites/riskmap/2015/10/27/the-
78. ”Communiqué: Commonwealth Law cybercrime-regional-approach#sthash. eu-safe-harbor-agreement-is-dead-heres-
Ministers Meeting,” The Commonwealth, HjmhE8I8.dpuf. what-to-do-about-it/#2f3bd6757171;
(5–8 May 2014), para. 14, at http:// Kolvin Stone, Christian Schröder, Antony
thecommonwealth.org/media/news/ 88. “Who We Are,” OAS, at http://www.oas.
P. Kim & Aravind Swaminathan, “US–EU
communique-commonwealth-law- org/en/about/who_we_are.asp.
Safe Harbor – Struck Down!,” Orrick Trust
ministers-meeting-2014#sthash. Anchor Blog, (6 Oct. 2015), at http://
89. OAS General Assembly, The Inter-
oZZBUeVU.dpuf. blogs.orrick.com/trustanchor/2015/10/06/
American Integral Strategy to Combat
Threats to Cyber Security, (8 Jun. 2004) us-eu-safe-harbor-struck-down/.
AG/RES.2004 (XXXIV-O/04).
Page 223 | Chapter 5 | End Notes Table of Contents
98. European Commission, “EU Commission
and United States Agree on New
Framework for Transatlantic Data Flows:
EU-US Privacy Shield Strasbourg,” Press
Release, (2 Feb. 2016), at http://europa.
eu/rapid/press-release_IP-16-216_en.htm.
99. European Commission, “EU-US Privacy
Shield: Frequently Asked Questions,”
Fact Sheet, (12 Jul. 2016), at http://
europa.eu/rapid/press-release_MEMO-
16-2462_en.htm.
100. For various T-CY CoE reports, see “T-CY
Reports,” CoE, at http://www.coe.int/en/
web/cybercrime/t-cy-reports.
Page 224 | Chapter 5 | End Notes Table of Contents
CHAPTER 6
Capacity Building
This chapter provides an overview of some
capacity-building issues starting by looking
at capacity building for policy makers and
legislators, law enforcement, consumers and
cooperation with the private sector, as well
as highlighting activities of the participating
organizations.
In this Chapter
A. The Capacity-building Challenge 226
B. Developing Capacity-building Programs 240
C. Private Sector Cooperation 250
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CHAPTER 6
A. The Capacity-building Challenge
Table of Contents
Introduction 226
I. Barriers to Interoperability 227
II. Mapping Technical Assistance Needs 230
III. UNODC Cybercrime Repository 231
IV. ICT-facilitated Child Sexual Abuse & Sexual Exploitation 232
V. Addressing the Capacity-building Challenge 233
A. General Capacity-building Issues 233
B. Increasing Internal Capacity to Improve International Cooperation 234
C. Knowledge Sharing & Dissemination 235
Conclusion 238
Annex 239
Introduction
Addressing security concerns related to ICTs is of growing importance for governments,
as well as for both regional and international organizations involved in creating a safe,
digital environment by building confidence in online transactions. As a consequence,
an increasing number of countries have adopted or strengthened their cybercrime
legislation.
According to the UNCTAD Global Cyberlaw Tracker,1 138 states have adopted a law
on cybercrime and fourteen have a draft law. Figure 6.1 shows that the adoption of
cybercrime legislation is fairly widespread across developed and transition economies,
but less so in Africa and Asia.
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Figure 6.1: Cybercrime Legislation Adoption Worldwide (percentage)2
Developped economies
Transition economies
Africa
Asia and Oceania
Latin America and Caribbean
0 10 20 30 40 50 60 70 80 90 100
The development of domestic legal frameworks for combating cybercrime should not be done
in isolation. It is essential that the interoperability of such laws and policies at the regional and
international level be assured. Establishing common minimum standards can help ensure cross-
border coordination on the design and implementation of relevant legislation and enforcement
mechanisms. As already discussed, the judiciary and the police would benefit from cooperating with
their colleagues at the international level (see section 5 B, above).
Once the legal framework has been prepared, the onus falls to the implementers to realize
effective enforcement regimes. Cybercrime’s facility for crossing borders, especially once combined
with the ability of cybercriminals to operate anonymously and to act both from and through
multiple jurisdictions, makes the need for strong, cooperative law enforcement mechanisms even
more urgent. Furthermore, governments should strive to reinforce the human, procedural and
technical resources needed both to collect and analyze evidence, and to identify and prosecute
cybercriminals as part of an intergovernmental prosecutorial effort.
I. Barriers to Interoperability
The main barriers to the development of cybercrime laws faced by governments worldwide,
especially in developing countries include:
1
Stakeholders possibly affected by cyberlaw have limited understanding and experience with
such legislation.
2
Cyberlaw may be developed in a number of different ways, and implemented in various
stages, all of which has varying costs, and which is affected, and often delayed, by a scarcity
of both human and financial resources.
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3
Developing legislation takes time, may progress slowly, and may be prolonged due to
numerous factors, most notably by the stakeholder consultation processes, which is
complicated by the wide range of stakeholders, but which is essential to building consensus
before formal introduction and implementation.
4 Enforcing and prosecuting cybercrime is particularly difficult.
The need for policy and law-makers to understand cybercrime issues and their multinational
dimension is present in all countries. An UNCTAD survey, with responses from government
representatives in forty-eight developing countries, emphasized a need to build awareness and
knowledge among lawmakers and judiciary bodies with regard to cybercrime law and enforcement
igures 6.2 and 6.3).
policy (see f
Over half of the representatives reported difficulties in understanding legal issues related to
cybercrime. Similarly, over forty percent noted that lack of understanding among parliamentarians
can delay the adoption of relevant laws. Without awareness and knowledge, it is difficult to
formulate informed policies and laws and to enforce them.
Figure 6.2: Challenges to the Enactment of e-Commerce Legislation in the ASEAN,
ECOWAS and Selected Latin America and Caribbean Countries, 2013-2015 (Percentage
of Respondents)3
Lack of skills or training for
policy/or lawmakers
Lack of skills or training for
members of parliament
Funding issues
Inadequate ICT
infrastructure
0 10 20 30 40 50 60
Other challenges include the need for informed regulators and for training law enforcement
bodies, as well as sufficient resources to create effective legal frameworks and national certification
authorities.
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Figure 6.3: Challenges to the Enforcement of e-Commerce Legislation in the ASEAN
and Selected Latin America and Caribbean Countries, 2013-2015 (Percentage of
Respondents)4
Lack of skills or training for police
or law enforcement agencies
Lack of skills or training for the
courts or regulations
Funding issues
Inadequate ICT infrastructure
Inconsistent court rulings or
court interpretation
Difficulties dealing with
cross-border issues
0 5 10 15 20 25 30 35 40 45 50
The implementation of cybercrime legislation is always challenging, especially in countries where
resources (both in terms of skills and security systems) are insufficient. While adequate laws and
technology are essential for the provision of protection against information security risks, they need
to be complemented by adequate and relevant expertise.
With regard to the security of communications infrastructure, national and international
coordination and cooperation on matters of access to data and communications are important.
In order to act effectively upon criminal procedural needs of specific cases, it is critical that law
enforcement have the capacity to execute searches and seizures and intercept communications—
and to do so across several jurisdictions. Nonetheless, a large number of countries are facing
challenges in understanding the issues at stake and combating cybercrime.
A coherent strategy to address these issues is required; such a strategy should aim to:
1
Make the fight against cybercrime a priority and allocate the necessary financial resources;
and
2
Assess shortcomings in terms of infrastructure and human capacity.
With regard to human capacity, relevant stakeholders who play, or should play, a role in
cybersecurity management should be identified. They usually include policy makers, law makers,
and law enforcers such as judges and magistrates, police officers and CERT officers. Training and
briefing initiatives can be designed based on the category, number and individual needs of each
group of stakeholders. For example, policy and law makers, including parliamentarians, need to
understand cybercrime and cyberlaw in general, their application and impact. Training workshops
can be organized at the government level, involving various ministries/institutions for two to five
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days, while for parliamentary committees members, a general briefing on cybercrime issues and of
cyberlaw and its application and impact over half a day or one-day maximum.
For judges, magistrates and prosecutors—those who need to implement the law and legal
regime—the capacity-building might be done two in phases:
Phase 1
Overview on the legal implications on cybersecurity to criminal laws and other related laws;
Overview on the legal framework on cybercrimes and other related emerging issues;
Legal issues information security, data protection and security standards;
Legal issues on cybersecurity and nature of cybercrimes, children protection online; and
Other criminal activities associated with the use of computers.
Phase 2
Cybercrime prosecution;
Computer privacy and data protection principles/cross-border data flows;
Legal issues on admissibility of e-evidence;
Judicial considerations and case studies; and
Criminal law and copyright law (piracy and other related offences).
II. Mapping Technical Assistance Needs
A useful process to identify needs to be addressed through technical assistance is through the
development of indices for assessing relevant threats, national measures to address them, as well
as initiatives of organizations. In addition to the Assessment Tool featured in chapter 7, a variety of
other tools are available to map technical assistance needs.
One such example is the ITU Global Cybersecurity Index (GCI), which measures the
cybersecurity commitment of Member States with regards to the five pillars endorsed by
the Global Cybersecurity Agenda (GCA), namely the ITU framework for international multi-
stakeholder cooperation in cybersecurity aimed at building synergies with current and future
initiatives and focuses on the following five work areas:
Legal measures;
Technical and procedural measures;
Organizational structures;
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Capacity-building; and
International cooperation.
The objective of the GCI initiative is to help countries identify areas for improvement in the field
of cybersecurity, as well as to motivate them to take action to improve their ranking, thus helping
raise the overall level of cybersecurity worldwide. Through the collected information, GCI aims to
illustrate the practices of others so that Member States can implement selected aspects suitable to
their particular national environment, with the added benefit of helping harmonize practices and
foster a global culture of cybersecurity.
A first iteration of the GCI was conducted in 2014 in partnership with ABI Research and the final
results have been published.5 A total of 105 of 193 ITU Member States responded. Secondary data
was used to build the index for non- respondents. In parallel, “cyberwellness” profiles of all states
were elaborated and are accessible from the GCI website. These profiles are factual representations
of cybersecurity actions and planned initiatives by each state. The profiles, unlike the GCI, can be
updated at any point in time at the request of the states and are thus considered as live up-to-date
documents.
GCI 2017 was released in June 2017 and updates and expands the data gathered in the first
iteration of the GCI in 2014.6 A total of 134 countries out of 193 ITU Member States responded to
the questionnaire. Secondary data was used to build the index for non-respondents. A number of
new questions were added in each of the five pillars in order to refine the depth of research.
III. UNODC Cybercrime Repository
UNODC recently released its Cybercrime Repository, a central data repository of cybercrime laws
and lessons learned for the purposes of facilitating the continued assessment of needs and criminal
justice capabilities and the delivery and coordination of technical assistance.7 UNODC started
developing its Cybercrime Repository in early 2014 pursuant to resolution 22/8 of the Commission
on Crime Prevention and Criminal Justice (CCPCJ). The rationale behind the mandate was to make
the comprehensive data sets gathered for its Comprehensive Study on Cybercrime via Member
State questionnaires accessible to a wider audience.8
The repository contains a Case Law Database, a Database of Legislation and a Lessons Learned
Database. The first two databases are the same databases as contained in the SHERLOC portal,
a UNODC knowledge management portal aimed at facilitating the dissemination of information
regarding the implementation of the UN Convention against Transnational Organized Crime9 and
its three Protocols, as well as new and emerging forms of crime and their links to transnational
organized crime.
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The repository, which was officially launched in May 2015 during a side event at the CCPCJ,
contains the following three types of information that are especially pertinent to e-commerce:
National cybercrime and cybersecurity strategies (based on desk research);
National cybercrime lead agencies (as provided by Member States); and
Lessons learned—cybercrime policies and strategies, as well as good practices in cybercrime
investigation, prosecution and prevention (as provided by Member States via questionnaire for
the Comprehensive Study on Cybercrime and via Note Verbale in the form of short texts).
IV. ICT-facilitated Child Sexual Abuse & Sexual Exploitation
While the 2013 UNODC Comprehensive Study on Cybercrime revealed that the criminal misuse of
ICT can take many forms, it produced additional evidence showing that children are particularly at
risk of becoming victims of ICT-facilitated crimes. The fundamental issue is that children often do
not fully understand the threats associated with sharing personal information, photos or videos, nor
fully comprehend the facility with which that information can be accessed anonymously.
In light of the above, the UN Economic and Social Council adopted resolution 2011/33, entitled
“Prevention, protection and international cooperation against the use of new information
technologies to abuse and/or exploit children”.10 This resolution mandated the elaboration of a
UNODC Study on the Effects of New Information Technologies on the Abuse and Exploitation of
Children, which was duly completed in 2015.11 This later UNODC Study is intended to promote the
exchange of experience and good practices in an effort to address the growing problem of ICT-
facilitated child sexual abuse and exploitation.
Findings contained in this Study point to the fact that ICTs can be used both to commit already
known forms of child abuse and exploitation and to engage in new forms of child abuse and
exploitation. In addition, the use of ICTs for the commission of these acts leads to the continuing
victimization of children by facilitating the interlinking of crimes, for example through the
production of child sexual abuse material and then through the distribution and possession of such
material.
Through their use of the internet, children may be exposed to other forms of abuse such as
grooming, solicitation, stalking, harassment, bullying and exposure to harmful content. Organized
criminal networks have much to gain in financial terms from the use of ICTs in the commission
of child abuse and exploitation. Moreover, the accessibility of these relatively inexpensive
technologies means that collaboration across borders among organized criminal groups is
prevalent.
Bearing the above in mind, it is imperative for governments and other partners to develop
enhanced international cooperation and prevention strategies, as well as more targeted law
enforcement techniques.
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As affirmed by the UN Economic and Social Council,12 children should be afforded the same
protection in cyberspace as they are in the physical world. To this end, legislation, including
necessary criminal provisions, needs to be developed or upgraded, and efficiently implemented,
principally by national authorities but also in consultation with other partners, such as civil society
and the private sector. Technical capacities for law enforcement, including access to technological
tools, need to be strengthened in order to detect, investigate and secure evidence of related
offences.
The UNODC Study provides a global picture of the issues at stake and further defines the typology
of the crimes that need to be addressed, as well as the appropriate responses at national and
international levels. It was based on open-source research on the issue, as well as the work of a
UNODC Informal Expert Group Meeting on the subject, which was convened in Vienna from 23
to 25 September 2013, and which brought together experts from international organizations, law
enforcement, other relevant practitioners and academics. The Study also forms part of UNODC’s
technical assistance tools in the area of prevention and combatting of cybercrime.
V. Addressing the Capacity-building Challenge
Addressing the capacity-building challenge requires (A) a general understanding of the diverse
capacity-building issues before (B) a more targeted understanding of how internal capacity can
be built to, specifically, improve international cooperation and before (C) discussing the place for
knowledge sharing and dissemination at all levels, including citizen awareness.
A. General Capacity-building Issues
Policy and law makers, as well as criminal justice and law enforcement personnel, especially in
developing countries, need training in combating cybercrime, especially in developing countries.
Capacity-building at the level of national law enforcement and criminal justice systems, in particular,
is critical. While the majority of countries have begun to put in place specialized structures for the
investigation of cybercrime and crimes involving e-evidence, in many countries those structures
are underfunded and suffer from a lack of capacity. As e-evidence becomes increasingly pervasive
in investigating “conventional” crimes, law enforcement authorities may need to make clear
distinctions between cybercrime investigators and digital forensic laboratory capacity, establishing
clear workflows. Frontline law enforcement officers may also increasingly need to acquire and
deploy basic skills, such as those used to produce a sound forensic image of an electronic storage
device.
Moreover, as new technological developments such as anonymizing networks, high-grade
encryption and virtual currencies become commonplace in cybercrime, investigators will also
have to adopt new strategies. Law enforcement authorities may, for example, look to strengthen
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partnerships with academic research groups that focus on the development of technical
methodologies in areas such as the characterization and investigation of virtual currency
transactions.
Investigators may also need to consider how special investigative techniques, such as surveillance,
undercover operations, using informants and controlled delivery in the case of the online sales of
illicit goods, might be used alongside internet investigations and digital forensic techniques.
Overall, it is clear that capacity-building for law enforcement and criminal justice actors on
combating cybercrime will be an ongoing and continuous process, as technology and criminal
innovations continue at a rapid pace.
B. Increasing Internal Capacity to Improve International Cooperation
A specific area of technical assistance to which UNODC devotes particular attention is that of
capacity-building in the area of international cooperation to combat cybercrime. Apart from its
legislative assistance, and in an effort to help practitioners to draft effective and accurate MLA
requests, to receive more useful responses and to streamline the relevant process, UNODC has
developed a Mutual Legal Assistance Request Writer Tool (MLA Tool), which can be used for all
serious offences and not just those covered by international conventions.13
Since the Seventh Session of the Conference of the Parties to the UN Convention against
Transnational Organized Crime (October 2014), UNODC has been working intensively to revise
and update the MLA Tool. The redeveloped content and structure of the tool were finalized in May
2016, thus enabling the launching of a pilot phase to test its use in practice. Currently, the Tool is
available in English, French, Spanish, Russian, Portuguese, Bosnian, Croatian, Montenegrin and
Serbian.14 The first countries where the redeveloped Tool was tested were Ethiopia, Uganda and
Kenya in July 2016. The findings of the pilot testing were brought to the attention of the Conference
of the Parties to the UN Convention against Transnational Organized Crime at its Eighth Session in
October 2016.
The new guiding elements in the revised text of the MLA Tool include an additional “digital
evidence module”. That module takes into account all pertinent developments in the field of
international cooperation to combat cybercrime, and covers the following forms of cooperation: (a)
expedited preservation of stored computer data; (b) ensuring access to stored computer data; and
(c) real-time collection of traffic data.
Several international and regional organizations, including the COMSEC, ITU, UNCITRAL, UNCTAD,
UNODC and the CoE provide assistance to countries and regions. These agencies are increasingly
joining forces to maximize the impact of their actions (see box 6.1, below).
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Box 6.1: UNCTAD Assistance to Partners15
In support of developing countries’ efforts in this area, UNCTAD assists in the preparation
and revision of e-commerce laws aligned with international and regional instruments.
In the past decade, over 2,500 policy and law makers were trained in the ASEAN, EAC,
ECOWAS, Latin America and the Caribbean. The assistance provided by UNCTAD has
created a stimulus for countries to push for the adoption of national laws in this area. The
work has involved close collaboration with regional institutions such as the AU Commission,
the ASEAN Secretariat, the EAC Secretariat, the ECOWAS Commission, the Asociación
Latinoamericana de Integración (ALADI) and the Secretaría Permanente del Sistema
Económico Latinoamericano y del Caribe (SELA).
Over sixty countries have been engaged with UNCTAD thanks to the financial support of
Finland and Spain. Capacity-building activities have strengthened the knowledge of policy
and lawmakers with regards to the legal issues surrounding e-commerce and international
best practices, allowing them to formulate laws that correlate with their regional frameworks.
Several agencies are assisting developing countries within their mandates, and inter-agency
collaboration is growing. An example is the jointly organized briefing of Commonwealth
parliamentarians by UNCTAD, the CTO and the Commonwealth Parliamentary Association
during the Commonwealth Cybersecurity Forum in 2013. Another example is the joint
workshop on the harmonization of cyber legislation in ECOWAS that took place in Ghana
in March 2014. The event was organized by UNCTAD, UNCITRAL, the African Centre for
Cyberlaw and Cybercrime Prevention, CoE, and CCI.
UNCTAD has built a network of institutions with which it regularly partners with on different
projects and activities. Many of them contributed to the development of the Cyberlaw
Tracker database, which maps laws in the areas of e-transactions, data protection, cybercrime
and the protection of consumers online. The results of this first-ever global mapping are
available online.16
C. Knowledge Sharing & Dissemination
Knowledge sharing and dissemination can take place through both training workshops and through
formal and informal networking among participants at the national and regional levels. Regardless
of the approach, it is important to promote beneficiary involvement to ensure sustainability and
ownership, and to tailor the training session depending on the needs of the various stakeholders.
Regional and national capacity-building activity should aim to:
Raise awareness of cybercrime issues among policy makers and other stakeholders;
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Exchange good practices among participants from other countries and from regional and
international organizations;
Discuss possible regional coordination; and
Set the stage for further assistance and action.
An effective way to approach capacity-building is to combine distance-learning with face-to-face
training workshops. Doing so allows for a flexible training process that includes active participation.
Distance learning allows trainees to:
Choose the time and place of learning that suits them best;
Exchange information and ideas with trainers and fellow trainees regardless of location;
Benefit from continued partner support, such as that offered by the UNCTAD TrainForTrade
team (discussed below); and
Maintain contact with international trade specialists and other training institutions.
Some international organizations, such as UNCTAD, are using models that include distance learning
trainings followed by face-to-face workshops at the national and regional level (see box 6.2, below).
The UNODC Global eLearning Programme is designed to offer on-demand capacity-building to
stakeholders around the globe on contents related to UNODC staff. The tailored training courses
are developed by UNODC in collaboration with international experts and correspond directly to
needs of Member States. They are comprised of different subjects, including cybercrime.17
Box 6.2: UNCTAD TrainForTrade Learning Methods18
Combining distance and face-to face learning: UNCTAD’s TrainForTrade Programme
combines face-to-face activities with distance-learning courses. Experience shows that the
quality of face-to-face seminars increases (in terms of trainees’ participation and learning
results) when trainees have first been introduced to the relevant subject matter through
an e-learning course. TrainForTrade emphasizes that the pedagogic aspects of training
should not be undermined by technology. At the same time, the use of ICT as a tool for
knowledge-sharing increases the number of beneficiaries, while also keepings the costs
down. Experience shows that adult trainees typically learn better in a group environment.
Consequently, TrainForTrade courses use chat rooms and group foraums to facilitate
exchange with the instructors and amongst participants.
Training the local distance-learning tutor: One essential element of TrainForTrade includes
training local experts as tutors to moderate and locally manage the distance learning
deliveries. The identification of a training center and a local tutor is essential for maximizing
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the impact of the course. During the training of technical tutor’s course, a local tutor learns
the process of course delivery and the different pedagogic strategies that he should use to
facilitate the delivery.
Meeting the needs of beneficiaries: The choice of training methods and technology
will always depend on the characteristics and circumstances in the beneficiary country.
TrainForTrade uses Moodle, a free and open-source learning management system based on
a Linux platform in order to facilitate the sharing of information and technology in an efficient
and cost-effective manner.
Continuous evolution and development: TrainForTrade is continuously developing new
learning tools by exploring new technological opportunities. The expansion of 3G/4G
coverage, cell phones, smartphones and tablets has made access to information easier.
The development of cloud and mobile learning provides efficient solutions for the storage,
dissemination and acquisition of information. The tools can also be used to promote
interactive and collaborative learning.
Another important way to create awareness is to promote information-security awareness in
the population at large. Individuals and enterprises—especially SMEs—increasingly need to be
made aware of not only the relevant and ever-changing laws, but also of their rights. Doing so is
particularly important in order to build trust in cross-border e-commerce. Industry associations and
consumer protection agencies should work together to overcome barriers caused by divergent
national legal standards. National public campaigns (including through radio and television
programs) aimed at informing about ways to protect consumers online can be a key element of
awareness-raising strategies (see box 6.3, below).
Box 6.3: Awareness Campaigns on e-Commerce Laws in Uganda19
In Uganda, the National Information Technology Authority (NITA)20 and the Ministry of
Information and Communications Technology21 developed and facilitated the enactment of
subsidiary legislation to operationalize the EAC Framework on Cyber Laws (UNCTAD, 2012).22
Since 2011, NITA has embarked on a campaign meant to raise awareness about new laws, as
well as aspects of information security in general.23 The campaign aims to encourage public
administration and private sector actors to put minimum information security controls in
place in order to ensure safe e-transactions. Sensitization workshops have been organized
for entities such as ministries, banker association, and legal societies, as well as for national
chambers of commerce, the Investment Authority and the Securities Exchange. Workshops
have been facilitated by a multi-institutional team of lawyers and technical resource persons,
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including experts participating in the EAC Task Force supported by UNCTAD. Future plans
include the delivery of similar workshops to create awareness of the Data Protection and
Privacy Bill, once enacted.
Conclusion
Building capacity and raising awareness about combatting cybercrime should be a national priority
for every country. To address cybercrime at the national level, domestic legal frameworks must
be developed. Countries must also coordinate and cooperate across borders with governments
and agencies in the formulation of their cybersecurity strategy. Coordination and cooperation
is necessary to ensure a shared minimum understanding and interoperability of competencies
internationally, on both procedural and substantive levels. However, there remain many challenges,
which must be faced. These include, among others, resources and funding, understanding the fast-
evolving nature of cybercrime, the slow pace of elaborating legislation, enforcements issues and
the implementation of effective regimes to combat cybercrime.
One of the key issues in fighting these challenges is making sure that policy makers, law makers and
law enforcement receive adequate training on combating cybercrime. Dissemination and sharing
of knowledge that takes place during these training sessions benefits the cybercrime awareness of
a country. International organizations, such as UNCTAD, help with the training of local staff (e.g.,
via UNCTAD’s TrainForTrade). Another way to improve awareness is by promoting cybersecurity
issues within the population in general, as was done in Uganda, for example. Furthermore, to
support national capacity-building, multilateral and bilateral agencies might help by assisting in the
preparation and revision of a range of cyberlaw approaches in order to align them with international
and regional good practices. By cooperating and coordinating both at the national as well as the
international level, these methods help raise awareness of cybercrime and help build cybersecurity
capacity.
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Annex
Global Cybersecurity Index 2017 – Good Practices
Country Good Practices
Mauritius The top-ranked country in the Africa region, Mauritis scores particularly high in the
legal and the technical areas. The Botnet Tracking and Detection project allows
Computer Emergency Response Team of Mauritius (CERT-MU) to proactively
take measures to curtail threats on different networks within the country. Capacity-
building is another area where Mauritius does well. The government IT Security
Unit has conducted 180 awareness sessions for some 2,000 civil servants in 32
government ministries and departments.
USA With the highest scores for the legal and capacity-building pillars, one
notable aspect of both capacity-building and cooperation in the country is
the initiatives to coordinate cybersecurity among all states. To that end, the
National Governor’s Association established the Resource Center for State
Cybersecurity, which offers best practices, tools and guidelines.
Egypt Ranking second with a full-range of cooperation initiatives, Egypt is a member
of the UN Government Group of Experts (GGE) on cybersecurity, has chaired
the ITU Working Group for Child Online Protection, was a founding member
of AfricaCERT and has a number of bilateral and multilateral agreements on
cybersecurity cooperation.
Malaysia Ranked second in the Asia-Pacific region and scores a perfect 100 on capacity-
building, Malaysia has developed a range of initiatives in that pillar. Notably,
Cybersecurity Malaysia, the government entity responsible for information
security in the country, offers professional training via higher education
institutions in Malaysia. It maintains the Cyberguru website, dedicated to
professional security training.
Georgia Top-ranked in the CIS, the government has strongly supported protection of
Georgia’s information systems after large-scale cyberattacks on the country in
2008. The Information Security Law established a Cyber Security Bureau with
a particular emphasis on protecting critical information systems in the military
sphere.
Estonia The highest ranked nation in the Europe region, Estonia, like Georgia,
substantially enhanced its cybersecurity commitment after a 2007 attack. This
enhancement included the introduction of an organizational structure that can
respond quickly to attacks as well as a legal act that requires all vital services to
maintain a minimal level of operation if they are cut off from the Internet. The
country also hosts the headquarters of the NATO Cooperative Cyber Defence
Centre of Excellence.
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CHAPTER 6
B. Developing Capacity-building Programs
Table of Contents
Introduction 240
I. Offering Cybercrime Training for Government Authorities 241
A. Training for Lawmakers 241
B. Training for Law Enforcement Personnel 241
C. Training for Prosecutors & Judicial Authorities 242
D. Knowledge Sharing 243
E. Furthering Public-Private Cooperation 244
F. Advancing International Cooperation 244
II. Client-driven Capacity Building 245
III. Capacity-building Programs: The CoE’s Experience 245
A. Implementing the Budapest Convention 246
B. CoE Cybercrime Capacity-building Projects 246
1. Global Action on Cybercrime (GLACY) 246
2. Global Action on Cybercrime Extended (GLACY+) 247
3. Cybercrime@Octopus 247
4. Cybercrime@EaP II 248
5. Cybercrime@EaP III 248
6. Cooperation on Cybercrime under the Instrument of Pre-accession (iPROCEEDS) 248
7. Cybercrime Programme Office (C-PROC) 249
Conclusion 249
Introduction
As discussed, capacity building starts by creating the framework and infrastructure that
allows for capacity to build and to be built; that involves developing an overarching
cybersecurity policy and strategy (see section 2 F, above), passing the necessary
cybercrime-specific legislation (see section 3 A, above) and creating specialized
cybercrime units (see section 1 D, above). Only thereafter can targeted cybercrime
capacity-building programs be launched. While the area is a still developing, a multitude
of approaches to training techniques exist, as offered by a multitude of organizations.1
Those programs may (I) offer cybercrime training for government authorities,
with different courses targeted for law enforcement personnel and members of the
prosecutorial and judicial services, respectively. Whichever approach is taken, (II)
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cybercrime capacity-building programs must be client-driven if they are to be effective,
meaning that, while donor and partners might well bring their own interests and
expertise, the program must be client-owned for the program to be truly efficacious. In
order to elucidate all of these aspects, this section concludes by (III) exploring the CoE’s
experience with capacity-building programs by considering the Budapest Convention
and by looking at several project examples.
I. Offering Cybercrime Training for Government Authorities
While creating units specialized in the handling of cybercriminal matters is important, it is
equally important to offer training in foundational cybercriminal matters—including institutional
structure and resource availabilty—both (1) to law enforcement personnel and (2) to members
of the prosecutorial and judicial services. In order to be truly effective, such trainings should be
sustainable, standardized, replicable and scalable.
A. Training for Lawmakers
As the Toolkit has attempted to make evident, the fight against cybercrime begins with the
construction of legal frameworks that are not only robust in their own right, but, due to the internet’s
global nature, which are interoperable with the legal frameworks of other nations (see section 1 B,
above). As lawmakers are chiefly responsible for the development of such frameworks, they play an
essential role in the success of any long-term capacity-building programs. To that end, lawmakers
ought to be made knowledgeable about the nature of cybercrime at large and about the policies
and laws of other nations.2 In addition to paying detailed attention to targeted sectors, such as
the financial sector, lawmakers must be both aware of, and willing to work with, the webbed,
intertwined interactions between international instruments and various domestic laws. Further, law
makers need the background to be able to foresee economic, constitutional and social impacts of
the cybercrime legislation and policies that they develop.
B. Training for Law Enforcement Personnel
Beyond the creation of specialized units discussed above, and in addition to creating strategic
structures and connections for general knowledge dissemination and discussion, foundational
cybercrime training should be offered to those on the frontlines of dealing with cybercrime. Indeed,
many countries already provide training on general mechanisms via courses or through on-the-job
exposure.
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Training is important as all types of crimes increasingly involve or implicate cyberspace, be it in the
form of electronic evidence, or through the use of ICT. As any law enforcement officer, prosecutor
or judge inevitably will be confronted with such matters, they should be appropriately prepared for,
and familiarized with, such matters.
Comprehensive cybercrime training to authorities should include the following areas:
Investigating cybercrime. As discussed (see sections 2 C & 2 D, above), investigating
1
cybercrime requires different skills than those typically used to investigate traditional crimes. In
particular, awareness should be raised about procedural differences, methods of ICT forensic
analyses and techniques for preserving the authenticity, integrity and reliability of electronic
evidence. Understanding existing law enforcement training materials and initiatives might help
elucidate this process.3
Differentiating functions. In addition to understanding how the larger system operates,
2
it is also important for stakeholders and actors to understand the skills and competencies,
as well as functions at appropriate level, of respective units (from first responder to forensic
investigators). Methods of offering inter-agency cross-support, while also assuring network
security should all be covered.
Facilitating cooperation. For fighting crime in general, it is important that the various
3
authorities cooperate; such is especially the case in cybercrime, where evidence can be nearly
ephemeral and may be divided and stored in numerous countries. Cooperation for training
purposes should foremostly focus on creating connections between public authorities (law
enforcement, prosecutors, judiciary) but should also extend to including ways of working with
academia and industry.
C. Training for Prosecutors & Judicial Authorities
Foundational cybercrime training is not only important for law enforcement officers, who are
the first to come into contact with such evidence, but also should be offered to authorities at
all levels—investigatory, prosecutorial and judicial authorities alike. Indeed, while specialized
cybercrime units are most typically found among police services (where discrete technical support
is frequently required), such units are very infrequently found in prosecutorial services and (even
less so) in the judiciary. As such specialized services are not always available to prosecutors and
judges, foundational cybercrime training is particularly important for these professionals. However,
and notwithstanding this need, training on cybercrime and electronic evidence is very rarely offered
on any basis, let alone regularly, to prosecutors or judges. Lack of knowledge and skills among
prosecutors and judges persists as a point of concern around the world, regardless of the country or
region.
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While trainings may be held in common—and, indeed, should in part be held in common—it is
advisable for trainings to be targeted and audience-specific, especially in light of the division of
powers between investigators/prosecutors and the judiciary.4
Thus, in addition to exposing prosecutors and judicial authorities to the training offered to
law enforcement authorities (as discussed immediately above), training programs tailored to
the needs of prosecutors and judicial authorities should address the following matters:
Cybercrime basics. The course should present an understanding not only of the nature of
1
cybercrime, but also of cyber how cybercrime is addressed by law enforcement authorities.
Attention should be given to (a) adapting training materials to the needs of the jurisdiction
where the training is being offered, (b) to tailoring the training of trainers and (c) the
mainstreaming of these cybercrime modules into regular training curricula.
Advanced training. The matter and material for cybercrime being copious, separate modules
2
should be offered for more advanced and nuanced topics, including specialization and
technical training.
Networking. Enhanced knowledge might be accomplished through the networking of judges
3
and prosecutors, and regularly making caselaw and other resources available.5
D. Knowledge Sharing
All states and institutions face difficulties in curating and disseminating knowledge. While creating
special cyber units and cooperation mechanisms is important, standardized training, on-the-job
training and ad hoc courses or informational bulletins for authorities at all levels can all be used
to facilitate and further the process. It is important that knowledge be shared as broadly and as
routinely as possible.
Additionally, care should be taken to assure that dissemination is done geographically—for
instance, a cyber unit may be located in the capital city, but, due to the nature of cybercrime,
significant cases will almost certainly occur elsewhere in the country. As such, it is also necessary to
target knowledge sharing by profession—for example, judges should be aware of matters such as
instances when foreign electronic evidence may be properly admissible, even if informally procured
by police.
Although the creation of specialized cyber units and the offering of targeted trainings may imply the
importance of knowledge, the critical nature of such activities merits flagging such measures here
under a separate heading. Additionally, it bears noting that many officials in many governments
are hesitant to embrace electronic evidence—or e-evidence—, or they may be reluctant to accept
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training on the topic for various reasons, including that they are already experts in one field and do
not care or need to be trained in another. Such resistance impedes the acceptance of electronic
evidence and international cooperation; with that in mind, consciousness-raising and training
should be tailored accordingly tailored. Routine knowledge sharing mechanisms can help mitigate
such mistrust or discomfort.6 Relatedly, participation in international conferences and sharing
exercises with homologues of other nations can contribute significantly: the effects of informal
and personal connections, especially as when encouraged alongside formal arrangements and
structures, ought not to be underestimated (see section 5 B, above).
E. Furthering Public-Private Cooperation
Cooperation and information exchange are essential to effectively combatting cybercrime. Such
is especially the case as so much of the infrastructure that is essential to the functioning and
“existence” of cyberspace is owned, controlled or operated by the private sector as opposed to
the public sector. ISPs, financial sector institutions and other industry actors are all essential to the
effort to combat cybercrime. To that end, initiatives, including CERTs, CSIRTs, academic and non-
governmental projects have been launched.
Any such program should seek to do the following:
1
Strengthen cooperation between law enforcement and private sector operators;
2
Support the creation of Information Sharing and Analysis Centers (ISACs), especially for the
financial sector;
3
Set-up of cybercrime reporting systems (such as for spam, botnets, child abuse materials);
4
Facilitate cooperation between law enforcement and CIRTS, CERTs or CSIRTs; and
5
Further private-public information sharing in line with data protection requirements.7
F. Advancing International Cooperation
Cyberspace is transnational by nature. As such, e-evidence of a cybercrime is quite frequently
scattered around jurisdictions, and, indeed, around the world at large. As such, investigators need
to be able to secure electronic evidence which, in part, piece or whole, might be beyond the place
of their own jurisdictional authority, often with great speed. To that end, international efforts should
be undertaken to train and support competent authorities to engage in efficient and expedited
international cooperation. Such programs should not only familiarize members of government with
the resources in their own jurisdictions, but connect them with their counterparts—domestically,
regionally and internationally.
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Such programs should focus on the following:
1
Strengthening domestic activities as a basis for international judicial and police-to-police
cooperation;
2
Setting up 24/7 points of contact for urgent international cooperation, in particular data
preservation;
3
Training and networking of authorities for MLA; and
4
Ratification of, or accession to, international treaties and conclusion of bilateral agreements.8
II. Client-driven Capacity Building
Although there may be many ways to sequence activities, capacity-building programs should
be developed and implemented in a pragmatic manner that aligns with the needs of the target
group—that is, the client. Therefore, a program should support the government, agency or
organization seeking to change. The request for assistance should come from that entity, and that
request should structure the way in which the assistance is to be provided. Assistance should not be
donor driven.
Generally speaking, strengthening legislation on cybercrime and electronic evidence is a suitable
starting point to enter into dialog. By contrast, starting a program with computer forensic training
courses, for example, without having developed a legal framework on cybercrime may prove to be
of limited use.
Experience shows that engagement of decision-makers is essential for the success of capacity-
building programs and for advancing any substantial criminal justice measures in cybercrime in
general. A thorough analysis of the cybercrime situation and of the strengths and weakness of
criminal justice capabilities will facilitate the engagement of decision makers and will establish
benchmarks against which progress can be determined later on.
Towards the end of a program (or of a phase thereof), an assessment of the progress made should
be undertaken. Thereafter, for that assessment to be of effect, feedback mechanisms should relate
back to the overall policies and strategies, seeking to reconfirm the engagement of decision-
makers beyond the completion of the program.9
III. Capacity-building Programs: The CoE’s Experience
Of the great diversity of cybercrime capacity-building programs that exist, the CoE has had
extensive experience, largely structured around (A) implementing the Budapest Convention, as well
as through (B) a variety of cybercrime capacity-building projects, be they country-specific, regional
or global.
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A. Implementing the Budapest Convention
The CoE approach on cybercrime consists of three interrelated elements:
1
Setting common standards;
2
Following-up and assessing implementation; and
3
Providing technical assisstance that furthers cooperation for capacity building.10
The Council’s standards are fundamentally drawn from the Budapest Convention, and its Additional
Protocol on Xenophobia and Racism committed by means of computer systems. Additional
standards come from the treaties on data protection (Convention 108)11, on the sexual exploitation
and sexual abuse of children (Lanzarote Convention),12 on money laundering and financing of
terrorism13 and others. The key supervising body is the Cybercrime Convention Committee (T-CY),
which not only represents the Parties to the Budapest Convention (“Consultations of the Parties”),
but also interprets the text of the Convention, prepares Guidance Notes and assesses the Parties’
implementation of the Convention.14
The Council’s approach to capacity building is aimed at assisting governments and organizations in
the implementation of the Budapest Convention and related standards, including human rights and
rule of law principles and in following up on the assessments carried out by the T-CY. In a dynamic
circle, results of capacity building in turn inform standard-setting and the larger work of the T-CY.
B. CoE Cybercrime Capacity-building Projects
Since 2006, CoE has carried out a range of country-specific, regional and global capacity-building
projects. Additional projects are in preparation. Many projects are co-funded by the European
Union. The EU supports the Budapest Convention and capacity building on cybercrime worldwide.
These include: (1) Global Action on Cybercrime (GLACY), (2) Global Action on Cybercrime
Extended (GLACY+), (3) Cybercrime@Octopus, (4) Cybercrime@EaP II, (5) Cybercrime@EaP III, (6)
iPROCEEDS and (7) C-PROC.
1. Global Action on Cybercrime (GLACY)
The Global action on Cybercrime, or GLACY, was a joint project of the EU and the CoE aimed
at supporting countries worldwide in the implementation of the Budapest Convention.15 The
specific objective of GLACY was “to enable criminal justice authorities to engage in international
cooperation on cybercrime and electronic evidence on the basis of the Budapest Convention on
Cybercrime”. The project’s duration was three years, from 1 November 2013 to 31 October 2016.
