Combat Cyber Crime

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International CooperationInternational Cooperation

ininCombating CyberCombating Cyber--CrimeCrime

Donald K. PiragoffDonald K. Piragoff

Department of Justice, CanadaDepartment of Justice, Canada

June 23, 2003June 23, 2003



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International NatureInternational Nature Access/mobility of data fundamental to Access/mobility of data fundamental toeconomic systemseconomic systems

Borders byBorders by--passedpassedExploitation by criminals & terroristsExploitation by criminals & terrorists

data hidden abroaddata hidden abroad

hackers and viruses abroadhackers and viruses abroad

economic criminals abroadeconomic criminals abroad

illegal content abroadillegal content abroad

communicate to plancommunicate to plan

Cont¶d



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International NatureInternational NatureMinimal risk of detection andMinimal risk of detection and

apprehensionapprehension

Different national lawsDifferent national laws

Crime is borderless but enforcement isCrime is borderless but enforcement is

constrained by bordersconstrained by borders

International cooperation is essentialInternational cooperation is essential



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Harmonization of National LawsH

armonization of National LawsCommon framework requiredCommon framework required

But , no universal consensus of:But , no universal consensus of:

types of ´computer crimeµtypes of ´computer crimeµ

set of procedural powersset of procedural powers

specifics of definition or scopespecifics of definition or scope

Cont¶d



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armonization of National LawsLack of harmonization creates problems:Lack of harmonization creates problems:

no common understanding of problem and howno common understanding of problem and how

to respondto respond

sovereignty (e.g., transsovereignty (e.g., trans--border search)border search)

dual criminalitydual criminality

treaties may not include necessarytreaties may not include necessaryinvestigative powersinvestigative powers

Cont¶d



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armonization of National LawsNo truly international foraNo truly international fora

Problems regarding internationalProblems regarding international

cooperation intercooperation inter--related withrelated with

harmonization of substantive & proceduralharmonization of substantive & procedural

lawlaw



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InterInter--relation withrelation with

procedural lawprocedural lawInternational investigative powers areInternational investigative powers arecoextensive with domestic powers:coextensive with domestic powers:

search or production of datasearch or production of data preservation of stored datapreservation of stored data

collection of traffic datacollection of traffic data

interception of communicationsinterception of communications

Obtain evidence and traceObtain evidence and tracecommunicationscommunications



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Legal Framework forLegal Framework for

International CooperationInternational CooperationMutual legal assistanceMutual legal assistance

scope of cooperationscope of cooperation

mechanics of cooperationmechanics of cooperation general obligationsgeneral obligations

specific investigative powersspecific investigative powers

ExtraditionExtradition dual criminalitydual criminality

nationalitynationality



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Mutual Legal Assistance:Mutual Legal Assistance:

Scope of cooperationScope of cooperationScope of offencesScope of offences

crimes against access, integrity & availabilitycrimes against access, integrity & availability

crimes committed by means of computerscrimes committed by means of computers

² ² facilitate communication crimesfacilitate communication crimes

² ² facilitate communication to plan crimesfacilitate communication to plan crimes

collect electronic evidence of any crimecollect electronic evidence of any crimeTypes of investigative powersTypes of investigative powers

approximate domestic powersapproximate domestic powers

Cont¶d



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Mechanics of cooperationMechanics of cooperation

Conventions are generally independent ofConventions are generally independent of

bilateral or other treatiesbilateral or other treaties

Council of Europe ConventionCouncil of Europe Convention -- hybridhybrid

convention serves as basisconvention serves as basis

existing treaties take precedenceexisting treaties take precedence

convention supplements or applies in absenceconvention supplements or applies in absenceof other treatiesof other treaties



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General obligationsGeneral obligations

Afford MLA to widest extent possible Afford MLA to widest extent possible

MLA subject to law of requested state orMLA subject to law of requested state or

applicable treatiesapplicable treaties

If no preIf no pre--existing arrangement, supplementexisting arrangement, supplement

with new provisions with new provisions



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Specific powersSpecific powers

Employ both traditional and newEmploy both traditional and newinvestigative powersinvestigative powers

Preservation of stored dataPreservation of stored data

volatility of data, inherent delays, increased volatility of data, inherent delays, increasedthreat of lossthreat of loss

provisional measure to secure availabilityprovisional measure to secure availability ² ² rapidrapid

² ² protects privacyprotects privacy

² ² safeguards (e.g., intent to make MLA request; time limits)safeguards (e.g., intent to make MLA request; time limits)

Cont¶d



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Dual criminalityDual criminality modern trend to eliminate or restrictmodern trend to eliminate or restrict

preservation less intrusivepreservation less intrusive verification counter verification counter--productive to quick provisionalproductive to quick provisional

measuremeasure

early stagesearly stages -- extent of criminality unknownextent of criminality unknown

Council of Europe compromiseCouncil of Europe compromise may refuse to preserve if reasons to believe that atmay refuse to preserve if reasons to believe that at

time of disclosure dual criminality can not be mettime of disclosure dual criminality can not be met

