Transcript Crime over the Internet

Jurisdictional issues and
international co-operation in
combating cybercrime
Anne Flanagan
Institute for Computer and Communications Law
Centre for Commercial Law Studies, Queen Mary, University of London
Introductory Remarks
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Transnational crime
– Perpetrators, victims, evidence
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e.g. UK airline bombers & Yahoo! emails
Jurisdiction
– Material & procedural (whether)
– Extra-territorial
– Resolving conflicts (which)
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‘Double jeopardy’ principle
Co-operation
– Formal & informal
Jurisdiction: General
principles
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Jurisdiction to prescribe, adjudicate & enforce
– All based on territorial sovereignty
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Where the actus reus completed
– Initiatory and terminatory elements
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Where the ‘last act’ or ‘substantial part’
– civil law principle lex loci delicti commissi
Statutory provision
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Content crimes
– e.g. hate speech, child pornography, copyright
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Jurisdictional conduct: ‘publish’, ‘supply’, ‘make available’..…
– e.g. Waddon (2000): “..there can be publication on a Web site
abroad, when images are there uploaded; and there can be further
publication when those images are downloaded elsewhere.”
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Computer-related crimes
– EU Framework Decision ‘combating fraud’ (2001)
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“in whole or in part within its territory…”
– instructions
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ex parte Levin [1996] 4 All ER 350
Statutory provision
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Computer integrity crimes
– EU Framework Decision ‘attacks against information
systems’ (2001)
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“in whole or in part within its territory…”
– e.g. Computer Misuse Act 1990: “at least one
significant link”
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the accused, the computer or the unauthorised modification
– US: ‘protected computer’ (18 U.S.C § 1030(e)(2)(B))
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“located outside the United States that is used in a manner that
affects interstate or foreign commerce or communication of the
United States”
Extra-territorial application of
jurisdiction
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Principles
–
–
–
–
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‘active personality’ principle: the offender is a national of the territory;
‘passive personality’ principle: the victim is a national of the territory;
‘protective' principle’: in order to safeguard the national interest;
‘universality’ principle: international crimes
Law
– Convention, art. 22(1)(d); Framework Decision, art.
10(1)(b)


“by one of its nationals”
Problems
Jurisdictional conflicts

Convention, art. 22(5):
– ‘When more than one Party claims jurisdiction over an alleged
offence….the Parties involved shall, where appropriate, consult with
a view to determining the most appropriate jurisdiction for
prosecution’

Eurojust Guidelines (2003)
– Timing?
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As soon as possible!
– Whom?
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Senior prosecutors
Jurisdictional conflicts
– Criteria?

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Presumption: majority of criminality occurred or loss sustained
Relevant factors
– Location of accused, e.g. possibility of extradition or transfer of
proceedings
– Attendance of witnesses
– Impact of delays on fairness of trial
– Interests of victims, e.g. possibility of compensation
– Availability of evidence, e.g. location & admissibility
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Non-relevant or secondary considerations
– Relative penalties available
– Ability to recover proceeds of crime
Remote investigations
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Legality of law enforcement action
– exercise of power
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e.g. Schengen Convention re: ‘hot surveillance’
e.g. Convention on Mutual Assistance in Criminal Matters (2000)
– ‘remote control’ (art. 19) and ‘spillover’ (art. 20)
– data access & obtaining
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e.g. United States v. Gorshkov (2001)
Cybercrime Convention
– Art. 18: ‘possession or control’
– Art. 32: ‘open source’
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publicly available (open source)
lawful and voluntary consent
International co-operation
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Moving evidence: Mutual Legal Assistance
– General principles
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‘letter rogatory’ in respect of proceedings or an investigation
‘specialty principle’
‘dual criminality’ principle not applicable, except where it
involves the use of search and seizure powers
– EU Framework Decision (2008)
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‘European Evidence Warrant’
– Only for existing data & documents
– Provision in 60 days or less, inc. ‘computer-related crime’
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2005 Proposal: ‘principle of availability’
– Obtaining access to foreign LEA databases
International co-operation
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Moving people: Extradition
– Lengthy process
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e.g. Levin (2 yrs) and McKinnon (since November 2002)
– ‘dual criminality’ principle
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e.g. Cybercrime Convention: “by deprivation of liberty for a
maximum period of at least one year, or by a more severe
penalty.”
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Exception for ‘European Arrest Warrant’ countries
– obligation to prosecute: ‘aut dedere aut judicare’
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EU Decision, art. 10(3) & Convention, art. 22(3)
LEA co-operation
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24/7 networks
Legal basis
– Convention, art. 35, EU Framework Decision, art. 11
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Institutional basis
– G8 (55 countries), Interpol National Central Reference
Points (122 countries)
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Features
– English-speaking, technically & legally competent
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Urgent investigations & preservation of evidence
– Early warning system
Concluding remarks