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GLACY was intended to explore measures that would:
1
Engage decision-makers;
2
Facilitate the harmonization of legislation;
3
Develop judicial training programs;
4
Expand the capacities of law enforcement;
5
Improve international cooperation;
6
Increase information sharing; and
7
Assessment of progress.
2. Global Action on Cybercrime Extended (GLACY+)
Building upon the success of GLACY,16 the CoE and the EU’s Instrument Contributing to Peace and
Stability launched Global Action on Cybercrime Extended, or GLACY+, which runs from 1 March
2016 until 28 February 2020. Intended to extend the experience of the GLACY project, GLACY+,
though a global action, initially supports nine priority countries in Africa, the Asia-Pacific region and
Latin America, namely: the Dominican Republic, Ghana, Mauritius, Morocco, Senegal, South Africa,
Sri Lanka and Tonga. These countries are intended to serve as hubs for knowledge and experience
sharing for their respective regions. The objectives of GLACY+ include strengthening the capacities
of States around the world through the development and application of cybercrime legislation,
while also enhancing their abilities for effective international cooperation in this area.
More general objectives for GLACY+ include the following:
1
Promoting consistent cybercrime and cybersecurity policies and strategies;
2
Strengthening the capacity of police authorities to investigate cybercrime and engage in
effective police-to-police cooperation with each other as well as with cybercrime units in
Europe and other regions; and
3
Enabling criminal justice authorities to apply legislation and prosecute and adjudicate cases
of cybercrime and electronic evidence and engage in international cooperation.
3. Cybercrime@Octopus
Cybercrime@Octopus is a CoE project based on voluntary contributions that aims at assisting
countries around the world in how best to implement the Budapest Convention and to strengthen
data protection and rule of law safeguards at large.17 The project had a three-year duration, from 1
January 2014 to 31 December 2017.
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The results of Cybercrime@Octopus include the following:
1
Annual Octopus conferences, with attendees from around the globe;
2
Co-funding and supporting the T-CY; and
3
Providing advice and other assistance to states prepared to implement the Budapest
Convention and related instruments pertaining to data protection and the protection of
children.
4. Cybercrime@EaP II
A partnership jointly implemented by the EU and the CoE’s Programmatic Cooperation Framework
in the Eastern Partnership (EaP) Countries, Cybercrime@EaP II aims to optimize the regional and
international cooperation on cybercrime and electronic evidence.18 Participating countries are the
six EaP countries: Armenia, Azerbaijan, Belarus, Georgia, Moldova and Ukraine.19 The project runs
from 1 May 2015 to 31 October 2017. Specifically, the project aims to improve of MLA in matters of
cybercrime and electronic evidence, and strengthening of the role of 24/7 contact points.
5. Cybercrime@EaP III
With a similar timeframe as Cybercrime@EaP II (1 December 2015 to 31 December 2017), and
similarly implemented by the EU and the CoE’s Programmatic Cooperation Framework in the EaP
countries, Cybercrime@EaP III is a complementary capacity-building program.
Cybercrime@EaP III aims at improving cooperation between criminal justice authorities and service
providers in specific criminal investigations, while also upholding necessary rule of law safeguards.20
As with Cybercrime@EaP II, participating countries are the six EaP.21
6. Cooperation on Cybercrime under the Instrument of Pre-accession (iPROCEEDS)
Targeting eastern Europe and Turkey, Cooperation on Cybercrime under the Instrument of Pre-
accession (IPA), or iPROCEEDS, is a joint project of the EU’s IPA II Multi-country action program
2014 and CoE. Its objectives are to strengthen the capacity of authorities in the IPA region to search,
seize and confiscate cybercrime proceeds and prevent money laundering on the internet. Project
indicators include the extent of financial investigations and prosecutions related to cybercrime
and proceeds from online crime, and the level of compliance with international standards on
cybercrime, money laundering and the search, seizure and confiscation of proceeds from crime
(CoE Conventions 185 and 198). It has a duration period from 1 January 2016 to 30 June 2019, and is
being implemented in Albania, Bosnia and Herzegovina, Montenegro, Serbia, the Former Yugoslav
Republic of Macedonia, Turkey and Kosovo.22
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7. Cybercrime Programme Office (C-PROC)
With increasing demand for capacity building on cybercrime and electronic evidence, organizations
providing support need to enhance their own capabilities.23 To that end, and further to an offer
by the Prime Minister of Romania, CoE established a Cybercrime Programme Office (C-PROC)
in Bucharest, Romania, in 2013. C-PROC is responsible for the implementation of the capacity-
building projects of CoE on cybercrime and electronic evidence worldwide. The added value
includes specialization, cost-effective project management, competitiveness and thus increased
resource mobilization. The activities managed by C-PROC are closely linked to the work of the T-CY
and other intergovernmental activities of CoE in Strasbourg, France.
Conclusion
Cybercrime capacity building offers a number of advantages. It responds to needs and produces
immediate impact. It favors multi-stakeholder cooperation, as well as contributing to human
resources development, poverty reduction and respect for the rule of law, while also reducing
the digital divide.24 Moreover, policy discussions at the international levels show that cybercrime
capacity-building programs have broad political support upon which to build. Experience, good
practices and success stories are readily available, offering adaptable and replicable results.
Elements of capacity-building programs may include support to cybercrime policies and strategies,
legislation including rule of law safeguards; reporting systems and prevention; specialized units,
law enforcement and judicial training; interagency cooperation; public/private cooperation;
international cooperation; protection of children; and financial investigations. An effective
criminal justice response is an essential component of a governance framework that is to ensure
the security, confidence and trust in ICT so that societies are able to exploit the benefits of ICTs
for development. Strengthening safeguards on law enforcement powers and implementing
frameworks for the protection of personal data are an essential precursor to building cybercrime-
fighting capacity.
The impact of cybercrime capacity-building programs is diverse and important, substantially not just
cybercrime-fighting measures, but also positively impacting the larger fight against crime. Results
range from increased use of electronic evidence in criminal proceedings; increased numbers of
investigations, prosecutions and adjudications; shorter response times to requests for MLA; more
efficient police-to-police cooperation; and other verifiable indicators. More generally, the success
of such programs can also be seen in further human development and improved democratic
governance.
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CHAPTER 6
C. Private Sector Cooperation
Table of Contents
Introduction 250
I. Building Public-Private Partnerships 251
A. Formal & Informal International Cooperation 251
B. The Place for the Private Sector at Large 252
C. Involving ICT-Sector Players 253
D. Tailoring Government Interventions 254
E. The Need for Information Sharing 254
II. Barriers to Effective Cooperation 255
III. Examples of Cyber PPPs 256
A. Corporate Social Responsibility Examples 257
B. Combatting Online Scams & Fraud 257
C. Private-sector Originating Initiatives 257
D. Inter-governmental & International-organization Initiatives 258
E. Initiatives in Europe 259
F. Initiatives in the United States of America 261
Conclusion 261
Introduction
The internet and digitization has facilitated commerce, fueled growth and improved
the lives of many. Indeed, it has done so to such an extent that it has become central—
even critical—to the way that both individuals and society function. The impact of the
cyber revolution range from the most basic transactions, to information gathering and
sharing, to complex commercial interactions. Moreover, the internet and digitization has
become central to the basic operating of critical infrastructure. However, unlike other
structure and implements essential to allowing society’s function, the vast majority of
the infrastructure underlying and undergirding cyberspace is not in public hands but in
private ones.
Because so much of the infrastructure and services behind the internet is owned and operated
by the private sector, it is essential that the public and private sectors collaborate to both secure
that infrastructure and to allow society to continue to develop to the benefit of all. Consequently,
cybersecurity is a matter of public safety that can and must be addressed through public-private
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cooperation. Even where cooperation already exists, there is room to improve and enhance
cooperation between governments and the private sector on cyber security.1
In discussing private sector cooperation with government, specific discussion is needed around
(I) building PPPs and (II) some of the notable existing barriers to effective cooperation, with an
understanding of good practices made possible through (III) the discussion of various examples of
existing PPPs designed to combat cybercrime.
I. Building Public-Private Partnerships
In order to build effective PPPs, it is important to (A) recall the place of formal and informal
international cooperation, before going on to (B) outline the scope of PPPs at large and to (C)
explore the role in the ICT sector partners in particular. Additionally, the (D) caveat of tailoring
government interventions and (E) the need for information sharing ought also to be highlighted.
A. Formal & Informal International Cooperation
As discussed earlier in the Toolkit (see sections 5 A and 5 B, above), international cooperation
comprises both formal (e.g., mutual legal assistance, extradition, mutual recognition of foreign
judgments) and informal mechanisms (e.g., direct police-to-police, 24/7 networks, information
sharing and coordination centers).
Both formal and informal mechanisms of international cooperation need to take account of the
role of private sector actors. For instance, formal instruments have notable shortcomings regarding
cross-border access to data owing to a focus on the matter of provider consent, as coupled with a
presumed knowledge of the location of the data in question. Such shortcomings have resulted in
increased resorting to mechanisms of informal cooperation.2
PPPs are created either informally, through casual agreements or understandings, or formally, by
establishing legal arrangements. Collaboration focuses on facilitating the exchange of information
on threats and trends, but also for preventing case-specific activities and actions. Such actions
complement those of law enforcement and can help mitigate damage to victims.
The private sector does not just speak to industry. Academic institutions play a variety of roles in
preventing cybercrime, including through delivery of education and training to professionals, law
and policy development and work on technical standards and solutions development. Universities
house and facilitate cybercrime experts, even hosting CIRTs and other specialized research centers.3
CIRTs play an important role in capacity-building through event-hosting and information sharing,
very frequently at a technical level. They also facilitate interactions with local police for identifying
cybercriminals, offer important support to the private sector for supporting and coordinating with
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other CIRTs to exchange real-time technical data and technical expertise for tracking cybercrimes.
These networks extend to regional groups, such as APCERT in the Asia-Pacific region4 and OIC-
CERT for the Organisation of the Islamic Cooperation,5 and international groups, such as Forum
of Incident Response and Security Teams (FIRST).6 The activities undertaken by these groups are
supported through international efforts, such as ITU’s regionally-supported ALERT cyberdrills, which
involves the host country, ITU, FIRST and privatesector actors.7
B. The Place for the Private Sector at Large
As so much of the relevant infrastructure is in the hands of the private sector, and as cyber has
infiltrated virtually every domain of life, PPPs are essential to successfully combatting cybercrime.
Indeed, INTERPOL has noted that “the complex and ever-changing nature of the cyberthreat
landscape requires high-level technical expertise, and it is essential that law enforcement
collaborates across sectors to effectively combat cybercrime and enhance digital security.”8
Presently, law enforcement faces many challenges in scaling-up to address the ever-growing threats
emanating from cyberspace.9
“The internet of things presents unprecedented opportunities for criminals, and
for effective law enforcement getting perpetrators behind bars should be an
integral part of any strategy. Combating cybercrime requires a unified approach,
not just in developing partnerships but in ensuring that police around the world
are provided with the basic equipment and training they need.”10
As already discussed, the so-called internet of everything (IoE) sets to dramatically expand
the present understanding of what makes the “infrastructure” of information society, and,
correspondingly, to increase criminal opportunities (see section 2 A, above). However, such
partnerships have heretofore been, as the US White House remarked, “at best unclear or ill-
defined” with any detailed allocation of roles and responsibilities between industry and government
being left unaddressed.11
The development of NCSs, though perhaps structured by the government, must create a space
for the private sector as an essential part of combatting cybercrime. This realization is a shared
responsibility requiring coordinated action related to the prevention, preparation, response and
recovery from incidents by all stakeholders—government, the private sector and civil society at
large.12
Use of a PPP-approach is not without criticism.13 Published NCSs typically approach critical
infrastructure protection from the perspective of a common-good, with all actors supposedly
working in harmony to achieve a common goal.14 Attempts to enhance the dialogue between
the public and private sectors often have been unsatisfactory due to issues such as lack of
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trust, misplaced expectations, conflicts of interest and laws requiring a certain level of secrecy
or openness that may work against the interest of the private actor in question. Further, in a
recessionary economy, with industry tending to focus on short-term delivery of revenue lines
for survival, longer-term strategic issues may be relegated to secondary importance. Matters
such as the stand-off between the FBI and Apple, and the indications of government usage of
telecommunications to improve surveillance, for instance, have done little to improve working
relations between the two sectors (see section 1 B, case 1.3, above).
Box 6.4: Academic and Government PPPs15
Academia plays an important role in building effective PPPs. For instance, the National
University of the Philippines and the US DoJ signed an agreement in 2012 for a PPP to
develop cybercrime experts through Southeast Asia’s first four-year course on digital
forensics. The course—a Bachelor of Science in Computer Studies, Major in Digital
Forensics—is intended to develop professionals in the specialized field, particularly in
the area of evidence retrieval from computer hard disks, mobile phones and other ICT
devices. The long-term PPP is intended to provide institutionalized capacity-building and
to allow resource sharing in order to face the global challenge of cybercrime by mobilizing
subsequent generations.
C. Involving ICT-Sector Players
While PPPs at large can be beneficial, there is a particular need to create partnerships involving
ICT sector players. ICTs continue to develop and to be diffused at an incredible pace, dramatically
changing the way in which societies operate, and driving near unprecedented economic and social
development.16 As such, private entities operating in the ICT sector—the drivers of much that
progress—are particularly important for developing crime-solving PPPs. Additionally, private sector
actors are often better poised to play a constructive role: first, they frequently have greater control
over many of the critical systems in need of protection and of relevant data; second, they often
have more resources than government for recruiting top talent; and, third, they typically do not face
many of the constitutional and statutory limitations that control government’s investigations and
police powers.
Moreover, the contributory role that ICT entities could play is not merely benevolent: as so much
about market success is consumer confidence, ICT entities have many commercial reasons for
investing strongly in promoting a safe and secure cyberspace at large, both in their own research
and innovation (R&I), as well as in cooperating with the public sector. Given the substantial private
R&I being undertaken, ICT companies have an array of security tools that could support public
efforts to fight cybercrime.
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D. Tailoring Government Interventions
While the private sector has crucial insight, expertise and resources for combatting cyberthreats,
the government is uniquely positioned to investigate, arrest and prosecute cybercriminals; to
collect foreign information on cyberthreats; and, potentially, to provide certain statutory protections
to companies that sharing information with government,17 much as is done for whistleblowers in
anticorruption efforts. Government also may be privy to threat information—from both domestic
and foreign sources—in advance of the private sector and can collect and disseminate information
among the various and diverse stakeholders. Government can provide a more complete
perspective on the threat and on effective mitigation techniques, while taking steps to protect
individual victims. This can help assuage competitive and reputational concerns about revealing a
particular company’s vulnerabilities to its competitors, the marketplace and cybercriminals.
Moreover, even where critical systems are owned and operated by private companies, the public’s
expectation is often still for government to ensure the security and integrity of those systems, and
to respond when damaged or otherwise compromised. As such, it is generally in the interest private
sector actors to partner with government so that, when necessary, government interventions are
efficacious, limiting counter-productivity or heavy-handedness.
E. The Need for Information Sharing
Though important in any area, robust information sharing and cooperation between the public
and the private sectors is particularly important—and notably absent—with regard to cybercrime,
largely due to differences in the nature, type and access to pertinent information and capabilities
of the two sectors. For instance, having reporting mechanisms for hacked companies to promptly
report breaches and allow government access to identify points of entry and other vulnerabilities,
or for banks and credit card companies to rapidly identify and track compromised data and provide
credit card numbers that are active but not tied to actual identities and to identify and track activity
of compromised cards and illicit payments.
As discussed earlier (see section 1 C, case 1.5, above), when Albert Gonzalez stole more than 130
million credit card numbers, it was determined—after the fact—that the attacks were connected
and likely from the same source.18 Specifically, the government determined that the same code
appeared in the SQLi strings that were used to gain backdoor-access to the victims’ systems, and
that the infiltration IP address (for injecting malicious code into those systems) and exfiltration IP
address (for receiving the credit card data that was removed from the systems) were the same for
each incident.19
Cybersecurity coordination is too often episodic or bureaucratic. Across initiatives, a workable
culture of information sharing and coordination needs to be implemented. Appropriate institutions
must be created to effectuate the implementation of these cultural shifts, as many private actors
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still do not know whether, when or how it would be beneficial (or detrimental) to engage with
government on these issues. Moreover, as the legal landscape is evolving, it is important that
government and private sector communicate regarding the appropriate roles and capabilities, and
that authorities in law enforcement agencies and regulatory agencies make clear potential sources
of civil liability.
II. Barriers to Effective Cooperation
Despite its importance and the potentially significant impact of a campaign to harmonize the efforts
of the government and private sector in cybersecurity, there exist many legal, pragmatic, cultural
and competitive barriers to effective cooperation.20
Several of the more important reasons follow:
The lack of prophylactic cooperation: Despite the pervasive and persistent threat, many
1
companies consider actively working with government once they are faced with responding to
a cybersecurity incident and are in crisis mode. It is important to create a mental shift that will
facilitate cooperation that occurs in times of relative calm, and which progresses in an ongoing,
proactive basis well before a crisis occurs and without a cyber incident becoming apparent.
Moreover, corporate decision-makers who have not previously dealt with government in a
collaborative way may be less keen on doing so when dealing with a cyber-incident and its
fallout. By working prophylactically, trust is built early-on, and cooperation—when needed—
can be more effective and efficacious.
The problem of appearances of working with government: Although typically having
2
greater and more strategic resources to bring to bear in the fight against cybercrime, private
sector entities may fear collateral consequences of involving the government in cyber-incident
responses. Such a reaction is partially due to confidence in their own capabilities to handle
such problems. However, there may also be concerns about appearing to be give government
access to sensitive user data and the potential for retribution by market forces from such
cooperation. Both public and private sector actors are guilty of failing to sufficiently share
information.
Stuck in reactivity, not proactivity: The private sector’s comportment has largely been one
3
of reactivity rather than pro-activity. By and large, there has been a general “check-listing”
approach in terms of establishing cybersecurity and combatting cyberthreats. In the wider
commercial community, acceptance of a shared obligation for security is, as yet, unestablished.
There are many reasons for such a perception, not least of which is the competitive nature
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of free-market economies, as well as a history of indifference by the private sector, which has
traditionally assumed that government will protect them in the event of cyberthreats.21 Robust
and participatory engagement must balance wider business community with investigative
force.
Lack of understanding at the individual level: There is no cohesive effort to integrate either
4
SMEs or individuals into the effort to develop cybersecurity and to build society-wide cyber-
resilience. Unlike those working to secure critical infrastructure and creating a shared goal of
security, there is hardly any perceived connection between SMEs and individuals to the notion
of ownership of building communal cyber-resilience. As such, the disparate consumer audience
flounders to find commonalities. Moreover, at the level of the individual consumer, there are—
especially in developed nations—reports surfacing of “security fatigue”; such fatigue, it has
been found, can cause computer users to feel hopeless and to act recklessly with regard to
matters of cybersecurity.22 The lack of any cohesive cybersecurity understanding means that
cyber resilience at the consumer level struggles to even identify those who should be partners,
let alone those who would be leaders in such an undertaking.
The problem of a government-centric approach: Official policy could go further to facilitate
5
and to incentivize private sector involvement. Indeed, according to industry experts, many
government-developed cybercrime centers are structured to focus on protecting government
systems and critical infrastructure but tend to leave out the private sector. As such, private
sector actors, though possibly contributing to the efficacy and functioning of those centers, do
not necessarily benefit from such government efforts, therein leaving their computer systems
vulnerable to cyberattacks.23 Moreover, and as already noted, substantial information sharing
shortcomings endure.
Concern over lacking safeguards: Lastly, a general sense of malaise and suspicion limits
6
the willingness of some private sector actors to grant government access. This skepticism is
two-fold: on the one hand, there is concern that one government agency might pass along
potentially incriminating information to another agency.24 On the other hand, there is concern
that government is spying on the businesses and consumers with which government is trying
to engage.25 Recent reports of government spying have done little to assuage such suspicions
and concerns.
III. Examples of Cyber PPPs
Although there are barriers to building PPPs, yet there are some important successes in (A)
corporate social responsibility, (B) combatting online scams and fraud, (C) private-sector originating
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initiatives, (D) inter-governmental and international initiatives, (E) initiatives in Europe and (F)
initiatives in the United States.
A. Corporate Social Responsibility Examples
Examples of effective corporate social responsibility collaboration between crime agencies and ICT
companies exist with regard to cybercrime, fraud protection, online safety and security and fighting
child exploitation. These models demonstrate not just the value of such collaboration but also the
sheer variety in the nature of the response.26
B. Combatting Online Scams & Fraud
Collaboration to combat online scams and fraud are rapidly increasing. For instance, more than
one hundred governments work with Microsoft in its Security Cooperation Program (SCP)27. This
program provides protection from critical risks to information and infrastructure and helps to reduce
government vulnerability to attacks that can critically disable administration and disrupt economies.
A biannual global Security Intelligence Report provides in-depth insight into the threat landscape
of the moment based on data derived from hundreds of millions of computers worldwide.28 On
average, seventeen percent of reporting computers worldwide encountered malware over the past
four quarters.29 Further, other high-severity vulnerabilities, such as downloaded Trojans, continue to
be on the rise. The aggregated data indicates that financial gain remains attackers’ top motivation.
Accounting for divergent motivations has also become an issue. For example, hacktivists and
practitioners of military and economic espionage are relatively recent newcomers and have different
interests from typical cyberattackers. Additionally, the nature of the attack strategies has changed,
with rogue security software or fake antivirus software used to trick people into installing malware
and disclosing sensitive information being replaced by ransomware that seeks to extort victims by
encrypting their data. Commercial exploit kits now dominate the list of means of compromising
unpatched computers, meaning attacks are increasingly professionally managed and constantly
optimized at an increasingly rapid rate. Targeted attacks have become the norm rather than the
exception.30
C. Private-sector Originating Initiatives
Private ICT companies around the world, including CISCO, Google, McAfee, Microsoft, Symantec,
Verizon and Yahoo!, engage in hundreds of non-commercial government partnerships that
offer internet safety training programs and educational literature to schools, communities and
individuals. To do so, these and other companies frequently partner with organizations such as
the National Cyber Security Alliance or the Family Online Safety Institute. Volunteers from the
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corporations typically drive these programs and collaborate with community leaders, teachers, and
the police force to deliver content.31
One particularly interesting private sector initiative is in combatting online child exploitation: trade
in child-sex images are now annually estimated to have reached almost US$20 billion.32 In response
to pleas, Microsoft Canada developed its Child Exploitation Tracking System (CETS) software with
the Royal Canadian Mounted Police (RCMP) and the Toronto Police Service following a personal
email plea from Toronto Police Detective Sergeant Paul Gillespie to Microsoft Chairman and Chief
Software Architect Bill Gates in January 2003.33 CETS supports criminal investigators to efficiently
organize and share media they come across during investigations, allowing units from various
countries to effectively classify, track and identify links between indecent material, enabling them
to identify owners and uncover international child-porn syndicates. As of March 2009, the CETS
has been deployed in twelve countries and is being used by over 1200 investigators worldwide.34
Microsoft offers the program to interested law enforcement agencies free of charge and donates all
training and server software required to deploy the application at no cost.
So far, this collaborative initiative has achieved impressive results. It has been used to solve several
high-profile cases and in establishing an international network of information and communications
to help fight the problem. More recently, in 2008, Australian Federal Police used the CETS to smash
an international pedophile internet network.35 The investigation led to the arrest of more than
twenty-two pedophiles in the United States, Canada, Australia and across Europe; the pedophiles,
acting under the impression that their robust encryption codes offered sufficient protection and
made them undetectable, were found out. Such collaborations help law enforcement to outsmart
cybercriminals, who typically employ very sophisticated means to hide their crimes.36
D. Inter-governmental & International-organization Initiatives
At a macro-level, regional organizations are playing a strong role in coordinating government
policy alignment and engaging corporations to address challenges. UN organizations have been
particularly involved in building partnerships. For instance, UNODC has launched initiatives to
engage the private sector37 as part of its larger efforts to support UN Member States in the fight
against cybercrime.38 Similarly, ITU has launched interesting initiatives—for instance, in the Asia
Pacific region, ITU helped to form the APCERT, and has partnered with national ministries of
defense to create cybersecurity information sharing partnerships, such as with Japan. The ITU GCA
is a five-pillared framework (legal, technical, organizational, capacity-building, cooperation) that
builds on existing initiatives to improve cooperation and efficiency with and between all relevant
partners.39 Since its launch, the GCA has attracted the support and recognition of leaders and
cybersecurity experts around the world.40
In Egypt and Turkey, where online crime is a relatively new and growing phenomenon, the
CoE partners with Microsoft to conduct training with the judiciary, detailing how cybercrimes
are committed and how criminals can be prosecuted, by demonstrating the most effective
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methodologies for obtaining evidence. Both McAffee and Microsoft have joined forces with the
CoE for a similar training in Romania. As another example, Nigeria has earned unenviable (and
perhaps no longer deserved) notoriety as the hub for online scams. To break the mythology of
quick financial wins through cybercrime and provide young people with a bridge to more legitimate
and meaningful forms of employment, Microsoft partners with Nigerian government agencies,
the European Union, UNODC and youth NGO networks to deliver online safety outreach and
employability programs. The programs provide participants with broad-based ICT training, offer
a recognizable certification to boost job prospects, and additional support in developing youth-
driven ICT-based small business.41
Box 6.5: The Simda Botnet42
The Simda botnet, which had victims in 190 countries around the world, was successfully
taken down through collaboration between INTERPOL, Trend Micro, Microsoft, Kaspersky
Lab and the Cyber Defense Institute. The global dispersion of systems gathered to form the
Simda botnet helped criminals commit crimes in disparate corners of the world, making it
very difficult for law enforcement to combat. In a PPP with Trend Micro and Kaspersky, threat
researchers working in IGCI, INTERPOL’s Singapore-based center (see section 5 B, above),
supported investigative efforts, offering expertise and access to unique threat intelligence
not always available to law enforcement. With that pooled intelligence, experience and
support, INTERPOL built the case for the arrest of the threat actors.
E. Initiatives in Europe
While the importance of cooperation is recognized in Europe, there is a wide diversity in national
approaches and maturity levels on this issue.43 At the European level, the CoE has engaged various
corporations, including McAffee and Microsoft, to support its fight against cybercrime based on
the framework of the Budapest Convention.44 Corporate engagement is provided through training
for government officials on how to effectively address threats both within national boundaries and
cross-jurisdictionally.
In May 2010, the European Commission developed the Digital Agenda in May 2010.45 The Agenda
contains 101 actions grouped around seven priority areas, and operates with the dual aims of, first,
improving Europe’s ability to prevent, detect and, second, respond to cyberthreats, and of ensuring
that digital technologies facilitate growth across the EU.46 As a result, it is intended to strengthen
the resilience of critical infrastructure, improve preparedness and promote a culture of cybersecurity
through the centralization of information and the creation of PPPs.
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Responding directly to recognized cyberthreats, and seeking to strengthen the EU’s cybersecurity
industry, the European Commission contractually established its PPP on cyberspace (cPPP)
according to its Digital Single Market Strategy.47
The aim of the cPPP is to stimulate the European cybersecurity industry by:
Bringing together industrial and public resources to improve Europe’s industrial policy on
1
cybersecurity, focusing on innovation and following a jointly-agreed strategic research and
innovation roadmap;
Helping build trust among Member States and industrial actors by fostering bottom-up
2
cooperation on research and innovation;
Helping stimulate the cybersecurity industry by aligning demand and supply for
3
cybersecurity products and services, and allowing industry to efficiently elicit future
requirements from end-users;
Leveraging funding from Horizon202048 and maximizing the impact of available industry
4
funds through better coordination and better focus on a few technical priorities; and
Providing visibility to European R&I excellence in cybersecurity and digital privacy.49
5
At the national level, most European nations are only at the very early stage of developing PPPs50;
however, five countries—Austria, Germany, the Netherlands, Spain and the United Kingdom—
have taken robust efforts on this front. For example, the British government has enacted the Data
Protection Bill, which obliges companies to report all cyber incidents and violations, and has also
launched its Cybersecurity Information Sharing Partnership (CISP), which, among other things,
has led to the development of an online platform for real-time exchange of information about
cyberthreats and vulnerabilities.51 Additionally, Britain’s National Crime Agency (NCA) is leading
the initiative to help network administrators by developing intelligence reports for ISPs and
hosting companies. The reports are based on data from Britain’s national CERT (UK-CERT) and
the volunteer intelligence gathering Shadowserver Foundation. The reports have identified 5,531
compromises on servers in the United Kingdom, each of which attackers can use to send spam
email, launch attacks and steal information through phishing. NCA estimates organizations acting
on the advice in these reports could eliminate half of phishing attacks—one of the most prevalent
cyberattacks—originating from the United Kingdom. Indeed, according to one analysis, the United
Kingdom ranks tenth highest for countries from which cyberattacks originate.52 While certain
elements of cybersecurity protection apply across all areas, and a wide variety of recommendations
are available from national and international organizations, there is also a need for guidance that
is tailored to the business needs of particular entities or provides methods to address unique risks
or specific operations in certain sectors. Moreover, while there is a growing interest in establishing
sector-specific responses to cybersecurity, practical implementation is still fairly limited in Member
States. The same countries that are leading the way in PPPs also are the leaders in this field, often
establishing sector-specific dialogues and information exchanges with the private sector. Such steps
can help promote the most suitable and effective guidance throughout individual sectors.53
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F. Initiatives in the United States of America
The US government has created many cybersecurity taskforces and interagency groups to facilitate
robust information sharing not only among government agencies but also with the private sector.
An example of interagency cooperation is the National Cyber Investigative Joint Task Force
(NCIJTF). Led by the FBI, it is comprised of nineteen members from US intelligence and law
enforcement agencies, and serves as the lead national focal point for coordinating, integrating and
sharing pertinent information related to domestic cyberthreat information and national security
investigations.54
In terms of public-private coordination, the DoD’s Defense’s Defense Cyber Crime Center (DC3),
a military initiative, is a national center focused on addressing forensics, investigative training,
research and analytics impacting those operating in the defense sector.55 Similarly, US-CERT, housed
in DHS, is the operational arm of the National Cybersecurity and Communications Integration
Center (NCCIC), and plays a leading role in international information sharing.56 DoJ’s Computer
Crime and Intellectual Property Section (CCIPS) works with prosecutors and agents nationally and
overseas, as well as with companies and governments, to investigate and prosecute cybercrime.57
ISACs and the USSS’s various Electronic Crimes Task Forces (ECTFs) have significantly advanced
public-private information sharing.58 For example, the ECTFs, which focus on identifying
and locating international cybercriminals, have achieved significant success in detecting and
apprehending numerous international cybercriminals.59 Additionally, USSS’s Cyber Intelligence
Section has worked with law enforcement partners worldwide to secure the arrest of cybercriminals
responsible for the thefts of hundreds of millions of credit card numbers and losses exceeding
US$600 million to financial and retail institutions.60
Conclusion
Public-private collaboration is essential to have effective cybersecurity solutions and systems.
On the one hand, the private sector brings specialized expertise and proximity to the implicated
infrastructure. On the other hand, government is typically better poised to reach across borders
and develop comprehensive international solutions to tracking, identifying and mitigating
cyberthreats.61
Developing effective PPPs requires the implementation of certain fundamentals that must tie into
building a strong cybersecurity framework. These range from establishing strong legal foundations
and a comprehensive and regularly updated cyber security strategy, to engendering trust, working
in partnership and promoting cybersecurity education. These building blocks provide valuable
guidance for national governments that are ultimately responsible for implementing cybersecurity
rules and policies.62 In building systems, it is important for the private sector to be involved at the
start of the process, from concept development and through implementation.
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The need for PPPs in the deployment of cyber-resilience goes beyond simply partnering with the
private sector. To successfully engage a widespread audience of individual consumers and small
scale business operators, such partnerships need the added impetus of urgency at all levels of the
critical infrastructure sphere of influence.63 That said, partnerships should actively work to extend
beyond “critical” infrastructure and actively seek to include all ICT stakeholders to create robust
cyber resilience.
For PPPs to be successful, a sustained engagement and dialogue around the targeted need
must be maintained. Given cultural attitudes and perspectives, the initial onus will typically be on
governments, but as the incentives of government and the private sector increasingly come to
align, both parties will contribute to innovative solutions. Certain tools for building partnerships—
legal instruments, industry initiatives and information-sharing platforms—already exist and
should be built upon. Through PPPs, existing instruments and industry standards can be used to
encourage dialogue and cooperation on practical ways of dealing with cybercrime that are suitable
to all. Transparency and accountability are essential elements therein.
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End Notes
Referenced in: § A. The Capacity- 15. UNCTAD Global Cyberlaw Tracker, 2016.
building Challenge 16. “Summary of Adoption of E-Commerce
Legislation Worldwide,” UNCTAD, at
1. See UNCTAD, UNCTAD Information unctad.org/cyberlawtracker.
Economy Report 2015: Unlocking the
Potential of E-Commerce for Developing 17. UNODC’s Global eLearning Programme
Countries, (New York & Geneva: UN, has integrated the Cybercrime Repository
2015), Ch. V, at http://unctad.org/en/ website (http://cybrepo.unodc.org) into
PublicationsLibrary/ier2015_en.pdf the cybercrime course available on the
platform.
2. “Cybercrime Legislation Worldwide,”
UNCTAD, (2016), at http://unctad.org/ 18. See “TrainForTrade,” UNCTAD, at https://
en/Pages/DTL/STI_and_ICTs/ICT4D- tft.unctad.org/?page_id=119.
Legislation/eCom-Cybercrime-Laws.aspx. 19. UNCTAD Global Cyberlaw Tracker, supra
3. UNCTAD Global Cyberlaw Tracker, 2016. note 15.
4. Ibid. 20. Uganda: National Information
Technology Authority (NITA), Ministry of
5. See “Global Cybersecurity Index,” ICT & National Guidance, at http://www.
ITU, at http://www.itu.int/en/ITU-D/ nita.go.ug/.
Cybersecurity/Pages/GCI.aspx.
21. Uganda, Ministry of ICT & National
6. Ibid. Guidance, at https://www.ict.go.ug/.
7. For a collection of cybercrime laws, 22. Uganda: Electronic Transactions Act
please visit the “UNODC Repository on (2011), at http://www.ulii.org/ug/
Cyber Crime,” UNODC, at https://www. legislation/act/2015/8-3; Uganda:
unodc.org/cld/v3/cybrepo/legdb/index. Electronic Signatures Act (2011), at
html?lng=en. http://www.nita.go.ug/sites/default/files/
Electronic-Signatures-Act.pdf.
8. UNODC Cybercrime Study, supra § 1 C,
note 7. 23. NITA, “NISS Final Draft,” Republic of
Uganda Ministry of ICT & National
9. “SHERLOC Portal,” UNODC, at https:// Guidance, (2011), at https://www.
www.unodc.org/cld/v3/sherloc/. researchictafrica.net/countries/uganda/
National_Information_Security_
10. UN Economic and Social Council,
Strategy_2011.pdf.
Resolution Prevention, Protection and
International Cooperation Against the
Use of New Information Technologies
to Abuse and/or Exploit Children, E/
RES/2011/33 (28 Jul. 2011), at http://www.
un.org/en/ecosoc/docs/2011/res%20
2011.33.pdf.
11. Steven Malby, Tejal Jesrani, Tania
Bañuelos, Anika Holterhof & Magdalena
Hahn, Study on the Effects of New
Information Technologies on the Abuse
and Exploitation of Children (Vienna:
UNODC, 2011), at http://www.unodc.org/
documents/organized-crime/cybercrime/
Study_on_the_Effects.pdf.
12. UN Economic and Social Council, supra
note 10.
13. “Mutual Legal Assistance Request Writer
Tool,” UNODC, at https://www.unodc.
org/mla/introduction.html.
14. Ibid.
Page 263 | Chapter 6 | End Notes Table of Contents
Referenced in: § B. Developing 7. For additional resources and examples, 21. See Eastern Partnership, Migration and
Capacity-building Programs see, e.g., “Law Enforcement- Internet Home Affairs, supra note 14.
Service Provider Cooperation,” CoE, at
http://www.coe.int/en/web/cybercrime/ 22. This designation is without prejudice to
1. See, e.g., UNODC, “UNODC Provided lea-/-isp-cooperation; NCFTA, supra § positions on status, and is in line with
Training to South East Asian Institutions 5 B, note 62.; “Financial Services-ISAC,” UNSC 1244 and the ICJ Opinion on the
to Combat Cybercrime,” (13 Oct. 2016), at Financial Sector Information Sharing and Kosovo Declaration of Independence.
https://www.unodc.org/unodc/en/frontpa Analysis Center (FSIAC), at http://www.
ge/2016/October/unodc-provided-trainin 23. “Cybercrime Programme Office
fsisac.com.
g-to-south-east-asian-institutions-to-comb (C-PROC),” CoE, at http://www.coe.int/
at-cybercrime.html; “SANS Courses,” 8. For additional resources and examples, en/web/cybercrime/cybercrime-office-c-
Sans, at https://uk.sans.org/courses; see, e.g., Budapest Convention, supra proc-.
“Cybercrime Programme Office § 1 B, note 32, at Ch. 3; “24/7 Points of
24. See WDR, supra, § 1 A, note 10.
(C-PROC),” CoE, at http://www.coe.int/ Contact,” CoE, at http://www.coe.int/en/
en/web/cybercrime/cybercrime-office- web/cybercrime/resources.
c-proc-.
9. See, e.g., “Action against Cybercrime,”
2. David Rath, “Legislating Cybersecurity: CoE, at http://www.coe.int/en/web/
Lawmakers Recognize Their Responsibility cybercrime.
with Cyberthreats,” Government
Technology, (11 Oct. 2016), at http:// 10. Ibid. For an example of a quarterly
www.govtech.com/security/Legislating- update, see “Cybercrime at COE Update
Cybersecurity-Lawmakers-Recognize- April–June 2016,” CoE, at https://rm.coe.
Their-Responsibility-with-Cyberthreats. int/CoERMPublicCommonSearchServices/
html. DisplayDCTMContent?documentId=0900
001680693147.
3. See, e.g., Council of Europe, Law
Enforcement Training Strategy, 11. Convention 108, supra § 4 B, note 28.
(Strasbourg: Council of Europe, 2011), at 12. Lanzarote Convention, supra § 1 C, note
https://rm.coe.int/CoERMPublicCommon 7.
SearchServices/DisplayDCTMContent?do
cumentId=09000016802f6a34; “Electronic 13. CoE, Convention on Laundering, Search,
Evidence Guide,” CoE, at http://www.coe. Seizure and Confiscation of the Proceeds
int/en/web/octopus/home; “European from Crime and on the Financing of
Cybercrime Training and Education Terrorism (1 May 2008) CETS No. 198, at
Group,” European Cybercrime Training https://www.coe.int/en/web/conventions/
and Education Group (ECTEG), at http:// full-list/-/conventions/treaty/198.
www.ecteg.eu.
14. See “Cybercrime Convention
4. Joint training of prosecutors and judges Committee,” CoE, at https://www.coe.int/
may not be possible in countries where en/web/cybercrime/tcy.
rules of ethics or statutory law prohibit as
much. 15. “Global Action on Cybercrime,” CoE, at
http://www.coe.int/en/web/cybercrime/
5. For additional resources and examples, glacy.
see, e.g., “Law Enforcement – Internet
Service Provider Cooperation,” CoE, at 16. “Global Action on Cybercrime: From
http://www.coe.int/en/web/cybercrime GLACY to GLACY+,” CoE, at http://www.
/lea-/-isp-cooperation; CoE Project on coe.int/en/web/human-rights-rule-of-
Cybercrime and the Lisbon Network, law/-/global-action-on-cybercrime-from-
“Cybercrime Training for Judges and glacy-to-glacy-.
Prosecutors: A Concept,” (Strasbourg:
17. “Global Project Cybercrime@Octopus,”
CoE, 2009), at https://rm.coe.int/
CoE, at http://www.coe.int/en/web/
CoERMPublicCommonSearchServices/
cybercrime/cybercrime-octopus.
DisplayDCTMContent?documentId=09
000016802fa3c3; CoE, Octopus 18. “Regional Project Cybercrime@EaP II,”
Cybercrime Community, “Advanced CoE, at http://www.coe.int/en/web/
Course for Judges and Prosecutors,” cybercrime/cybercrime-eap-ii.
at http://www.coe.int/en/web/octopus/
home; Electronic Evidence Guide, supra 19. “Eastern Partnership, Migration and
note 3. Home Affairs,” European Commission,
at https://ec.europa.eu/home-affairs/
6. See, e.g., “National Conference of State what-we-do/policies/international-affairs/
Legislature,” National Conference of eastern-partnership_en.
State Legislature, at http://www.ncsl.org/.