Cont¶d



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Expedited preservation and disclosure ofExpedited preservation and disclosure ofpreserved traffic datapreserved traffic data

essential to trace communicationsessential to trace communications

traffic data reveals source, path and destination of atraffic data reveals source, path and destination of aspecific communicationspecific communication

multiple service providersmultiple service providers

² ² preservation at each service providerpreservation at each service provider ² ² disclosure of sufficient amount of data to identify next servicedisclosure of sufficient amount of data to identify next service

provider and pathprovider and path

crosscross--border and MLA border and MLA

Cont¶d



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Search, access and disclosureSearch, access and disclosure apply to electronic dataapply to electronic data

system searchessystem searches avoids transavoids trans--border searchborder search

RealReal--time collection of traffic datatime collection of traffic data historical tracing may not be possiblehistorical tracing may not be possible

crime may require immediate tracingcrime may require immediate tracing crosscross--border and MLA border and MLA

Council of EuropeCouncil of Europe -- reservationreservation

Cont¶d



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Interception of content dataInterception of content data

content may be illegal or afford evidence ofcontent may be illegal or afford evidence of

crimecrime

privacy issuesprivacy issues

Council of EuropeCouncil of Europe

² ² only to extent permitted by Parties· laws andonly to extent permitted by Parties· laws andtreatiestreaties

² ² convention not provide independent basisconvention not provide independent basis

Cont¶d



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SafeguardsSafeguards

subject to law of requested statesubject to law of requested state

safeguards in definition of powerssafeguards in definition of powersCouncil of EuropeCouncil of Europe

subject to national safeguards, which must:subject to national safeguards, which must: ² ² protect human rights under applicable conventions betweenprotect human rights under applicable conventions between

PartiesParties

² ² provide proportionality, judicial or other supervision,provide proportionality, judicial or other supervision, justifying grounds, limitations on scope and duration justifying grounds, limitations on scope and duration

consider impact on third partiesconsider impact on third parties



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ExtraditionExtradition

Dual criminality and harmonization of lawDual criminality and harmonization of law


convention may serve as basisconvention may serve as basis

precedence given to existing treatiesprecedence given to existing treaties

refusal on grounds of nationalityrefusal on grounds of nationality

² ² obligation to investigate and prosecuteobligation to investigate and prosecute



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G8G8

Washington, D.C., 1997:Washington, D.C., 1997:

Principles and Action Plan to Combat HighPrinciples and Action Plan to Combat High--techtech

CrimeCrime

Moscow, Russia, 1999:Moscow, Russia, 1999:

Principles on Transborder Access to StoredPrinciples on Transborder Access to Stored

Computer DataComputer Data



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G8G8

Mont Tremblant, Canada, 2002:Mont Tremblant, Canada, 2002:

Recommendations for Tracing NetworkedRecommendations for Tracing Networked

Communications Across National Borders inCommunications Across National Borders inTerrorist and Criminal InvestigationsTerrorist and Criminal Investigations

Prinicples on the Availability of Data EssentialPrinicples on the Availability of Data Essential

to Protecting Public Safetyto Protecting Public Safety

G8 Statement on Data Protection RegimesG8 Statement on Data Protection Regimes

Data Preservation ChecklistsData Preservation Checklists



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CommonwealthCommonwealth

Model Law on Computer Related Crime,Model Law on Computer Related Crime,

20022002

Guide to assistGuide to assist

Influenced by text of Council of EuropeInfluenced by text of Council of Europe

ConventionConvention

Common framework with Council of EuropeCommon framework with Council of Europe



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2424--7 Network 7 Network

Need for coordinated law enforcementNeed for coordinated law enforcement

contactscontacts

G8G8




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InterInter--American Conventions American Conventions

Consider extent to which ConventionsConsider extent to which Conventions

require amendment or protocol to:require amendment or protocol to:

incorporate new investigative techniquesincorporate new investigative techniques

supplement existing bilateral treatiessupplement existing bilateral treaties

provide additional safeguardsprovide additional safeguards

24/7 Network 24/7 Network



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RecommendationsRecommendations

Agree to common concepts of crime Agree to common concepts of crime

Agree to common list of investigative Agree to common list of investigative

powerspowers

Investigative powers should:Investigative powers should: apply not only to computerapply not only to computer--related crime but torelated crime but to

collection of evidence of any crimecollection of evidence of any crime balance powers with privacy and human rightsbalance powers with privacy and human rights

provide ability to trace communicationsprovide ability to trace communications

be available for MLA be available for MLA

Cont¶d



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RecommendationsRecommendations

Afford cooperation to widest extent Afford cooperation to widest extent

Ensure extradition relations preventEnsure extradition relations prevent

computer crime havenscomputer crime havens



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ConclusionConclusion

Improving international cooperationImproving international cooperation

requires:requires:

harmonization of substantive lawharmonization of substantive law

common set of investigative powerscommon set of investigative powers

application of investigative powers to MLA application of investigative powers to MLA

arrangementsarrangements adequate and flexible MLA and extraditionadequate and flexible MLA and extradition

arrangementsarrangements

Documents

Combat Cyber Crime