Vladimir Golubev

ORGANIZATION-LEGAL PROBLEMS PREVENTION

OF TRANSNATIONAL COMPUTER CRIME

 

 

The global network Internet, comprising mullions of computers, Internet, provides unheard-of opportunities to communicate and obtain information and is increasingly used for criminal purposes. 

The advent of electronic money and virtual banks, exchanges, and shops, which, however, supply real services and commodities, is just one factor promoting new crime - "transnational computer crimes". Today, together with traditional activity, law-enforcement agencies face new types of crime – "cyber crimes".

Cyber crimes is a new and unusual concept to law-enforcement agencies, but criminal activities, involving Internet are the most dangerous to society. And it many states already have understood.

The transnational nature of network crime suggests that the development of common policies on key issues should be part of any control strategy. Such common policies are important to prevent the occurrence of “legal havens” in jurisdictions where certain activities have not been criminalized, for example.

In the United States, for example, Presidential Decision Directive 63 (a white paper on critical infrastructure protection) states, “Addressing these vulnerabilities will necessarily require flexible, evolutionary approaches that span both the public and private sectors, and protect both domestic and international security. … The Federal Government shall encourage international

cooperation to help manage this increasingly global problem” [1].

In the Decree of the President of Ukraine № 928/2000 from July 31, 2000 Is told, that an overall objective of development of a national global network Internet in Ukraine is the decision of tasks of information safety of our state and perfection of legal regulation of activity of the subjects of the information relations, amplification of the responsibility for computer crimes.

 

Certainly, as all other types of offences, cyber crime presents great threat for people and the extent of such threat, to our opinion, is not fully recognized and evaluated by the society. However, that insignificant existing experience in this sphere, not to mention the experience of leading countries of the world, obviously shows the doubtless vulnerability of any state. Moreover, the transnational computer crime is not limited by state borders and criminal is equally capable to threat the information systems located practically in any place of the world. This crimes, as a rule, are extraordinary and often present irresolvable problem for legislation in force. Special concern is problem of investigation  the crime, which tracks and evidences have been erased or terminated by computer criminals. Other peculiarity of cyber crime, making its   investigation even more difficult, is the use of small-sized satellite systems communications , so such crime may be committed significantly far from the object of offence within seconds. However, investigation of such crimes may take weeks, even months, giving criminal the destroy traces of a crime and to avoid punishment.

For the last few years transnational crimes have achieved menacing measures. As professor Louisa Shelley mentioned, “Transnational organized crimes will become one of the main problems governments will face in the 21^st century. It will be the crucial problem for the 21^st century, as the cold war for the 20^th and colonialism for the 19^th centuries” [2].

 In the Viennese declaration “About criminality and justice: the answers to the challenges of the 21^st century” which was adopted in Vienna at the Tenth Congress of the Organization of the United Nations, 10-17 April,2000, there was also expressed concern about transnational organized crimes and intercoupling between various kinds of them [3].

Due to the prompt development of information technologies on the basis of Internet network  the geographical obstacles which for a long time restrained the growth of crimes of this kind have disappeared. Today, transnational crimes connected with the use of the global Internet network occupy a significant share in the total volume of criminal offences. Their growth and development are promoted by the very nature of this kind of crimes characterized by availability of the Internet network and impunity of the offences because of inadequate preparation of  law-enforcement agencies in investigating such crimes.

To a certain extent, one of the factors promoting the increase of this new kind of crimes is the absence of proper interaction within law-enforcement agencies while preventing and investigating such crimes.

The efficiency of prevention and investigation of cyber crimes depends much on co-ordinated international approach to the problem at different levels. At the state level there is required a well prepared staff, as well as modification of national legislation aimed at creating legal base to provide with law-enforcement agencies as well as judicial authorities dealing with offences in information sphere and transnational computer crimes. At the interstate level investigation of cyber crimes requires coordinated efforts of national centers dealing with cyber crimes with similar international centers in other countries.

In order to regulate informational relations at the state level, there appeared a demand to set legal norms for their participants so that to make it possible   to confront crimes related to global Internet network.

While interested countries have considered the problems arising from cyber crimes, there has not been much attention paid to it at the interstate level. Reasons for the lack of attention to cyber crimes may include relatively low levels of participation in international electronic communication, low levels of law-enforcement experience and low estimations of the damage to society expected to occur from electronic crimes. In global computer Internet network, the criminal policy of one State has a direct influence on the international community. Cyber criminals may direct their electronic activities through a particular State where that behaviour is not criminal and thus be protected by the law of that country. Even if a State has no particular national interest in criminalizing certain behaviour, it may consider doing so in order to avoid becoming a “legal root” and isolating itself internationally. The harmonization of substantive criminal law with regard to cyber crimes is essential if international cooperation is to be achieved between law-enforcement and judicial authorities of different States.

One of significant steps directed on settlement of this problem was the adoption by the Council of Europe, April 24, 2000 of “Draft Convention On Cyber Crime”.