20. Supra note 13.
Page 264 | Chapter 6 | End Notes Table of Contents
Referenced in: § C. Private Sector 9. “INTERPOL Backs World Economic 17. Judith H. Germano, Cybersecurity
Cooperation Forum cybercrime Project,” INTERPOL, Partnerships: A New Era of Public-
(22 Jan. 2016), (“Policing, especially in Private Collaboration, (New York: New
cyberspace, is no longer the exclusive York University School of Law, Center
1. US Office of Press Secretary, “Executive preserve of law enforcement. The private on Law & Security, 2014), at http://www.
Order: Promoting Private Sector sector, academia, and citizens themselves lawandsecurity.org/Portals/0/Documents/
Cybersecurity Information Sharing,” all need to be involved”), at http://www. Cybersecurity.Partnerships.pdf. For
The White House of President Barack interpol.int/News-and-media/News/2016/ examples of legislative efforts to promote
Obama, (Feb. 13, 2015) No. 13691, at N2016-010. public-private sharing of cybersecurity
https://obamawhitehouse.archives. information in the United States, see, e.g.,
gov/the-press-office/2015/02/13/ 10. Ibid. Homeland Security Act of 2002, Pub. L.
executive-order-promoting-private- 108–275, Title II, Subtitle B, §§ 211, 116,
sector-cybersecurity-information-shari; 11. Larry Clinton, “Cross Cutting Issue #2
Stat. 2135, 2150 (codified at 6 USC §§
Korte, supra § 1, note 77. In Europe, the How Can We Create Public Private
131–134 (2002)) (limiting the disclosure of
European Commission launched a public Partnerships that Extend to Action
cyberthreat information shared with the
consultation, accompanied by a policy Plans that Work?,” ISA, at https://
US Dept. of Homeland Security); H.R. 624,
roadmap, to seek stakeholders’ views obamawhitehouse.archives.gov/
113th Cong., at https://beta.congress.
on the areas of work of a future public- files/documents/cyber/ISA%20-%20
gov/bill/113th-congress/house-bill/624,
private partnership, as well as on potential Hathaway%20public%20private%20
(allowing for the sharing of internet traffic
additional policy measures in areas partnerships.pdf.
information between the government and
such as certification, standardization, 12. See “National Cybersecurity Strategies,” technology companies); S. 2588, 113th
labelling that could benefit the European ITU, at http://www.itu.int/en/ITU-D/ Cong., at https://beta.congress.gov/
cybersecurity industry, see “Public Cybersecurity/Pages/National-Strategies. bill/113thcongress/senate-bill/2588 (same)
Consultation on the Public-Private as cited in ibid., at 16, note 1.
aspx.
Partnership on Cybersecurity and
Possible Accompanying Measures,” 13. See, e.g., Susan W. Brenner, “Private- 18. See, e.g., United States v. Gonzalez:
European Commission, at https:// Public Sector Cooperation in Combating Indictment (charges involving cyberattacks
ec.europa.eu/digital-single-market/en/ Cybercrime: in Search of a Model,” on Heartland Payment Systems, Inc.;
news/public-consultation-public-private- Journal of International Law and 7–11, Inc.; and Hannaford Brothers Co.),
partnership-cybersecurity-and-possible- Technology, Vol. 2, Issue 2, (2007), pp. (N.J.D. 2009), at http://www.wired.com/
accompanying-measures; European 58–67, at http://www.jiclt.com/index.php/ images_blogs/threatlevel/2009/08/
Commission, “Roadmap,” Public jiclt/article/view/20. gonzalez.pdf; see, e.g., United States v.
Private Partnership on Cybersecurity, Gonzalez: Indictment (charges involving
(14 Dec. 2015), http://ec.europa.eu/ 14. See, e.g., Eric Luiijf, Kim Besseling & cyberattacks on BJ’s Wholesale Club,
smart-regulation/roadmaps/docs/2015_ Patrick De Graaf, “Nineteen National DSW, OfficeMax, Boston Market, Barnes
cnect_004_cybersecurity_en.pdf. See Cyber Security Strategies,” International & Noble, Sports Authority, and several
Commissioner, “Digital Single Market,” Journal of Critical Infrastructures, Vol. 9, TJX companies), (D. Mass. 2008), at
European Commission, http://ec.europa. (2013), pp. 3–31. http://www.securityprivacyandthelaw.
eu/priorities/digital-single-market/. com/uploads/file/2008%20Gonzalez%20
15. Tarra Quismundo, “DOJ, NU Join Indictment.pdf; see, e.g., United States
2. UNODC Cybercrime Study, supra § 1 C, Forces against Cybercrime,” Philippine v. Gonzalez: Superseding (charges
note 7, at xxv–xxvi. Daily Inquirer, (11 Oct. 2014), at http:// involving cyberattacks on Dave & Buster’s,
technology.inquirer.net/38998/doj-nu-join- Inc.), (E.D.N.Y., 2008); see, e.g., James
3. Ibid., at xxvii. forces-against-cybercrime. Verini, “The Great Cyberheist,” New
4. See APCERT, at https://www.apcert.org/. 16. Jeffrey Avina, “Public-Private York Times Magazine, (10 Nov. 2010), at
Partnerships in the Fight against http://www.nytimes.com/2010/11/14/
5. See OIC-CERT, at https://www.oic-cert. magazine/14Hacker-t.html.
Crime,” Journal of Financial Crime,
org/en/.
Vol. 18, Issue 3, (2011), pp. 282–29, at 19. See ibid.
6. See, e.g., “CIRT Programme,” ITU, http://www.emeraldinsight.com/doi/
at http://www.itu.int/en/ITU-D/ pdfplus/10.1108/13590791111147505. 20. David Cook, “Mitigating Cyber-Threats
Cybersecurity/Pages/Organizational- through Public-Private Partnerships:
Structures.aspx. Low Cost Governance with High
Impact Returns,” in Proceedings of
7. See “CIRT Programme,” ITU, at http:// the 1st International Cyber Resilience
www.itu.int/en/ITU-D/Cybersecurity/ Conference, (Perth, Western Australia:
Pages/Organizational-Structures.aspx. Edith Cowan University, 2010), pp. 23–24,
at http://ro.ecu.edu.au/cgi/viewcontent.
8. Kaspersky Lab, Kaspersky Lab cgi?article=1002&context=icr.
Transparency Principles, (Moscow:
Kaspersky Lab., 2015), at https://cdn. 21. Some acts that might otherwise
press.kaspersky.com/files/2013/06/ constitute cybercrime, or that with the
Kaspersky-Lab-Transparency-Principles_ passage of time are revealed to be acts
Q3_2015_final.pdf. of states against states, and that might
be characterized as cyberterrorism or
cyberwarfare, are beyond the scope of
this Toolkit.
Page 265 | Chapter 6 | End Notes Table of Contents
22. “’Security Fatigue’ Can Cause Computer 34. Microsoft Public Sector, “Ensuring the 43. “In actuality, most of the cyber security
Users to Feel Hopeless and Act Safety of Our Children,” Microsoft, (2008), initiatives the European Commission
Recklessly,” NIST, (4 Oct. 2016), at https:// at https://www.microsoft.com/industry/ sponsors are conducted through vessels
www.nist.gov/news-events/news/2016/10/ publicsector/InGov/Child_Safety.aspx. lead by ENISA. ENISA is the European
security-fatigue-can-cause-computer- agency that has come the longest way
users-feel-hopeless-and-act-recklessly. 35. Frank Walker, “How Police Broke Net in providing mechanisms for information
Pedophile Ring,” Sydney Morning sharing. By its current mandate, ENISA
23. Ngair Teow-Hin, CEO of SecureAge. Herald, (23 Mar. 2008), at http:// tackles barriers to information sharing
www.smh.com.au/news/national/ by encouraging a homogeneous and
24. Steven Bucci, Paul Rosenzweig & David how-police-broke-net-pedophile- simplified regime for ‘network and
Inserra, “A Congressional Guide: Seven ring/2008/03/22/1205602728709.html. information security,’ ‘[encourage]
Steps to US Security, Prosperity, and
economic growth and ensuring trust,’
Freedom in Cyberspace,” Heritage 36. Ibid. See also Avina, supra note 16, at
‘bridging the gap between technology
Foundation, at http://www.heritage. 289–90.
and policy’ and ‘encourage and improve
org/research/reports/2013/04/a-
37. See Erwin Dotzauer, “UNODC– multi-stakeholder models which need to
congressional-guide-seven-steps-to-
Comprehensive Study on Cybercrime,” have a clear added value for benefiting
us-security-prosperity-and-freedom-in-
Cybersecurity Capacity Portal, (3 Nov. end-users and industry,’” for details,
cyberspace.
2014), at https://www.sbs.ox.ac.uk/ see UNICRI, Information Sharing and
25. Ibid. cybersecurity-capacity/content/unodc- Public-Private Partnerships: Perspectives
comprehensive-study-cybercrime. and Proposals, Working Paper, (Turin:
26. Avina, supra note 16, at 288. UNICRI, 2014), at http://www.unicri.it/
38. For instance, see “Commission on Crime special_topics/securing_cyberspace/
27. See, e.g., “Microsoft Further Prevention and Criminal Justice (CCPCJ),” current_and_past_activities/current_
Strengthens Security Support for Global UNODC, at http://www.unodc.org/unodc/ activities/Information_Sharing_cover_
Governments With Security Cooperation commissions/CCPCJ/. See also “Crime INDEXED_0611.pdf.
Program,” Microsoft News Center, (2 Congress 2015: A Focus on Cybercrime,”
Feb. 2005), at https://news.microsoft. UNODC, at https://www.unodc.org/ 44. CoE, Cybercrime: A Threat to Democracy,
com/2005/02/02/microsoft-further- unodc/en/frontpage/2015/March/focus_ Human Rights and the Rule of Law,
strengthens-security-support-for-global- its-a-crime_-cybercrime.html. (Strasbourg: CoE, 2009); see also,
governments-with-security-cooperation- Budapest Convention, supra § 1 B, note
program/#lDhJZVyHCOTcYs68.97. 39. See “Global Cybersecurity Agenda 32.
(GCA),” ITU, at http://www.itu.int/en/
28. See “Microsoft Security Intelligence action/cybersecurity/Pages/gca.aspx. 45. “Digital Agenda for Europe,” EUR-Lex,
Report,” Microsoft, Vol. 21 (14 Dec. at http://eur-lex.europa.eu/legal-content/
2016), at https://blogs.microsoft.com/ 40. Ibid., noting that H.E. Dr. Óscar Arias EN/TXT/?uri=URISERV:si0016.
microsoftsecure/2016/12/14/microsoft- Sánchez, Former President of the
security-intelligence-report-volume-21-is- Republic of Costa Rica and Nobel Peace 46. Ibid., at 61. For more details, see “DG
now-available/. Laureate & H.E. Blaise Compaoré, Connect,” European Commision, at
President of Burkina Faso, are both https://ec.europa.eu/digital-single-
29. “Microsoft Security Intelligence Report,” Patrons of the GCA. market/dg-connect.
Microsoft, Vol. 19, (Jan.–Jun. 2015),
at http://download.microsoft.com/ 41. Avina, supra note 16, at 289. 47. See “Digital Single Market,” supra note 1.
download/4/4/C/44CDEF0E-7924-4787-
42. Jon Clay, “Operation SIMDA: The Power 48. See “Horizon 2020,” European
A56A-16261691ACE3/Microsoft_Security_
of Public/Private Partnerships,” Trend Commission, at https://ec.europa.eu/
Intelligence_Report_Volume_19_English.
Micro/Simply Security, (13 Apr. 2015), at programmes/horizon2020/
pdf.
http://blog.trendmicro.com/operation-
49. See “Digital Single Market: Bringing
30. Ibid., at 6. simda-the-power-of-publicprivate-
Down Barriers to Unlock Online
partnerships/.
31. Ibid. Opportunities,” European Commission,
at http://ec.europa.eu/priorities/digital-
32. Internet Watch Foundation, IWF Annual single-market/.
Report 2008, (Cambridge: IWF, 2008), at
https://www.iwf.org.uk/assets/media/ 50. BSA (Business Software Alliance), EU
IWF%20Annual%20Report%202008.pdf. Cybersecurity Dashboard: A Path
to a Secure European Cyberspace,
33. See “Microsoft Collaborates with (Washington DC, 2015), http://www.bsa.
Global Police to Develop Child org/~/media/Files/Policy/Security/EU/
Exploitation Tracking System for Law study_eucybersecurity_en.pdf; Warwick
Enforcement Agencies,” Microsoft Ashford, “Co-Operation Driving Progress
New Center, (7 Apr. 2005), at https:// in Fighting Cyber Crime, Say Law
news.microsoft.com/2005/04/07/ Enforcers,” Computer Weekly, (5 Jun.
microsoft-collaborates-with-global- 2015), at http://www.computerweekly.
police-to-develop-child-exploitation- com/news/4500247603/Co-operation-
tracking-system-for-law-enforcement- driving-progress-in-fighting-cyber-crime-
agencies/#cECWZKIO2fx3kuuZ.99. say-law-enforcers.
Page 266 | Chapter 6 | End Notes Table of Contents
51. “Government Launches Information
Sharing Partnership on Cyber Security,”
Government of the United Kingdom,
Press Release, (23 Mar. 2013), at https://
www.gov.uk/government/news/governm
ent-launches-information-sharing-partner
ship-on-cyber-security.
52. See “Live Cyber Attack Threat Map,”
Threatcloud, at https://threatmap.
checkpoint.com/ThreatPortal/livemap.
html.
53. Clay, supra note 42, at 61.
54. “National Cyber Investigative Joint Task
Force,” FBI, at https://www.fbi.gov/about-
us/investigate/cyber/ncijtf.
55. “DoD Cyber Crime Center (DC3),” US
Dept. of Defense, at http://www.dc3.mil/.
56. “US-CERT: About Us,” US CERT
(Computer Emergency Readiness Team),
at https://www.us-cert.gov/about-us.
57. “Computer Crime & Intellectual Property
Section (CCIPS): About the Computer
Crime & Intellectual Property Section,” US
Dept. of Justice, at https://www.justice.
gov/criminal-ccips.
58. See, e.g., Mary Kathleen Flynn, “ISACs,
Infragard, and ECTF: Safety in Numbers,”
CSO, (8 Nov. 2002), at http://www.
csoonline.com/article/2113264/security-
leadership/isacs--infragard--and-ectf--
safety-in-numbers.html.
59. Germano, supra note 17 at p. 13.
60. Ibid., at 18, note 55.
61. Ibid., at 2.
62. Thomas Boué, “Closing the Gaps in EU
Cyber Security,” Computer Weekly, (Jun.
2015), at http://www.computerweekly.
com/opinion/Closing-the-gaps-in-EU-
cyber-security.
63. Avina, supra note 16.
Page 267 | Chapter 6 | End Notes Table of Contents
CHAPTER 7
In‑country
Assessment Tool
This chapter provides an overview of various
existing tools to use in conducting assessments of
cybercrime preparedness (mainly those of the
participating organizations) and introduces the
Assessment Tool developed as a part of the
Toolkit. As explained in further detail in the
chapter, the Assessment Tool synthesizes various
aspects of other existing instruments to enable
users to determine gaps in capacity and highlight
priority areas to direct capacity-building resources.
In this Chapter
A. Assessment Tool—Overview 269
Page 268 | Chapter 7 | In‑country Assessment Tool
CHAPTER 7
A. Assessment Tool—Overview
Table of Contents
Introduction 269
I. Overview of the Toolkit’s Assessment Tool 269
A. Existing Assessment Tools 270
B. Developing a Synthetic Assessment Tool 271
II. Summary of the Assessment Tool 272
A. What Is Covered & How It Works 272
B. Other Features of the Assessment Tool 273
Conclusion 274
Introduction
The first part of the Toolkit (chapters 1 to 6) provides resources and context for
building-capacity to combat cybercrime, presenting the various issues related to
cybercrime. This second part of this Toolkit is more interactive, providing an overview
of existing tools used to make cybercrime preparedness assessments and introducing the
synthetic Assessment Tool that has been developed under this Project. It begins with (I)
an overview of the Toolkit’s assessment tool (Assessment Tool), and concludes with (II)
a summary of the Assessment Tool.
I. Overview of the Toolkit’s Assessment Tool
The focus of the Toolkit is developing country capacity to combat cybercrime. Although perhaps
axiomatic, capacity needs to be assessed before capacity-building priorities can be identified or
resources can be allocated. Accordingly, this section (A) reviews some of the existing assessment
tools—notably those used by organizations participating in this Project (AIDP, CoE, ITU, KSPO,
Oxford, UNICRI and UNODC), but also those of others (notably INTERPOL and OAS)—, and then
(B) describes the purpose, structure and methodology proposed by the Assessment Tool.
Page 269 | Chapter 7 | § A. Assessment Tool—Overview Table of Contents
A. Existing Assessment Tools
A number of the Toolkit’s participating organizations have their own cybercrime assessment tools.1
While there is some overlap of issues addressed by each of them, each organization’s assessment
was designed for a specific purpose and assesses cybercrime from different aspects. The tables
provided in appendix 9 D identify each topic or issue being assessed by each assessment and also
shows whether that topic or issue is addressed by one or multiple assessment tools. As can be
seen from reviewing appendix 9 D, there is considerable common ground covered by each of the
different assessment tools—for example in the areas of enactment of laws, definitions of cybercrime
and certain procedural issues, to name a few. Conversely, the tables of the appendix also show that
not all assessments cover all subjects.
In light of various means of assessing cybercrime, and of its diverse impacts,2 it is worth
presenting a brief synopsis, in chronological order, highlighting the different areas of the
focus and orientation of each of the participating organizations’ assessment tools:
AIDP: AIDP’s assessment tool is in the form of “questionnaire”, and was developed in 2012 to
2013 following sections I to IV of AIDP’s Preparatory Colloquia for the Nineteenth International
Congress of Penal Law on “Information Society and Penal Law”.3 These questionnaires are
designed to elicit a narrative response to each question.
CoE: The CoE assessment tool, also in the form of a “questionnaire” or country profile, was
prepared in 2007 in connection with CoE’s Octopus Conference on “Cooperation against
Cybercrime” (see section 6 B, above).4 This tool aims to assess domestic laws’ compliance with
provisions of the Budapest Convention.5
ITU: The ITU assessment tool, presented in the form of a “country work sheet”, was developed
in 2010.6 Its aim is to enable provisions of domestic laws consistent with those of sample
legislative language in the ITU Toolkit for Cybercrime Legislation.7 Neither the CoE nor the ITU
assessment tools contain questions regarding to either rules on e-evidence, or to cybercrime
issues arising outside of legal frameworks.
UNODC: The UNODC assessment tool, prepared also in the form of a “questionnaire”, was
developed in 2012 in preparation for its Comprehensive Study on Cybercrime.8 The UNODC
assessment tool is designed to holistically assess both legal and non-legal frameworks for
addressing cybercrime issues, along with a country’s capacity to investigate, to prosecute and to
try cybercrime cases.
Oxford’s GCSCC: The Global Cyber Security Capacity Centre (GCSCC) of Oxford University’s
Martin School has developed a comprehensive “maturity model” assessment tool that was
launched in 2014.9 The purpose of the maturity model is aimed at making it possible for
countries to evaluate their level of preparedness with respect to a variety of dimensions of
cybersecurity by allowing them to self-assess their current cybersecurity capacity. The maturity
model assesses cybercrime as part of a broader assessment of a country’s cybersecurity
preparedness.
Page 270 | Chapter 7 | § A. Assessment Tool—Overview Table of Contents
In addition, the Project evaluated the assessment methodologies of INTERPOL and the OAS.
A brief synopsis of the salient features of these follows:
INTERPOL: INTERPOL conducts two types of assessments for its members: first, an on-request
“National Cyber Review” that assesses different aspects of a country’s ability and institutional
and human-capacity to investigate and prosecute cybercrimes and an assessment of threat
levels; second, “Rapid Cyber Assessments” that focus on a country’s operational readiness to
combat cybercrime.
OAS: The OAS Cybercrime Questionnaire assesses whether OAS Member States have
10
substantive and procedural cybercrime legislation, as well as some institutional attributes.
Relatedly, OAS, together with the Inter-American Development Bank (IADB), publishes a
country-by-country reviews of OAS Member State cybersecurity readiness utilizing the Oxford
methodology in its 2016 Cybersecurity Report Cybersecurity: Are we ready in Latin America and
the Caribbean?11 This is a broader cyber-security review, and not a cybercrime specific review.
B. Developing a Synthetic Assessment Tool
The overall purpose of the Toolkit is to identify and examine international good practices and
to bring together, perhaps in ways that they have not been so in the past, different aspects of
providing assistance to developing countries in the fight against cybercrime. In so doing, the Toolkit
incorporates information and experience from cases and looks at not only new and evolving means
of committing cybercrimes (e.g., financial crimes and child pornography), but also at new, evolving
and perhaps even non-traditional ways of combatting cybercrime (e.g., reliance on data provided
by the private sector and novel formal and informal means of cooperation with the private sector).
Further, the Toolkit is not aimed at duplicating existing efforts but at providing nexi for synergizing
various existing approaches, taking the best from various sources and combining them in a way
that perhaps has not been done before. This approach and ethos also underlays the synthetic
Assessment Tool developed by the Project that can be found in appendix 9 E.
The Assessment Tool is topically organized according to the general structure that can be found in
the table of contents of the Toolkit. Using this thematic structure, the Project examined the existing
assessment tools mentioned above, identifying both common ground and certain gaps. The
Assessment Tool attempts to address capacity building to combat cybercrime in a holistic fashion.
Furthermore, while the focus of the Toolkit is on policy, legal and law-enforcement issues, it was
recognized that, in order to be as useful as possible, a more comprehensive tool going beyond
assessing merely “legal” issues would be needed.
At that same time, methodologically, the Assessment Tool attempts to bring in good practices
from a number of sources, in particular Oxford’s aforementioned maturity-model approach to
cybersecurity capacity-building assessment,12 but focusing on “objective” rather than subjective
analyses. One limitation of many of the assessments reviewed (including the Assessment Tool), is
Page 271 | Chapter 7 | § A. Assessment Tool—Overview Table of Contents
that it does take a certain amount of assumed knowledge of the subject matter in order to be able
to actually assess a response to the various criteria—a need which the Project aims to fill through
the text and discussion found in the first part of the Toolkit. Furthermore, many of the criteria
assessed in the existing assessments reviewed require subjective judgements.
Accordingly, the challenge of developing the Assessment Tool was to retain the richness of the
maturity-model approach but to limit the subjectively-based criteria and responses of some of the
existing assessments.
Objectivity, richness and accessibility are all needed to make an assessment tool effective and
universally-applicable, all of which are key considerations of the Assessment Tool:
Objectivity is achieved by making the response to each question in the Assessment Tool a
binary, “yes/no” response to the greatest extent possible, or to create a clear choice along a
small-scale of options.
Richness is achieved by “weighting” each criterion. The Assessment Tool uses approximately
115 indicators grouped into nine themes (or dimensions).
Ease-of-comprehension is achieved through graphic representations of In order to graphically
show where a country’s capacity-building resources, showing—in one picture—all of the
thematic areas in a single “spider” chart. That chart shows, relative to the other thematic areas,
how a country fares with respect to each criterion or dimension. Each theme on the general
spider chart can also be drilled -down to a more granular level showing performance on each of
the different sub-criteria.
The combination of these three elements facilitates policy, law and decision makers to best decide
how resources should be allocated, while first-time users of the Assessment Tool may require some
guidance, it is anticipated that the Assessment Tool is relateively straightforward and that it could
be used in subsequent years to periodically measure progress.
II. Summary of the Assessment Tool
A. What Is Covered & How It Works
The Assessment Tool is organized along the following lines. First, basic structure begins with policy
assessment, before moving on to consider legislation (both substantive and procedural law), then
going on to safeguards, MLA and, finally, institutional matters.
As possibly evident, the Tool takes inspiration for its architecture from the topics that are covered in
the Toolkit, in some form or another, as well as from the other assessments mentioned above.
Page 272 | Chapter 7 | § A. Assessment Tool—Overview Table of Contents
Conceptually, the Assessment Tool’s 115 indicators are organized around the following nine
dimensions:
Non-Legal Framework, covering national strategies and policies and other matters of a non-
legal nature such as cooperation with the private sector;
Legal Framework, covering national law and whether a country has joined a treaty;
Substantive Law, addressing activities that have been criminalized;
Procedural Law, mainly addressing investigatory matters;
e-Evidence, focusing on admissibility and treatment of digital evidence in the cybercrime
context;
Jurisdiction, focusing at how the jurisdiction of the crime is determined;
Safeguards, focusing on three elements—“due process”, data protection and freedom of
expression13;
International Cooperation, focusing on, first extradition, and, second, on both formal and in-
formal levels of MLA; and
Capacity-building, looking at both institutional (e.g., law enforcement training academies) and
human capacity-building focusing on training needs for law enforcement, prosecution and the
judiciary.
It bears noting that in three dimensions—Legal Framework, Substantive Law and Procedural law—
no distinction is made between whether there is a bespoke cybercrime law or whether provisions
regarding cybercrimes are found in a general criminal law.
B. Other Features of the Assessment Tool
Importantly, the Assessment Tool is not expected to be or result in a ranking of countries. While
the Assessment is available as part of the Toolkit, is available as a stand-alone instrument freely
available on the internet (www.combattingcybercrime.org) for anyone to use.
The results of the Assessment Tool will also be confidential to those choosing to use it (i.e., if a
country does an assessment of its capacity to combat cybercrime, those results will be only available
to the person or entity making the assessment). A country can choose to release the results of the
assessment if it chooses. However, as the Assessment Tool is publicly and freely available, it will be
an instrument of transparency and contestability.
Moreover, to ensure accountability, anyone can download the Assessment Tool and do an
assessment of a country’s preparedness to combat cybercrime. The Assessment Tool also acts as a
kind of “due diligence” checklist for countries contemplating elaborating policies and legislation to
combat cybercrime.
Page 273 | Chapter 7 | § A. Assessment Tool—Overview Table of Contents
Conclusion
The Project’s Assessment Tool is a synthesis of the various assessment tools used by a number of
institutions, many of whom have contributed to, and partnered in, its development. The Tool is not
intended to duplicate efforts but to provide nexi for synergizing various existing approaches.
The Tools seeks to present an assessment that is objective (through clear-choice answers),
information-rich (through weighted criteria) and easy to comprehend (through graphic
representations). It considers policy and legislation, takes account of actual cases and brings
together international good practices. The aim is to give countries the means for holistically
building their capacity to fight cybercrime. The Tool’s structure parallels that of the chapters of the
Toolkit, to which reference should be made for further elucidation and understanding of the aspects
that are being assessed.
Page 274 | Chapter 7 | § A. Assessment Tool—Overview Table of Contents
End Notes
Referenced in: § A. Assessment 13. Indeed, there may be other basic due
Tool—Overview process issues to be addressed as well.
These are included in the “Procedural”
section of the Assessment Tool. As
1. A full list of the existing tools of structured, the Assessment Tool breaks
participating organizations can be found out under “safeguards” the two issues—
in appendix 9 D. data protection (privacy) and freedom of
expression.
2. See, e.g., WDR, supra § 1 A, note 10, at
222 et seq.
3. See, e.g., endnote ”i” in appendix 9 D.
4. See, e.g., endnote ”ii” in appendix 9 D.
5. See Budapest Convention, supra § 1 B,
note 32.
6. See, e.g., endnote “iii” in appendix 9 D.
7. ITU, Toolkit for Cybercrime Legislation
(Feb. 2010), at http://www.cyberdialogue.
ca/wp-content/uploads/2011/03/ITU-
Toolkit-for-Cybercrime-Legislation.
pdf; see also ITU, Global Cybersecurity
Index (GCI), (2014), at https://www.itu.
int/en/ITU-D/Cybersecurity/Pages/
GCI-2014.aspx. The 2016 GCI, though
focusing more broadly on issues of
cybersecurity, also presents issues related
to cybercrime preparedness. See ITU,
Global Cybersecurity Index (GCI) 2015/16
Questionnaire Guide,” at https://www.itu.
int/en/ITU-D/Cybersecurity/Documents/
QuestionnaireGuide-E.pdf.
8. See, e.g., endnote “v” in appendix 9
D. See also Comprehensive Study on
Cybercrime, supra § 1 C, note 7.
9. GCSCC Maturity Model [hereafter,
“Oxford”], at https://www.sbs.ox.ac.
uk/cybersecurity-capacity/system/files/
CMM%20Version%201_2_0.pdf.
10. See, e.g., “Questionnaire Related to
the Recommendations from the Fourth
Meeting of Governmental Experts on
Cyber-Crime,” OAS, (2006), at http://www.
oas.org/juridico/english/cybGE_IVquest.
doc.
11. OAS & IADB, 2016 Cybersecurity Report,
Cybersecurity: Are We Ready in Latin
America and the Caribbean?, at https://
goo.gl/4UUfwQ.
12. See, Oxford, supra note 9.
Page 275 | Chapter 7 | End Notes Table of Contents
CHAPTER 8
Analysis & Conclusion
This final chapter offers some concluding thoughts
on evolving good practices in combatting
cybercrime.
In this Chapter
A. Analysis & Conclusion 277
Page 276 | Chapter 8 | Analysis & Conclusion
CHAPTER 8
A. Analysis & Conclusion
Table of Contents
Introduction 277
I. Challenges—Known, New & Evolving 278
II. Collaboration & Coordination 279
Conclusion: The Way Forward 279
Introduction
The Toolkit, as well as its accompanying Assessment Tool and virtual library,1 are aimed
at addressing the capacity-building needs of countries with developing economies in
the legal aspects of the global fight against cybercrime. It recognizes that a variety of
stakeholders—both public and private—are involved in different aspects of this struggle.
As the recent WannaCry2 and Petya3 ransomware attacks underscore, cybercrime is a
global and pervasive threat, intimately intertwined with virtually every sector, from
finance to health to ICT. The needs and challenges in the investigation and prosecution
of cybercrime apply modus modendi to any type of crime involving electronic evidence.
Cybercrime is no longer an isolated concern, and combatting it is no longer realistic
without a comprehensive, collaborative, global approach. Indeed, global-cybersecurity
awareness, training and capacity-building are critical in this interconnected world.
In attempting to bolster capacity in the struggle against global cybercrime, the Toolkit
attempts to provide insight into a range of questions:
What is cybercrime?
How is cybercrime addressed in national policy and legislation?
What, given cybercrime’s global nature, are good practices for formal international cooperation?
What informal cross-border cooperative methods can be encouraged?
What are some of the safeguards in place that balance security with due process and rule of law?
What are some of the challenges facing capacity-building initiatives, and what efforts are being
made to address those challenges?
What tools are there for countries to assess their capacity-building priorities?
Page 277 | Chapter 8 | § A. Analysis & Conclusion Table of Contents
In addressing some of these foundational questions, the appendices to the Toolkit also provide
reference materials regarding selected recent cases that interpret national cybercrime laws, a
compilation of nations’ laws on cybercrime, international instruments addressing cybercrime and
other existing assessment tools.
In building capacity to combat cybercrime, both international and domestic law issues must be
taken into account. Additionally, there is a complementarity to be maintained between the security
that comes from effective prosecution of cybercrimes, on the one hand, and the interests of due
process, data protection and access to information, on the other.
I. Challenges—Known, New & Evolving
Throughout, the Toolkit explores the myriad challenges of developing building-capacity to combat
cybercrime, and does so from multiple perspectives. On the legal front, combatting cybercrime
involves a mixture of both domestic and international law and policy: However, that mixture is
a complex one. Moreover, despite the fact that many countries have cybercrime laws, a host of
other complicating factors, such as the lack of a common treatment of what is criminalized, leads
to problems of interoperability, and therefore to complications in cross-border cooperation.
Furthermore, technological advances continue to complicate matters.
“New” technologies and approaches, such as cloud services and distributed or shared-ledger
technology (such as blockchain), may offer users and industry important boons; at the same
time, however, those very same technologies may be exploited by criminals, thus posing new
and additional capacity-building challenges.
Cloud services: Centralized data storage and processing pose challenges on a variety of
fronts. Jurisdictionally, because, first, the physical site of the cloud facility’s servers may not
be in the same jurisdiction as either the crime or the victim, and, second, the state in which
the cloud facility’s servers are geographically located may not similarly criminalize the activity
as the jurisdiction of either the crime or its victim—that is, the essential requirement of “dual
criminality”, upon which cross-border cooperation is typically premised, may not be in place (see
section 2 A, above), thereby hindering interoperability from the start (see section 2 E, box 2.6).
Furthermore, for a host of reasons, the distributed technology of shared ledgers may also make
investigations more difficult. Both centralized and distributed technologies make the process of
“attribution” of criminal actions more challenging.
“Policing”: Making cybercrime more expensive for cybercriminals is increasingly evolving from
efforts focused on “prosecution” to “prevention”. Efforts that include policing of activities
by third-party, private-sector and service providers are also considered under this category.4
Similarly, in terms of managing liability to cover the costs of cybercrime, it is possible to conceive
of “privatizing” the costs of combatting cybercrime by imposing liability on manufacturers of
“insecure” devices.5
Page 278 | Chapter 8 | § A. Analysis & Conclusion Table of Contents
State-actor cyber-interventions: Finally, and although beyond the scope of the Toolkit, it bears
noting that the rise of state-actors in cyber activities that, in a non-military context would be
considered cybercrime, has resulted in an increased blurring of the lines between cybercrime
and cyberwarfare.6
II. Collaboration & Coordination
Much of the Toolkit’s focus has been on the importance of collaboration and coordination among
actors in combatting cybercrime. International organizations, some of whom have participated in
the elaboration of this Toolkit and the Assessment Tool, such as CoE, ITU, UNCTAD and UNODC,
are working towards providing and sharing open tools and other resources with governments and
other stakeholders, sometimes through including the resources of other organizations in addition
to their own. Still other international organizations, such as the Commonwealth, are supporting
and facilitating communication between their Member States. An ever-increasing number of tools
are being made available–for example, by the OAS–for governments, therein enabling them,
first, to identify their needs and, second, to develop their own counter-cybercrime strategies,
complete with means for establishing baselines to measure their progress. And new partnership
initiatives between civil society, the private sector and international or regional organizations,
such as INTERPOL, are resulting in the forging of joint -ction plans. At the CoE, the State Parties
to the Budapest Convention meet twice per yearly to review the implementation of the Budapest
Convention and to negotiate solutions to address emerging challenges. More in-depth studies,
such as those done through Chatham House, are being developed, having the aim of bridging
gaps between policy and technology experts and of keeping stakeholders abreast of how
cybercrime develops. Inexpensive online tools for capacity-building are being made available for
law enforcement agencies, prosecutors and lawyers, guaranteeing sustainability and a wider reach.
Efforts at harmonizing and creating common approaches to cybercrime issues, such as evidence,
are facilitating criminal investigations. All of these effprts are essential to combatting cybercrime.
Conclusion: The Way Forward
Cybercrime not being an isolated concern, it can only be combatted through a comprehensive,
collaborative, global approach, which necessities global cybersecurity awareness and global
capacity-building. Such a vision is increasingly emerging and, in these times of progressive
partnerships and rapid technological development, so, too, is international interoperability
increasingly emerging. Additionally, just as technological developments increasingly make
interconnected-efforts and shared operations possible, so, too, do they present increased potential
for cybercriminals, thus requiring greater legal malleability, a further factor that must be included in
advancing developing that global cybersecurity effort.
Page 279 | Chapter 8 | § A. Analysis & Conclusion Table of Contents
Even as these collaborative and cooperative initiatives are being undertaken, it bears emphasizing
that it is increasingly being recognized that combatting cybercrime is not a one-size-fits-all
proposition. A tailored, setting-sensitive approach must be taken.
Moreover, there is also recognition of the need to avoid duplicating existing efforts. One challenge,
of course, is that, as organizations pursue their respective mandates, they also attempt to synthesize
and to build upon existing work within the scope of their mandate.7 Coordination between actors is
an ongoing and continuing effort. As such, awareness-raising, information-exchange and capacity-
building continue to be main priorities around which organizations are partnering.
Lastly, such collaboration and cooperation must not only account for the various strengths of each
organization offering support, but must also account for, and be sensitive to, client needs. Such
sensitivity can best be inculcated through client ownership.8 As those two parts of the puzzle are
increasingly put in place, international interoperability and a shared effort to combat cybercrime is
increasingly emergent.
Page 280 | Chapter 8 | § A. Analysis & Conclusion Table of Contents
End Notes
Referenced in: § A. Analysis & 6. WDR, supra § 1 A, note 10, at 222. While
Conclusion such actions “blur[ ] the lines between
acts of cybercrime and cyberwar or
cyberterrorism,” it is nonetheless the
1. The Assessment Tool is described in detail responsibility of the government to assure
in section 7. The Toolkit, Assessment Tool public safety and security in cyberspace.
and virtual library are all available at www. Ibid. at 223. See also supra § 2 F. The
combattingcybercrime.org. spectrum of such activities ranges vastly,
from actions affecting private entities and
2. See supra § 1 C, box 1.2.
individuals that might more strictly and
3. See, e.g., Kevin Conklin, “The Petya more straightforwardly be understood
Virus—Return of the Ransomware as cybercrime if a state-actor were not
Attacks,” Information Management, involved (e.g., hacking, data theft), to
(Jun. 2017), at https://www.information- more aggressive activities that might
management.com/opinion/the-petra- better be understood as cyberwarfare
virus-return-of-the-ransomware-attacks. (e.g., targeting nuclear facilities). In certain
instances, states are taking to airing
4. Remarks delivered by Ian Walden at grievances openly, and even taking legal
“Cybersecurity and Cybercrime: New action to combat against such activities:
Tools for Better Cyber Protection,” for instance, in the United States, a grand
UNTAD e-Commerce Week (Geneva: jury recently indicted four defendants,
UNCTAD, 24–28 Apr. 2017), at http:// including two Russian Federal Security
unctad.org/meetings/en/Presentation/ Service (FSB) agents, for “computer
dtl_eWeek2017p07_IanWalden_en.pdf. hacking, economic espionage and
other criminal offenses in connection
5. Ibid. with a conspiracy, beginning in January
2014, to access Yahoo’s network and the
contents of webmail accounts.” US Dept.
of Justice, Office of Public Affairs, “U.S.
Charges Russian FSB Officers and Their
Criminal Conspirators for Hacking Yahoo
and Millions of Email Accounts,” (15 Mar.
2017), at https://www.justice.gov/opa/pr/
us-charges-russian-fsb-officers-and-their-
criminal-conspirators-hacking-yahoo-and-
millions. See also United States v. Dmitry
Dokuchaev, et al., CR17-103 (N.D. Cal.
2017), at https://www.justice.gov/opa/
press-release/file/948201/download. For
a discussion of the larger implications
of instances tending towards what
might be construed as cyberwarfare and
government responsibility for accounting
for such matters, see, e.g., supra § 2 F;
see also, Nicole Perlroth, “Hackers Are
Targeting Nuclear Facilities, Homeland
Security Dept. and F.B.I. Say,” New York
Times, (6 Jul. 2017), at https://www.
nytimes.com/2017/07/06/technology/
nuclear-plant-hack-report.html?mcubz=0.
7. As Sir Isaac Newton said, “If I have seen
further it is by standing upon ye shoulders
of Giants.” Letter to Robert Hooke (15
Feb. 1676).
8. See supra § 6 B.
Page 281 | Chapter 8 | End Notes Table of Contents
CHAPTER 9
Appendices
The following appendices provide additional
detailed “meta” information discussed in the
preceding chapters of the Toolkit.
In this Chapter
Appendix A – Cases 283
Appendix B – Multilateral Instruments 340
Appendix C – National Legal Frameworks 355
Appendix D – Comparative Assessment Indicators 375
Appendix E – Assessment Tool 393
Page 282 | Chapter 9 | Appendices
A
APPENDIX
Cybercrime Related to Financial Institutions
TABLE A
with Direct Costs
Explanatory Note: This Appendix lists cases intended to capture the issues addressed in this Toolkit, used in the text of the Toolkit. Cases appearing in the Toolkit highlight five critical issues: 1) the direct
including both the challenges and complexities of addressing cybercrime, as well as successes that and indirect monetary implications of the attacks on financial and non-financial institutions; 2) the
can be achieved through multi-jurisdictional and private sector cooperation. The cases are illustrative different approaches on the legal basis for charging alleged criminals (some cases use specific anti-
(and by no means exhaustive) and were gathered from credible public and private sector open sources. cybercrime legislation, others use anti-money laundering law, and still others use violation of some
The cases reviewed are primarily from the following jurisdictions: Australia, Canada, Germany, Japan, underlying statute using a computer network); 3) some cases illustrate the cross-border nature of
Korea, Russia, Switzerland, Ukraine, United Kingdom and the United States. The Appendix analyzes cybercrime (inevitably requiring that in order to conduct successful investigations, countries will have
the cases looking at the characteristics of the attackers; the origin and target jurisdiction; the targets to cooperate); 4) space/forum has to be created that brings together the public and private sectors to
of the attack; the amount involved or stolen; the mode/methodology of attack; whether they were collaborate in investigating cybercrime threats; and 5) the means used to carry out the cyberattacks,
any indictments on the alleged attackers; the legal basis for any indictments; and the sources for the include malware, phishing schemes and social engineering, hacking, botnet, distributed denial of
case information. A number of the cases shown in this Appendix correspondents to the references service and many other methods.
