Trends & issues in crime and criminal justice

Date: December 13, 2004
Source: Australian Institute of Criminology
By: Russell G Smith

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Costs associated with mutual legal assistance are borne by the party providing assistance. This creates hardship for small countries that process many requests for assistance from large countries but rarely seek assistance themselves. This means these small countries are subsidising the legal process of much larger nations. In the case of large countries, other problems emerge. In the United States, for example, requests from around the globe for information concerning email accounts of companies such as Hotmail or Yahoo are dealt with by the FBI, which sends requests to corporate head offices located in the United States rather than local branches. This has the effect of overburdening the FBI with the administration of such requests.

Obtaining evidence in high tech crime cases through the use of formal mutual assistance arrangements between nations can be exceedingly slow and ineffective. Often searches need to be conducted immediately in order to preserve evidence held on servers. The prospect of waiting weeks or even months for official diplomatic procedures to be complied with is daunting.

Logistical and practical barriers

Finally, conducting investigations across national borders raises many practical problems that delay matters and increase costs. In addition to the issues already referred to, some other problems include:

• investigators having to contact people on the other side of the globe at inconvenient times;
• documents having to be translated, particularly if required for diplomatic purposes; and
• witnesses from non-English-speaking countries needing the assistance of interpreters, which can be expensive and can slow down investigations.

Countries also have different priorities in terms of the importance of high tech crime investigations. Economic crimes committed using computers may be at the bottom of the hierarchy in countries where, for example, violent crime is prevalent. The result is that requests for assistance in some cases may simply be given a much lower priority, especially if they have come from a country with no history of cooperative action.

Despite these barriers, cooperative action can nonetheless result in successful investigations, as occurred recently in Operation Buccaneer (see Box 5).

Solutions

How, then, can these problems be overcome? The solutions lie in harmonising laws and procedures globally, improving the technical capabilities of investigators, and finally in sharing information between public and private sector investigators to enhance international cooperation. The key strategies are summarised in Table 1. Harmonisation of laws

The continuing harmonisation of laws and the adoption of international conventions on high tech crime and transnational and organised crime will make prosecutions easier and will greatly improve mutual assistance and extradition of offenders. Already this is starting to occur with the adoption in November 2000 of the United Nations Convention Against Transnational Organised Crime (which commenced on 29 September 2003-see http://www.unodc.org/unodc/en/crime_cicp_convention.html). Another recent treaty is the Convention on Cybercrime adopted by the Committee of Ministers of the Council of Europe on 8 November 2001, and which commenced on 18 March 2004 (see http://press.coe.int/cp/2004/ 135a(2004).htm). These conventions contain the following provisions:

• criminalisation of certain conduct;
• the provision of special investigative techniques;
• witness and victim protection;
• cooperation between law enforcement authorities;
• exchange of information;
• training and technical assistance; and
• prevention at national and international levels.

The Australian Parliament has recently enacted the Cybercrime Act 2001 which commenced operation on 21 December 2001. This Act inserts a new Part into the Commonwealth Criminal Code Act 1995 and largely follows the provisions of the Council of Europe's Convention on Cybercrime. However, the Australian legislation applies only to certain federal law enforcement agencies and not to corporate investigators or private sector consultants who deal with the vast majority of Australia's high tech crime (Ghosh 2002).

Although the convention and the Cybercrime Act resolve problems to do with copying data from hard drives on premises and remotely, obtaining access to encrypted files and seizing aggregated data, questions still remain concerning the scope of warrants, data not held on the accused's premises, extra-territorial searches, and the scope of mutual assistance orders (Ghosh 2002). In addition, there is a need for as many countries as possible to enact local legislation in order to prevent safe havens from continuing to exist where criminals can base their operations.

Table 1: Impediments to high tech crime investigations and response strategies ImpedimentResponse strategy

Suspect identification	Advanced technologies of user authentication and verification with issuing authorities
Criminal law and extradition	Implementation of treaties and harmonisation of high tech crime laws
Choice of jurisdiction	United Nations protocol on the determination of jurisdiction in cross-border criminal cases
Search and seizure	Legislative reform of powers of search and seizure and targeted use of warrants
Encryption of evidence	Legislative reform to compel disclosure of keys and to allow police to undertake covert key recovery activities
Mutual assistance	Streamlining mutual assistance procedures, increasing resources to agencies to respond to requests, and delegating requests to branch offices of organisations
Logistical and practical problems	Enhanced international cooperation and increased funding to expedite investigations

Improving technical capabilities

The investigation of cross-border high tech crime also requires adequate forensic and technical expertise. This implies the formulation of training programs and the development of investigative software tools. International training programs could be developed and expertise could be shared between different nations. The United Nations, under its crime program, could examine the desirability of reviewing its manual on computer crime and further support the work already undertaken by other international organisations.

The level of funding required for training and also for upgrading equipment is not inconsiderable. This ultimately leads to an increase in costs associated with investigations. The result may be that in the future only large-scale criminal activities will be investigated (a problem that already exists in many countries).

One solution may be to share the investigatory burden between public and private sector agencies. Already, specialist high tech crime units have been established within police services in many countries. As these continue to expand they will become a repository of expertise that the private sector could use. One way in which this could be done would be for private sector personnel, such as bank investigators, to be located within high tech crime centres to help police with complex electronic banking matters. This is already being undertaken at the Australian High Tech Crime Centre. Similarly, law enforcement agencies are continuing to outsource specialist forensic tasks to the large accounting consultancy companies who often have former police-trained personnel working for them.

Sharing information

Finally, there needs to be greater sharing of information between investigators, within both the public and private sectors. This already occurs in the public sector but openness also needs to be encouraged in the private sector, even where commercial competitive interests may be at stake. Considerable expertise exists within global consulting and accounting practices, as well as industry bodies in telecommunications, finance and intellectual property. Their skills could be used constructively to supplement public sector law enforcement initiatives.

It is important at the outset for organisations to establish networks of information so that when an investigation begins, contact can be made immediately with the appropriate person in another country. Secure intranets, such as that used by the Australian Crime Commission (which now has jurisdiction over cybercrime) are an excellent way in which this can be achieved. Subject to the constraints of privacy legislation, these could be used in the private sector as well.

Initiatives such as the establishment of Europol in 1998, the G-8s High Tech Crime Group, and a Working Group on Information Technology Crime in the Asia-Pacific region have all been beneficial in sharing information across national borders, although at present coverage is somewhat limited. In Australia the Australian High Tech Crime Centre provides a coordinated means of responding around the clock to computer crimes, particularly those with a transnational component.

There is, accordingly, an extensive range of initiatives being undertaken to respond to high tech crime within Australia and globally. Armed with the latest information and techniques,...

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