Transcript Black Hat 2000 – Amsterdam Legal & Political Issues in International Computer Crime Investigation & Prosecution Jennifer Stisa Granick Attorney at Law 368 Hayes.

Black Hat 2000 – Amsterdam
Legal & Political Issues in International Computer Crime Investigation & Prosecution
Jennifer Stisa Granick
Attorney at Law
368 Hayes Street
San Francisco, CA 94102
USA
415-283-4805
[email protected]
Internet Crime is International Crime
 The Internet is an international medium
 The Internet connects far-flung offenders with far-flung victims
 Perpetrator and victim can be in same country, but evidence is
located in other country or countries
International Investigation: Poses Procedural Difficulties
 Reliance on local investigators: Training issues
 Cooperation: between governments and with LE agencies
 Quick access to evidence or suspects
 Resources available for investigation
International Investigation: Poses Procedural Difficulties
 Record keeping/Collection and Preservation of data
 Real time data interception and auditing
 Trans-border searches
Sovereignty
Privacy
 Notice to foreign government, to suspect
 Jurisdiction and extradition
The Law Right Now
 Mutual Legal Assistance Treaties (MLATs)
 Letters rogatory
 The future: multilateral agreements and compacts
International Investigation: Substantive Issues
 Do countries agree on what is a “cyber crime”?
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Access
Tampering
Sabotage
Use
Fraud
Espionage
Privacy violation
Damage/theft
Intellectual property violations
Child pornography
International Investigation: Benefits of Consensus
 No country is a “safe haven” for criminals
 Consensus is a basis for cooperation to solve and prosecute crime
Consensus Can Be Bad
 No “laboratory” to learn what approach furthers network security
 Substantive agreement without greater agreement on human rights,
due process, etc. can result in injustice
Currently Proposed Legal and Political Solutions
 Private Sector
 Promote Cyber-ethics
 Sysops manage private networks in a secure fashion
 Vendors put out secure products
 Multilateral Agreements
 Council of Europe: Cyber Crime Convention:
conventions.coe.int/treaty/EN/projets/projets.htm
 Group of Eight
Council of Europe’s Draft Cybercrime Treaty Provisions
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Treaty Addresses:
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definition of offenses
jurisdiction
international cooperation
search and seizure
Encourages signatories to pass domestic laws in accordance with
the convention’s principles and definitions
Coordinated criminalization of:
 “hacking” and “hacking tools”
 child pornography
 copyright infringing materials
COE Cybercrime Treaty : Procedural Provisions
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Search and seizure by local authorities
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Requires preservation and production of digital evidence
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Interception of data/ real time communications
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Requires the assistance and cooperation of sysops and ISPs
COE Cybercrime Treaty : Procedural Provisions
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International assistance for
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Preserving evidence
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Locating suspects
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Trans-border searches
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Traditional mutual legal assistance and extradition
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G-8’s 24/7 proposal
COE Cybercrime Treaty : Controversial provisions
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Article 6 – Illegal Devices:
 Makes it a crime to create, download, or post any computer program that
is “designed or adapted [primarily]” to gain access to a computer
system without permission, or to delete or alter data.
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Article 9 – Child Pornography:
 Internationalizes a U.S. law that makes it a crime to possess digital
images that "appear" to be child pornography
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Article 16 – Preservation of Traffic Data:
 International Working Group on Data Protection in Telecommunications
(Group of EU Privacy Commissioners) criticized requiring preservation
of traffic data.
COE Cybercrime Treaty : Controversial provisions
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Article 14 –Search and Seizure & Article 15 – Production Order:
 Requires subject to process data under his/her control and yield the
information necessary to the authorities
 Requires person with knowledge to seize and secure data for
investigators
? Encryption Keys
? U.S. Constitution, Amendment 5, Self-Incrimination
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Article 21 – Extradition:
 Provides for extradition for enumerated offenses
Group of Eight : Recent Activity
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Main accomplishment : 24/7 network
Main Dispute: Whether to create an international LE organization
for cybercrimes. Supported by U.S., disapproved by France
Principles agreed on:
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ensuring the protection of individuals freedoms and private life,
preserving governments' ability to fight high tech crime,
facilitating appropriate training for all involved,
defining a clear and transparent framework for addressing cybercriminality,
 ensuring free and fair activities, the sound development of industry, and
supporting effective industry initiated voluntary codes of conduct and
standards,
 assessing effectiveness and consequences.
International Aspects of Cybercrime: Conclusion
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International cooperation is the trend
Consensus is being crafted, but cautionary voices are being
ignored
Ramifications of decisions made now are far reaching
The benefits of consensus will only outweigh the detriments if we
are more careful
Black Hat 2000 – Amsterdam
Legal & Political Issues in International Computer Crime Investigation & Prosecution
Jennifer Stisa Granick
Attorney at Law
368 Hayes Street
San Francisco, CA 94102
USA
415-283-4805
[email protected]