Cybercrime Related to Financial Institutions with Direct Cost
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Indictment(s) Case information Resources
Jurisdictions Incurred (legal provision that case
was charged under)
Carbanak Origin: Unclear Banks (100 banks $300 million - Kaspersky Lab, INTERPOL, N/A N/A http://www.securityweek.com/ha
and other financial $1 billion Europol, and authorities from ckers-hit-100-banks-unprecedented-
(Anunak is the name Target: Banks
institutions in 30 various nations. 1-billion-cyber-attack-kaspersky-lab
of the malware in Russia, Japan,
nations)
author that is often the Netherlands, http://25zbkz3k00wn2tp5092n6di7
mentioned alongside Switzerland, the b5k.wpengine.netdna-cdn.com/
this case) U.S. and others. files/2015/02/Carbanak_APT_eng.pdf
(Jan. 2013-present) http://www.nytimes.com/2015/02/15/
world/bank-hackers-steal-millions-via-
malware.html
http://www.nytimes.
com/2015/02/15/world/bank-
hackers-steal-millions-via-malware.
html?partner=socialflow&smid=tw-
nytimes&_r=2
Page 283 | Chapter 9 | Appendix A
A
APPENDIX
Cybercrime Related to Financial Institutions
TABLE A
with Direct Costs
Continued from last page
Cybercrime Related to Financial Institutions with Direct Cost
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Indictment(s) Case information Resources
Jurisdictions Incurred (legal provision that case
was charged under)
Bangladesh Central Origin: Unclear Federal Reserve $100 Million Bangladesh government N/A N/A http://www.bbc.com/news/
Bank Reserve Hack but stolen funds Bank of New York reported the missing funds to business-35809798
were transferred the U.S. Federal Reserve.
(Feb 2016) https://www.bloomberg.com/
to accounts in the
news/articles/2016-03-08/u-s-fed-
Phillipines.
responsible-for-missing-100-million-
Target: U.S. bangladesh-says
Carberp Trojan Origin: Ukraine Ukrainian and $250 million Joint operations by the Security N/A N/A http://www.securityweek.com/source-
(Kiev, Zaporzhe, Russian Banks Service of Ukraine and the code-carberp-trojan-sale-cybercrime-
(2009-2013)
Lyov, Odessa and Russian Federal Security Service underground
Kherson)
http://www.securityweek.com/russia
Target: Ukrainian n-authorities-claim-capture-master
and Russian mind-behind-carberp-banking-trojan
http://translate.google.com/translate
?sl=ru&tl=en&js=n&prev=_t&hl=en
&ie=UTF-8&eotf=1&u=http%3A%2F
%2Fwww.kommersant.ua%2Fdoc%2F
2160535
Page 284 | Chapter 9 | Appendix A
A
APPENDIX
Cybercrime Related to Financial Institutions
TABLE A
with Direct Costs
Continued from last page
Cybercrime Related to Financial Institutions with Direct Cost
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Indictment(s) Case information Resources
Jurisdictions Incurred (legal provision that case
was charged under)
Gameover Zeus Origin: Russia, individual computers, $100 million FBI, law enforcement from The indictment for GameOver Zeus https://www.fbi.gov/news/stories/
Ukraine and U.K. information therein the Australian Federal Police; the creator of the is an extremely malware-targets-bank-accounts
(2012)
and financial the National Police of the malware: sophisticated type of
Target: U.S. https://www.fbi.gov/file-repository/
institutions. Netherlands National High malware used to steal
http://www.justice gameoverzeus_v13_fullgraphic_web_
Tech Crime Unit; European banking and other
.gov/sites/default/f opt2.pdf
Cybercrime Centre (EC3); credentials from the
iles/opa/legacy/201
Germany’s Bundeskriminalamt; computers it infects.
4/06/02/pittsburgh-
France’s Police Judiciare; Infected computers,
indictment.pdf
Italy’s Polizia Postale e delle unbeknownst to the
Comunicazioni; Japan’s National http://www.justice. owners, become
Police Agency; Luxembourg’s gov/opa/documents- part of a botnet
Police Grand Ducale; New and-resources-june-2- that uses the stolen
Zealand Police; the Royal 2014-announcement credentials to initiate
Canadian Mounted Police; wire transfers to the
Ukraine’s Ministry of Internal accounts overseas
Affairs – Division for Combating owned by criminals.
Cyber Crime; and the United
Evgeniy Bogachev,
Kingdom’s National Crime
the creator of the
Agency participated in the
malware, received
operation. The Defense Criminal
one 1 count
Investigative Service of the U.S.
conspiracy, 1 count
Department of Defense also
of wire fraud, 1 count
participated in the investigation.
of computer fraud, 9
counts of bank fraud,
and 2 count of money
laundering.
Operation High Roller Origin: Hosting Boutique Financial Estimated $78 Identified by McAfee N/A N/A http://www.scmagazine.com/racket-drains-
locations and Institutions, credit million stolen and Guardian Analytics. high-roller-bank-accounts-in-automated-
(January 2012 to April style/article/247542/
command and unions, large global with potenitally Subsequently pursued by
2012) http://www.reuters.com/
control servers banks and regional 2 billion euros relevant authorities.
article/2012/06/26/us-online-bankfraud-
mainly located banks. in attempted idUSBRE85P04620120626
in Russia, with fraud.
http://blogs.wsj.com/cio/2012/06/26/
some in the U.S.,
operation-high-roller-targets-corporate-
Germany, Italy, bank-accounts/
Ukraine and China.
https://www.finextra.com/finextra-
Target: Mainly U.S., downloads/newsdocs/high-roller.pdf
Europe, Columbia
Page 285 | Chapter 9 | Appendix A
A
APPENDIX
Cybercrime Related to Financial Institutions
TABLE A
with Direct Costs
Continued from last page
Cybercrime Related to Financial Institutions with Direct Cost
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Indictment(s) Case information Resources
Jurisdictions Incurred (legal provision that case
was charged under)
SpyEye Origin: Atlanta, Victims’ bank Panin was on Investigated by the FBI. Assisted http://krebsonsecurity. 11 counts of http://www.bbc.com/news/
Georgia. U.S. accounts. Interpol redlist by the United Kingdom’s com/wp-content/ Computer Fraud and technology-25946255
2009-2011.
for banking National Crime Agency, the uploads/2014/01/ Abuse, 1 count of
Target: http://www.wired.com/2014/01/spy-
(potentiallty still scams stealing Royal Thai Police-Immigration Panin-Indictment.pdf Copmputer Fraud
Multinational eye-author-guilty-plea/
active: 10,000 bank more than $5 Bureau, the National Police and Abuse conspiracy,
accounts had been million. The of the Netherlands-National 10 counts of wire
compromised by it in malware was High Tech Crime Unit (NHTCU), fraud, 1 count of
2013) mainly sold and Dominican Republic’s wire and bank fraud
used by others. Departamento Nacional de conspiracy.
‘soldier’ stole Investigaciones (DNI), the
more than $3.2 Cybercrime Department at
million during a the State Agency for National
6 month period Security-Bulgaria, and the
in 2011. Australian Federal Police
(AFP). Private sector: Trend
Micro’s Forward-looking Threat
Research (FTR) Team, Microsoft’s
Digital Crimes Unit, Mandiant,
Dell SecureWorks, Trusteer,
and the Norwegian Security
Research Team known as
Underworld.no.
Page 286 | Chapter 9 | Appendix A
A
APPENDIX
Cybercrime Related to Financial Institutions
TABLE A
with Direct Costs
Continued from last page
Cybercrime Related to Financial Institutions with Direct Cost
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Indictment(s) Case information Resources
Jurisdictions Incurred (legal provision that case
was charged under)
Jabber Zeus Crew Origin: Ukraine, Bank accounts $70 million Colloaborative law enforecment http://www.justice. For malicious http://www.scmagazine.com/
Russian and the of medium sized stolen ($220 effort which partnered U.S. gov/iso/opa/resou activities dating as indictment-charges-jabber-zeus-crew-
(Fall 2010)
U.K. businesses, towns million governmental entities with rces/5922014411104 far back as 2009, with-using-malware-to-steal-millions/
and churches. attempted) their counterparts in the 621620917.pdf all the individuals article/342375/
Target: U.S.
United Kingdom, Ukraine, and are charged
http://www.fbi.gov/news/stories/
Netherlands. with conspiracy
2010/october/cyber-banking-fraud
to participate in
racketeering activity, http://www.securityweek.com/zeus-
conspiracy to commit source-code-leaked-really-game-
computer fraud changer
and identity theft,
aggravated identity
theft, and multiple
counts of bank fraud
Coreflood Origin: Search Company $600,000 DOJ was able sieze domain https://www.fbi.gov/ The U.S. Attorney’s http://www.fbi.gov/news/
warrants were information (1.5 million names and to later decomission newhaven/press- Office for the District stories/2011/april/botnet_041411/
(2009-2011)
issued for control (Michigan, attempted) the botnet through the use releases/2011/pdf/ of Connecticut filed botnet_041411
and command South Carolina, of the NPO Internet Systems nh041311_1.pdf a civil complaint
http://www.fbi.gov/newhaven/press-
servers in Arizona, North Carolina, Consortium (ISC). FBI’s against 13 “John
releases/2011/nh041311.htm
Georgia, Texas, Connecticut, New Haven Division led the Doe” defendants on
Ohio, and Tenessee) investigation, in coordination the grounds of wire http://www.htnp.com/
California. with the U.S. Marshals Service. fraud, bank fraud, and easthampton/2011/04/13/fbi-cracks-
Microsoft, the Internet illegal interception international-bot-network-that-
Target: U.S.
Systems Consortium, and of electronic has-infected-more-than-2-million-
other private industry partners communications. computers/
also contributed. The case is
being prosecuted by the U.S.
Attorney’s Office for the District
of Connecticut, and attorneys
from the Computer Crime and
Intellectual Property Section
in the Justice Department’s
Criminal Division
Page 287 | Chapter 9 | Appendix A
A
APPENDIX
Cybercrime Related to Financial Institutions
TABLE A
with Direct Costs
Continued from last page
Cybercrime Related to Financial Institutions with Direct Cost
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Indictment(s) Case information Resources
Jurisdictions Incurred (legal provision that case
was charged under)
Gauss Origin: Unknown Mainly Lebanese Gauss covertly Kapersky Labs detected the N/A N/A http://www.telegraph.
banks (Blombank, collects Gauss virus. co.uk/technology/internet-
(2012) Target: Lebanon
ByblosBank and banking security/9466718/Cyber-espionage-
and Middle
Credit Libanais) but credentials, virus-targets-Lebanese-banks.
Eastern Financial
also Citibank and web browsing html?mobile=basic
Institutions.
paypal costumers history and
passwords,
and detailed
technical
information
about the
computer that
could assist
further attacks.
Dyre Banking Trojan Origin: Eastern Targeted customers Theft of The Dell SecureWorks Counter N/A N/A http://www.secureworks.com/cyber-
Europe or Russia of over 1,000 banks credentials Threat Unit (CTU) research team threat-intelligence/threats/dyre-
(aka Dyreza, Dyzap,
and companies (identity discovered the Virus in June banking-trojan/
and Dyranges) Target: Mainly U.S.
worldwide. informational 2014.
and UK http://www.symantec.com/connect/
(2014) Consumers in like date of
blogs/dyre-emerges-main-financial-
English-speaking birth as well
trojan-threat
countries were as PIN codes
at highest risk, and credit card
particularly those in details)
the U.S. and UK.
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with Direct Costs
Continued from last page
Cybercrime Related to Financial Institutions with Direct Cost
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Indictment(s) Case information Resources
Jurisdictions Incurred (legal provision that case
was charged under)
Dridex Banking Trojan Origin: Personal computers- The National Governmental entities, N/A N/A http://researchcenter.
The trojan takes Crime Agency International entities, and paloaltonetworks.com/2014/10/
(July 2014- Oct. 2014) Target: United
personal information says that “up private industry. dridex-banking-trojan-distributed-
States, UK, Taiwan,
such as usernames to” £20m was word-documents/
Neherlands,
and passwords lost to the
Canada, Australia, http://www.bankinfosecurity.com/
with the end goal hackers, and
Belgium, Israel, dridex-banking-trojan-worldwide-
of hacking bank the FBI says
Germany, Norway, threat-a-7557/op-1
accounts and that a first
Spain, other.
stealing funds. $10m was lost http://www.theguardian.com/
domestically. technology/2015/oct/14/what-is-
Also focused on
dridex-how-can-i-stay-safe
small- and medium- $1m was stolen
sized organisations. from a school
district in
Pennsylvania
and successfully
transferred.
Over $3.5m
was stolen from
Penneco Oil in
the course of
three separate
attacks.
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Cybercrime Related to Financial Institutions
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with Direct Costs
Continued from last page
Cybercrime Related to Financial Institutions with Direct Cost
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Indictment(s) Case information Resources
Jurisdictions Incurred (legal provision that case
was charged under)
Gozi Bank Malware Origin: Russia, Financial Institutions tens of millions FBI led investigation beginning http://www.justice.go The creator of http://www.huffingtonpost.
Latvia, Romania in 2010. Law Enforcement v/usao/nys/pressrel the Gozi malware com/2013/01/23/gozi-virus-
(2005-2010)
and Intelligence authorities in eases/January13/Goz along with two co- fbi_n_2535282.html
Target: U.S.
latvia, Romania, Moldova, the iVirusDocuments/Kuz conspirators were
Netherlands, Germany, Finland, min,%20Nikita%20 charged for infecting
Switzerland, the U.K. and the U.S. Complaint.pdf more than a million
computers worldwide
http://www.justice.go
in order to steal
v/usao/nys/pressrele
banking and other
ases/January13/Go
credentials from
ziVirusDocuments/Ca
tens of thousands of
lovskis,%20Deniss%20
victims.
S4%20Indictment.pdf
http://www.justice.gov
/usao/nys/pressreleas
es/January13/GoziVi
rusDocuments/Paune
scu,%20Mihai%20Ion
ut%20Indictment.pdf
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with Direct Costs
Continued from last page
Cybercrime Related to Financial Institutions with Direct Cost
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Indictment(s) Case information Resources
Jurisdictions Incurred (legal provision that case
was charged under)
US v Liberty Reserve Origin: N/A (was a money Estimated to The United States Secret Service, http://www.justice.gov 1 count conspiracy http://www.justice.gov/usao/
et al (costa rican- Laundering funds laundering case) have laundered the Internal Revenue Service- /usao/nys/pressrelea to commit money nys/pressreleases/May13/
based digital currency internationally $6 billion Criminal Investigation, and the ses/May13/LibertyRes laundering, 1 count LibertyReserveetalDocuments.php
exchange) U.S. Immigration and Customs ervePR/Liberty%20Res conspiracy to operate
Target: U.S. and http://www.reuters.com/
Enforcement’s Homeland erve,%20et%20al.% unlicensed money
(Liberty Reserve was others article/2013/05/28/net-us-
Security Investigations, which 20Redacted%20AUS transmitting business,
indicted on Tuesday cybercrime-libertyreserve-charges-
worked together in this case as A%20Appln%20with% and 1 count operation
May 28th 2013) idUSBRE94R0KQ20130528
part of the Global Illicit Financial 20exhibits.pdf of an unlicensed
Team. The Judicial Investigation money transmitting https://www.justice.gov/usao-sdny/
Organization in Costa Rica, business. pr/founder-liberty-reserve-arthur-
Interpol, the National High Tech budovsky-pleads-guilty-manhattan-
Crime Unit in the Netherlands, federal-court
the Spanish National Police,
Financial and Economic Crime
Unit, the Cyber Crime Unit at
the Swedish National Bureau
of Investigation, and the Swiss
Federal Prosecutor’s Office.
The case is being prosecuted
by the Department of Justice’s
Asset Forfeiture and Money
Laundering Section and the
Department of Justice’s Office
of International Affairs and
Computer Crime and Intellectual
Property Section (more
specifically the Office’s Complex
Frauds and Cybercrime Unit and
Money Laundering and Asset
Forfeiture Unit)
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with Direct Costs
Continued from last page
Cybercrime Related to Financial Institutions with Direct Cost
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Indictment(s) Case information Resources
Jurisdictions Incurred (legal provision that case
was charged under)
Unlimited Operation Origin: New York First attack targeted $45 million USD The investigation was led http://www.justice.go N/A https://nakedsecurity.sophos.
based-cell, but a card processor by the United States Secret v/usao/nye/pr/2013/ com/2013/05/10/casher-crew-from-
(Oct. 2012 to Apr.
the organization is that handled Service with support from the 2013may09.html global-cyberheist-busted-in-new-
2013)
multinational. transactions for Department of Homeland york/
prepaid mastercard Security as well as Mastercard,
Target:
debit cards from the RAKBANK, and the Bank Muscat.
National Bank of Law enforcement authorites in
Ras Al-Khaimah PSC Japan, Canada, Germany, and
(RAKBANK). Romania, and also thanked
authorities in the United Arab
The second attack
Emirates, Dominican Republic,
targeted the same
Mexico, Italy, Spain, Belgium,
type of cards issued
France, United Kingdom, Latvia,
by the Bank of
Estonia, Thailand, and Malaysia
Muscat in Oman.
also cooperated with the
investigation.
Project Blitzkrieg Origin: Launched 30 U.S. banks. $5 million USD RSA claimed that they had N/A N/A http://krebsonsecurity.com/2012/10/
from a server in Credit card unions, was stolen by discovered an operation run project-blitzkrieg-promises-more-
(Oct. 2012)
Ukraine. federal credit one group in by an individual known as aggressive-cyberheists-against-u-s-
union, genereic 2008 using this vorVzakone banks/#more-17096
Target: U.S.
banking platforms, virus.
http://www.mcafee.com/us/
investment banks,
resources/white-papers/wp-
large national
analyzing-project-blitzkrieg.pdf
banks, national
banks, online http://krebsonsecurity.com/2012/12/
payment processors, new-findings-lend-credence-to-
regional banks project-blitzkrieg/
and state credit
unions. To include
Bank of America,
Capital One and
Suntrust, and
investment banks
such as American
Funds, Ameritrade,
eTrade, Fidelity,
OptionsExpress, and
Schwab.
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with Direct Costs
Continued from last page
Cybercrime Related to Financial Institutions with Direct Cost
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Indictment(s) Case information Resources
Jurisdictions Incurred (legal provision that case
was charged under)
United States v Albert Origin: U.S. Large corporate $200 million The investigation was led by the https://www.justice. 19 counts of https://www.justice.gov/opa/pr/
Gonzalez networks with USD United States Secret Service with gov/opa/pr/alleged- conspiracy, computer international-hacker-pleads-guilty-
Target: U.S.
credit card and atm support from the Federal Bureau international-hacker- fraud, wire fraud, massive-hacks-us-retail-networks
(2009)
numbers saved of Investigation. indicted-massive- access device fraud
within internal attack-us-retail-and- and aggravated
servers. banking-networks identity theft.
Zberp Origin: N/A Targeting more N/A Discovered and named by N/A N/A http://securityintelligence.com/new-
than 450 financial security researchers from IBM zberp-trojan-discovered-zeus-zbot-
(2014) Target: Mainly in
institutions around subsidiary Trusteer. carberp/
the U.S., U.K. and
the world.
Australia
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with Indirect Costs
Cybercrime related to Financial Institutions with Indirect Costs
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Indictment(s) Case information Resources
Jurisdictions Incurred (legal provision that case
was charged under)
JPMorgan Chase and Origin: Believed to 10 U.S. financial Bank Data For JP Morgan: JP Morgan’s N/A N/A http://dealbook.nytimes.
9 other U.S. banks be from Russia institutions including (mainly security team first identified the com/2014/10/03/hackers-attack-cracked-
JPMorgan Chase coustomer attack. The U.S. Department 10-banks-in-major-assault/?_r=0
(8/1/2014) Target: U.S.
personal data) of Treasury, the Secret Service
http://www.symantec.com/connect/
and intelligence agencies
app#!/blogs/us-banks-breached-
have been working alonside
cyberattack-what-bankers-should-do-
JP Morgan’s security team to
stay-protected-0
locate the source of the attack.
http://www.nytimes.com/2014/08/28/
technology/hackers-target-banks-
including-jpmorgan.html?_r=2
https://www.bloomberg.com/news/
videos/b/0e6c09e9-c79c-4e3f-8cd4-
6903468411ce
http://www.nytimes.com/
interactive/2014/10/03/business/
dealbook/jpmorgan-documents.html
Nasdaq Origin: N/A Web-based app Unclear what Intially investigated by the N/A N/A http://www.wsj.com/articles/SB10001424
callled directors was taken but United States FBI and NSA. 052748704843304576126370179332758
(Feb. 5, 2011) Target: U.S.
desk, where the portion of Follow-up investigations
http://www.nytimes.com/2011/02/06/
companies can share the Nasdaq were carried out by the the
business/06nasdaq.html
info, may have been which handles National Cybersecurity and
hacked. Has 5,000 trades was not Communications Integration
users. hacked. Center (NCCIC).
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with Indirect Costs
Continued from last page
Cybercrime related to Financial Institutions with Indirect Costs
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Indictment(s) Case information Resources
Jurisdictions Incurred (legal provision that case
was charged under)
Target Origin: N/A Customer Data 40 million Federal Law Enforcement N/A N/A http://bits.blogs.nytimes.
customers’ officials notified Target of the com/2014/11/06/home-depot-
(Nov. 27- Dec. 15, Target: U.S.
credit card breach on December 12, 2013. says-hackers-also-stole-email-
2013)
information, Company investigators worked addresses/?ref=topics
and 70 million to uncover what happened.
http://dealbook.nytimes.
others
com/2014/10/02/jpmorgan-discovers-
further-cyber-security-issues/
http://money.cnn.com/2013/12/22/news
/companies/target-credit-card-hack/
http://www.bloomberg.com/news/articl
es/2014-03-13/target-missed-warnings-
in-epic-hack-of-credit-card-data
Home Depot Origin: N/A Customer Data 53 million N/A N/A N/A http://bits.blogs.nytimes.com/2014/1
customer 1/06/home-depot-says-hackers-also-
(April, 2014) Target: U.S.
email stole-email-addresses/?ref=topics
addresses,
http://dealbook.nytimes.com/2014/10
payment
/02/jpmorgan-discovers-further-cyber-
card details
security-issues/
for millions,
(56 million http://www.wsj.com/articles/home-
in totoal depot-hackers-used-password-stolen-
affected) from-vendor-1415309282
T.J. Maxx Origin: N/A Customer Data Data for N/A N/A N/A http://www.nytimes.com/2013/12/20/
90 million technology/target-stolen-shopper-data.
(July 2005-December Target: U.S.
customers html
2006)
http://www.washingtonpost.com/
wp-dyn/content/article/2007/09/25/
AR2007092500836.html
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with Indirect Costs
Continued from last page
Cybercrime related to Financial Institutions with Indirect Costs
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Indictment(s) Case information Resources
Jurisdictions Incurred (legal provision that case
was charged under)
Sony & Qriocity Origin: U.S., U.K. Sensitive customer Sensitive FBI https://www.wired. N/A http://money.cnn.com/gallery/
and Ireland information information com/wp-content/ technology/security/2013/12/19/
(April-17-19, 2011)
for 77 million uploads/2014/05/ biggest-credit-card-hacks/5.html
Target: U.S.
customers Monsegur.pdf
(personal
information
and perhaps
credit card
numbers)
Neiman Marcus Origin: Russia Sensitive customer 1 million N/A N/A N/A http://www.bloomberg.com/news/art
information credit card icles/2014-04-07/neiman-marcus-breach-
Target: U.S.
information linked-to-russians-who-eluded-u-s-
stolen
Rex Mundi Origin: N/A Banque Cantonale Hacked N/A N/A N/A http://www.reuters.com/
de Geneve system and article/2015/01/09/us-bc-geneve-hacker-
(Jan. 2015) Target: Swiss bank
(confidential client stole 30,000 idUSKBN0KI1MK20150109
BCGE
(twiiter account name information) emails of
which announced the clients from
hacking event) the bank and
attempted
to extort
10,000 euros
in exchange
for not
publishing the
information.
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Cybercrime Related to Financial Institutions
TABLE A
with Indirect Costs
Continued from last page
Cybercrime related to Financial Institutions with Indirect Costs
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Indictment(s) Case information Resources
Jurisdictions Incurred (legal provision that case
was charged under)
com.II Origin: N/A Kookmin, Nong Costumer South Korean Police N/A N/A http://www.securityweek.com/new-
Hyup, Shinhan, bank log in android-malware-targets-banking-apps-
(Summer 2014 (hack Target: Korea
Hana N, Woori, information, phone-information-fireeye
announced by cheetah
Busan, and the bank account
mobile on June 27th)) https://www.fireeye.com/blog/threat-
Korean Federation information,
research/2014/07/the-service-you-cant-
of Community Credit phone
refuse-a-secluded-hijackrat.html
Cooperatives numbers,
device IDs, http://www.securityweek.com/fake-
and contact android-apps-target-south-korean-bank-
lists customers
Dump Memory Grab Origin: Russian Major U.S. banks harvest info N/A N/A N/A http://www.securityweek.com/exclusive-
Federation (chase, capital one, from credit new-malware-targeting-pos-systems-
(2013)
citibank, and union and debit atms-hits-major-us-banks
Target: U.S.
bank of california) cards
vSkimmer Origin: Circulating Designed capture Credit card The vskimmer malware was first N/A N/A http://www.securityweek.com/exclusive-
on criminal forums credit card data from information detected by McAfee’s sensor new-malware-targeting-pos-systems-
(Feb. 2013-)
out of Russia systems running network. atms-hits-major-us-banks
Windows that host
Target: http://www.securityweek.com/vskimmer-
payment processing
Multinational botnet-targeting-payment-card-
software.
terminals-connected-windows
http://www.computerworld.com/
article/2495732/cybercrime-hacking/
researchers-uncover-vskimmer-malware-
targeting-point-of-sale-systems.html
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Cybercrime Related to Financial Institutions
TABLE A
with Indirect Costs
Continued from last page
Cybercrime related to Financial Institutions with Indirect Costs
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Indictment(s) Case information Resources
Jurisdictions Incurred (legal provision that case
was charged under)
Dexter Origin: N/A 42% of infections Credit card N/A N/A N/A http://www.securityweek.com/exclusive-
in North America. information. new-malware-targeting-pos-systems-
(Sept.-Dec. 2012) Target:
Mostly big-name Loss of 80,00 atms-hits-major-us-banks
Multinational
retail, hotels, credit cards
http://www.securityweek.com/new-
restaurants, private from Subway
malware-targets-point-sale-systems-just-
parking providers, restaurants in
time-holiday-rush
and eateries. 2012
http://www.securityweek.com/vskimmer-
botnet-targeting-payment-card-
terminals-connected-windows
Airline Fraud Scheme Origin: 60 airlines in over 45 Nearly $1 Europol in The Hague, 118 individuals were Defendants from https://www.europol.europa.eu/
Multinational countries billion from Netherlands; INTERPOL arrested various jurisdictions content/118-arrested-global-action-
(11/1/2014)
the airline through its General Secretariat were charged for against-online-fraudsters-airline-sector
Target: 60
industry alone in Lyon, France and the crimes related to
airlines in over 45 https://www.unodc.org/cld/case-
INTERPOL Global Complex for credit card fraud.
countries. Also law-doc/cybercrimecrimetype/xxx/
Innovation (IGCI) in Singapore;
greatly impacted operation_global_action_against_
and AMERIPOL in Bogota,
the banking and online_fraudsters_in_the_airline_sector.
Colombia. More than 60
travel sectors as html?&tmpl=cyb
airlines and 45 countries were
well as airlnes.
involved in the activity, which http://www.interpol.int/News-and-
took place at some 80 airports media/News/2014/N2014-228
across the world.
The International Air Transport
Association (IATA) also took
part in the investigation.
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TABLE A
Major Cybercrime by Individuals/Groups
Major Cybercrime by Individuals/Groups
Cyber Crime Syndicate Affected Target(s) of attack Damages Responding Entity Indictment(s) Case information Resources
Jurisdictions Incurred
Russian Cybercrime Origin: N/A Heartland Payment More than The U.S. Secret Service, U.S. v. Drinkman, http://www.justice. http://krebsonsecurity.com/tag/
Syndicate Systems 2007 160 million Criminal Investigations, led Kalinin, Kotov, Rytikov, gov/usao/nj/Press/ aleksandr-kalinin/
Target: U.S.
(130 million credit credit card the investigation. The U.S. & Smilianets files/Drinkman,%20
http://www.justice.gov/usao/nj/Press/
cards), Hannaford numbers from also collaborated with the Vladimir%20et%20
http://www.justice. files/Drinkman,%20Vladimir%20
Brothers Co 2007 U.S. retailers, New Jersey U.S. Attorney’s al.%20Indictment%20
gov/usao/nj/Press/ et%20al.%20Indictment%20News%20
(4.2 million card banks and card Office Criminal Division, News%20Release.
files/pdffiles/2013/ Release.html
numbers), Carrefour processors. The Department of Justice’s html
Drinkman,%20
S.A. 2007 (2 million Computer Crime and https://nakedsecurity.sophos.
Vladimir%20%20
card numbers), Intellectual Section as well com/2010/03/25/tjx-hacker-jail-20-
et%20al.,%20
Commidea Ltd. as with the Dutch Ministry of years-stealing-40-million-credit-cards/
Indictment.pdf
2008, (30 million card Security and Justice and the http://www.nytimes.com/2013/12/20/
numbers), Euronet National High Tech Crime Unit technology/target-stolen-shopper-
2010 (2 million card of the Dutch National Police. data.html
numbers), Visa, Inc
2011 (800,000 card http://www.bloomberg.com/bw/
numbers), Discover stories/2009-07-06/lessons-from-the-
Financial Services data-breach-at-heartlandbusinessweek-
(500,000 diners business-news-stock-market-and-
card numbers). financial-advice
Also hacked into
NASDAQ, 7-Eleven,
JetBlue, JCPenny,
Wet Seal, Dexia,
Dow Jones, &
Ingenicard.
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TABLE A
Major Cybercrime by Individuals/Groups
Continued from last page
Major Cybercrime by Individuals/Groups
Cyber Crime Syndicate Affected Target(s) of attack Damages Responding Entity Indictment(s) Case information Resources
Jurisdictions Incurred
Sonya Martin Origin: Chicago, Personal Bank $9 million was The U.S. Federal Bureau N/A http://www.fbi. https://nakedsecurity.sophos.
Illinois, U.S.A. Accounts with stolen from of Investigation led the gov/atlanta/press- com/2012/08/28/prison-atm-worldpay/
ATM withdrawal over 2,100 investigation with assistance releases/2012/
Target:
capabilities. ATMs in at provided by numerous sentencing-in-major-
Multinational
least 280 cities domestic and international international-cyber-
worldwide, law enforcement partners. crime-prosecution
including WorldPay reported the crime
cities in the and substantially assisted in
United States, the investigation. Case was
Russia, Ukraine, prosectued by the Department
Estonia, Italy, of Justice Computer Crime and
Hong Kong, Intellectual Property Section
Japan, and with assistance from the
Canada. The Department of Justice Office of
event took International Affairs.
place in less
than 12 hours
on Nov. 8,
2008.
Chinese-Run Origin: China via “The group had N/A (Attack Kenyan Police N/A N/A http://www.nation.co.ke/
Cybercrime Network Kenya been preparing to foiled) news/77-Chinese-held-in-cyber-
“raid the country’s bust/-/1056/2543786/-/t5vf43/-/index.
Target: Kenya
communication html
systems” and had
http://www.theguardian.com/
equipment capable
world/2014/dec/05/kenya-chinese-
of infiltrating
nationals-cybercrime-nairobi
bank accounts,
Kenya’s M-Pesa http://www.newsweek.com/77-
mobile banking chinese-nationals-arrested-kenya-
system and ATM cybercrimes-289539
machines.”retrieved
from http://www.bbc.
com/news/world-
africa-30327412
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Major Cybercrime by Individuals/Groups
Continued from last page
Major Cybercrime by Individuals/Groups
Cyber Crime Syndicate Affected Target(s) of attack Damages Responding Entity Indictment(s) Case information Resources
Jurisdictions Incurred
Evgeniy Bogachev Origin: Western Financial Institutions $100 million Besides the United States, http://www.justice 1 count conspiracy, 1 http://www.justice.gov/sites/default/
District of stolen law enforcement from the .gov/sites/default/file count of wire fraud, files/opa/legacy/2014/06/02/
Pennsylvania Australian Federal Police; s/opa/legacy/2014/0 1 count of computer pittsburgh-indictment.pdf
the National Police of the 6/02/pittsburgh-indic fraud, 9 counts of
Target: U.S. and http://www.bbc.com/news/world-us-
Netherlands National High tment.pdf bank fraud, and 2
elsewhere canada-31614819
Tech Crime Unit; European count of money
https://web.archive.or
Cybercrime Centre (EC3); laundering. http://www.justice.gov/opa/pr/
g/web/201609261039
Germany’s Bundeskriminalamt; us-leads-multi-national-action-
34/https://www.justic
France’s Police Judiciare; against-gameover-zeus-botnet-and-
e.gov/opa/documents
Italy’s Polizia Postale e delle cryptolocker-ransomware
-and-resources-june-2-
Comunicazioni; Japan’s
2014-announcement
National Police Agency;
Luxembourg’s Police Grand
Ducale; New Zealand Police;
the Royal Canadian Mounted
Police; Ukraine’s Ministry of
Internal Affairs – Division for
Combating Cyber Crime; and
the United Kingdom’s National
Crime Agency participated in
the operation. The Defense
Criminal Investigative Service
of the U.S. Department of
Defense also participated in
the investigation. Invaluable
technical assistance was
provided by Dell SecureWorks
and CrowdStrike. Numerous
other companies also provided
assistance, including facilitating
efforts by victims to remediate
the damage to their computers
inflicted by Gameover Zeus.
These companies include
Microsoft Corporation, Abuse.
ch, Afilias, F-Secure, Level 3
Communications, McAfee,
Neustar, Shadowserver, Anubis
Networks, Symantec, Heimdal
Security, Sophos and Trend
Micro.
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TABLE A
Major Cybercrime by Individuals/Groups
Continued from last page
Major Cybercrime by Individuals/Groups
Cyber Crime Syndicate Affected Target(s) of attack Damages Responding Entity Indictment(s) Case information Resources
Jurisdictions Incurred
African Cyber Criminal Origin: Commonly More than 85 Retail goods. FBI N/A N/A http://www.fbi.gov/washingtondc/
Enterprise (ACCE) Nigeria companies and Approxiamtely press-releases/2014/african-cyber-
universities in the $5 million lost criminal-enterprise-members-using-
Target: U.S.
U.S. Approxiamtely so far. After school-impersonation-scheme-to-
400 actual or the fraud is defraud-retailers
attempted incidents discovered,
http://www.fbi.gov/news/stories/2014/
targeting 250 the retailer
april/understanding-school-
vendors. is forced to
impersonation-fraud
absorb the
financial losses. https://www.ic3.gov/media/2014/14
0904.aspx
https://www.fbi.gov/news/stories/
purchase-order-scam-leaves-a-trail-of-
victims
Online Marketplace Origin: Romania Users of online Funds from FBI http://www.justice. 1 count of conspiracy http://www.state.gov/j/inl/tocrewards/
Fraud and other marketplace and consumers gov/usao/nye/ to commit wire fraud, c64997.htm
European countries auction websites using online pr/2013/doc/ money laundering
http://www.state.gov/j/inl/tocrewards/
such as ebay. marketplace Popescu.Signed%20 and passport fraud to
Target: U.S. c64996.htm
com, cars.com, websites. Indictment%20(12%20 traffic in counterfeit
autotrader.com, and Attacks CR%20785).pdf service marks, 7
cycletrader.com. resulted in counts of wire fraud,
potentially 2 counts of wire fraud,
million dollar 4 counts of wire fraud,
losses to U.S. 1 count of passport
victims. fraud, 1 count of
passport fraud, 1
count of trafficking
in counterfeit service
marks, 1 count of
money laundering,
1 count of money
laundering, 1 count
of money laundering,
1 count of money
laundering, 1 count
fo money laundering,
1 count of money
laundering.
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TABLE A
Major Cybercrime by Individuals/Groups
Continued from last page
Major Cybercrime by Individuals/Groups
Cyber Crime Syndicate Affected Target(s) of attack Damages Responding Entity Indictment(s) Case information Resources
Jurisdictions Incurred
People’s Liberation Origin: China American Information The investigation was led Indictment: 1 count of conspiracy http://www.reuters.com/
Army (PLA) Unit commercial stolen from by the U.S. FBI. The case http://www.justice. to commit computer article/2014/05/20/us-cybercrime-usa-
Target: U.S.,
61398 enterprises (nuclear, commerical is being prosecuted by the gov/iso/opa/resources fraud and abuse, 8 china-unit-idUSBREA4J08M20140520
Western District of
metal and solar enterprises U.S. Department of Justice’s /512201451913235846 counts of computer
(Defendants Charged Pennsylvania. https://www.justice.gov/opa/pr/
firms). Alcoa to be used by National Security Division 1949.pdf fraud and abuse, 14
on May 19, 2014) us-charges-five-chinese-military-
Inc, Allegheny competitors Counterespionage Section counts of damaging
hackers-cyber-espionage-against-us-
Technologies Inc, in China. and the U.S. Attorney’s Office a computer, 6 counts
corporations-and-labor
United States Steel Information for the Western District of of aggravated identity
Corp, Toshiba Corp such as trade Pennsylvania. theft, 1 count of
unit Westinghouse secrets. economic espionage,
Electric Co, the and 1 count of theft of
U.S. subsidiaries trade secret.
of SolarWorld
AG, and a steel
workers’ union were
among the targeted
institutions.
Roman Valerevich Origin: Servers Defraud various Stole and The U.S. Secret Service Indictment: 5 counts of Bank http://www.capitolhillseattle.
Seleznev were located in financial insitutions sold credit Electronic Crimes Task Force http://krebsonsecurity. fraud, 8 counts of com/2014/07/russian-hacker-arrested-
Russia, Ukraine, including Boeing card numbers. (includes detectives from the com/wp-content/upl intentional damage to in-2010-broadway-grill-data-breach
(Oct. 2, 2009 - Feb. 22,
and multiple Employee’s Credit At least $1.7 Seattle Police Department) oads/2014/07/Selezn a protected computer,
2011) http://www.justice.gov/usao-wdwa/
servers in the U.S. Union, Chase million in losses ev-Indictment-CR11- 8 counts of obtaining
pr/alleged-russian-cyber-criminal-
such as McLean Bank, Capital One, to banks and 0070RAJ-1.pdf information from a
now-charged-40-count-superseding-
Virginia. Citibank, and credit card protected computer,
indictment
Keybank. companies. 1 coutn of possession
Target: Westerm
of fifteen or more
District of
unauthorized access
Washinton and
devices, 2 counts
elsewhere.
of trafficking in
unauthorized access
devices, and 5 counts
of aggravated identity
theft.
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TABLE A
Major Cybercrime by Individuals/Groups
Continued from last page
Major Cybercrime by Individuals/Groups
Cyber Crime Syndicate Affected Target(s) of attack Damages Responding Entity Indictment(s) Case information Resources
Jurisdictions Incurred
Alexsey Belan Origin: E-commerce Stole, exported U.S. Federal and state N/A In Nevada, charged http://rt.com/news/fbi-wanted-list-
Multinational companies. and sold user authorities. with obtaining russian-340/
(Jan. 2012- Apr. 2013)
databases from information from a
Target: Nevada https://www.fbi.gov/wanted/cyber/
e-commerce protected computer;
and San Francisco, alexsey-belan/view
companies. possession of fifteen
U.S.
or more unauthorized
access devices; and
aggravated identity
theft. In San Francisco,
was charged with two
fraud counts and two
counts of aggravated
identity theft.
Alexandr Sergeyevich Origin: Russian Scheme utilized Attempted FBI Southern District of 1 count of conspiracy http://www.fbi.gov/wanted/cyber/
Bobnev Federation the accounts of to steal and New York indicted him to commit wire alexandr-sergeyevich-bobnev/view
major provider of launder on Nov. 26, 2008 fraud and 1 count of
(June 2007 -August Target: U.S.
investment services. funds from conspiracy to commit
2007)
investment money laundering
service
accounts.
Wired or
attempted to
wire $350,000
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Major Cybercrime by Individuals/Groups
Continued from last page
Major Cybercrime by Individuals/Groups
Cyber Crime Syndicate Affected Target(s) of attack Damages Responding Entity Indictment(s) Case information Resources
Jurisdictions Incurred
Yahoo! Inc. Email Hack Origin: Russia and 500 million email $350 million US Justice Department, FBI, N/A A Canadian, Karim https://www.justice.gov/opa/press-
Canada addresses Canada Baratov, is accused release/file/948201/download
in a massive hack of
Target: Everywhere
Yahoo emails (500
million emails) in 2014.
Baratov was arrested
under the Extradition
Act after U.S.
authorities indicted
him and three others
— two of them
allegedly officers
of Russia’s Federal
Security Service — for
computer hacking,
economic espionage
and other crimes.
Guccifer Case Origin: Romania Hilary Clinton’s N/A FBI, DSS, and Secret Service https://assets. Marcel Lazar, a https://www.justice.gov/usao-edva/pr/
private email domain documentcloud.org/ Romanian hacker romanian-hacker-guccifer-sentenced-
Target: Hilary
documents/1197719/ nicknamed “Guccifer” prison
Clinton (USA)
lazar-indictment.pdf who helped expose
the existence of a
private email domain
Hillary Clinton used
when she was U.S.
secretary of state
was sentenced to
52 months in prison
by a federal court in
Alexandria, Virginia
after pleading builty in
May 2017 to including
unauthorized access
to a protected
computer and
aggravated identity
theft after being
extradited from
Romania.
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Major Cybercrime by Individuals/Groups
Continued from last page
Major Cybercrime by Individuals/Groups
Cyber Crime Syndicate Affected Target(s) of attack Damages Responding Entity Indictment(s) Case information Resources
Jurisdictions Incurred
The Yanbian Gang Origin: the Yanbian Targeted mobile The Yanbian Yanbian gang hack was first N/A N/A http://www.securityweek.com/cyber-
Prefecture in Jilin, banking customers cybergang documented and detailed by gang-steals-millions-mobile-banking-
China. of at least five banks is thought to Trend Micro Mobile Threat customers-south-korea
in South Korea since have stolen Team.
Target: South http://www.securityweek.com/chinas-
201. These banks millions from
Korea cybercrime-marketplace-boomed-
included B Kookmin at least five
2013-trend-micro
Bank, NH Bank, korean banks.
Hana Bank, Shinhan http://www.securityweek.com/16-milli
Bank, and Woori on-mobile-devices-infected-malware-
Bank. 2014-alcatel-lucent
http://www.securityweek.com/inside-
chinas-market-mobile-cybercrime
http://www.trendmicro.com/cloud-
content/us/pdfs/security-intelligence/
white-papers/wp-the-south-korean-
fake-banking-app-scam.pdf
New York Money Origin: Based in Bank accounts Stole more FBI agents and agents of the 37 people were “Semenov... was http://www.wired.com/2010/09/zeus-
Mules Online Bank Eastern Europe but belonging primarily than $3 million Secret Service, ICE, and the charges in 21 cases. charged with botnet-ring/
Fraud Scheme’ had money mule to small businesses State Department’s Diplomatic “An arrest warrant was conspiracy to
http://www.rferl.org/content/
network in U.S. and municipalities. Security Service carried out issued for Semenov in commit bank fraud;
In_US_Cybercrime_Case_Track_
arrests in this multi-defendant the Southern District conspiracy to possess
Target: U.S. Record_Indicates_Russia_Willing_To_
case targeting overseas of New York on false identification
Cooperate/2185564.html
computer hackers. September 29, 2010, documents; and false
after he was charged use of passport”
with conspiracy to retrieved from
commit bank fraud; http://www.fbi.gov/
conspiracy to possess wanted/cyber/artem-
false identification semenov/view
documents; and false
use of passport.”
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TABLE A
and Financial Institutions
Cybercrime Targeting Non-Financial Institutions and Financial Institutions
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Court Documents Case info. Resources
Jurisdictions Incurred (legal provision that case
was charged under)
DDoS Attack against Origin: Korea National (Central) Not related to 1. N
ational Police Agency in Korean Supreme Legal provisions: N/A. 1. KSPO Press Release:
National (Central) Election Commission this case cooperation with National Court Decision 2012
Target: Korea Potentially relevant http://www.spo.go.kr/seoul/
Election Commission Homepage, Finding Cyber Security Center and Do 16086 Decided
provisions: notice/notice/notice01.
Homepage the polling place March 28, 2013,
eoul Central District
2. S jsp?mode=view&board_
Function available at: http:// 1. Act on Promotion
(2011, October, 26) Prosecutors’ Office Special no=116&article_no=523931
glaw.scourt.go.kr/ of Information and
Investigation Team in
Communications hosun Ilbo (English Edition),
2. C
cooperation with Korea
Network Utilization News:
Internet Security Agency did
and Information
investigation. http://english.chosun.com/sit
Protection, etc.;
e/data/html_dir/2011/10/27/201
Articles 48, Paragraph
1102701142.html
3; 71, Subparagraph
10;
2. Act on the
Protection of
Information and
Communications
Infrastructure, Articles
12; 28;
3. Public Officials
Election Act, Article
237, Paragraph 1
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TABLE A
and Financial Institutions
Continued from last page
Cybercrime Targeting Non-Financial Institutions and Financial Institutions
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Court Documents Case info. Resources
Jurisdictions Incurred (legal provision that case
was charged under)
Prosecution v. Baksa Origin: Hungary Mainly: Copyright- N/A Hungarian law enforcement N/A N/A UNODC, Cybercrime Repository:
Timea and Others protected content Relevant Info: searched 5 server rooms,
Target: Hungary http://www.unodc.org/cld/case-
Seizedmoney- seized 48 servers . In response
(Criminal activities law-doc/cybercrimecrimetype/hun/
48,000,000 HUF to Hungarian authorities
started in 2002) prosecution_vs._baksa_timea_and_
The criminal request sent out to Romanian
others.html
organization authorities via INTERPOL
engaged channels, the information on
in money the death of the leader of the
laundering criminal orgs was obtained.
(proceeds of
illegal activities)
assisted by
Ukrainian
nationals
(According to
law enforcement
info-761,000,000
HUF between
2007 and 2009).
Credit Card Data Theft Origin: Romania Credit card data of N/A During the house searches N/A Legal Provisions: UNODC Cybercrime Repository
in Romania wealthy tourists in executed at the premises of
Target: Touristic 1. Law No. 39 of 2003 http://www.unodc.org/cld/case-
Croatia and Turkey the defendants were found
(2015) areas in Croatia and on preventing and law-doc/cybercrimecrimetype/rou/
skimming devices. A computer
Turkey combating organized credit_card_data_theft_in_romania.
search revealed that the
crime, Aricle.7, html
defendants used software able
Paragraph 1 (Initiation
to read the magnetic tracks of
or constitution of an
credit cards.
organized criminal
group).
2. Law No. 365 of
2002 on electronic
commerce, Article
25 (Possession of
equipment with a view
to forging electronic
means of payment).
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Cybercrime Targeting Non-Financial Institutions
TABLE A
and Financial Institutions
Continued from last page
Cybercrime Targeting Non-Financial Institutions and Financial Institutions
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Court Documents Case info. Resources
Jurisdictions Incurred (legal provision that case
was charged under)
Online Storage Origin: Republic of (Copyright- Not specified, Seoul Central District N/A Specific provisions are KSPO Press Release:
Companies, Aiding Korea Protected) but the Prosecutors’ Office not provided: Possibly
http://www.spo.go.kr/seoul/
and Abetting Violation Work proceeds of relevant provisions:
Target: Republic of notice/notice/notice01.
of Copyright Act, etc. illegal activities
Korea (1) Aid, Abet Violation jsp?mode=view&board_
through leaving
(Not specified, but the of Copyright Act no=116&article_no=533012
the (copyright-
investigation result was Copyright Act, Article
protected)
released to the press 136, Paragraph 1;
work (illegally
on April 20, 2012) Copyright Act, Article
uploaded)
140, Sub-paragraph 1
on the online
1; Criminal Act, Article
storage sites :
32, Paragraph 1;
1,140,000,000
Won (according (2) Violation of
to the Seoul Copyright Act: Article
Central District 136, Paragraph 1;’
Prosecutors’ Copyright Act; Article
Office info) 140, Sub-paragraph 1
Apprehension of Voice Origin: Republic of Individuals with Three billion four Seoul Central District N/A Specific provisions: KSPO Press Release
Phishing Organization Korea poor credit ratings hundred million Prosecutors’ Office NA.
http://www.spo.go.kr/seoul/
in the Republic of and who need loan Won (KRW 3,400,
Target: Republic of Possibly relevant notice/notice/notice01.
Korea -Voice Phishing services 000, 000)
Korea provisions: 1, Criminal jsp?mode=view&board_
against Low Credit
Act, Article 347 no=116&article_no=533736
Individuals in the
(Fraud); 2. Act on
Dorm of Fake Loans
the Aggravated
(From November, 2011 Punishment, etc. of
to April, 2012) Specific Economic
Crimes, Article
3, Paragraph 1,
Subparagraph
2 (Aggravated
Punishment of Specific
Property Crime)
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Cybercrime Targeting Non-Financial Institutions
TABLE A
and Financial Institutions
Continued from last page
Cybercrime Targeting Non-Financial Institutions and Financial Institutions
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Court Documents Case info. Resources
Jurisdictions Incurred (legal provision that case
was charged under)
Fraudulent eBay Origin: Romania users of eBay Fraudsters Romanian authorities[Romanian N/A N/A 1. SC Magazine News:
Auctions in Romania auctions located in stole the Euro Directorate for Investigating
Target: Spain, http://www.scmagazine.com/
different countries equivalent of Organized Crime and Terrorism
(Between 2006 and Italy, France, New romanian-police-fbi-break-
more than $1 (DIICOT)], in conjunction
2009) Zealand, Denmark, up-70-strong-ebay-fraud-ring/
million. with U.S. law enforcement (in
Sweden, Germany, article/167554/
partnership with the FBI and
Austria, the United
U.S. Secret Service from the 2. UNODC Cybercrime Repository:
States, Canada and
U.S. Embassy in Bucharest), http://www.unodc.org/cld/case-
Switzerland
arrested alleged offenders. law-doc/cybercrimecrimetype/
rou/fraudulent_ebay_auctions_
in_romania.html
Operation Exposure Origin: The 1. Governmental N/A With the support of Europol, N/A Specific legal 1. UNODC Cybercrime Repository:
servers used for agencies of the U.S., law enforcement agencies provision are not
(Date of arrest: http://www.unodc.org/cld/case-
the purposes of Israel, Tunisia and of the involved countries available. According to
February, 2012) law-doc/cybercrimecrimetype/
administration of Uganda websites; 2. carried out the investigation UNODC Cybercrime
esp/operation_exposure.html
some of the secure child pornography (1. Simultaneous arrests; 2. Repository, the
communication websites; 3.copyright Search and seizure; 3. Server suspects were 2. EUROPOL Press Release:
channels used protection disruptions and 4. Expedited charged with illegal https://www.europol.europa.
by Anonymous institutions; religious preservation of computer data) interference, breach of eu/newsroom/news/hacktivists-
were hosted by entities; and private privacy and disclosure arrested-in-spain
companies located corporations, of confidential
in Czech Republic including PayPal, information.
and Bulgaria, MasterCard, Visa
although they were and Sony websites
remotely controlled
from Spain.
Target: Unclear.
However, among
its victims are
governmental
agencies of the U.S.,
Israel, Tunisia and
Uganda.
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Cybercrime Targeting Non-Financial Institutions
TABLE A
and Financial Institutions
Continued from last page
Cybercrime Targeting Non-Financial Institutions and Financial Institutions
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Court Documents Case info. Resources
Jurisdictions Incurred (legal provision that case
was charged under)
Violation of Criminal Origin: Korea Divulged personal 1. Proceeds from Prosecutors, Police, Judges [1] Korean Supreme 1. Criminal Act, Korean Court Decisions on this
Act, Act on Promotion Information of acquiring game Court Decision 2014 Art. 347-2; 2. Game case, available at:
Target: Korea
of Information and another person items (jointly with Do 8838 Decided Industry Promotion
http://glaw.scourt.go.kr/wsjo/
Communications defendant 1): Nov. 13, 2014; [2] Act, Arts. 32, Para.
intesrch/sjo022.do
Network Utilization KRW 125, 678, Seoul Central District 7, and 44, Para 1,
and Information 400 2. Proceeds Court Decision 2012 Subpara 2. [and its
Protection, etc., from the sale No 323 Decided Jun. Enforcement Decree,
and Game Industry of game items 26, 2014, and [3] Seoul Art. 18-3., Para.
Promotion Act (1) Jointly with Central District Court 3, Subpara c. and
defendant 1: Decision 2013 Go Dan Former Enforcement
(2009-2013)
KRW 405, 471, 4451, 2013 Go Dan Decree (prior to the
229 (2) Solely 4488 (Consolidation) Amendment No.
by defendant 2: Decided Jan. 15, 23863, June 19, 2012)
KRW 1,901, 266, 2014, available at: Art. 18-3, Subpara. 3.;
177 http://glaw.scourt. 3. Act on Promotion
go.kr/wsjo/intesrch/ of Information and
sjo022.do Communications
Network Utilization
and Information
Protection, etc., Arts.
28-2, Para 2. and 71,
Subpara 6.
Prosecution of People Origin: Republic of Stolen Personal N/A Police officers and prosecutors, N/A Violation of 1. Personal KSPO Press Release:
Who Stole Personal Korea Information/Data in collaboration with Information Protection
http://www.spo.go.kr/seoul/notic
Information and Data, mobile phone companies Act, 2. Criminal Act, 3.
Target: Republic of e/notice/notice01.jsp?mode=view
Forged National (private sector) and sharing Act on the Aggravated
Korea &board_no=116&article_
Identity Cards, investigation know-how Punishment, etc. of
no=585659
Illegally Opened Cell between police officers and Specific Economic
Phone Accounts prosecutors, carried out Crimes 4. Act
investigation. on Promotion of
(February, 2011 to
Information and
August, 2013)
Communications
Network Utilization
and Information
Protection, etc., and 5.
Radio Wave Act
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TABLE A
and Financial Institutions
Continued from last page
Cybercrime Targeting Non-Financial Institutions and Financial Institutions
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Court Documents Case info. Resources
Jurisdictions Incurred (legal provision that case
was charged under)
Arrest of an Origin: China, Korea Personal N/A Seoul Central District N/A Specific legal KSPO Press Release:
organization based Information/data Prosecutors’ Office provisions are not
Target: Korea http://www.spo.go.kr/seoul/
in China which provided. Attackers
notice/notice/notice01.
asked hacking and 1, 2, 5, 8 and 9 were
jsp?mode=view&board_
selling/supplying or charged with violation
no=116&article_no=572591
purchasing personal of Act on Promotion
information/data of Information and
Communications
(From May, 2012 to
Network Utilization
February, 2014)
and Information
Protection, etc.
according to KSPO
press release.
Credit Card Origin: Republic of Customer The customer Changwon District Prosecutors’ N/A Specific law and legal 1. KSPO Press Release:
Companies, leakage of Korea information (Personal data of at least Office provision are not
http://www.spo.go.kr/
customer information Information held by 26 million available. However,
Target: Republic of spo/notice/press/press.
in the Republic of credit card firms) (26,000,000) posisbly relevant law:
Korea jsp?mode=view&board_
Korea including financial people was Violation of Personal
no=2&article_no=567739
data illegally Information Protection
(From May, 2012 to
collected. Act 2. ZDNet, Security, Newsletter
December, 2013)
http://www.zdnet.com/article/
south-korean-credit-card-firms-
suspended-over-data-breach/
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Cybercrime Targeting Non-Financial Institutions
TABLE A
and Financial Institutions
Continued from last page
Cybercrime Targeting Non-Financial Institutions and Financial Institutions
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Court Documents Case info. Resources
Jurisdictions Incurred (legal provision that case
was charged under)
Apprehension Origin: Republic of USD $11, 000,000 Commercial In cooperation with (or Indictment(s)/Court According to KNPA Korean National Police Agency
1.
of members of a Korea (“”Korea””) [KRW 12,200,000,000] Banks (located “Through mutual assistance”) Decision(s): Not press release, legal (KNPA) Press Release:
criminal organization [Additional issue: in U.S.) Federal Bureau of Investigation publicly available provisions applicable
Target: (Commercial http://www.spo.go.kr/
that committed Money laundering] (FBI), Korean National Police online as of June 2, to this case is 1.
Banks located in) spo/notice/press/press.
international financial Agency (KNPA) identified this 2015 Article 347, Paragraph
U.S. jsp?mode=view&board_
scams organization and arrested 1 (Fraud); 2. Article
no=2&article_no=567739
its members (Nigerians and 231 (Counterfeit or
(From January, 2011 to
Korean) located in Korea during Alteration of Private 2. Hankook Ilbo News News,
July, 2012 (1 year and 7
the period of time ranging Document, etc.); 3. http://www.koreatimes.com/
months))
from July 19, 2012 to October Article 234 (Uttering article/836700
8, 2012. of Falsified Private
Document, etc.) of the
Criminal Act.
The organization that Origin: Korea Computer system By manipulating Seoul Central District N/A All relevant legal orea Joongang Daily, Social
1. K
illegally won (online) of Nara Jangteo, the lowest Prosecutors’ Office provisions are not Affairs, News:
Target: Korea
construction bids of Korea’s online bidding price, provided. However,
http://koreajoongangdaily.
Nara Jangteo, Korea’s e-procurement the companies possibly relevant
joins.com/news/article/article.
online e-procurement system, which is won 77 legal provisions: 1.
aspx?aid=2981472
system through operated by the construction Criminal Act, Article
hacking a computer Public Procurement bids, worth a 347-2 (Fraud by Use 2. KSPO Press Release:
system was busted Service (PPS) total of 110 of Computer, etc.) 2. http://www.spo.go.kr/seoul/
billion won. Criminal Act, Article notice/notice/notice01.
(From May 2011 to
315 (Interference with jsp?mode=view&board_
October 2012)
Auction or Bidding) 3. no=116&article_no=565540
Act on the Protection
of Information and
Communications
Infrastructure, Articles
12; 28
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Cybercrime Targeting Non-Financial Institutions
TABLE A
and Financial Institutions
Continued from last page
Cybercrime Targeting Non-Financial Institutions and Financial Institutions
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Court Documents Case info. Resources
Jurisdictions Incurred (legal provision that case
was charged under)
Operation Imperium Origin: European 1. Credit/financial N/A Bulgarian and Spanish law N/A N/A, however, 1. UNODC Cybercrime Repository:
countries card data; 2. (ATM) enforcement and judicial according to
(Date of incident: http://www.unodc.org/cld/case-
Payment system agencies together with UNODC Cybercrime
Unclear Date of arrest: Target: 1. Obtaining law-doc/cybercrimecrimetype/
Europol’s European Cybercrime Repository, 31
September 30, 2014) credit card info in EU bgr/2014/operation_imperium.
Centre (EC3) did a joint members of an
(e.g. Italy, France, html
operation. 26 arrests & 40 organized criminal
Spain, Germany,
house searches in Bulgaria five group were arrested 2. EUROPOL Press Release:
and Turkey), 2.
arrests and two house searches for ATM skimming, https://www.europol.europa.eu/
Withdrawing cash:
in Spain. electronic payment content/31-arrests-operation-
outside EU (e.g.
fraud, forgery of against-bulgarian-organised-
in Peru and the
documents and other crime-network
Philippines).
crimes (possibly
breach of privacy
or data protection
measures).
Pletnyov Operation Origin: Not explicitly Targeted U.S. and N/A This investigation was N/A. However, N/A. However, UNODC Cybercrime Repository:
state jurisdictional other nationals conducted by the FBI- according to according to
(July 2005 - November http://www.unodc.org/cld/case-
origin. According to who were using Hungarian National Bureau of UNODC Cybercrime UNODC Cybercrime
2006) law-doc/cybercrimecrimetype/usa/
UNODC Cybercrime E-bay or other web Investigation (HNBI) Organized Repository, the Repository, all of
pletnyov_operation.html
Repository, victims sites subject to Crime Task Force located indictment expressly the defendants
funds were wired defendants’ cyber in Hungary. (Bilateral and charged the were charged and
to Hungary, attacks in issue multilateral cooperation) defendants with adjudicated in federal
Slovakia, the Czech conspiracy to launder court in the District of
Republic and Poland money and conspiracy Columbia. (Thus, it is
controlled by co- to commit wire fraud. presumed that U.S.
conspirators. laws were applied to
this case).
Target: Attackers
targeted U.S. and
other nationals with
online fraud
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Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Court Documents Case info. Resources
Jurisdictions Incurred (legal provision that case
was charged under)
Operation against Origin: Involved Operation of remote N/A According to EUROPOL’s press N/A N/A. However, NODC Cybercrime Repository:
1. U
Remote access Trojans countries: several access Trojans release, the operation was according to
http://www.unodc.org/cld/case-
EU countries led by France- working with UNODC Cybercrime
(Date of arrest: around law-doc/cybercrimecrimetype/
According to Europol’s European Cybercrime Repository, the use
November 2014 fra/2014/operation_against_
UNODC Cybercrime Centre (EC3) and the involved of remote access in
according to EUROPOL remote_access_trojans.html
Repository, the European countries (Estonia, Europe is punished by
Press Release)
international France, Romania, Latvia, Italy, a number of offences, 2. EUROPOL’s Press Release:
operation – led by and U.K.) authorities. including illegal access https://www.europol.europa.eu/
France - resulted to computer data, content/users-remote-access-
in the arrest of breach of privacy and trojans-arrested-eu-cybercrime-
15 individuals in illegal interception. operation
Estonia, France,
Romania, Latvia,
Italy and the U.K.
Target: Involved
countries: several
EU countries
According to
UNODC Cybercrime
Repository, the
international
operation – led by
France - resulted
in the arrest of
15 individuals in
Estonia, France,
Romania, Latvia,
Italy and the U.K.
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Continued from last page
Cybercrime Targeting Non-Financial Institutions and Financial Institutions
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Court Documents Case info. Resources
Jurisdictions Incurred (legal provision that case
was charged under)
Operation Stop Origin: Jurisdictional Employees of the N/A International cooperation N/A N/A UNODC Cybercrime Repository:
Intrusion origin: Not Italian Ministry of (including INTERPOL) through
http://www.unodc.org/cld/case-
explicitly provided. Foreign Affairs and the 24/7 Network as well as
law-doc/cybercrimecrimetype/ita/
[Countries involved other civil servants’ formal cooperation. The 24/7
operation_stop_intrusion.html
in the operation: credentials and Network is intended to offer
1. Romania, 2. access restricted computer crime investigators
Malaysia, and 3. information a fast and reliable channel
Italy] to request preservation of
computer evidence. Further
Target: Jurisdictional
evidence was later obtained
target: Not
through formal mutual legal
explicitly provided.
assistance procedures.
[Countries involved
in the operation:
1. Romania, 2.
Malaysia, and 3.
Italy]
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and Financial Institutions
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Cybercrime Targeting Non-Financial Institutions and Financial Institutions
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Court Documents Case info. Resources
Jurisdictions Incurred (legal provision that case
was charged under)
Investigation on Origin: N/A, but a cyber attack on According to the Moroccan police was informed N/A [According to According to UNODC Cybercrime Repository:
“DIABLO” and possibly Morocco several multinational victims, this virus by their American counterparts UNODC Cybercrime UNODC Cybercrime
http://www.unodc.org/cld/case-
“CODER” (Moroccan groups (With specific caused more of a cyber attack. The Repository, no Repository, the
law-doc/cybercrimecrimetype/
police identified regard to one of than USD $ 5 investigation by the Moroccan information on relevant offences
mar/investigation_on_diablo_and_
three alleged suspects: stolen million in losses. police led to the identification the proceedings is are codified in the
coder.html
perpetrators, two credit card data of three alleged perpetrators, available.] Moroccan Penal Code,
Moroccans and and passwords two Moroccans and one Turk. in particular Articles
one Turk after from multinational This case is considered to be 607-11 and 607-3.
being informed companies’ the first cybercrime case in
by their American websites) Morocco. Judicial and police
counterparts) international cooperation
proved to be key in order to
Target: Not
identify the suspects.
provided in UNODC
Cybercrime
Repository, but
possibly includes
U.S. Besides, a
suspect used the
stolen data to
withdraw large sums
of money from bank
accounts of people
living in Russia.
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Cybercrime Targeting Non-Financial Institutions and Financial Institutions
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Court Documents Case info. Resources
Jurisdictions Incurred (legal provision that case
was charged under)
U.S. vs. 18 defendants Origin: Counts 1, 2, 1. Personal According to 1. U.S. ICE 2. U.S. Homeland Indictment: 1. Count 1 : 18 U.S.C. 1. UNODC Cybercrime Repository:
and 3: In Harrison identification U.S. ICE news, Security Investigations (HSI) 3. http://www.ice.gov/ § 1341, 1343, 1344 &
[Joint U.S. - South http://www.unodc.org/cld/case-
County, in the information (PII) this financial South African Police Service’s doclib/news/releases/ 1349 2. Count 2: 18
Africa Operation] law-doc/cybercrimecrimetype/
Southern Division of 2. Credit card/ fraud scam has Directorate for Priority Crime 2014/140521pretoria. U.S.C. §1028 (a)(7);
usa/joint_us_-_south_africa_
(2001-2014) the Southern District bank data; and resulted in the Investigation 4. South Africa’s pdf 1029 (a)(3); 1029(a)(5);
operation.html
of Mississippi Information on loss of millions of Crime Intelligence 5. INTERPOL 641; & 371 3. Count 3:
and elsewhere. credit card/bank U.S. dollars. 6. South Africa Tactical 18 U.S.C. § 1341 .S. Immigration and Customs
2. U
Defendants were accounts, etc. 3. Response Team 7. South Africa Enforcement (ICE), News:
resided & arrested United States Postal Department of Home Affairs – http://www.ice.gov/news/
in U.S., Canada, and Service (U.S.P.S.) Immigration releases/cyber-financial-fraud-
South Africa. shipping labels 4. investigation-nets-numerous-
Government funds, arrests-south-africa-canada-us
Target: Not
etc.
specified. However,
according to
U.S. Immigration
and Customs
Enforcement (ICE)
news, investigators
have so far identified
hundreds of victims
to this financial fraud
scam in the U.S.
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Cybercrime Targeting Non-Financial Institutions and Financial Institutions
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Court Documents Case info. Resources
Jurisdictions Incurred (legal provision that case
was charged under)
U.S. v. Kilbride Origin: Defendants Individuals who N/A U.S. Ninth Circuit Court of Information on court 1. Computer Fraud UNODC Cybercrime Repository:
operated of their received defendants’ Appeals: The court affirmed decision: and Abuse Act,
(2003) http://www.unodc.org/cld/case-
business overseas, emails the defendants’ convictions 18 U.S.C. § 1037(a)(3),
http://www.nyls.edu/ law-doc/cybercrimecrimetype/
running it through and sentences and recognized § 1037(a)(3) and (a)(4);
wp-content/uploads/ usa/2009/us_v_kilbride.html
Ganymede that there was a clerical error 2. 18 U.S.C. § 1462; 3.
sites/141/2013/08/
Marketing with regard to counts 1-3 (the 18 U.S.C. § 1465; 4. 18
584-F.3d-1240-US-v.-
(“Ganymede”), a CAN-SPAM Act offences) and U.S.C. § 1956; and =5.
Kilbride.pdf
Mauritian company, remanded. 18 U.S.C. § 2257.[The
and using servers court recognized there
located in the was a clerical error with
Netherlands. regard to acts relating
to the CAN-SPAM Act
Target: Unclear, but
(15. U.S.C.) offenses
including individuals
and remanded.]
located in U.S. [U.S.
government called
8 witnesses from
various parts of
the country who
had complained to
the Federal Trade
Commission about
defendants’ emails.]
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and Financial Institutions
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Cybercrime Targeting Non-Financial Institutions and Financial Institutions
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Court Documents Case info. Resources
Jurisdictions Incurred (legal provision that case
was charged under)
Operation: In Origin: Jurisdictional Patent holders of (Computer- 1. EUROPOL and U.S. N/A N/A 1. UNODC Cybercrime Repository:
Our Sites (IOS) Origin: Unrelated infringed websites related or online) Immigration and Customs
http://www.unodc.org/cld/case-
Transatlantic V to this operation. and the customers Infringement Enforcement (ICE) Homeland
law-doc/cybercrimecrimetype/
[the transnational (Countries who purchased of IP Rights Security Investigations
xxx/operation_in_our_sites_ios_
operation – called involved in this counterfeit goods by selling, (HSI) together with 25 law
transatlantic_v.html
‘In Our Sites (IOS) operation: several from the infringed purchasing enforcement agencies from
Transatlantic V’] EU countries and websites (or trafficking) 19 countries carried out this 2. EUROPOL Press Release:
U.S. according to counterfeit investigation. https://www.europol.europa.
(Date of incident:
UNODC Cybercrime products on eu/content/292-internet-
Unrelated to this 2. Trademarks holders reported
Repository) websites by domain-names-seized-selling-
operation , Date of several infringing websites to
infringing IP counterfeit-products
seizure of Intellectual Target: Unrelated EUROPOL and U.S. National
rights’ holders
Property (IP) to this operation Intellectual Property Rights
infringing websites: (Countries Coordination Center (IPR
since November involved in this Center), which alerted the
2012 (according to operation: several competent national authorities
UNODC Cybercrime EU countries and
Repository)) U.S. according to
UNODC Cybercrime
Repository)
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and Financial Institutions
Continued from last page
Cybercrime Targeting Non-Financial Institutions and Financial Institutions
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Court Documents Case info. Resources
Jurisdictions Incurred (legal provision that case
was charged under)
Operation Strikeback Origin: Unrelated Victims of Online sexual INTERPOL Digital Crime Centre N/A N/A 1. UNODC Cybercrime Repository:
to this operation ‘sextortion’ exploitation (IDCC) launched the operation
(Date of incident: http://www.unodc.org/cld/case-
(Countries involved (online sextortion in cooperation with Police
unrelated to this law-doc/cybercrimecrimetype/
in this operation: cases) Scotland, the US Immigration
operation, Date phl/operation_strikeback.html
Philippines, U.K., and Customs Enforcement
of launch of this
U.S., Australia, (ICE), the Philippines 2. INTERPOL Press Release:
operation: late in 2013)
Indonesia, Malaysia, Department of Justice Office http://www.interpol.int/News-an
Republic of Korea of Cybercrime, the U.K.’s d-media/News/2014/N2014-075
according to National Crime Agency CEOP
UNODC Cybercrime Command, the Hong Kong imeline of Operation Strikeback
3. T
Repository) Police Force and the Singapore combating ‘sextortion’
Police Force. The investigators http://www.unodc.org/res/cld/
Target: Unrelated
identified (1) victims in a case-law-doc/cybercrimecrimet
to this operation
number of jurisdictions, ype/phl/operation_strikeback_
(Countries involved
including Indonesia, the html/2014-075-Timeline-of-
in this operation:
Philippines, the U.K. and the Operation-Strikeback.pdf
Philippines, U.K.,
U.S. and (2) potential victims in
U.S., Australia,
Australia, Hong Kong, Korea,
Indonesia, Malaysia,
Malaysia and Singapore.
Republic of Korea
according to
UNODC Cybercrime
Repository)
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and Financial Institutions
Continued from last page
Cybercrime Targeting Non-Financial Institutions and Financial Institutions
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Court Documents Case info. Resources
Jurisdictions Incurred (legal provision that case
was charged under)
Facebook, Inc. v. Origin: (Name of the Facebook servers N/A According to UNODC case Info, TRO: https://cases. 1. Controlling the UNODC, Cybercrime Repository:
Jeremy Fisher, etc. State, U.S. where (located in California) the U.S. District Court for the justia.com/federal/ Assault of Non-
http://www.unodc.org/cld/case-
the defendants Northern District of California district-courts/califorSolicited Pornography
(Since November 2008) law-doc/cybercrimecrimetype/
resided or located) San Jose Division issued nia/candce/5:2009c and Marketing Act of
usa/2009/facebook_inc_v_jeremy_
D1, D4: New an Order Granting Motion v05842/222386/21/0. 2003 (CAN-SPAM),
fisher.html
York; D2, D5, D6 for a Temporary Restraining pdf?ts=1377125623 15 U.S.C. § 7701,
California; D3, D7: Order (TRO) upon request of etseq,; 2. Computer
Order granting
Colorado Facebook. [Further details to Fraud and Abuse Act,
plaintiff’s motion
be checked by review of the 18 U.S.C. § 1030; 3.
Target: (Facebook for declaratory
Complaint, TRO, and order California Business and
servers located in) judgment: http://www.
granting plaintiff’s motion for Professions Code,§
California plainsite.org/dockets/
declaratory judgment.] 22948, The California
download.html?id=24
Anti-Phishing Act of
299386&z=e2682a55
2005; 4. California
Comprehensive
Computer Data
Access and Fraud Act,
California Penal Code
§ 502.
Microsoft (MS) v. Origin: Texas and (1) Infecting Infecting more MS Digital Crimes Unit Complaint: http:// 1. Computer 1. UNODC Cybercrime Repository:
ZeroAccess Botnet the Western District computers of than 2 million disrupted a botnet in botnetlegalnotice. Fraud and Abuse
http://www.unodc.org/cld/case-
operators [Operation: of Texas, U.S. individuals: computers, collaboration with (1) com/zeroaccess/files/ Act, 18 U.S.C. §
law-doc/cybercrimecrimetype/
Disruption of the Computers of specifically EUROPOL’s European Cmplt.pdf 1030 2. Electronic
Target: 1. xxx/2013/operation_disruption_of_
ZeroAccess botnet] individuals targeting Cybercrime Centre (EC3); (2) Communications
ZeroAccess Infected Temporary Restraining the_zeroaccess_botnet.html
search results law enforcement cybercrime Privacy Act, 18 U.S.C.
(2013) Computers: (2) Online advertising Order(s): 1) Jason
on Google, units from Germany, Latvia, § 2701 3. Trademark 2. Microsoft News Center:
located in U.S. and fraud (browser Lyons, http://botnetle
Bing and Yahoo Luxembourg, Switzerland and Infringement Under http://news.microsoft.com/2013
Europe; 2. Infected hijacking and click galnotice.com/zeroac
search engines, the Netherlands; (3) FBI; and the Lanham Act, 15 /12/05/microsoft-the-fbi-europol-
computers relied fraud): MS, and its cess/files/Decl_Lyons.
and is estimated (4) leaders in the technology U.S.C.§ 1114 et. Seq. and-industry-partners-disrupt-the-
on servers located advertiser , and/or pdf
to cost online industry, including A10 4. False Designation notorious-zeroaccess-botnet/
at 18 IP addresses customers
advertisers $2.7 Networks Inc. 2) David Anselmi, of Origin Under the
and 49 Internet 3. EUROPOL Press Release
million each http://botnetlegalnot Lanham Act, 15 U.S.C.
domains maintained
month. ice.com/zeroaccess/ § 1125(a) 5. Trademark https://www.europol.europa.eu/co
by defendants at
files/Decl_Anselmi.pdf Dilution Under the ntent/notorious-botnet-infecting-2-
hosting companies
Lanham Act, 15. U.S.C. million-computers-disrupted
in Germany, Latvia,
§ 1125 (C)
Switzerland,
Luxembourg, and
the Netherlands.
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TABLE A
and Financial Institutions
Continued from last page
Cybercrime Targeting Non-Financial Institutions and Financial Institutions
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Court Documents Case info. Resources
Jurisdictions Incurred (legal provision that case
was charged under)
U.S. v. Blake Benthall Origin: Southern 1. Computer-related Amount of According to FBI , 1. FBI Complaint: http:// 1. Narcotics trafficking 1. UNODC Cybercrime Repository,
District of New York, illicit trafficking in damages: N/A. with help from the following, www.justice.gov/usao/ conspiracy: 21 (Title
[Operation Onymous http://www.unodc.org/cld/case-
U.S. and elsewhere goods and services According to among others, 2. New York nys/pressreleases/Nov 21). U.S.C. (United
(an operation law-doc/cybercrimecrimetype/xxx/
(in drugs, fraudulent the FBI, as of State Police, 3. Department ember14/BlakeBentha States Code), §
launched by law Target: Not operation_onymous.html
identification September 2014, of Justice’s Computer Crime llArrestPR/Benthall,%2 (Section) 846; 2.
enforcement officers specified in a
documents and Silk Road 2.0 and Intellectual Property 0Blake%20Complaint. Conspiracy to commit 2. EUROPOL Press Release,
and prosecutors in 16 complaint, but
computer-hacking was generating Section, 4. Drug Enforcement pdf. and aid and abet https://www.europol.europa.eu/
European countries possibly global,
services) sales of at least Administration; and 5. law computer hacking: content/global-action-against-
and U.S., coordinated including Southern
approximately enforcement authorities of 18. U.S.C. § 1030(b); dark-markets-tor-network
with EUROPOL in Nov. District of New York, 2. Computer-related
$8 million per France, Germany, Lithuania, 3. Conspiracy to
2014)] U.S. and elsewhere money laundering 3. FBI Press Release,
month and the Netherlands, and the transfer fraudulent
(A Tor network is a
(1. Providing a platform approximately U.K. According to UNODC, identification https://www.fbi.gov/contact-us/
worldwide network)
for illicit trafficking 150,000 active 6. service providers and 7. documents: 18. U.S.C. field-offices/newyork/news/press-
in goods and users. EUROPOL § 1028 (f); and 4. releases/operator-of-silk-road-2.0-
services (fraudulent Money laundering website-charged-in-manhattan-
identification docs, conspiracy: 18. U.S.C. federal-court
drugs, hacking § 1956 (h)
services): Nov. 2013
to Oct. 2014 2. Money
laundering: Dec. 2013
to Oct. 2014)
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and Financial Institutions
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Cybercrime Targeting Non-Financial Institutions and Financial Institutions
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Court Documents Case info. Resources
Jurisdictions Incurred (legal provision that case
was charged under)
UEJF and LICRA v Court’s Location: N/A Computer- N/A N/A Court Decision: The UNODC Cybercrime Repository:
Yahoo! Inc and Yahoo France related acts court ordered Yahoo!
http://www.unodc.org/cld/case-
France involving racism Inc. to take all the
Place where law-doc/cybercrimecrimetype/
and xenophobia measures necessary to
(2000) defendants are fra/2000/uejf_and_licra_v_yahoo_
dissuade and prevent
incorporated: inc_and_yahoo_france.html
access to auctions for
Yahoo, France:
Nazi memorabilia and
France; Yahoo! Inc.:
content supporting
USA
Nazism. The court
ordered Yahoo, France
to warn users that,
should Yahoo’s search
results include content
prohibited under
French law, they shall
refrain from accessing
such content to
avoid incurring legal
sanctions.
Legal Provision:
French Criminal Code,
Article R645-1 which
prohibits to “wear
or exhibit” in public
uniforms, insignias and
emblems which “recall
those used” by (i) an
organization declared
illegal in application
of Art. 9 of the
Nuremberg Charter,
or (ii) a person found
guilty of crimes against
humanity.
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TABLE A
and Financial Institutions
Continued from last page
Cybercrime Targeting Non-Financial Institutions and Financial Institutions
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Court Documents Case info. Resources
Jurisdictions Incurred (legal provision that case
was charged under)
Yahoo! Inc. v UEJF and Court location: U.S. N/A Computer- N/A N/A U.S. Supreme Court’s UNODC Cybercrime Repository:
LICRA related acts Decision: Proceeding
Location where http://www.unodc.org/cld/case-
involving racism 5 (2006) The Supreme
(1. District Court, defendants are law-doc/cybercrimecrimetype/
and xenophobia Court denied LICRA’s
Proceedings 1 and incorporated: 1. usa/2006/yahoo_inc_v_uejf_and_
[Allowing users request to issue an
2: 2001, 2. Court of UJEF (Union of licra_.html
to post Nazi order to review the
Appeals for the Ninth French Jewish
paraphernalia judgment (certiorari),
Circuit, Proceeding 3: Students):
and Third Reich http://www.unodc.org/
2004; Proceeding 4: French non-profit
memorabilia, res/cld/case-law-doc/cy
2006; and 3. Supreme organization 2.
in violation of bercrimecrimetype/usa/
Court, Proceeding 5: LICRA (International
Article R645-1 of 2006/yahoo_inc_v_uejf
2006) League against
French Criminal _and_licra__html/Supre
Racism and Anti-
Code on Yahoo! me_Court_Certiorari.pdf
Semitism): French
Inc.run-auction
organization Issue 1. legitimacy of
websites.]
limitations to freedom
of expression: The
need for a balance
between freedom
of expression and
prohibition of online
illegal speech has been
addressed in different
ways under different
jurisdictions.
Issue 2. Extraterritorial
applicability of
domestic laws:
Transnational
character of online
communications
challenges the
concept of traditional
jurisdiction. Asserting
jurisdiction over
website operators
cause concerns over
applicability of laws of
the country where their
websites are accessible.
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TABLE A
Other Forms of Cybercrime
Other Forms of Cybercrime
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Court Documents Case Information Resources
Jurisdictions Incurred
Flame and Stuxnet Origin: U.S. & Israel Intelligence and N/A N/A N/A N/A http://rt.com/news/flame-
destroys capacity stuxnet-kaspersky-iran-607/
Target: Iran,
Lebanon, Syria, http://www.wired.com/2012/05/
Sudan and Israeli flame/
occupied territories
Operation Ghost Origin: Estonia Over 4 million By rerouting The U.S. FBI, NASA OIG, https://www.fbi.gov/ N/A http://www.fbi.gov/news/
Click computers were internet traffic to and the Estonian Police and newyork/press-rele stories/2011/november/
Target: U.S.
infected in more websites which Border Guard Board led the ases/2011/manhatta malware_110911
(2007-Oct. 2011)
than 100 countries. allowed for the investigation. The National n-u.s.-attorney-charg
https://www.fbi.gov/newyork/
In the U.S., 500,000 perpetrators High Tech Crime Unit of es-seven-individuals-
press-releases/2011/
computers were to be paid, the Dutch National Police for-engineering-soph
manhattan-u.s.-attorney-
infected including the operation Agency. The FBI and NASA isticated-internet-fra
charges-seven-individuals-for-
those used by generated OIG received assistance ud-scheme-that-infe
engineering-sophisticated-
individuals, as $14 million in from multiple domestic and cted-millions-of-com
internet-fraud-scheme-that-
well as computers illegitimate international private sector puters-worldwide-an
infected-millions-of-computers-
housed in income. partners, including Georgia d-manipulated-intern
worldwide-and-manipulated-
businesses and Tech University, Internet et-advertising-
internet-advertising-business
government Systems Consortium, Mandiant, business
entities such as National Cyber-Forensics and
NASA. Training Alliance, Neustar,
Spamhaus, Team Cymru, Trend
Micro, University of Alabama
at Birmingham and members
of an ad hoc group of subject
matter experts known as the
DNS Changer Working Group
(DCWG)
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TABLE A
Other Forms of Cybercrime
Continued from last page
Other Forms of Cybercrime
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Court Documents Case Information Resources
Jurisdictions Incurred
Morpho Cyber Origin: N/A High profile confidential Detection by individual N/A N/A http://www.computerweekly.
Espionage technology, information companies and private sector com/news/4500249597/Sym
Target: U.S.,
internet, and intellectual entities such as Semantec. antec-uncovers-Morpho-cyber-
(2012-present) Europe, and Canada
commodities, and property espionage-operation
pharmaceutical
companies.
Pawn Storm Origin: N/A Military, diplomatic Data Researchers at Trend Micro N/A N/A http://www.computerweekly.
and defence uncovered the scheme. com/news/2240233415/Rese
(2014) Target: U.S.,
industry archers-uncover-sophisticated-
Europe, and
cyber-espionage-campaign
Pakistan
State of Tamil Nadu Origin: India A known family Obscene, Police responded by tracing N/A “The accused is found guilty http://lawmantra.co.in/
vs. Suhas Katti friend who refused defamatory the accused to Mumbai and of offences under section tamil-nadu-v-suhas-katti-2004-
Target: India
to marry Suhas Katti and annoying arresting him following a 469, 509 IPC and 67 of IT case-related-to-the-posting-
(2/1/2004)
messages in a camplaint made by the victim. Act 2000 and the accused is of-obscene-messages-on-the-
Yahoo message convicted and is sentenced internet/
group for the offence to undergo
RI for 2 years under 469 IPC
and to pay fine of Rs.500/-and
for the offence u/s 509 IPC
sentenced to undergo 1 year
Simple imprisonment and
to pay fine of Rs.500/- and
for the offence u/s 67 of IT
Act 2000 to undergo RI for
2 years and to pay fine of
Rs.4000/- All sentences to run
concurrently.”
Page 327 | Chapter 9 | Appendix A
A
APPENDIX
TABLE A
Other Forms of Cybercrime
Continued from last page
Other Forms of Cybercrime
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Court Documents Case Information Resources
Jurisdictions Incurred
National Association Origin: India Software and N/A Delhi HC issued judgement in https://indiankano “The Delhi HC stated that http://cyber-law-web.blogspot.
of Software and Service Companies the lawsuit on.org/doc/1804384/ even though there is no com/2009/07/case-study-cyber-
Target: India
Service Companies vs specific legislation in India law-nasscom-vs-ajay.html
Ajay Sood & others to penalize phishing, it held
phishing to be an illegal act
(3/1/2005)
by defining it under Indian
law as “a misrepresentation
made in the course of trade
leading to confusion as to
the source and origin of the
e-mail causing immense harm
not only to the consumer but
even to the person whose
name, identity or password is
misused.” The court held the
act of phishing as passing off
and tarnishing the plaintiff’s
image. The defendants
were operating a placement
agency involved in head-
hunting and recruitment.
In order to obtain personal
data, which they could use for
purposes of headhunting, the
defendants composed and
sent e-mails to third parties
in the name of Nasscom.
The high court recognised
the trademark rights of the
plaintiff and passed an ex-
parte adinterim injunction
restraining the defendants
from using the trade name or
any other name deceptively
similar to Nasscom. The
court further restrained the
defendants from holding
themselves out as being
associates or a part of
Nasscom.”
Page 328 | Chapter 9 | Appendix A
A
APPENDIX
TABLE A
Other Forms of Cybercrime
Continued from last page
Other Forms of Cybercrime
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Court Documents Case Information Resources
Jurisdictions Incurred
SMC Pneumatics Origin: India SMC Pnuematics cyber Court of Delhi https://indiankanoon “After hearing detailed http://www.mondaq.com/
India Pvt. Ltd. v. India Pvt. Ltd. defamation .org/doc/31110930/ arguments of Counsel for india/x/218890/Social+Media/
Target: India
Jogesh Kwatra Plaintiff, Hon’ble Judge of the Cyber+Defamation+In+C
Delhi High Court passed an orporate+World
(2001)
ex-parte ad interim injunction
observing that a prima facie
case had been made out by
the plaintiff. Consequently,
the Delhi High Court
restrained the defendant
from sending derogatory,
defamatory, obscene, vulgar,
humiliating and abusive
emails either to the plaintiffs
or to its sister subsidiaries
all over the world including
their Managing Directors and
their Sales and Marketing
departments. Further, Hon’ble
Judge also restrained the
defendant from publishing,
transmitting or causing to be
published any information
in the actual world as also
in cyberspace which is
derogatory or defamatory or
abusive of the plaintiffs.”
Page 329 | Chapter 9 | Appendix A
A
APPENDIX
TABLE A
Other Forms of Cybercrime
Continued from last page
Other Forms of Cybercrime
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Court Documents Case Information Resources
Jurisdictions Incurred
Vyakti Vikas Origin: India 4 individuals N/A Delhi High Court https://indiankanoon Defendant No.2 (D2) is an https://indiancaselaws.
Kendra, India Public connected to the .org/doc/121103864/ “intermediary” within the wordpress.com/2013/10/23/
Target: India
Charitable Trust India Public Trust, definition of Section 2(1) vyakti-vikas-kendra-india-public-
THR Trustee Mahesh His Holiness Sri (w) and Section 79 of the charitable-trust-thr-trustee-
Gupta & ORS vs. Sri Ravi Shankar, Information Technology Act, mahesh-gupta-ors-vs-jitender-
Jitender Baggaa & and Art of Living 2000. Under Section 79(3) bagga-anr/
ANR. Teacher. (b) of the IT Act, 2000, D2
is under an obligation to
(2013)
remove unlawful content
if it receives actual notice
from the affected party of
any illegal content being
circulated/published through
its service. D2 is also bound
to comply with Information
Technology (Intermediaries
Guidelines) Rules 2011. Rule
3(3) of the said rules read with
Rule 3(2) requires an
intermediary to observe
due diligence or publish
any information that is
grossly harmful, defamatory,
libellious, disparaging or
otherwise unlawful.
Rule 3(4) of the said rule
provides obligation of an
intermediary to remove such
defamatory content within
36 hours from receipt of
actual knowledge. The said
rule is cited below for easy
reference.
Page 330 | Chapter 9 | Appendix A
A
APPENDIX
TABLE A
Other Forms of Cybercrime
Continued from last page
Other Forms of Cybercrime
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Court Documents Case Information Resources
Jurisdictions Incurred
United States v. Origin: US N/A (was an online The operator FBI http://www.nysd. Ross Ulbricht, “Dread Pirate https://www.bloomberg.com/
Ulbricht black market case) had over $28.5 uscourts.gov/cases/ Roberts,” was convicted news/articles/2017-05-31/silk-
Target: US and
million at the show.php?db=spe and sentenced to life in road-s-ross-ulbricht-must-serve-
(2013) everywhere
time of the cial&id=416 prison without the possibility life-sentence-court-says
seizure of parole for conspiracy
and money laundering
charges from his role as the
operator of the online black
market “Silk Road.” Using
cryptotechnology, the Silk
Road facilitated the sale of
controlled substances among
other things.
Page 331 | Chapter 9 | Appendix A
A
APPENDIX
TABLE A
Other Forms of Cybercrime
Continued from last page
Other Forms of Cybercrime
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Court Documents Case Information Resources
Jurisdictions Incurred
Runescape Case Origin: Netherlands A Runescape player Virtual items of The Dutch Police https://uitspraken. On the 31st of January 2012, http://www.virtualpolicy.net/
the victim were rechtspraak.nl/#zo the Supreme Court of the runescape-theft-dutch-supreme-
(2012) Target: Netherlands
transferred to the ekverfijn/ljn=BQ92 Netherlands made a ground- court-decision.html
virtual accounts 51&so=Relevance (in breaking decision with
of the two Dutch) implications for the online
defendants. gaming industry everywhere.
It found that items in the
online game RuneScape had
been stolen from a player.
This is revolutionary, as it is
the highest national court in
the West to rule that taking
virtual objects in this way is
theft under national criminal
law.
In 2007, the two defendants
used violence and threats of
violence to force the victim
to log into the game of
RuneScape and transferred
virtual items and virtual
currency from the victims
account to their own. The
Supreme Court upheld the
conviction for theft as defined
by the law of the Netherlands.
Page 332 | Chapter 9 | Appendix A
A
APPENDIX
TABLE A
Other Forms of Cybercrime
Continued from last page
Other Forms of Cybercrime
Cyber Crime Case Affected Target(s) of attack Damages Responding Entity Court Documents Case Information Resources
Jurisdictions Incurred
United States v. Origin: Naples, Children sexual abuse/ FBI and EUROPOL N/A Steven W. Chase, 58, the https://www.justice.gov/opa/pr/
Chase Florida (USA) exploitation of creator and lead administrator florida-man-sentenced-prison-
children of Playpen, one of the world’s engaging-child-exploitation-
(2017) Target: US and
largest child sexual abuse enterprise
everywhere
websites with more than
150 000 users around the
world, was sentenced to 30
years in prison for engaging
in a child exploitation
enterprise, advertising child
pornography, transportation
of child pornography
and possession of child
pornography. This case
highlights the use of online
forums on anonymous
networks to abuse and exploit
of innocent children.
Page 333 | Chapter 9 | Appendix A
A
APPENDIX
TABLE A
Alternate Forms of Cybercrime
Alternate Forms of Cybercrime
Cyber Crime Case Attacker Date of Jurisdic- Jurisdic- Target(s) of Methodology of Indict- Responding Case information Resources
Characteristics Incident tional itonal attack Attack ment(s) Entity (legal provision that case was charged under)
Origin Target
State of Tamil Nadu Suhas Katti: An Feb-04 India India A known “Posting of Police “The accused is found guilty of
vs. Suhas Katti idividual who took family friend obscene, responded offences under section 469, 509
up harassmentvia who refused defamatory, by tracing the IPC and 67 of IT Act 2000 and
the internet against to marry Suhas and annoying accused to the accused is convicted and
a female target. Katti messages” about Mumbai and is sentenced for the offence to
the victim in a arresting him undergo RI for 2 years under 469
yahoo message following a IPC and to pay fine of Rs.500/-
group. The camplaint made and for the offence u/s 509 IPC
harassment by the victim. sentenced to undergo 1 year Simple
campaign also imprisonment and to pay fine of
involved the Rs.500/- and for the offence u/s 67
creation of fake of IT Act 2000 to undergo RI for 2
emails and email years and to pay fine of Rs.4000/- All
communications. sentences to run concurrently.”
Page 334 | Chapter 9 | Appendix A
A
APPENDIX
TABLE A
Alternate Forms of Cybercrime
Continued from last page
Alternate Forms of Cybercrime
Cyber Crime Case Attacker Date of Jurisdic- Jurisdic- Target(s) of Methodology of Indict- Responding Case information Resources
Characteristics Incident tional itonal attack Attack ment(s) Entity (legal provision that case was charged under)
Origin Target
National Association A placement Mar-05 India India Software Phishing Delhi HC issued “The Delhi HC stated that even
of Software and company involved and Service judgement in the though there is no specific
Service Companies vs in headhunting and Companies lawsuit legislation in India to penalize
Ajay Sood & others recruitment. phishing, it held phishing to be
an illegal act by defining it under
Indian law as “a misrepresentation
made in the course of trade leading
to confusion as to the source
and origin of the e-mail causing
immense harm not only to the
consumer but even to the person
whose name, identity or password
is misused.” The court held the
act of phishing as passing off and
tarnishing the plaintiff’s image.
The defendants were operating
a placement agency involved in
head-hunting and recruitment.
In order to obtain personal data,
which they could use for purposes
of headhunting, the defendants
composed and sent e-mails to third
parties in the name of Nasscom. The
high court recognised the trademark
rights of the plaintiff and passed
an ex-parte adinterim injunction
restraining the defendants from
using the trade name or any
other name deceptively similar
to Nasscom. The court further
restrained the defendants from
holding themselves out as being
associates or a part of Nasscom.”
Page 335 | Chapter 9 | Appendix A
A
APPENDIX
TABLE A
Alternate Forms of Cybercrime
Continued from last page
Alternate Forms of Cybercrime
Cyber Crime Case Attacker Date of Jurisdic- Jurisdic- Target(s) of Methodology of Indict- Responding Case information Resources
Characteristics Incident tional itonal attack Attack ment(s) Entity (legal provision that case was charged under)
Origin Target
SMC Pneumatics Employee at 2001 India India SMC Harassment Court of Delhi “After hearing detailed arguments
India Pvt. Ltd. v. company bringing Pnuematics of Counsel for Plaintiff, Hon’ble
Jogesh Kwatra lawsuit. India Pvt. Ltd. Judge of the Delhi High Court
passed an ex-parte ad interim
injunction observing that a prima
facie case had been made out
by the plaintiff. Consequently,
the Delhi High Court restrained
the defendant from sending
derogatory, defamatory, obscene,
vulgar, humiliating and abusive
emails either to the plaintiffs or to
its sister subsidiaries all over the
world including their Managing
Directors and their Sales and
Marketing departments. Further,
Hon’ble Judge also restrained
the defendant from publishing,
transmitting or causing to be
published any information in the
actual world as also in cyberspace
which is derogatory or defamatory
or abusive of the plaintiffs.”
Page 336 | Chapter 9 | Appendix A
A
APPENDIX
TABLE A
Alternate Forms of Cybercrime
Continued from last page
Alternate Forms of Cybercrime
Cyber Crime Case Attacker Date of Jurisdic- Jurisdic- Target(s) of Methodology of Indict- Responding Case information Resources
Characteristics Incident tional itonal attack Attack ment(s) Entity (legal provision that case was charged under)
Origin Target
Vyakti Vikas Defendants posted 2013 India India 4 individuals Defendants Defendant No.2 (D2) is an
Kendra, India Public defamtory material connected posted a high “intermediary” within the definition
Charitable Trust on blogger to the India volume of highly of Section 2(1)(w) and Section 79
THR Trustee Mahesh webpage Public Trust, defamatory of the Information Technology
Gupta & ORS vs. His Holiness materials on Act, 2000. Under Section 79(3)(b)
Jitender Baggaa & Sri Sri Ravi an internet of the IT Act, 2000, D2 is under
ANR. Shankar, and website and an obligation to remove unlawful
Art of Living indiscriminantly content if it receives actual notice
Teacher. sent defamatory from the affected party of any illegal
emails. The content being circulated/published
materials included through its service. D2 is also
personal attacks bound to comply with Information
or alleged Technology (Intermediaries
defamation, Guidelines) Rules 2011. Rule 3(3)
parody or satire of the said rules read with Rule 3(2)
of individuals, requires an intermediary to observe
distasteful due diligence or publish any
imagery or information that is grossly harmful,
language, and defamatory, libellious, disparaging
political or social or otherwise unlawful. Rule 3(4) of
commentary. the said rule provides obligation
of an intermediary to remove such
defamatory content within 36 hours
from receipt of actual knowledge.
The said rule is cited below for easy
reference.
Page 337 | Chapter 9 | Appendix A
A
APPENDIX
TABLE A
Miscellaneous Attacks (to demonstrate capability)
Miscellaneous Attacks (to demonstrate capability)
Cyber Crime Case Attacker Date of Jurisdictional Jurisdicitonal Target(s) of What was Methodology of Indict- Responding Resources
Characteristics Incident Origin Target attack stolen? Attack ment(s) Entity
Flame and Stuxnet Allegedly U.S. & Israel Iran, Lebanon, Intelligence N/A Malware-spreads http://rt.com/news/
Governments Syria, Sudan and and destroys through bluetooth, flame-stuxnet-
Israeli occupied capacity controls, copies and kaspersky-iran-607
territories. destroys. Shows the
http://www.wired.
power of cyber attacks.
com/2012/05/flame/
Operation Ghost 2007- Oct. Estonia U.S. Domain Name System http://www.fbi.gov/
Click 2011 (DNS) hacked millions news/stories/2011/
of computers to make november/
money from marketing malware_110911
companies through the
manipulation of viewer
data.
Morpho Cyber Corporate 2012-present US, Europe and High profile confidential Application of malware Detection http://www.
Espionage espionage group Canada technology, information Mac OS X backdoor by individual computerweekly.
dubbed ‘Morpho’ internet, and program known as companies and com/news/45002
commodities, intellectual OSX.Pintsized as well private sector 49597/Symantec-
and property as windows backdoor entities such as uncovers-Morpho-
pharmaceutical program Backdoor. Semantec. cyber-espionage-
companies. Jiripbot operation
Page 338 | Chapter 9 | Appendix A
A
APPENDIX
TABLE A
Miscellaneous Attacks (to demonstrate capability)
Continued from last page
Miscellaneous Attacks (to demonstrate capability)
Cyber Crime Case Attacker Date of Jurisdictional Jurisdicitonal Target(s) of What was Methodology of Indict- Responding Resources
Characteristics Incident Origin Target attack stolen? Attack ment(s) Entity
Pawn Storm cyber espionage 2014 U.S., Europe, and Military, Data Operation was dubbed Researchers http://www.
group Pakistan diplomatic ‘pawn storm’ because at Trend Micro computerweekly.
and defence the attackers used two uncovered the com/news/2240
industry or more connected tools scheme. 233415/Researchers-
or tactics to attack a uncover-sophistica
target. Used phishing ted-cyber-espio
and spear-phishing.Used nage-campaign
javascript trick to target
Microsoft Outlook Web
Access then specifically
crafted emails to
manipulate targets into
visiting bogus Micorsoft
outlook web access
pages where they would
enter their credentials.
Page 339 | Chapter 9 | Appendix A
B
APPENDIX
TABLE B1
Overview of Multilateral Instruments on Cybercrime
Explanatory Note: This Appendix is divided into two parts. The first part (Table B1) lists the major multilateral instruments on cybercrime and describes the binding nature of each instrument.
The second part (Table B2) identifies by article in each instrument (listed across the top of the page) where the substantive cybercrime provision (listed in the left column) can be found in that instrument.
Multilateral Instrument Binding Multilateral Instruments on Cybercrime Non-binding Multilateral Instruments on Cybercrime
Instruments developed in the context CoE, Convention on Cybercrime (2001), Additional Protocol to the Convention Commonwealth Model Laws on Computer and Computer-related Crime (2002)
of, or inspired by, CoE or EU on Cybercrime (2003), and Convention on Protection of Children against Sexual and Electronic Evidence (2002)
Exploitation and Sexual Abuse (2007)
EU legislation including on e-Commerce (2000/31/EC), on Combating Fraud
and Counterfeiting of Non-Cash Means of Payment (2001/413/JHA), on
Personal Data (2002/58/EC as amended), on Attacks against Information
Systems (2013/40/EU replacing 2005/222/JHA) and Proposal for 2005/222/JHA
[COM(2010) 517 final], and on Child Pornography (2011/92/EU)
Instruments developed by CIS CIS, Agreement on Cooperation among the States members of the CIS in
Combating Offences related to Computer Information (2001)
Instruments developed by SCO SCO, Agreement between the Governments of the Member States of the SCO
on Cooperation in the Field of International Information Security (2009)
Instruments developed in the African ECOWAS, Directive on Fighting Cybercrime within ECOWAS (2011) East African Community (EAC) Legal Framework for Cyberlaws (Draft) (2008)
context AU, African Union Convention on Cyber Security and Personal Data Protection Common Market for Eastern and Southern Africa (COMESA), Cyber Crime
(2014) Model Bill (2011)
ITU, Harmonization of ICT Policies in Sub-Saharan Africa (“HIPSSA”), Southern
African Development Community (SADC) Model Law on Computer Crime and
Cybercrime (2013)
Instruments developed by Arab League League of Arab States, Arab Convention on Combating Information Technology League of Arab States, Model Law on Combating Information Technology
Offences (2010) Offences (2004)
Instruments developed in the context ITU, Information and Communications Capacity Building for Pacific Island
of Pacific Islands Countries (“ICB4PAC”), Electronic Crimes : Knowledge-Based Report (Skeleton)
(2013)
Instruments developed in the Caribbean ITU, Harmonization of ICT Policies, Legislation and Regulatory Procedures in the
context Caribbean (HIPCAR), Model Legislative Texts on Cybercrime/e-Crime (2012) and
Electronic Evidence (2013)
Organization for Eastern Caribbean States (OECS), Electronic Crimes Bill
(Fourth Draft) (2011) and Electronic Evidence Bill (Third Draft) (2011)
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B
APPENDIX
Comparative Analysis of Provisions of Multilateral
TABLE B2
Instruments on Cybercrime
Definitions
Definitions AU1 CIS2 CoE3 LAS4 SCO5 ECOWAS6 COMESA9 OECS15 The ITU, ITU, ITU,
Commonwealth10 HIPCAR11 HIPSSA12 ICB4PAC13
Computer/Information/ Art.1 Art. 1(a) Art. 2(5) Art. 1 Sec.1 Sec. 2 Sec. 3 Sec. 3(5) Sec.3(5) Sec. 3(13)
Electronic System
Computer (Electronic) Art.1 Art. 1(b) Art. 1(b) Arts. 2(1), Art. 1 Sec. 1 Sec. 2 Sec. 3 Sec. 3(6) Sec. 3(6) Secs. 3(9),
data [Computer 2(3) 3(18)
information, Data]
Subscriber information Art. 18(3) Art. 2(9) Sec. 1 Sec. 2
Traffic data Art. 1(d) Sec. 1 Sec. 2 Sec. 3 Sec. 3(18) Sec. 3(22) Sec. 3(24)
Service provider/ISP Art. 1(c) Art. 2(2) Sec. 1 Sec. 2 Sec. 3 Sec. 3(17) Sec. 3(21) Sec. 3(20)
Page 341 | Chapter 9 | Appendix View citations at the end of this section page 403
B
APPENDIX
Comparative Analysis of Provisions of Multilateral
TABLE B2
Instruments on Cybercrime
Substantive Law, Cybercrime Acts, Acts Directed against the Confidentiality, Integrity and Availability of Computer systems or Data, Criminalization
Criminalization AU1 CIS2 CoE3 LAS4 SCO5 ECOWAS6 COMESA9 OECS15 The ITU, ITU, ITU,
Commonwealth10 HIPCAR11 HIPSSA12 ICB4PAC13
Illegal access to a Arts. 29(1) Art. 2 Art. 6(1) Art. 4 Sec. 18 Secs. 4(1)(a), Sec. 5 Sec. 4 Sec. 4 Sec. 2
computer system (a), 29(1)(b) 4(2)
Illegal interception Art. 29(2)(a) Art. 3 Art. 7 Art. 8 Sec. 21 Sec. 8 Sec. 6 Sec. 6 Sec. 4
Illegal interference with Arts. 29(1) Art. 3 (1)(c) Art.4. Art. 8 Arts. 7, 9 Sec. 20(2) Secs. 4(1)(d4) Sec. 6 Sec. 7 Sec. 7 Sec. 5
computer data (e), 29(1)(f) (1)(i), 4(2)
Illegal interference with a Art. 29(1)(d) Art. 3 (1)(c) Art. 5 Art. 6(2)(a) Art. 6 Sec. 20(1) Secs. 4(1)(d4) Sec. 6 Sec. 7 Sec. 7 Sec. 5
computer system (1)(i), 4(2)
Misuse of devices Art. 29(1)(h) Art. 3(1)(b) Art. 6 Art. 9 Art. 14 Sec. 22 Sec. 19 Sec. 9 Sec. 10 Sec. 10 Sec. 8
Illegal access to computer Art. 3(1)(a) Art. 2 Sec. 19
data
Illegal acquisition of Art. 2 Sec. 4(1)(b) Sec. 8 Sec. 8 Sec. 6
computer data
Illegal remaining in a Art. 29(1)(c) Art. 5 Sec. 5 Sec. 5 Sec. 3
computer system
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B
APPENDIX
Comparative Analysis of Provisions of Multilateral
TABLE B2
Instruments on Cybercrime
Substantive Law, Cybercrime Acts, Acts Committed by Use of Computer Systems or Data, Computer-related Acts, Criminalization
Criminalization AU1 CIS2 CoE3, 8 LAS4 SCO5 ECOWAS6 COMESA9 OECS15 The ITU, ITU, ITU,
Commonwealth10 HIPCAR11 HIPSSA12 ICB4PAC13
Computer-related forgery Art. 29(2)(b) Art. 7 Art. 10 Art. 10 Sec. 23 Sec.8 Sec. 11 Sec. 11
Computer-related fraud Art. 29(2)(d) Art. 8 Art. 11 Art. 11 Sec. 24 Sec. 9 Sec. 12 Sec. 12 Sec. 10
Computer-related Art. 3(1)(d) Art. 10 Art. 17
copyright and trademark
offences
Sending SPAM, etc. Arts. 2 to 6, Sec. 19(7) Sec. 5 Sec. 15 Sec. 19 Sec. 14
8, 10 to 11
Computer-related identity Arts. 2 to 6 Sec.6 Sec. 14 Sec. 15 Sec. 13
offences
Computer-related Lanzarote Sec. 19
solicitation of a child Conventi
(grooming) on, Art. 23
Cyber-harassment Sec. 18 Sec. 22
Cyberstalking Sec. 17 Sec. 17
Sending offensive Sec. 5
messages through
communication services
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B
APPENDIX
Comparative Analysis of Provisions of Multilateral
TABLE B2
Instruments on Cybercrime
Substantive Law, Cybercrime Acts, Acts Committed by Use of Computer Systems or Data, Computer Content-related Acts, Criminalization
Criminalization AU1 CIS2 CoE3, 7 LAS4 SCO5 ECOWAS6 COMESA9 OECS15 The ITU, ITU, ITU,
Commonwealth10 HIPCAR11 HIPSSA12 ICB4PAC13
Computer-related child Arts. 29(3)(1) Art 9. Arts. 12(2), Arts. 16 to 18 Sec. 13 Sec. 10 Sec. 13 Sec. 13 Sec. 11
pornography offence (a) to 29(3) 12(3)
(1)(c)
Computer-related Art. 29(3) Additional Art. 20 Sec. 16(c)
dissemination of racist and (1)(e) Protocol,
xenophobic material Art. 3
Computer-related racist Art. 29(3) Additional Art. 21
and xenophobic motivated (1)(f) Protocol,
threat Art. 4
Computer-related racist Art. 29(3) Additional Art. 22 Sec. 17
and xenophobic motivated (1)(g) Protocol,
insult Art. 5
Computer-related denial or Art. 29(3) Additional Art. 23 Sec. 18
justification of genocide or (1)(h) protocol,
crimes against humanity Art. 6
Computer-related acts in Arts 2 to 8, Arts. 15(1)
support of terrorism 11 to 12 to 15(3)
Cyber-defamation Sec. 7 Sec. 20
Computer-related Arts. 12(1), Arts. 16 to 18 Sec. 12
pornography offence 13
Facilitation of access of a Art. 29(3) Art. 9 Art. 19 Sec. 14
child to pornography (1)(d)
Computer-related religious Art. 15(4) Sec. 21
offences
Page 344 | Chapter 9 | Appendix View citations at the end of this section page 403
B
APPENDIX
Comparative Analysis of Provisions of Multilateral
TABLE B2
Instruments on Cybercrime
Substantive Law, Other Cybercrime Acts, Criminalization
Criminalization AU1 CIS2 CoE3 LAS4 SCO5 ECOWAS6 COMESA9 OECS15 The ITU, ITU, ITU,
Commonwealth10 HIPCAR11 HIPSSA12 ICB4PAC13
Computer-related money Art. 16(1)
laundering offence
Computer-related illicit Arts. 16(2)
trafficking to 16(4)
Illegal online gambling Art. 13 Sec. 18
Computer-related extortion Sec. 25
Computer-related acts Art. 29(2)(e) Arts 2 & 4 Art. 12
involving personal
information/personal data
Computer-related breach Art. 31(2)(c) Arts 2 & 3
of secrecy
Use of forged/fraudulently Art. 29(2)(c) Arts 7 & 8 Art. 13
obtained data
Illicit use of electronic Art. 18
payment tools
Computer-related acts Arts 2 & 4 Art. 14 Sec.11
against privacy
Disclosure of details of an Arts 16, 20 Sec. 29(2) Sec. 21(1) Sec. 16 Sec. 20 Sec. 15
investigation by a service & 21
provider
Failure to provide Arts 16, 18, Sec. 13(2) Sec. 17 Sec. 21 Sec. 16
assistance in an 20 & 21
investigation
Failure to comply with in an Arts 16, 18, Secs. 23(4)
investigative request 20 & 21 (b),23(5)
Obstruction of an Secs. 23(4)
investigation (a), 23(5)
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B
APPENDIX
Comparative Analysis of Provisions of Multilateral
TABLE B2
Instruments on Cybercrime
Substantive Law, Sanctions and Liabilities
Substantive Law, AU1 CIS2 CoE3 LAS4 SCO5 ECOWAS6 COMESA9 OECS15 The ITU, ITU, ITU,
Sanctions and Liabilities Commonwealth10 HIPCAR11 HIPSSA12 ICB4PAC13
Aggravating circumstance Art. 30(1)(b) Art. 21 Art. 24
for conventional offence
committed by means of a
computer system
Attempt and aiding or Arts. 29(1) Art. 11 Art 19. Sec. 26 Sec. 22
abetting (a-f), 29(2)(a)
Corporate liability Art. 30(2) Art. 12 Art. 20 Art. 27 Sec. 27 Sec. 22
Sanctions and measures Art. 31 Art. 13 Arts. 28, 29
Page 346 | Chapter 9 | Appendix View citations at the end of this section page 403
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APPENDIX
Comparative Analysis of Provisions of Multilateral
TABLE B2
Instruments on Cybercrime
Procedural Law
Procedural Law AU1 CIS2 CoE3 LAS4 SCO5 ECOWAS6 COMESA9 OECS15 The ITU, ITU, ITU,
Commonwealth10 HIPCAR11 HIPSSA12 ICB4PAC13
Scope of procedural Art. 14 Art. 22 Sec. 28
provisions
Procedural conditions and Art. 15 Sec. 32
safeguards
Expedited preservation of Art. 31(3)(d) Art. 16 Art. 23 Art. 31 Sec. 33 Sec. 20 Sec. 17 Sec. 23 Sec. 28 Sec. 28
stored computer data
Expedited preservation Art. 17 Art. 24 Sec. 34 Sec. 21 Sec. 18 Sec. 24 Sec. 29 Sec. 29
and partial disclosure of
traffic data
Expedited preservation Sec. 35
of computers or storage
media
Production order Art. 18 Art. 25 Sec. 36 Sec. 22 Sec. 15 Sec .22 Sec. 27 Sec. 27
Search and Seizure of a Arts. 31(3) Arts. 19(1) Arts. 26, Art. 30 Secs. 37(1) to Secs. 12, 14 Sec. 20 Sec. 25 Sec. 25
computer system or data (a), 31(3)(b) to 19(3) 27(1) 37(3)
Real-time collection of Art. 20 Art. 28 Sec. 38 Sec. 24 Sec. 19 Sec. 25 Sec. 30 Sec. 30
traffic data
Interception of content Art. 31 (3)(e) Art. 21 Art. 29 Sec. 39 Sec. 18 Sec. 26 Sec. 31 Sec. 31
data
Use of remote forensic Sec. 27 Sec. 32 Sec. 32
tools
Trans-border access to Art. 32 Art. 40 Sec. 49
stored computer data
Provision of assistance in Art. 31(3)(e) Art. 19(4) Art. 27(2) Sec, 37(4) Sec. 13 Sec. 21 Sec. 26 Sec. 26
investigation
Retention of computer Secs. 29 to
Data 31
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B
APPENDIX
Comparative Analysis of Provisions of Multilateral
TABLE B2
Instruments on Cybercrime
Admissibility of Electronic Evidence
Admissibility of AU1 CIS2 CoE3 LAS4 SCO5 ECOWAS6 COMESA9 OECS15 The ITU, ITU, ITU,
electronic evidence Commonwealth10 HIPCAR11 HIPSSA12 ICB4PAC13
Admissibility of electronic Arts. 6(6), Art. 32 Sec. 5(1) Sec. 20 Sec. 5 Sec. 24 Sec. 24
evidence 29(4)
Admissibility of foreign Sec. 16
electronic evidence
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B
APPENDIX
Comparative Analysis of Provisions of Multilateral
TABLE B2
Instruments on Cybercrime
Jurisdiction
Jurisdiction AU1 CIS2 CoE3 LAS4 SCO5 ECOWAS6 COMESA9 OECS15 The ITU, ITU, ITU,
Commonwealth10 HIPCAR11 HIPSSA12 ICB4PAC13
Committed within the Art. 22(1)(a) Art. 30(1)(a) Sec. 40(1)(a) Sec. 3 (a) Sec. 4(a) Sec. 19(a) Sec. 23(a) Sec. 23(a)
territory
Committed on a registered Arts. 22(1) Arts. 30(1) Sec. 40(2) Sec. 4(b) Sec. 19(b) Sec. 23(b)
ship or aircraft (b), 22(1)(c) (b), 30(1)(c)
Using a computer system/ Sec. 40(1)(b)
data within the territory
Directed against a Sec. 40(1)(c)
computer system/data
within the territory
Nationality principle Art. 22(1)(d) Art. 30(1)(d) Secs. 40(3) Secs. 4(c), 4(d) Sec. 19(c) Secs. 23(c), Secs. 23(b),
(Offender) (a), 40(3)(b) 23(d) 23(c)
State interest principles Art. 30(1)(e)
Jurisdiction when Art. 22(3) Art. 30(2) Sec. 40(4)
extradition refused
Concurrent jurisdiction Art. 22(4) Art. 30(3) Sec. 40(5)
Establishment of place of Sec. 40(6)
offence
Dual criminality Art. 22(1)(d) Art. 30(1)(d) Sec. 40(3)(a) Sec. 4(d) Sec. 19(c) Sec. 23(d) Sec. 23(b)
Reservation Art. 22(2) Sec. 40(7)
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B
APPENDIX
Comparative Analysis of Provisions of Multilateral
TABLE B2
Instruments on Cybercrime
International Cooperation, International Cooperation: General Principles
International AU1 CIS2 CoE3 LAS4 SCO5 ECOWAS6 COMESA9 OECS15 The ITU, ITU, ITU,
Cooperation: General Commonwealth10 HIPCAR11 HIPSSA12 ICB4PAC13
Principles
International cooperation: Art. 28 Art. 5 Art. 23 Arts. 3 to 5 Art. 33 Sec. 41
general principles
International Cooperation, Extradition: General Principles
Extradition: General AU1 CIS2 CoE3 LAS4 SCO5 ECOWAS6 COMESA9 OECS15 The ITU, ITU, ITU,
Principles Commonwealth10 HIPCAR11 HIPSSA12 ICB4PAC13
Extradition: general Art. 24 Art. 31 Sec. 42
principles
Dual criminality Art. 24(1)(a) Art. 31(1)(a) Sec. 42(1)
Extraditable Offences Arts. 24(1), Arts. 31(1), Secs. 42(1), Sec. 31
24(2), 24(4) 31(2), 31(4) 42(3)
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B
APPENDIX
Comparative Analysis of Provisions of Multilateral
TABLE B2
Instruments on Cybercrime
International Cooperation, Mutual Assistance (MA): General Principles [Mutual Legal Assistance (MLA): General Rules]
MA: General principles AU1 CIS2 CoE3 LAS4 SCO5 ECOWAS6 COMESA9 OECS15 The ITU, ITU, ITU,
(MLA: General Rules) Commonwealth10 HIPCAR11 HIPSSA12 ICB4PAC13
MA: General principles Art. 28 (2) Art. 6 Arts. 25-27 Arts. 32 to Secs. 43 to
(MLA–General Rules) 34 45
Expedited means of Art. 6(2) Arts. 25(3), Arts. 32(3), Secs. 43(2),
communication or other 27(9) 34(8) 45(8)
urgent channels
Dual criminality Art. 28(2) Art. 25(5) Art. 32(5) Sec. 43(4)
Spontaneous (Unsolicited) Art. 6(1) Art. 26 Art. 33 Sec. 44
information
Refusal of cooperation/ Art. 8 Arts. 25(4), Art. 35 Secs. 43(3),
assistance 27(4) 45(5)
Confidentiality of Art. 9 Art. 28 Art. 36 Art. 6 Secs. 45(9),
information to be provided 45(10)
and Limitation on Use
Confidentiality of the fact Art. 27(8) Art. 34(7) Sec. 45(7)
of any request made and
its subject
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B
APPENDIX
Comparative Analysis of Provisions of Multilateral
TABLE B2
Instruments on Cybercrime
International Cooperation, Mutual Assistance (MA): Specific Provisions [Mutual Legal Assistance (MLA): Specific Rules]
MA: Specific Provisions AU1 CIS2 CoE3 LAS4 SCO5 ECOWAS6 COMESA9 OECS15 The ITU, ITU, ITU,
(MLA: Specific Rules) Commonwealth10 HIPCAR11 HIPSSA12 ICB4PAC13
Expedited preservation of Art. 29 Art. 37 Sec. 46
stored computer data
Expedited disclosure of Art. 30 Art. 38 Sec. 47
preserved traffic data
MA: Accessing of stored Art. 31 Art. 39 Sec. 48
computer data
Trans-border access to Art. 32 Art. 40 Sec. 49
stored computer data
MA: Real-time collection of Art. 33 Art. 41 Sec. 50
traffic data
MA: Interception of content Art. 34 Art. 42 Sec. 51
data
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B
APPENDIX
Comparative Analysis of Provisions of Multilateral
TABLE B2
Instruments on Cybercrime
International Cooperation, 24-7 Network
24-7 Network AU1 CIS2 CoE3 LAS4 SCO5 ECOWAS6 COMESA9 OECS15 The ITU, ITU, ITU,
Commonwealth10 HIPCAR11 HIPSSA12 ICB4PAC13
24/7 Network Art. 35 Art. 43 Sec. 52
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B
APPENDIX
Comparative Analysis of Provisions of Multilateral
TABLE B2
Instruments on Cybercrime
Service Provider Liability and Responsibility
Service Provider Liability AU1 CIS2 CoE3 LAS4 SCO5 ECOWAS6 COMESA9 OECS15 The ITU, ITU, ITU,
and Responsibility Commonwealth10 HIPCAR11 HIPSSA12 ICB4PAC13
No general monitoring Sec. 17(1) Sec. 28 Sec. 33 Sec. 33
obligation
Voluntary Supply (Provision) Sec. 17(2)
of Information
Take-down notifications Sec. 16
Liability of access providers Sec. 12 Sec. 29 Sec. 34 Sec. 34
Liability of caching Sec. 13 Sec. 31 Sec. 35 Sec. 36
providers
Liability of hosting Sec. 14 Sec. 30 Sec. 36 Sec. 35
providers
Liability of hyperlink Sec. 15 Sec. 32 Sec. 37 Sec 37
providers
Liability of search engine Sec. 33 Sec. 38 Sec. 38
providers
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C
APPENDIX
National Legal Frameworks on Combating
TABLE C
Cybercrime (Assessment Table)
Explanatory Note: This Table reviews the legal frameworks of 196 countries, based on initial research computer systems or data (“core” cybercrime acts) are criminalized. However, states are not deemed
of publicly available laws, regulations and electronic data which were verified and updated based on to have domestic legislation regarding cybercrime if “core” cybercrime acts are not criminalized.1 No
a review of ITU1 and UNCTAD data,1 as well as UNCTAD’s Cyber Law Tracker1. This Table provides an distinction is made between laws on the basis of naming: some states specifically refer to “cybercrime”
overview of national legal frameworks using the working definition of cybercrime adopted in section or some other similar term, in their laws, while for other states use the same terms found in their penal
2 A, with particular reference to whether acts against the confidentiality, integrity and availability of or criminal code.
National Legal Frameworks on Combating Cybercrime1
Country Name2 Has domestic Name of domestic legislation regarding cybercrime International or Regional Instrument3
legislation
regarding
Budapest Convention Arab Convention CIS Agreement SCO Agreement
cybercrime
Afghanistan No No No No No
Albania Yes Criminal Code (last amended in 2013) (e.g., Article 192/b) {Has signed and/or No No No
ratified (or acceded to)}
Algeria Yes Law No. 09-04 of 14 Sha’ban 1430 Corresponding to 5 August 2009 No {Has signed and/or No No
Containing Specific Rules on the Prevention and Fight Against ratified (or acceded to)}
Information Technologies and Communication’s Crimes (enacted
in 2009)
Andorra Yes Penal Code [Article 225 (Computer Damage)] {Has signed and/or No No No
ratified (or acceded to)}
Angola No & Draft Law Draft Law to Combat Crime in the Field of ICT and Services for No No No No
the Information Society (2011)
Preliminary Draft Penal Code [e.g., Article 399 (Computer
Damage)]
Antigua and Yes Electronic Crimes Act, 2013 No No No No
Barbuda
Argentina Yes Penal Code (enacted by Law No. 11, 179 of 1984 and amended by Invited to accede No No No
Law No. 26,388 of 2008) (e.g., Sections 153B, 153C, and 153D)
Armenia Yes Criminal Code (adopted on 18 April 2003), Chapter 24. Crimes {Has signed and/or No {Has signed and/or No
against computer information security (Articles 251-257) ratified (or acceded to)} ratified (or acceded to)}
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APPENDIX
National Legal Frameworks on Combating
TABLE C
Cybercrime (Assessment Table)
National Legal Frameworks on Combating Cybercrime1
Country Name2 Has domestic Name of domestic legislation regarding cybercrime International or Regional Instrument3
legislation
regarding
Budapest Convention Arab Convention CIS Agreement SCO Agreement
cybercrime
Australia Yes Criminal Code [enacted by Act No. 12 of 1995 as amended up {Has signed and/or No No No
to Act No. 50 of 2010 and further amended by Act No. 120 of ratified (or acceded to)}
2012 (Cybercrime Legislation Amendment Act 2012)], Chapter
10.National Infrastructure, Part 10.7 —Computer offences (Articles
476.1 to 478.4)
Austria Yes Criminal Code (Sections 118a, 119, 119a, 126a, 126b, 126c, 148a, {Has signed and/or No No No
225a) ratified (or acceded to)}
Azerbaijan Yes Criminal Code (adopted on 30 September 1999 and came into {Has signed and/or No {Has signed and/or No
force on 1 September 2000), Chapter 30. Crimes in Sphere of ratified (or acceded to)} ratified (or acceded to)}
the Computer Information (Articles 271, 272, and 273)
Criminal Procedure Code (adopted on 14 July 2000)
Bahamas, The Yes Computer Misuse Act, 2006 No No No No
Bahrain Yes Law No. 60 of 2014 concerning Information Technology Crimes No {Has signed and/or No No
ratified (or acceded to)}
Bangladesh Yes Information & Communication Technology Act, 2006 [amended No No No No
by Information & Communication Technology (Amendment) Act,
2013], Chapter VII. Offenses, Investigation, Adjudication, Penalties
etc. (Sections 54 to 90)
Barbados Yes Computer Misuse Act, 2005 No No No No
Belarus Yes Criminal Code (Penal Code) (enacted in 1999) (as amended up to No No {Has signed and/or No
2013)], Section XII. Chapter 31. Crimes against information security ratified (or acceded to)}
(Articles 349-355)
Belgium Yes Criminal Code (amended by Law on computer crime of 28 {Has signed and/or No No No
November 2000) (Article 210bis; Article 504quater, Article ratified (or acceded to)}
550bis, Article 550ter)
Criminal Procedure Code (Article 39bis; Article 88ter; Article
88quater; Article 90quater)
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APPENDIX
National Legal Frameworks on Combating
TABLE C
Cybercrime (Assessment Table)
National Legal Frameworks on Combating Cybercrime1
Country Name2 Has domestic Name of domestic legislation regarding cybercrime International or Regional Instrument3
legislation
regarding
Budapest Convention Arab Convention CIS Agreement SCO Agreement
cybercrime
Belize No No No No No
Benin No & Draft Law Draft Decree No. 200/MISP/DC/SGM/DGPN/SERCT/DER/SA No No No No
related to the creation of a division in charge of the fight against
internet crime
Draft Law on the Fight against Cybercrime
Bhutan Yes Information, Communications and Media Act 2006, Provisions No No No No
relating to certain cyber offenses (Sections 171 to 182)
Bolivia Yes Penal Code (Articles 363bis and 363 ter) No No No No
Bosnia and Yes Criminal Code (2003, amended in 2013) (Chapter 24A. Criminal {Has signed and/or No No No
Herzegovina Offences against Computer Data Security) (Articles 292a to 292e) ratified (or acceded to)}
Botswana Yes Cybercrime and Computer Related Crimes (Chapter 08: 06) (Date No No No No
of commencement: 28 Dec. 2007)
Brazil Yes Criminal Code (enacted by Law No. 2, 848 of 1940, and amended No No No No
by Law No. 9,983 of 2000, Law No. 11, 829 of 2008, Law No. 12, 735
of 2012, and Law No. 12, 737 of 2012) [e.g., Article 154 – A (Trespass
of a computing device)]
Brunei Darussalam Yes Computer Misuse Act, 2007 (Chapter 194) No No No No
Penal Code [enacted in 1951, as last amended by Penal Code
(Amendment) Order, 2012]
Bulgaria Yes Penal Code, Chapter 9, Computer Crimes (Articles 319a to {Has signed and/or No No No
Articles 319f) ratified (or acceded to)}
Criminal Procedure Code
Burkina Faso Yes & Draft Law Penal Code, 1996 [Chapter V. Offences Concerning Computers No No No No
(Articles 541-548)]
Draft Law on Cybercrime
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APPENDIX
National Legal Frameworks on Combating
TABLE C
Cybercrime (Assessment Table)
National Legal Frameworks on Combating Cybercrime1
Country Name2 Has domestic Name of domestic legislation regarding cybercrime International or Regional Instrument3
legislation
regarding
Budapest Convention Arab Convention CIS Agreement SCO Agreement
cybercrime
Burundi Yes Penal Code (enacted in 2009) (Articles 467-470) No No No No
Cabo Verde Yes Penal Code [Article 187 (Illegal Computer Processing)] No No No No
Cambodia Yes & Draft Law Draft Cybercrime Law No No No No
Criminal Code (Articles 317 to 320, Articles 427 to 432)
Cameroon Yes Law No. 12 of 2010 on Cybersecurity and Cybercrime (also No No No No
known as “Law No. 12 of 2010 Relating to Cybersecurity and
Cybercriminality”)
Canada Yes Criminal Code [last amended by “Protecting Canadians from {Has signed and/or No No No
Online Crime Act” (assented on 9 December 2014)] ratified (or acceded to)}
Central African No No No No No
Republic
Chad Yes Law No. 14 of 2014 regarding Electronic Communications (Articles No No No No
114, 115, 116, and 120)
Chile Yes Law on Automated Data Processing Crimes (also known as “Law {Has signed and/or No No No
No. 19,223 of 1993 on Categories of Computer-Related Offenses”) ratified (or acceded to)}
China Yes Criminal Law (adopted in 1979 and last amended in 2011) (Articles No No No {Has signed and/or
285, 286 and 287) ratified (or acceded to)}
Colombia Yes Penal Code [enacted by Law No. 599 of 2000, amended by Law Invited to accede No No No
No. 1273 of 2009 (Protection of Information and Data), and last
amended by Law No. 1336 of 2009] (Article 269A to Article 269J)
Comoros No No No No No
Congo, Dem. Rep. No No No No No
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APPENDIX
National Legal Frameworks on Combating
TABLE C
Cybercrime (Assessment Table)
National Legal Frameworks on Combating Cybercrime1
Country Name2 Has domestic Name of domestic legislation regarding cybercrime International or Regional Instrument3
legislation
regarding
Budapest Convention Arab Convention CIS Agreement SCO Agreement
cybercrime
Congo, Rep. No & Draft Law Draft Law on the Fight against Cybercrime (in progress) No No No No
Costa Rica Yes Penal Code [enacted by Law No. 4573 and amended by Law No. Invited to accede No No No
9048 (10 July 2012) and last amended by Law No. 9135 (24 April
2013)] (Articles 196, 196bis, 217bis, 229bis)
Cote d’Ivoire Yes Act No. 2013-451 dated 19 June 2013 on the fight against No No No No
cybercrime
Croatia Yes Criminal Code (Enacted by Text No. 2498 of 2011, Amended by {Has signed and/or No No No
Text No. 3076 of 2012, Date of Entry into Force: 1 January 2013) ratified (or acceded to)}
(Articles 266 –272)
Criminal Procedure Code
Cuba5 No No No No No
Cyprus Yes Law Ratifying the Cybercrime Convention of 2001 (No. 22(III)/2004) {Has signed and/or No No No
ratified (or acceded to)}
Czech Republic Yes Criminal Code, Act No. 40 of 2009 Coll. of January 8, 2009 (effective {Has signed and/or No No No
in 2010 and as amended in 2011) (Sections 230, 231, and 232) ratified (or acceded to)}
Denmark Yes Penal Code (Sections 263-263a) {Has signed and/or No No No
ratified (or acceded to)}
Djibouti Yes Penal Code [Chapter VII. Offences Concerning Computers (Articles No No No No
548-555)]
Dominica No & Draft Law Electronic Crime Bill No No No No
Computer and Computer Related Crimes Bill, 2005
Dominican Yes Law No. 53 of 2007 on High Technology Crimes (adopted in 2007) {Has signed and/or No No No
Republic ratified (or acceded to)}
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APPENDIX
National Legal Frameworks on Combating
TABLE C
Cybercrime (Assessment Table)
National Legal Frameworks on Combating Cybercrime1
Country Name2 Has domestic Name of domestic legislation regarding cybercrime International or Regional Instrument3
legislation
regarding
Budapest Convention Arab Convention CIS Agreement SCO Agreement
cybercrime
Ecuador Yes Organic Comprehensive Criminal Code (Law No. 180 of 2014), No No No No
(Articles 229 to 234)
Egypt, Arab Rep. Yes & Draft Law Penal Code (Article 309bis) No {Has signed and/or No No
ratified (or acceded to)}
Telecommunication Regulation Law (Law No. 10 of 2003) (Article
78)
Draft Cybercrime Law (2016)
El Salvador Yes Special Law against Computer and Related Crimes (Published on No No No No
26 Feb. 2016)
Equatorial Guinea No No No No No
Eritrea Yes Penal Code (2015) [Art. 374 (Unauthorized Use of a Computer), Art. No No No No
375 (Aggravated Unauthorized Use of a Computer)]
Estonia Yes Criminal Code (Penal Code) (as amended up to Act RT I, {Has signed and/or No No No
29.12.2011, 1) (Sections 206 to 208) ratified (or acceded to)}
Criminal Procedure Code
Ethiopia Yes & Draft Law Criminal Code (Proclamation No.414/2004), [Part II. Special Part; No No No No
Book VI. Crimes against Property; Title I. Crimes against rights in
property; Section II. Computer Crimes (Articles 706-711)]
Draft Cybercrime Law (2016) [called “(Draft) Computer Crime
Proclamation No…/2016”]
Fiji Yes Crimes Decree 2009 (Decree No. 44 of 2009) [Chapter III – Criminal No No No No
Offenses, Part 17 — Fraudulent Conduct, Division 6 — Computer
Offences, Articles 336-346]
Finland Yes Criminal Code (Chapter 38 - Data and communications {Has signed and/or No No No
offences, Sections 1 to 12) ratified (or acceded to)}
Criminal Procedure Act
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APPENDIX
National Legal Frameworks on Combating
TABLE C
Cybercrime (Assessment Table)
National Legal Frameworks on Combating Cybercrime1
Country Name2 Has domestic Name of domestic legislation regarding cybercrime International or Regional Instrument3
legislation
regarding
Budapest Convention Arab Convention CIS Agreement SCO Agreement
cybercrime
France Yes Criminal Code [Book III. Felonies and Misdemeanors against {Has signed and/or No No No
Property, Title II. Other offences against Property, Chapter III. ratified (or acceded to)}
Unauthorized Access to Automated Data Processing (Articles
323-1 to 323-7)]
Criminal Procedure Code
Law No.2004-575 of 21 June 2004 regarding Confidence in the
Digital Economy
Gabon No & Draft Law Draft Law on Cybercrime (in progress) No No No No
Gambia Yes Information and Communications Act, 2009 (amended by No No No No
“Information and Communication (Amendment) Act, 2013”),
Chapter 3- Information Society Issues (Sections 163-173)
Georgia Yes Criminal Code, Chapter 35. Computer crimes (Articles 284, 285 and {Has signed and/or No No No
286) ratified (or acceded to)}
Germany Yes German Criminal Code (e.g., Section 202a, Section 303a, {Has signed and/or No No No
Section 303b) ratified (or acceded to)}
German Code of Criminal Procedure
Ghana Yes Electronic Transactions Act (Act No. 772 of 2008), [Cyber No No No No
inspectors (Sections 98 to 106), Cyber offences (Sections 107 to
140)]
Criminal Code (Act 29 of 1960) (also known as “Criminal
Offences Act”)
Greece Yes Penal Code (amended by Law 1805/1988) (Articles 370, 370C, 386) {Has signed and/or No No No
ratified (or acceded to)}
Grenada Yes Electronic Crimes Act of 2013 No No No No
[published in the Official Gazette on October 3, 2013 according
to the International Press Institute (IPI)]
Electronic Transactions Act, 2008 (Section 43)
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APPENDIX
National Legal Frameworks on Combating
TABLE C
Cybercrime (Assessment Table)
National Legal Frameworks on Combating Cybercrime1
Country Name2 Has domestic Name of domestic legislation regarding cybercrime International or Regional Instrument3
legislation
regarding
Budapest Convention Arab Convention CIS Agreement SCO Agreement
cybercrime
Guatemala Yes Penal Code (Articles 274A to 274G) No No No No
Guinea No No No No No
Guinea-Bissau No No No No No
Guyana No No No No No
Haiti No No No No No
Holy See No data No No No No
Honduras No No No No No
Hungary Yes Criminal Code (promulgated on 13 July 2012) (Sections 423-424) {Has signed and/or No No No
ratified (or acceded to)}
Iceland Yes Penal Code (Articles 155, 157, 158, 228, 249a, and 257) {Has signed and/or No No No
ratified (or acceded to)}
India Yes Information Technology Act, 2000 [amended by Information No No No No
Technology (Amendment) Act, 2008]
(Sections 43 to 45, Sections 65 to 78)
Indonesia Yes Law Concerning Electronic Information and Transactions (No. 11 of No No No No
2008) (Articles 27 to 37, Articles 45 to 52)
Iran, Islamic Rep. Yes Computer Crimes Law No No No No
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APPENDIX
National Legal Frameworks on Combating
TABLE C
Cybercrime (Assessment Table)
National Legal Frameworks on Combating Cybercrime1
Country Name2 Has domestic Name of domestic legislation regarding cybercrime International or Regional Instrument3
legislation
regarding
Budapest Convention Arab Convention CIS Agreement SCO Agreement
cybercrime
Iraq No & Draft Law Draft Informatics Crimes Law, 2010 (Revoked in 2013) No {Has signed and/or No No
ratified (or acceded to)}
Ireland Yes Criminal Justice (Theft and Fraud Offences) Act, 2001, Section 9 {Has signed and/or No No No
ratified (or acceded to)}
Criminal Damages Act, 1991
Israel Yes Computers Law of 1995 [Chapter 2. Computer Offences (Sections {Has signed and/or No No No
2 to 6)] ratified (or acceded to)}
Italy Yes Criminal Code (amended by Law No. 547 of 23 December 1993. {Has signed and/or No No No
Amendment of the Provisions of the Penal Code & the Code of ratified (or acceded to)}
Criminal Procedure in Relation to Computer Criminality)
Jamaica Yes Cybercrimes Act, 2010 No No No No
Japan Yes Act on Prohibition of Unauthorized Computer Access (enacted in {Has signed and/or No No No
1999 and amended in 2012 and 2013) ratified (or acceded to)}
Jordan Yes Information Systems Crime Law of 2010 No {Has signed and/or No No
ratified (or acceded to)}
Kazakhstan Yes Criminal Code (enacted in 1997 and amended in 2004), Chapter 7. No No {Has signed and/or {Has signed and/or
Crimes in the Sphere of Economic Activity (Article 227) ratified (or acceded to)} ratified (or acceded to)}
Kenya Yes & Draft Law Draft Law: Cybercrime and Computer related Crimes Bill, 2014 No No No No
Information and Communications Act, 2009 [amended by “
Information and Communications (Amendment) Act, 2013”]
(Sections 83U to 84F)
Kiribati Yes Telecommunications Act, 2004 [Part VII – Computer Misuse No No No No
(Sections 64 to 69)]
Korea, Dem. Yes Criminal Law (last amended in 2012) (Articles 192, 193, and 194) No No No No
People’s Rep.
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APPENDIX
National Legal Frameworks on Combating
TABLE C
Cybercrime (Assessment Table)
National Legal Frameworks on Combating Cybercrime1
Country Name2 Has domestic Name of domestic legislation regarding cybercrime International or Regional Instrument3
legislation
regarding
Budapest Convention Arab Convention CIS Agreement SCO Agreement
cybercrime
Korea, Rep. Yes Act on Promotion of Information and Communications Network No No No No
Utilization and Information Protection, etc. (last amended in 2015)
[Chapter X. Penal Provisions (Articles 70 to 76)]
Kosovo Yes Law on Prevention and Fight of the Cyber Crime, 2010 No No No No
Kuwait Yes Law No. 63 of 2015 on combating cyber crimes (effective as of 12 No {Has signed and/or No No
Jan. 2016) ratified (or acceded to)}
Kyrgyz Republic Yes Criminal Code (enacted in 1997 and amended in 2006), Chapter 28. No No {Has signed and/or {Has signed and/or
Crimes in the Sphere of Computer Information (Articles 289-291) ratified (or acceded to)} ratified (or acceded to)}
Lao PDR No No No No No
Latvia Yes Criminal Code (Sections 241 to 245) {Has signed and/or No No No
ratified (or acceded to)}
Lebanon No No No No No
Lesotho Yes & Draft Law Draft Law: Computer Crime and Cybercrime Bill, 2013 No No No No
Penal Code Act, 2010 (Government Gazette: 9 March 2012)
[Section 62 (Misuse of property of another), Subsection (2)]
Liberia No No No No No
Libya No No {Has signed and/or No No
ratified (or acceded to)}
Liechtenstein Yes Criminal Code (e.g., Article 126a, Article 126b) {Has signed and/or No No No
ratified (or acceded to)}
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APPENDIX
National Legal Frameworks on Combating
TABLE C
Cybercrime (Assessment Table)
National Legal Frameworks on Combating Cybercrime1
Country Name2 Has domestic Name of domestic legislation regarding cybercrime International or Regional Instrument3
legislation
regarding
Budapest Convention Arab Convention CIS Agreement SCO Agreement
cybercrime
Lithuania Yes Criminal Code (enacted in 2000 and amended in 2010), Chapter {Has signed and/or No No No
30. Crimes against Security of Electronic Data and Information ratified (or acceded to)}
Systems (Articles 196 to 198(2))
Criminal Procedure Code
Luxembourg Yes Penal Code (as amended by Act of 15 Jul. 1993, Law of 14 Aug. {Has signed and/or No No No
2000, Law of 10 Nov. 2006, and Law of 18 Jul. 2014) (Articles 231bis, ratified (or acceded to)}
491, and 496, as well as, Section VII.4 – On offences in the field of
data processing, Articles 509-1 to 509-7)
Macedonia, FYR Yes Criminal Code (e.g., Article 251. Damage and unauthorized {Has signed and/or No No No
entering in a computer system) ratified (or acceded to)}
Madagascar Yes Act 2014-006 on the fight against cybercrime No No No No
Malawi No & Draft Law Electronic Transactions Bill, 2015, Part X –Offences (Sections 86 No No No No
to 98)
E-Bill, 2012, Part V-Security in Digital Economy, Chapter 2-Cyber
criminality, Sections 42 to 44
Malaysia Yes Computer Crimes Act, 1997 (incorporating all amendments up to No No No No
2006)
Maldives No No No No No
Mali Yes Penal Code (Articles 264 to 271) No No No No
Malta Yes Criminal Code (Chapter 9) (Articles 337B to 337G) {Has signed and/or No No No
ratified (or acceded to)}
Marshall Islands No No No No No
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APPENDIX
National Legal Frameworks on Combating
TABLE C
Cybercrime (Assessment Table)
National Legal Frameworks on Combating Cybercrime1
Country Name2 Has domestic Name of domestic legislation regarding cybercrime International or Regional Instrument3
legislation
regarding
Budapest Convention Arab Convention CIS Agreement SCO Agreement
cybercrime
Mauritania No & Draft Law Draft Law: Bill on Cybercrime No {Has signed and/or No No
ratified (or acceded to)}
Mauritius Yes Computer Misuse and Cybercrime Act, 2003 (Act No. 22 of 2003) {Has signed and/or No No No
ratified (or acceded to)}
Mexico Yes Federal Criminal Code (Articles 211bis 1 to Articles 211bis 7) Invited to accede No No No
Micronesia, Fed. No No No No No
Sts.
Moldova Yes Criminal Code (enacted in 2002 and amended in 2009), Chapter XI. {Has signed and/or No {Has signed and/or No
Computer Crimes and Crimes in the Telecommunications Sphere ratified (or acceded to)} ratified (or acceded to)}
(Articles 259-2611)
Monaco Yes Law on Digital Economy {Has signed and/or No No No
ratified (or acceded to)}
Mongolia Yes Criminal Code (Enacted in 2002) [Special Part, Title 8. Crimes No No No No
against Public Security and Health, Chapter 25: Crimes against the
security of computer data (Articles 226 to 229)]
Montenegro Yes Criminal Code, Chapter 28. Criminal Acts against Safety of {Has signed and/or No No No
Computer Data (Articles 349 to 356) ratified (or acceded to)}
Criminal Procedure Code
Morocco Yes Penal Code (Articles 607-3 to 607-10) Invited to accede {Has signed and/or No No
ratified (or acceded to)}
Mozambique No No No No No
Myanmar Yes Electronic Transactions Law, 2004 (Articles 2, 34, 38) No No No No
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C
APPENDIX
National Legal Frameworks on Combating
TABLE C
Cybercrime (Assessment Table)
National Legal Frameworks on Combating Cybercrime1
Country Name2 Has domestic Name of domestic legislation regarding cybercrime International or Regional Instrument3
legislation
regarding
Budapest Convention Arab Convention CIS Agreement SCO Agreement
cybercrime
Namibia No & Draft Law Draft Law: Electronic Communication and Cybercrime Bill No No No No
Nauru No No No No No
Nepal Yes Electronic Transaction Act, 2008, Chapter 9. Offense relating to No No No No
Computer (Sections 44-59)
Netherlands Yes Criminal Code (e.g., Art. 138ab and Art. 138b) {Has signed and/or No No No
ratified (or acceded to)}
New Zealand Yes Crimes Act 1961 (amended by Crimes Amendment Act, 2003) No No No No
(Articles 248-254)
Nicaragua Yes Penal Code (e.g., Article 198) No No No No
Niger Yes Penal Code, Title VII. Offences in the Field of Computers (Articles No No No No
399.2 to 399.9)
Nigeria Yes Cybercrimes (Prohibition, Prevention, etc.) Act, 2015 No No No No
Norway Yes General Civil Penal Code (Penal Code) (e.g., Sections 145 to 146) {Has signed and/or No No No
ratified (or acceded to)}
Oman Yes Royal Decree No. 12 of 2011 Issuing the Cyber Crime Law No {Has signed and/or No No
ratified (or acceded to)}
Pakistan Yes & Draft Law Draft Law: Bill - Prevention of Electronic Crimes Act, 2015 No No No No
Prevention of Electronic Crime Ordinance, 2009
Electronic Transactions Ordinance 2002 (Sections 36 to 37)
Palau No No No No No
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C
APPENDIX
National Legal Frameworks on Combating
TABLE C
Cybercrime (Assessment Table)
National Legal Frameworks on Combating Cybercrime1
Country Name2 Has domestic Name of domestic legislation regarding cybercrime International or Regional Instrument3
legislation
regarding
Budapest Convention Arab Convention CIS Agreement SCO Agreement
cybercrime
Panama Yes Penal Code (approved by Law No. 14 of 2007, with amendments {Has signed and/or No No No
and additions introduced by Law No. 26 of 2008, Law No. 5 of 2009, ratified (or acceded to)}
and Law No. 14 of 2010) (Articles 289 to 292)
Papua New No No No No No
Guinea
Paraguay Yes Penal Code (amended by Law No. 4439 of 2011 amending the Invited to accede No No No
Penal Code) [e.g., Article 174b (Unauthorized Access to Computer
Systems)]
Peru Yes Law No. 30096 of 2013 (Computer Crimes Act) Invited to accede No No No
Law 30171 of 2014 [Law amending the Law No. 30096 of 2013
(Computer Crimes Act)]
Philippines Yes Cybercrime Prevention Act of 2012(Republic Act No. 10175 of 2012) Invited to accede No No No
Poland Yes Penal Code (Articles 267, 268 and 269) {Has signed and/or No No No
ratified (or acceded to)}
Portugal Yes Law No. 109/2009, of September 15 (Cybercrime Law) {Has signed and/or No No No
ratified (or acceded to)}
Qatar Yes Cybercrime Prevention Law (Law No. 14 of 2014) No {Has signed and/or No No
ratified (or acceded to)}
Romania Yes Law on Certain Steps for Assuring Transparency in Performing High {Has signed and/or No No No
Official Positions, Public and Business Positions, for Prevention and ratified (or acceded to)}
Sanctioning the Corruption (Law No. 161/2003) (Anti-Corruption
Law) , Title III Preventing and Fighting Cyber Crime (Articles 34 to
67)
Russian Yes Criminal Code (enacted in 1996 and amended in 2012), Section No No {Has signed and/or {Has signed and/or
Federation IX. Crimes Against Public Security and Public Order, Chapter 28. ratified (or acceded to)} ratified (or acceded to)}
Crimes in the Sphere of Computer Information (Articles 272, 273,
and 274)
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C
APPENDIX
National Legal Frameworks on Combating
TABLE C
Cybercrime (Assessment Table)
National Legal Frameworks on Combating Cybercrime1
Country Name2 Has domestic Name of domestic legislation regarding cybercrime International or Regional Instrument3
legislation
regarding
Budapest Convention Arab Convention CIS Agreement SCO Agreement
cybercrime
Rwanda Yes Organic Law instituting the Penal Code (No. 01/2012/OL of No No No No
02/05/2012), Section 5: Theft committed by use of computers or
other similar devices (Articles 306 to 315)
Law Relating to Electronic Messages, Electronic Signatures and
Electronic Transactions (No. 18/2010 of 12/05/2010), Chapter 9:
Computer Misuse and Cyber Crime (Articles 58 to 65)
Samoa Yes Crimes Act (No 10. of 2013), Part 18. Crimes involving Electronic No No No No
Systems (Sections 205 to 220)
San Marino Yes Law No. 70 of 1995, Rules Concerning the Processing of No No No No
Personal Data related to Information Technology (Article 17)
Penal Code (Articles 402 and 403)
Sao Tome and No No No No No
Principe
Saudi Arabia Yes Anti-Cyber Crime Law (2007) No {Has signed and/or No No
ratified (or acceded to)}
Senegal Yes Penal Code (as amended by Law No. 2008-11 on Cybercrime) (Arts. {Has signed and/or No No No
431-7 to 431-63; 677-34 to 677-42) ratified (or acceded to)}
Serbia Yes Criminal Code, Chapter 27. Criminal Offense against Security of {Has signed and/or No No No
Computer Data (Articles 298-304a) ratified (or acceded to)}
Seychelles Yes Computer Misuse Act [enacted by Computer Misuse Act (Act No. No No No No
17 of 1998) and amended by Computer Misuse (Amendment) Act
(Act No. 6 of 2012)]
Sierra Leone No No No No No
Singapore Yes Computer Misuse and Cybersecurity Act (Chapter 50A) No No No No
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C
APPENDIX
National Legal Frameworks on Combating
TABLE C
Cybercrime (Assessment Table)
National Legal Frameworks on Combating Cybercrime1
Country Name2 Has domestic Name of domestic legislation regarding cybercrime International or Regional Instrument3
legislation
regarding
Budapest Convention Arab Convention CIS Agreement SCO Agreement
cybercrime
Slovak Republic Yes Criminal Code (Law No. 300 of 2005) [e.g., Section 247 (Harm Done {Has signed and/or No No No
to and Abuse of an Information Carrier )] ratified (or acceded to)}
Slovenia Yes Penal Code [e.g., Article 225 (Unauthorized Access to an {Has signed and/or No No No
Information System)] ratified (or acceded to)}
Solomon Islands No No No No No
Somalia No No No No No
South Africa Yes & Draft Law Electronic Communications and Transactions Act, 2002 (No. 25 {Has signed and/or No No No
of 2002), Chapter 8: Cybercrime (Sections 85-89) ratified (or acceded to)}
Cybercrimes Bill, 2015
South Sudan Yes Penal Code Act, 2008, Chapter 27. Computer and Electronic No No No No
Related Offenses (Sections 388 to 394)
Spain Yes Criminal Code (e.g., Article 197) {Has signed and/or No No No
ratified (or acceded to)}
Sri Lanka Yes Computer Crime Act (also known as “ Computer Crimes Act”), (No. {Has signed and/or No No No
24 of 2007) ratified (or acceded to)}
St. Kitts and Nevis Yes Electronic Crimes Act, 2009 No No No No
St. Lucia No & Draft Law Draft Law: Electronic Crimes Bill, 2009 No No No No
St. Vincent and Yes Electronic Transactions Act, 2007, Part X. Information Systems and No No No No
the Grenadines Computer Related Crimes (Sections 64 to 73)
Sudan Yes The Informatic Offences (Combating) Act, 2007 No {Has signed and/or No No
ratified (or acceded to)}
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C
APPENDIX
National Legal Frameworks on Combating
TABLE C
Cybercrime (Assessment Table)
National Legal Frameworks on Combating Cybercrime1
Country Name2 Has domestic Name of domestic legislation regarding cybercrime International or Regional Instrument3
legislation
regarding
Budapest Convention Arab Convention CIS Agreement SCO Agreement
cybercrime
Suriname No & Draft Law Bill of the First Book of the Criminal Code (2006) No No No No
Bill of the Second Book of the Criminal Code (2009) (e.g.,
Articles 187g, 213C, and 414a)
Swaziland No & Draft Law Draft Law: Computer Crime and Cybercrime Bill, 2013 No No No No
Sweden Yes Penal Code, Chapter 4, Section 9 c {Has signed and/or No No No
ratified (or acceded to)}
Switzerland Yes Penal Code (Articles 143bis &144bis) {Has signed and/or No No No
ratified (or acceded to)}
Syrian Arab Yes Law for the Regulation of Network Communication Against Cyber No {Has signed and/or No No
Republic Crime, 2012 (also called “Law on the network communication and ratified (or acceded to)}
computer crime control, 2012”)
Tajikistan Yes Criminal Code (enacted in May 21, 1998), Section XII. Crimes No No {Has signed and/or {Has signed and/or
against Information Security, Chapter 28. Crimes against ratified (or acceded to)} ratified (or acceded to)}
Information Security (Articles 298-304)
Tanzania Yes Cybercrimes Act, 2015 No No No No
Thailand Yes Computer Crime Act, 2007 No No No No
Timor-Leste No No No No No
Togo No & Draft Law The Draft Law on the Fight against Cybercrime No No No No
Tonga Yes Computer Crimes Act (Act No. 14 of 2003) {Has signed and/or No No No
ratified (or acceded to)}
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C
APPENDIX
National Legal Frameworks on Combating
TABLE C
Cybercrime (Assessment Table)
National Legal Frameworks on Combating Cybercrime1
Country Name2 Has domestic Name of domestic legislation regarding cybercrime International or Regional Instrument3
legislation
regarding
Budapest Convention Arab Convention CIS Agreement SCO Agreement
cybercrime
Trinidad and Yes & Draft Law Computer Misuse Act, 2000 No No No No
Tobago Draft Law: The Cybercrime Bill, 2015
Tunisia Yes & Draft Law Draft Law: Cybercrime Bill, 2014 No {Has signed and/or No No
ratified (or acceded to)}
Penal Law (Articles 199 bis and 199ter)
Turkey Yes Criminal Code (10th Section. Offences in the field of Data {Has signed and/or No No No
Processing Systems. Articles 243 to 246) ratified (or acceded to)}
Law No. 5651 on Regulation of Internet Publications and
Combating Crimes Committed through such Publications, 2007
(amended by Law No. 6518 of 2014)
Regulation on the Principles and Procedures of Regulating the
Publications on the Internet
Turkmenistan Yes Criminal Code (enacted in 1997, entered into force in 1998, and No No No No
last amended in 2014), Chapter 33. Computer Information Crimes
(Articles 333 to 335)
Tuvalu No No No No No
Uganda Yes Computer Misuse Act, 2011 No No No No
Ukraine Yes & Draft Law Draft Law on Combating Cybercrime, 2014 {Has signed and/or No {Has signed and/or No
ratified (or acceded to)} ratified (or acceded to)}
Criminal Code (enacted in 2001 and amended in 2005),
Chapter XVI. Criminal Offenses related to the Use of Electronic
Computing Machines (Computers), Systems and Computer
Networks and Telecommunication Networks (Articles 361 to
363-1)
United Arab Yes Federal Decree-Law No. 5 of 2012 on Combating Cyber Crimes No {Has signed and/or No No
Emirates (replacing Federal Law No. 2 of 2006 on the Prevention of ratified (or acceded to)}
Information Technology Crimes)
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C
APPENDIX
National Legal Frameworks on Combating
TABLE C
Cybercrime (Assessment Table)
National Legal Frameworks on Combating Cybercrime1
Country Name2 Has domestic Name of domestic legislation regarding cybercrime International or Regional Instrument3
legislation
regarding
Budapest Convention Arab Convention CIS Agreement SCO Agreement
cybercrime
United Kingdom Yes Computer Misuse Act, 1990 (last amended by Serious Crimes {Has signed and/or No No No
Act, 2015) ratified (or acceded to)}
Regulations of Investigatory Powers Act, 2000
United States Yes 15 (Title 15) U.S.C. (United States Code), Chapter 103 - {Has signed and/or No No No
Controlling the Assault of Non-solicited Pornography and ratified (or acceded to)}
Marketing , § (Section) 7701-7713
18 U.S.C., Chapter 47-Crimes and Criminal Procedure,
§ 1028 through 1030; Chapter 119 - Wire and Electronic
Communications Interception and Interception of Oral
Communications; Chapter 121 - Stored Wire and Electronic
Communications and Transactional Record Access; and §3121,
General prohibition on pen register and trap and trace device
use; exception
Uruguay Yes Penal Code [Enacted by Law No. 9,155 of 1933 and Amended No No No No
by Law No. 18,383 of 2008 (Attack on the regularity of
telecommunications)] (e.g., Article 217)
Uzbekistan Yes Criminal Code (enacted in 1994, came into force in 1995, and No No {Has signed and/or {Has signed and/or
amended in 2001), Special Part, Section III. Economic Crimes, ratified (or acceded to)} ratified (or acceded to)}
Chapter 11. Crimes unrelated to Larceny of Property (Article 174:
Computer-related Crimes)
Vanuatu No No No No No
Venezuela, RB Yes Special Law against Computer Crimes, 2001 No No No No
Vietnam Yes Law on information technology (Law No. 67/2006/QH11) No No No No
Penal Code (Enacted by Law No. 15/1999/QH10 and Amended
by Law No. 37/2009/QH12) (e.g., Article 226a)
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C
APPENDIX
National Legal Frameworks on Combating
TABLE C
Cybercrime (Assessment Table)
National Legal Frameworks on Combating Cybercrime1
Country Name2 Has domestic Name of domestic legislation regarding cybercrime International or Regional Instrument3
legislation
regarding
Budapest Convention Arab Convention CIS Agreement SCO Agreement
cybercrime
West Bank and No & Draft Law Draft Penal Code (Part 12. Cybercrimes, Articles 646 to 677) No {Has signed and/or No No
Gaza ratified (or acceded to)}
Yemen, Rep. No & Draft Law Draft law for combating electronic crimes (also called “Draft Law on No {Has signed and/or No No
Combating Electronic Crime”) ratified (or acceded to)}
Zambia Yes Computer Misuse and Crimes Act, 2004 (No. 13 of 2004) No No No No
Electronic Communication and Transactions Act, 2009 (No. 21
of 2009) [Part XIV. Cyber Inspectors (Sections 93 to 97), Part XV.
Cyber Crimes (Sections 98 to 109)]
Zimbabwe Yes & Draft Law Computer Crime and Cybercrime Bill No No No No
Criminal Law (Codification and Reform) Act, Chapter VIII.
Computer-related Crimes (Sections 162-168)
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D
APPENDIX
Comparative Analysis of Indicators Used in
TABLE D1
In-Country Assessment Tools
Explanatory Note: The Project reviewed the in-country assessment tools used developed by exogenous reference (e.g., a particular multilateral instrument or a sample legislative language) the
participants in this Project. The indicators developed (in the left-hand column) are a synthesis of those indicators were considered in light of those corresponding. The frequency with which an indicator
assessments, as well as other assessments. The synthesized set of indicator were then “mapped” appears in the assessments is shown in the right-hand column. The color-coding for frequency is shown
against the respective tools. Where an assessment includes an indicator, it is indicated with a “Y”, as at the bottom of the table. More information about the assessments may be found in the endnotes to
well as where in the particular assessment, the indicator can be found or is referenced. In cases where this Appendix. The synthesized indicators shown here also formed the basis of the Assessment Tool
an assessment explicitly stated that its questions were prepared corresponding to provisions of an developed by this Project and included in appendix 9.
Non-Legal Frameworks
In-Country Assessment Tools / AIDP1 CoE2 ITU3 UNODC Cybercrime Oxford6 Frequency
Indicators Questionnaire (2012)4 &
Number
Comprehensive Study5
of Entities
Covered
(out of 5)
Non-Legal Frameworks Y (Page 5) Y (2012) [a.Q1 to Q11, b.Q113 Y (Pages 29 to 32) 3 of 5
to Q120, c.Q15 to Q164,
d.Q186 to 192, e.Q241 to 261]
1. National strategy (or “national policy”) on cybercrime Y (2012) (Q1) 1 of 5
a. Binding all relevant authorities and private sector 0 of 5
i. Binding public-private 0 of 5
ii. Binding public 0 of 5
iii. No binding force 0 of 5
b. Long term strategy? 0 of 5
i. Longer than 5 years 0 of 5
ii. Longer than 3 years 0 of 5
iii. Less than 3 years 0 of 5
iv. No specific term 0 of 5
c. Define specific vulnerable areas to be protected 0 of 5
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D
APPENDIX
Comparative Analysis of Indicators Used in
TABLE D1
In-Country Assessment Tools
Continued from last page
Non-Legal Frameworks
In-Country Assessment Tools / AIDP1 CoE2 ITU3 UNODC Cybercrime Oxford6 Frequency
Indicators Questionnaire (2012)4 &
Number
Comprehensive Study5
of Entities
Covered
(out of 5)
d. Define resources and necessities to fight cybercrime 0 of 5
i. Human resource (HR) 0 of 5
ii. Assets including devices & infrastructure 0 of 5
iii. User protection strategy 0 of 5
2. Define lead government institution responsible for coordinating the prevention and combating cybercrime Y (2012) (Q2) 1 of 5
a. Higher than PM 0 of 5
b. Ministerial level 0 of 5
c. Lower than ministerial level 0 of 5
3. PPPs to obtain information and evidence from the private sector (e.g., service providers) Y (2012) (Q6) 1 of 5
Formal cooperation with the private sector (e.g., service providers)
a. Y (2012) (Q102), Y (2013) 1 of 5
(Page 146)
i. By court order Y (2012) (Q102), Y (2013) 1 of 5
(Page 146)
ii. By prosecution order Y (2012) (Q102), Y (2013) 1 of 5
(Page 146)
iii. By police letter Y (2012) (Q102), Y (2013) 1 of 5
(Page 146)
b. Informal cooperation with the private sector (e.g., service providers) Y (2012) (Q103) 1 of 5
Maintain statistics on
4. Y (Page 5) Y (2012) (a.Q10, b.Q54 to 71, Y (Pages 29 to 32) 3 of 5
cybercrime c.Q121 to Q138, d.Q165 to
Q182)
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D
APPENDIX
Comparative Analysis of Indicators Used in
TABLE D1
In-Country Assessment Tools
Continued from last page
Non-Legal Frameworks
In-Country Assessment Tools / AIDP1 CoE2 ITU3 UNODC Cybercrime Oxford6 Frequency
Indicators Questionnaire (2012)4 &
Number
Comprehensive Study5
of Entities
Covered
(out of 5)
a. Designated authority to collect & analyze statistics on cybercrime 0 of 5
b. Define statistics necessary for cybercrime 0 of 5
c. Updates to statistics on cybercrime regularly 0 of 5
5. Technical cooperation on cybercrime Y (2012) (Q241 to Q261) 1 of 5
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D
APPENDIX
Comparative Analysis of Indicators Used in
TABLE D2
In-Country Assessment Tools
Legal Frameworks
In-Country Assessment Tools / AIDP CoE ITU UNODC Cybercrime Oxford Frequency
Indicators Questionnaire &
Number
Comprehensive Study
of Entities
Covered
(out of 5)
National Legal Frameworks Y (Pages 1 to 5) Y (Arts. 1 to 35) Y (Q1 to Q34) Y (Q12 to Q53) Y (Pages 27 to 28) 5 of 5
1. D
omestic legislation regarding Y (Pages 1 to 5) Y (Arts. 1 to 35) Y (Q1 to Q34) Y (Q12 to Q53) Y (Pages 27 to 28) 5 of 5
cybercrime
a. Is cybercrime regulated by law Y (Page 1) [(…) criminal laws Y (Page 1) [Corresponding Y (Page 35) (Citation of Y (Q12) [(…) main legislation Y (Pages 27 to 28) (Substantive 5 of 5
related to cyber-crimes (…)] provisions (…) in national provision, Consistent with that is specific to cybercrime cybercrime law, Procedural
legislation] Toolkit) (…)] cybercrime law)
i. Comprehensively Yes 0 of 5
ii. Partially Yes with draft law 0 of 5
iii. Partially Yes without draft law 0 of 5
iv. No (no enacted law) but draft law 0 of 5
b. Have detailed definitions of the terms related cybercrime Y (Art.1) Y (Q1) 2 of 5
i. Computer data Y (Art. 1 – “computer data”) Y (Q1.c.) 2 of 5
ii. Computer system Y (Art. 1 – “computer system”) Y (Q1.e.) 2 of 5
iii. Service provider Y (Art. 1 – “service provider”) Y (Q1.p.) 2 of 5
iv. Subscriber information Y (Art. 18, – Ex. Rept. 177-180) Y (Q1.q.) 1 of 5
v. Traffic data Y (Art. 1 – “traffic data”) Y (Q1.r.) 2 of 5
ultilateral treaties on
2. M Y (Page 1) Y (Pages 27 to 28) 2 of 5
cybercrime
a. Signature Y (Page 1) Y (Page 27) 2 of 5
b. Ratification (or “accession”) Y (Page 1) Y (Pages 27 to 28) 2 of 5
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D
APPENDIX
Comparative Analysis of Indicators Used in
TABLE D3
In-Country Assessment Tools
Substantive Law
In-Country Assessment Tools / AIDP CoE ITU UNODC Cybercrime Oxford Frequency
Indicators Questionnaire &
Number
Comprehensive Study
of Entities
Covered
(out of 5)
Substantive Law Y (2013) (Pages 1 to 5) Y (Arts. 2 to 12) Y (Q2 to Q11) Y (Q25 to Q40) Y (Pages 27 to 28) 5 of 5
riminalization of offences
1. C Y (2013) (Pages 1 to 2) Y (Arts. 2 to 6) Y (Q2 to Q6) Y (Q25 to Q29) 4 of 5
directed against the
confidentiality, integrity, and
availability of computer data or
systems
llegal access to a computer
a. I Y (2013) (Page 1) Y (Art 2.) Y (Q2) Y(Q25) 4 of 5
system
b. Illegal interception Y (2013) (Page 1) Y (Art. 3) Y (Q5) Y (Q26) 4 of 5
c. Data interference Y (2013) (Page 1) Y (Art. 4) Y (Q4, b.) Y (Q27) 4 of 5
d. System interference Y (2013) (Page 1) Y(Art. 5) Y (Q4, a.) Y (Q27) 4 of 5
e. Misuse of devices Y (2013) (Page 2) Y(Art. 6) Y (Q6) Y (Q28) 4 of 5
riminalization of traditional
2. C Y (2013) (Pages 2 to 4) Y (Arts. 7 to 10) Y (Q7, and Q8) Y (Q30 to Q32, Q34 to Q38) 4 of 5
offences committed by/through
the use of computer systems
or data
a. Computer-related forgery Y (2013) (Page 2) Y (Art. 7) Y (Q7) Y (Q30) 4 of 5
b. Computer-related fraud Y (2013) (Page 4) Y (Art. 8) Y (Q8) Y (Q30) 4 of 5
omputer-related copyright and
c. C Y (2013) (Page 4) Y (Art. 10) Y (Q32) 3 of 5
trademark offences
omputer-related identity
d. C Y (2013) (Page 3) Y (Arts. 2-8) Y (Q31) 2 of 5
offences
omputer-related child
e. C Y (2013) (Pages 3 to 4) Y (Art. 9) Y (Q36) 3 of 5
pornography offences
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D
APPENDIX
Comparative Analysis of Indicators Used in
TABLE D3
In-Country Assessment Tools
Continued from last page
Substantive Law
In-Country Assessment Tools / AIDP CoE ITU UNODC Cybercrime Oxford Frequency
Indicators Questionnaire &
Number
Comprehensive Study
of Entities
Covered
(out of 5)
3. Corporate liability Y (Art. 12) Y (Q11) Y (Q40) 3 of 5
4. Aid, abet or attempt
a. Aid or abet Y (Art. 11) Y (Q10) 4 of 5
b. Attempt Y (Art. 11) Y (Q10) Y (Q40) 3 of 5
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D
APPENDIX
Comparative Analysis of Indicators Used in
TABLE D4
In-Country Assessment Tools
Procedural Law
In-Country Assessment Tools / AIDP CoE ITU UNODC Cybercrime Oxford Frequency
Indicators Questionnaire &
Number
Comprehensive Study
of Entities
Covered
(out of 5)
Procedural Law Y (Pages 1 to 2) Y (Arts. 14 to 21) Y (Q12 to Q20) Y (Q42 to Q53) Y (Page 28) 5 of 5
1. Scope of procedural provisions Y (Art. 14) Y (Q12 2 of 5
2. Procedural conditions & safeguards Y (Art. 15) Y (Q13) 2 of 5
3. E
xpedited Preservation of Y (Art. 16) Y (Q14) Y (Q49) 3 of 5
stored computer data (data
preservation)
4. E
xpedited preservation & Y (Art. 17) Y (Q15) Y (Q45) 3 of 5
partial disclosure of traffic data
5. Expedited preservation of computers or storage media7 Y (Q16) 1 of 5
6. Production Order
roduction order: Specified
a. P Y (Art. 18) Y (Q17) 2 of 5
computer data
roduction order: Subscriber
b. P Y (Art. 18) Y (Q17) Y (Q44) 3 of 5
information
earch & seizure of computer
7. S Y (Page 1) Y (Art. 19) Y (Q18) Y (Q42, Q43) 4 of 5
data and/or computer systems
eal-time collection of traffic
8. R Y (Page 1) Y (Art.20) Y (Q19) Y (Q47) 4 of 5
data
9. Interception of content data Y (Page 1) Y (Art. 21) Y (Q20) Y (Q48) 4 of 5
10. Use of remote forensic tools Y (Q50) 1 of 5
rans-border access to
11. T Y (Art. 32) Y (Q51) 1 of 5
computer data
Page 381 | Chapter 9 | Appendix View citations at the end of this section page 405
D
APPENDIX
Comparative Analysis of Indicators Used in
TABLE D4
In-Country Assessment Tools
Continued from last page
Procedural Law
In-Country Assessment Tools / AIDP CoE ITU UNODC Cybercrime Oxford Frequency
Indicators Questionnaire &
Number
Comprehensive Study
of Entities
Covered
(out of 5)
12. Obtaining information and evidence from third parties
a. Compelling third parties (non-targets) to provide information Y (Q101) 1 of 5
Compelling private actors (e.g.,
b. Y (Page 1) Y (Arts. 18-21) 1 of 5
service providers) to provide
information
Private actors (e.g., service
(2) Y (Page 1) 1 of 5
providers)’ voluntary provision
(supply) of information
Page 382 | Chapter 9 | Appendix View citations at the end of this section page 405
D
APPENDIX
Comparative Analysis of Indicators Used in
TABLE D5
In-Country Assessment Tools
Electronic Evidence
In-Country Assessment Tools / AIDP CoE ITU UNODC Cybercrime Oxford Frequency
Indicators Questionnaire &
Number
Comprehensive Study
of Entities
Covered
(out of 5)
e-Evidence Y (Page 2) Y (2012) (Q111, Q105, Q144 Y (Pages 29 to 32) 3 of 5
to Q147), Y (2013) (Pages 157
to 182)
1. Rules on e-evidence
ules on admissibility of
(1) R Y (Page 2) Y (2012) (2012) (Q144) 2 of 5
e-evidence
ules on admissibility of
(2) R Y (2012) (Q145) 1 of 5
e-evidence obtained from
foreign jurisdictions
Rules on discovery of e-evidence Y (Page 2)
(3) 1 of 5
ules on evaluating (probative
(4) R Y (Page 2) 1 of 5
value of) e-evidence
ther rules specific to
(5) O Y (Page 2) Y (2012) (Q146) 2 of 5
e-evidence
2. Law enforcement and Electronic Evidence
ollecting e-evidence with
(1) C Y (Page 2) Y (2012) (Q111) 2 of 5
integrity
(2) Storing/retaining e-evidence Y (Page 2) Y (2012) (Q111) 2 of 5
(3) Transferring e-evidence to courts or prosecutors from law enforcement agencies Y (2012) (Q111) 1 of 5
(4) Obtaining e-evidence in foreign jurisdictions Y (2012) (Q105), Y (2013) (Page 1 of 5
201)
1) Formal MLA request Y (Arts. 27 to 28, 31) Y (2012) (Q105), Y (2013) (Page 1 of 5
201)
Page 383 | Chapter 9 | Appendix View citations at the end of this section page 405
D
APPENDIX
Comparative Analysis of Indicators Used in
TABLE D5
In-Country Assessment Tools
Continued from last page
Electronic Evidence
In-Country Assessment Tools / AIDP CoE ITU UNODC Cybercrime Oxford Frequency
Indicators Questionnaire &
Number
Comprehensive Study
of Entities
Covered
(out of 5)
2) Informal police cooperation Y (2012) (Q105), Y (2013) (Page 1 of 5
201)
Direct contact with service
3) Y (2012) (Q105), Y (2013) (Page 1 of 5
providers 201)
4) 24/7 network Y (Arts. 35) Y (2012) (Q105), Y (2013) (Page 1 of 5
201)
5) Other (please specify) Y (Arts. 26, 29, 30, 32 to 34) Y (2012) (Q105), Y (2013) (Page 1 of 5
(respectively spontaneous 201)
information, preservation,
expedited disclosure,
transborder search, real-time
traffic collection, real-time
interception)
Page 384 | Chapter 9 | Appendix View citations at the end of this section page 405
D
APPENDIX
Comparative Analysis of Indicators Used in
TABLE D6
In-Country Assessment Tools
Jurisdiction
In-Country Assessment Tools / AIDP CoE ITU UNODC Cybercrime Oxford Frequency
Indicators Questionnaire &
Number
Comprehensive Study
of Entities
Covered
(out of 5)
Jurisdiction Y (Page 1) Y (Art. 22) Y (Q21) Y (2012) (Q18 to Q19), Y (2013) 4 of 5
(Pages 191 to 196)
1. Common national bases for jurisdiction over cybercrime acts
(1) Territory basis
ffence is committed (partly or
1) O Y (Art. 22) Y (Q21.a.) Y (2012) (Q18), Y (2013) (Page 2 of 5
wholly) within its territory 191)
ffence is committed using a computer system or data located
2) O Y (Art. 22) Y (2012) (Q18), Y (2013) (Page 1 of 5
within its territory 192)
ffence is directed against a computer system or data within its
3) O Y (Art. 22) Y (2012) (Q18), Y (2013) (Page 1 of 5
territory 192)
4) Effect or damage of the offence is located within its territory Y (2012) (Q18), Y (2013) (Page 1 of 5
191)
ffence is committed on a ship
5) O Y (Art. 22) Y (Q21.b) 1 of 5
or aircraft registered to your
country
(2) Nationality-basis
1) Nationality of the offender Y (Art. 22) Y (Q21.c.) Y (2012) (Q18), Y (2013) (Page 2 of 5
191)
2) Nationality of the victim Y (2012) (Q18), Y (2013) (Page 1 of 5
191)
urisdiction where extradition
2. J Y (Art. 22) Y (Q21.d.) 1 of 5
refused
oncurrent jurisdiction (conflicts
3. C Y (Page 1) Y (Art. 22) Y (Q21.e.) Y (2012) (Q18) 3 of 5
of jurisdiction)
Page 385 | Chapter 9 | Appendix View citations at the end of this section page 405
D
APPENDIX
Comparative Analysis of Indicators Used in
TABLE D6
In-Country Assessment Tools
Continued from last page
Jurisdiction
In-Country Assessment Tools / AIDP CoE ITU UNODC Cybercrime Oxford Frequency
Indicators Questionnaire &
Number
Comprehensive Study
of Entities
Covered
(out of 5)
Establishment of the place
4. Y (Page 1) Y (Q21.f) 2 of 5
where the offence occurred
5. Dual criminality Y (2012) (Q18), Y (2013) (Page 1 of 5
194)
6. Reservation Y (Art. 22) Y (Q21.g.) 1 of 5
Page 386 | Chapter 9 | Appendix View citations at the end of this section page 405
D
APPENDIX
Comparative Analysis of Indicators Used in
TABLE D7
In-Country Assessment Tools
Legal Safeguards
In-Country Assessment Tools / AIDP CoE ITU UNODC Cybercrime Oxford Frequency
Indicators Questionnaire &
Number
Comprehensive Study
of Entities
Covered
(out of 5)
Safeguards Y (2012) (Page 2) Y (Art. 15) Y (Q20 to Q24) Y (Pages 26 to 27) 3 of 5
1. P
rivacy and (personal) data CoE Convention 108 Y (Q21 to Q24) Y (Pages 26 to 27) 3 of 5
protection
2. Freedom of expression Y (2012) (Page 2) Y (Q20) Y (Pages 26) 3 of 5
Page 387 | Chapter 9 | Appendix View citations at the end of this section page 405
D
APPENDIX
Comparative Analysis of Indicators Used in
TABLE D8
In-Country Assessment Tools
International Cooperation
In-Country Assessment Tools / AIDP CoE ITU UNODC Cybercrime Oxford Frequency
Indicators Questionnaire &
Number
Comprehensive Study
of Entities
Covered
(out of 5)
International Cooperation Y (Pages 1 to 2) Y (Arts. 23 to 35) Y (Q22 to Q33) Y (2012) (Q193 to Q240) Y (Pages 29 to 32) 5 of 5
1. Formal international cooperation
eneral principles relating to
a. G Y (Art. 23) Y (Q22) 2 of 5
international cooperation
b. General Principles relating to Extradition Y (Art. 24) Y (Q23) Y (2012) (Q193 to Q215) 3 of 5
omestic legislation for
i. D Y (Art. 24) Y (2012) (Q 193), Y (2013) (Page 1 of 5
extradition in cybercrime cases 200)
reaty or reciprocity in the
ii. T Y (Art. 24) Y (2012) (Q202 to Q207), Y 1 of 5
absence of treaty provisions (2013) (Page 201)
iii. Central authority Y (Art. 24) Y (2012) (Q195) 1 of 5
iv. Refusal of extradition Y (Art. 24) Y (Q23.d) 1 of 5
v. Dual criminality Y (Art. 24) Y (2012) (Q198), Y (2013) (Page 1 of 5
204)
eriousness of a minimum
vi. S Y (Art. 24) Y (2012) (Q198), Y (2013) (Page 1 of 5
penalty 204)
eneral principles relating to
c. G Y (Page 1) Y (Art. 25) Y (Q24) Y (2012) (Q216 to Q240) 4 of 5
MLA
omestic legislation for MLA in
i. D Y (Art. 25) Y (2012) (Q216), Y (2013) (Page 1 of 5
cybercrime cases 200)
reaty or reciprocity in the
ii. T Y (Art. 27) Y (2012) (Q227 to Q232), Y 1 of 5
absence of treaty provisions (2013) (Page 201)
iii. Central Authority Y (Art. 27) Y (2012) (Q217) 1 of 5
Page 388 | Chapter 9 | Appendix View citations at the end of this section page 405
D
APPENDIX
Comparative Analysis of Indicators Used in
TABLE D8
In-Country Assessment Tools
Continued from last page
International Cooperation
In-Country Assessment Tools / AIDP CoE ITU UNODC Cybercrime Oxford Frequency
Indicators Questionnaire &
Number
Comprehensive Study
of Entities
Covered
(out of 5)
iv. Expedited means of communication Y (Arts. 25 & 27) Y (Q24.b.) 1 of 5
v. Refusal to cooperate or assist Y (Page 1) Y (Arts. 25 & 27) Y (Q24.c, Q26.c) 2 of 5
vi. Dual Criminality Y (Page 1) Y (Arts. 25) Y (Q24.d.) Y (2012) (Q220), Y(2013) (Pages 2 of 5
204 to 205)
Confidentiality of information to be provided and limitation on
vii. Y (Art. 28 Y (Q26.g) 2 of 5
use
viii. Spontaneous (unsolicited) information Y (Art. 26) Y (Q25) 2 of 5
Specific Provisions relating to
d. Y (Page 1) Y (Arts. 29 to 34) Y (Q27 to Q32) Y (2012) (Q108) 4 of 5
MLA
i. MLA relating to provisional measures
(a) Expedited preservation of stored computer data Y (Art. 29) Y (Q27) 2 of 5
(b) Expedited disclosure of preserved traffic data Y (Art. 30) Y (Q28) 2 of 5
MLA relating to investigative
ii.
powers
(a) MLA regarding accessing of stored computer data Y (Art. 31) Y (Q29) 2 of 5
(b) Trans-border access to stored computer data Y (Art.32) Y (Q30) Y (2012) (Q108) 3 of 5
(c) MLA in the real-time collection of traffic data Y (Art. 33) Y (Q31) 2 of 5
Page 389 | Chapter 9 | Appendix View citations at the end of this section page 405
D
APPENDIX
Comparative Analysis of Indicators Used in
TABLE D8
In-Country Assessment Tools
Continued from last page
International Cooperation
In-Country Assessment Tools / AIDP CoE ITU UNODC Cybercrime Oxford Frequency
Indicators Questionnaire &
Number
Comprehensive Study
of Entities
Covered
(out of 5)
MLA regarding the interception
(d) Y (Page 1) Y (Art. 34) Y (Q32) 3 of 5(
of content data
2. Informal international cooperation
Multilateral network (e.g., 24/7
a. Y (Page 2) Y (Art. 35) Y (Q33) Y (2012) (Q107) 4 of 5
network)
b. Bilateral network (e.g., direct police-to-police cooperation) Y (2012) (Q106, Q223) 1 of 5
Page 390 | Chapter 9 | Appendix View citations at the end of this section page 405
D
APPENDIX
Comparative Analysis of Indicators Used in
TABLE D9
In-Country Assessment Tools
Capacity Building
In-Country Assessment Tools / AIDP CoE ITU UNODC Cybercrime Oxford Frequency
Indicators Questionnaire &
Number
Comprehensive Study
of Entities
Covered
(out of 5)
Capacity-building Y (Page 5) Y (a.Q113 to Q120, b.Q157 to Y (Pages 29 to 32) 3 of 5
Q164, c.Q186 to Q192)
1. CERT Y (Q10) 1 of 5
2. Law enforcement (police) Y (Page 5) Not in the treaty text but Y (Q113 to Q120) Y (Pages 29 to 30) 3 of 5
extensive ancillary program
aw enforcement structure for
a. L Y (Q 113) 1 of 5
cybercrime cases
eparate unit/agency specifically
b. S Y (Page 5) Y (Q114) 2 of 5
for investigating cybercrime
c. Specialized police officers assigned to cybercrime cases Y (Q115) 1 of 5
ufficient resources and capabilities to investigate cybercrime cases and/or cases involving
d. S Y (Page 29) 1 of 5
electronic evidence (including digital forensic tools)
raining programs to police
e. T Y (Page 5) Y (Q117 to Q120) Y (Page 29) 3 of 5
officers in the investigation of
cybercrime cases
3. Prosecution Y (Page 5) Not in the treaty text but Y (Q157 to Q164) Y (Pages 30 to 31) 3 of 5
extensive ancillary program
rosecution structure for
a. P Y (Q157) 1 of 5
cybercrime cases
eparate unit/agency specifically
b. S Y (Page 5) Y (Q158) 2 of 5
for prosecuting cybercrime
Page 391 | Chapter 9 | Appendix View citations at the end of this section page 405
D
APPENDIX
Comparative Analysis of Indicators Used in
TABLE D9
In-Country Assessment Tools
Continued from last page
Capacity Building
In-Country Assessment Tools / AIDP CoE ITU UNODC Cybercrime Oxford Frequency
Indicators Questionnaire &
Number
Comprehensive Study
of Entities
Covered
(out of 5)
pecialized prosecutors assigned
c. S Y (Q159 to Q163) 1 of 5
to cybercrime cases
Sufficient resources and capacities to prosecute cybercrime cases and/or cases involving electronic
d. Y (Page 30) 1 of 5
evidence
Training programs to prosecutors Y (Page 5)
e. Y (Q161 to Q164) Y (Page 30) 3 of 5
for cybercrime cases
4. Court Y (Page 5) Not in the treaty text but Y (Q186 to Q192) Y (Pages 31 to 32) 3 of 5
extensive ancillary program
Court structure for cybercrime
a. Y (Q186) 1 of 5
cases
Separate courts specifically for
b. Y (Q 186 to Q187) 1 of 5
the trial of cybercrime cases
Specialized judges assigned to
c. Y (Q188 to Q191) 1 of 5
cybercrime cases
Training programs to judges in
d. Y (Page 5) Y (Q189 to Q192) Y (Page 31) 3 of 5
the trial of cybercrime cases
Page 392 | Chapter 9 | Appendix View citations at the end of this section page 405
E
APPENDIX
Synthetic In-Country Assessment Tool
TABLE E
(Assessment Table)
Explanatory Note: This Table sets forth the Toolkit’s synthetic, in-country assessment tool (Assessment provide a basis for monitoring progress. Use and results of the Assessment Tool are for the benefit
Tool), as discussed in chapter 7. The purpose of the Assessment Tool is to enable a user to determine of the user downloading it. Workflow remains solely with the user and there is no tracking, ranking or
gaps in capacity and to highlight priority areas in directing capacity-building resources. The first use reporting back of results. The Assessment Tool can also be found in its online format at: http://www.
of the Assessment Tool will provide a baseline. Periodic updating by using the Assessment Tool will combattingcybercrime.org/.
Level 1 Level 2 Level 3 Level 4 Response
Binding Public & Private Yes No
Binding all relevant authorities and Private Sectors? Binding Public Yes No
No binding Force Yes No
Longer than 5 years
Longer than 5 years
Longer than 3 years Longer than 3 years
Long term strategy?
Less than 3 years Less than 3 years
National Strategy/Policy? No specific terms
No specific terms
Define specific Vulnerable Areas to be protected? Yes No
Non-Legal Framework HR Yes No
Define Resources and Necessities to fight Cybercrime
Assets incl. devices & Infra Yes No
User Protection Strategy Yes No
Update plan? Yes No
higher than PM Yes No
Lead Government Institution
responsible for coordinating Ministerial level Yes No
the prevention and combating
cybercrime
lower than Ministerial Yes No
Page 393 | Chapter 9 | Appendix E View citations at the end of this section page 406
E
APPENDIX
Synthetic In-Country Assessment Tool
TABLE E
(Assessment Table)
Continued from last page
Level 1 Level 2 Level 3 Level 4 Response
By Court Order Yes No
Formal Cooperation with Private Sector by Prosecutor’s Order Yes No
Public-Private Partnership to by Police Letter Yes No
obtain information and/or
evidence?
Informal Cooperation with Private Sector Yes No
Designated authority to collect & analyze statistics? Yes No
Non-Legal Framework
Maintain Statistical Information? Define statistics necessary for cybercrime? Yes No
Updates regularly? Yes No
Technical Cooperation? Yes No
Page 394 | Chapter 9 | Appendix E View citations at the end of this section page 406
E
APPENDIX
Synthetic In-Country Assessment Tool
TABLE E
(Assessment Table)
Level 1 Level 2 Level 3 Level 4 Response
Comprehensively Yes
Comprehensively Yes
Partially /Draft Partially/Draft
Cybercrime is regulated by law?1
Partially/No-Draft
Partially /No-Draft
No, but Draft
No
Domestic Legislation on No but Draft
cybercrime?
Have detailed definition related to cybercrime? Yes No
Legal Framework
signed Yes No
Joined any Treaties?
ratified2 Yes No
Page 395 | Chapter 9 | Appendix E View citations at the end of this section page 406
E
APPENDIX
Synthetic In-Country Assessment Tool
TABLE E
(Assessment Table)
Level 1 Level 2 Level 3 Level 4 Response
Criminalization of traditional crime
committed by/through computer Yes No
related activities3
Criminalization of newly emerged
cybercrime4 Yes No
Criminal liability of corporate
entity Yes No
Substantive Law
Aid or Abet
aid, abet and attempt Yes No
Attempt
Page 396 | Chapter 9 | Appendix E View citations at the end of this section page 406
E
APPENDIX
Synthetic In-Country Assessment Tool
TABLE E
(Assessment Table)
Level 1 Level 2 Level 3 Level 4 Response
During Investigation Yes No
Due Process Conditions and Safeguards
During Prosecution Yes No
Production order: Specified computer data Yes No
Production order through interception of content data
Production order: Subscriber information Yes No
Search and Seizure of computer data and/or computer
Yes No
systems
Real-time collection of traffic data Yes No
Investigation
Interception of Content Data Yes No
Procedural Law
Trans-border access to computer data Yes No
Compelling third parties Yes No
Obtaining evidence from 3rd parties
Compelling service providers to provide information Yes No
Preservation of stored data Yes No
Prosecution Preservation of traffic data Yes No
Preservation of computers or storage media Yes No
Page 397 | Chapter 9 | Appendix E View citations at the end of this section page 406
E
APPENDIX
Synthetic In-Country Assessment Tool
TABLE E
(Assessment Table)
Level 1 Level 2 Level 3 Level 4 Response
Rules on admissibility of electronic evidence Yes No
Rules on admissibility of electronic evidence obtained
abroad Yes No
Rules on discovery of electronic evidence Yes No
Rules specific to e-evidence
Rules on evaluating probative value of electronic
evidence Yes No
Other rules specific to electronic evidence Yes No
Evidentiary law specific to cybercrime Yes No
E-evidence
Collecting E-evidence with integrity Yes No
Storing/retaining e-evidence Yes No
Transferring e-evidence to courts or prosecutors from
Law enforcement agencies Yes No
Law enforcement and e-Evidence
Formal MLA Yes No
Informal MLA Yes No
Obtaining e-evidence from foreign jurisdiction
Direct Contact with service provider Yes No
24/7 network Yes No
Page 398 | Chapter 9 | Appendix E View citations at the end of this section page 406
E
APPENDIX
Synthetic In-Country Assessment Tool
TABLE E
(Assessment Table)
Level 1 Level 2 Level 3 Level 4 Response
Offence is committed (partly or wholly) within its
Yes No
territory (Territorial principle)
Offence is committed using computer system/data
Yes No
located within its territory
Offence is directed against computer system/data
Territory basis Yes No
within its territory
Common national basis of Effects/damages of the offence are located within its
Yes No
Jurisdiction territory
Offence is committed on Ships/Aircrafts Yes No
offender’s nationality Yes No
Nationality basis
Jurisdiction
victim’s nationality Yes No
Jurisdiction where extradition is
refused Yes No
Concurrent Jurisdiction Yes No
Establishment of the place where
offences occurred Yes No
Dual criminality Yes No
Reservation Yes No
Page 399 | Chapter 9 | Appendix E View citations at the end of this section page 406
E
APPENDIX
Synthetic In-Country Assessment Tool
TABLE E
(Assessment Table)
Level 1 Level 2 Level 3 Level 4 Response
Limit on the collection of data Yes No
Purpose of collected data specified at time of collection Yes No
Use of the data specified Yes No
Data Protection Reasonable data security in place Yes No
Individual has the right to know if government has
Safeguards Yes No
information about him/her
Is the personal data relevant, necessary, accurate and
Yes No
complete?
Right to seek redress Yes No
Freedom of expression expressed in the law Yes No
The right of communication
the right to information expressed in the law Yes No
Page 400 | Chapter 9 | Appendix E View citations at the end of this section page 406
E
APPENDIX
Synthetic In-Country Assessment Tool
TABLE E
(Assessment Table)
Level 1 Level 2 Level 3 Level 4 Response
General Principle6 Yes No
domestic legislation7 Yes No
treaties Yes No
General central authority Yes No
Extradition
refusal of extradition Yes No
dual criminality Yes No
seriousness of a minimum penalty Yes No
domestic legislation for MLA Yes No
treaties Yes No
International central authority Yes No
Cooperation
expedited means of MLA Yes No
General principles on Mutual Legal Assistance
refusal of MLA request Yes No
Formal
dual criminality Yes No
confidentiality of information to be provided and
limitation on use Yes No
spontaneous information Yes No
provisional measures Yes No
Specific Provisions on Mutual Legal Assistance
investigative powers Yes No
Multi-lateral Networks (e.g., 24/7) Yes No
Informal
Bilateral Coop Network Yes No
Page 401 | Chapter 9 | Appendix E View citations at the end of this section page 406
E
APPENDIX
Synthetic In-Country Assessment Tool
TABLE E
(Assessment Table)
Level 1 Level 2 Level 3 Level 4 Response
CERT Yes No
Law enforcement structure for cybercrime cases Yes No
Separate unit/agency specifically for investigating
cybercrime cases Yes No
Specialized law enforcement officers assigned to
cybercrime cases Yes No
Law Enforcement
Sufficient resources and capabilities to investigate
cybercrime cases and/or cases involving electronic Yes No
evidence (including digital forensic tools)
Training programs to police officers for the investigation
of cybercrime cases Yes No
Prosecution structure for cybercrime cases Yes No
Capacity Building
Separate unit/agency specifically for prosecuting
Yes No
cybercrime cases
Prosecution Specialized prosecutors assigned to cybercrime cases Yes No
Sufficient resources and capacities to prosecute
cybercrime cases and/or cases involving e-evidence Yes No
Training programs to prosecutors for cybercrime cases Yes No
Court structure for cybercrime cases Yes No
Separate courts specifically for the trial of cybercrime
cases Yes No
Court
Specialized judges assigned to cybercrime cases Yes No
Training programs to judges for the trial of cybercrime
cases Yes No
Page 402 | Chapter 9 | Appendix E View citations at the end of this section page 406
End Notes
Referenced in: Appendix B 10. Commonwealth Secretariat. 2002. “Annex B –
Computer and Computer Related Crimes Bill.” In
Model Law on Computer and Computer Related Crime,
1. African Union. 2014 (Adopted on 27 Jun. 2014). African
15-24. London: The Commonwealth.
Union Convention on Cyber Security and Personal Data
Protection. 11. ITU. 2012. HIPCAR, “Section II: Model Legislative Text
– Cybercrime/e-Crimes.” Cybercrime/e-Crimes: Model
2. Commonwealth of Independent States (CIS).
Policy Guidelines & Legislative Texts, 15-28. Geneva:
2001(Done on 1 Jun. 2001). Agreement on cooperation
ITU.
among the States members of the Commonwealth of
Independent States in Combating Offences related to 12. ITU. 2013. HIPSSA, Computer Crime and Cybercrime:
Computer Information. Southern African Development Community (SADC)
Model Law. Geneva: ITU.
3. Council of Europe. 2001 (Opened for Signature 23 Nov.
2001). Convention on Cybercrime. 13. ITU. 2013. ICBRPAC, Electronic Crimes: Knowledge-
Based Report (Skeleton). Geneva: ITU.
4. League of Arab States. 2010 (Done on 21 Dec.
2010). Arab Convention on Combating Information 14. ITU. 2013. HIPCAR, “Section II: Model Legislative Text
Technology Offences. –Electronic Crimes.” Electronic Evidence: Model Policy
Guidelines and Legislative Texts, 13-20. Geneva: ITU.
5. Shanghai Cooperation Organization (SCO). 2009
(Done on 16 Jun. 2009). Agreement between the 15. Organization for Eastern Caribbean States (OECS).
Governments of the Member States of the Shanghai 2011. Electronic Crimes Bill (Fourth Draft). Castries:
Cooperation Organization on Cooperation in the Field OECS.
of International Information Security.
6. Economic Community of West African States
(ECOWAS). 2011 (Done on 19 Aug. 2011). Directive on
Fighting Cybercrime within Economic Community of
West African States.
7. Council of Europe. 2003 (Opened for signature on
28 Jan. 2003). Additional Protocol to Convention on
Cybercrime Concerning the Criminalization of Acts of
a Racist and Xenophobic Nature Committed through
Computer Systems.
8. Council of Europe. 2007(Opened for signature on 25
Oct. 2007). Convention on the Protection of Children
against Sexual Exploitation and Sexual Abuse.
9. Common Market for Eastern and Southern Africa
(COMESA). 2011. “Cybercrime Model Bill, 2011.” In
2011 Gazette Volume 16, 45-77. Lusaka: COMESA.
Page 403 | Chapter 9 | Appendix End Notes
Referenced in: Appendix C
1. Unless otherwise noted, information contained in this
Appendix was verified as of 16 June 2016.
2. 196 countries are included in this list. Countries
are included if they are either (1) a Member of the
World Bank (“Member Countries: International
Bank for Reconstruction and Development”; http://
www.worldbank.org/en/about/leadership/members
(last visited 4 February 2016), (2) a Member State of
the UN (“Member States of the United Nations”;
http://www.un.org/en/member-states/ (last visited 4
February 2016)); or (3) Permanent Observers to the UN
(“Permanent Observers: Non-member States”; http://
www.un.org/en/sections/member-states/non-member-
states/index.html (last visited 4 February 2016).
3. The instruments cited here are discussed in more
detail in subchapter 5 A. Membership of a country in
an international or regional instrument is indicated
as follows: Blue =Yes, has signed and/or ratified (or
acceded to) the instrument; Light Blue = has been
invited to accede to the instrument; No color = No
membership. The Africa Union Convention (https://
www.au.int/web/en/treaties/african-union-convention-
cyber-security-and-personal-data-protection) (last
accessed 30 August 2016) is not dealt with here because
of the 54 potential members to the Convention only 8
have signed it and none have ratified it.
Page 404 | Chapter 9 | Appendix End Notes
Referenced in: Appendix D 3. Toolkit for Cybercrime Legislation (Draft), Country
Worksheet, 2010, ITU, at 39 to 50 (ITU Country
Worksheet), at: http://www.cyberdialogue.ca/wp-
1. The AIDP Assessment is based on a number of
content/uploads/2011/03/ITU-Toolkit-for-Cybercrime-
background papers prepared by its members.
Legislation.pdf.
Among these are:
4. ICB4PAC, Electronic Crimes: Knowledge-Based Report
yy Weigend, Thomas. 2012. “Section 1: Concept
(Assessment), Annex 1: Questionnaire, 2013, ITU, at 123
paper and questionnaire.” Paper prepared for
to 124, at: http://www.itu.int/en/ITU-D/Projects/ITU-EC-
AIDP’s Preparatory Colloquium Section I for the
ACP/ICB4PAC/Documents/FINAL%20DOCUMENTS/
19th International Congress of Penal Law on
cybercrime_assessment.pdf.
Information Society and Penal Law, “Criminal Law
General Part,” Verona, Italy, 28-30 November. 5. Cybercrime Questionnaire for Member States, 2012,
UNODC, at: https://cms.unov.org/DocumentRepositor
yy Nijboer, Johannes F. 2013. “Section 3: Concept
yIndexer/GetDocInOriginalFormat.drsx?DocID=f4b2f4
Paper and Questionnaire.” Paper prepared for
68-ce8b-41e9-935f-96b1f14f7bbc.
AIDP’s Preparatory Colloquium Section III for
the 19th International Congress of Penal Law on 6. University of Oxford, Global Cyber Security Capacity
Information Society and Penal Law, “Criminal Centre. 2014. “Dimension 4 –Legal and regulatory
Procedure,” Antalya, Turkey, 23-26 September. frameworks, D4-1: Cyber security legal frameworks and
D4-2: Legal Investigations.” In Cyber Security Capability
yy Klip, André. 2013. “Section 4: Concept Paper
Maturity Model (CMM) – Pilot, 26-32. University of
and Questionnaire.” Paper prepared for AIDP’s
Oxford, Global Cyber Security Capacity Centre.
Preparatory Colloquium Section IV for the 19th
International Congress of Penal Law on Information 7. “Media” – as used here means any device capable
Society and Penal Law, “International Criminal of storing digital or electronic data, such as, but not
Law,” Helsinki, Finland, 10-12 June. limited to, computer hard drives, memory card, disk, or
USB-device, for example.
yy Viano, Emilio, “Section 2: Concept Paper and
Questionnaire.” Paper presented at the Preparatory
Colloquium: Section II (Criminal Law, Special Part)
for the 20th International Congress of Penal Law
on “Information Society and Penal Law”, 2013,
AIDP, at 1 to 5, at: http://www.penal.org/IMG/pdf/
Section_II_EN.pdf.
2. Country Profile (Questionnaire in preparation of the
Conference), 2007, Council of Europe. (Paper prepared
for the Octopus Interface Conference, “Conference on
Cooperation against Cybercrime,” Strasbourg, 11-12
June, 2007), at: http://www.coe.int/t/dghl/cooperation/
economiccrime/Source/567-m-if%202008%20
quest_en.doc. This questionnaire refers to provisions
in national legislation corresponding to the provisions
of the Budapest Convention. Additional resources -
country profiles and numerous questionnaires to parties
and observers - are available at: http://www.coe.int/en/
web/cybercrime/country-profiles and http://www.coe.
int/en/web/cybercrime/t-cy-reports.
Page 405 | Chapter 9 | Appendix End Notes
Referenced in: Appendix E
1. This would include, for example, definitions of
“computer system”, “computer data”, “service
provider”, “subscriber information” and “traffic data”.
2. “Ratified” as used in this Assessment Table would also
include “acceded to”.
3. These would include: Illegal access to a computer
system; Illegal Interception; Data Interference;
System Interference; and Misuse of Devices as well as
Computer-related fraud; Computer-related forgery;
Computer-related copyright and trademark offences;
Computer-related identity offences.
4. Such issues would include: financial crimes; sending
SPAM; and computer-related child pornography
offences.
5. E.g. reciprocity through a treaty of comity
6. Due process issues refer to the rights of the accused
during investigations and at trial. What constitutes
“due process” varies from country to country and
legal system. These could include, without limitation,
the right not to testify, the right to a fair trial, the right
to confront one’s accuser, the right to counsel, etc.
Accordingly, rather than enumerate specific rights, the
Assessment seeks to record whether any such rights
exist at the investigatory and prosecutorial levels.
7. This refers to legislation on extradition, as opposed to
cybercrime.
8. Treaty here refers to an “extradition” treaty, as opposed
to a cybercriome treaty.
Page 406 | Chapter 9 | Appendix End Notes
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This Project was financed by a grant
from the Korean Ministry of Strategy
and Finance under the Korea-World
Bank Group Partnership Facility.
The Project team was led by staff of the World Bank, and
included the participation of the following organizations:
the Council of Europe, the International Association of Penal Law,
the International Telecommunication Union, the Korea Supreme
Prosecutors Office, the Oxford Cyber-security Capacity Building
Centre, the United Nations Conference on Trade & Development,
the United Nations Interregional Crime and Justice Research
Institute, and the United Nations Office on Drugs & Crime.
PARTNERS