Time has come to take action, and the Council of Europe released a Draft Convention to deal with crime in cyberspace. This document provisionally entitled “Draft Convention On Cyber Crime” (further “Draft”) will be the first international treaty to address criminal law and procedural aspects of various types of similar misuse. The draft provides, among others, for the coordinated criminalization of computer hacking and hacking devices, illegal interception of data and interference into the work of computer systems connected with fraud and forgery.

Considering organization-legal aspects of struggle with cyber-crime, it is possible to give some tentative estimation of this document and his international importance for the decision of the problem. Conscious of the profound changes brought about by the digitalization, convergence and continuing globalization of computer Internet network, the effective fight against cyber-crime requires increased, rapid and well-functioning international co-operation in criminal matters. One by of the main conclusions, which is possible to make at the analysis of "Draft" it that, a common understanding has developed about which behaviour in relation to computer systems and networks should be criminalized. 

First this providing for the criminalisation of such conduct, as described in this Convention, and the adoption of powers sufficient for effectively combating such criminal offences, by facilitating the detection, investigation and prosecution of such criminal offences at both the domestic and international level.

Secondly adoption Article 14 - "Search and Seizure of Stored Computer Data" enable one party to achieve conservation of the important information necessary for investigation of a crime, which is found in jurisdiction of other party.  As far as know Internet service providers usually have traffic date from past communications, generated by equipment that records details  including the time, duration and date of any communications, the parties involved and type of service or activity. Such data are generally kept for a limited period of time, depending of the commercial needs of the provider and legal or commercial requirements for privacy protection. Many national Laws allow law enforcement authorities or judicial authorities to order the collection of traffic data of future communications. In cases where traffic data is part of the communications, such as the "header information" of e-mail messages, however, the collection of such traffic data may be considered an interception of the  communications itself and subject to legal restrictions on that basis.

Important the provision of "Draft" which enables shall take such legislative and other measures as may be necessary to empower its competent authorities to seize or similarly secure computer data, which are available at Internet service providers and are necessary for criminal investigation. The provisions of Article 16 – "Expedited preservation of data stored in a computer system" and Article 17 – "Expedited preservation and disclosure of traffic data" enables the law-enforcement agencies, for the purpose of criminal investigations or proceedings, the expeditious preservation of data that is stored by means of a computer system, at least where there are grounds to believe that the data is subject to a short period of retention or is otherwise particularly vulnerable to loss or modification.

Undoubtedly from the legal point of view the large importance have also common principles, concerning international cooperating defined in the Chapter III – "International Co-operation". This questions of extradition cyber criminals, and basis in order to ensure the provision of immediate assistance for the purpose of the investigation of criminal offenses related to the use of computer systems and data, or for the collection of electronic evidence of any criminal offense.

 

To sum it up it should be emphasized, that with the extension of electronic networks, it is becoming less likely that all elements of a cyber crime will be restricted to a single national territory state. In investigations, law-enforcement authorities of different states will need to cooperate, both formally, mutual legal assistance in the frameworks of structures such as Interpol, and informally, by providing potentially useful information directly to the authorities of another State.  Additional problems may arise with respect to legal assistance in the investigation international cyber crime. If a party has not provided specific powers to search for evidences in electronic environments under domestic law, it may not be able to respond to request for assistance. For this reason the harmonization of coercive powers is an important condition for international cooperation.

 

In spite the variety of issues, related to different aspects prevention of transnational computer crimes, on our opinion, the following basic problems could be defined, which should be immediately addressed within the framework of international cooperation:

 

1.       Imperfection of the legislation in the sphere of combating transnational computer crime.

Criminal sanctions on national and international level do not ensure good protection from computer crime, because of absence of precise clarification of computer crime in the laws or because difficulty of interpretation and application of these laws restricts the law enforcement activity. Therefore, policy and law makers should perform consequent activity on development of the new legal norms and relevant sanctions, creating necessary mechanism for law enforcement, judge and prosecution activity, which could prosecute and punish the guilty in computer crime.

2.       Weak specialized professional training for officers of law enforcement agencies, related to prevention and investigation of transnational computer crime.

Conducting the investigation measures, related to search, seizure and arresting the computer machinery has certain peculiarities.

First, specially trained personnel able to duly conduct these actions is required.

Second, upon the arrest of information the possibility of its modification and termination should be excluded. These actions should be conducted within minimum period of time, taking into account the speed of receiving the information. Third, careful analysis of the records about connections to Internet of the computer system should be made prior to arrest of this system. This is necessary for full procedure of conducting the measures on arrest and seizure of evidences. Therefore, conducting investigation and operative – search measures upon investigation of computer crime has certain range of peculiarities and requires special background.

3. There are no specialized response teams similar to CERT on the territory of Ukraine.

The creation of special response teams on the territory of Ukraine is a most important task. If it is not solved in the nearest future, both informational networks of Ukraine and other countries may suffer.

4.       Non-availability the coordinated criminalization of computer hacking and hacking devices, illegal interception of data and interference into the work of computer systems.

Therefore the acceptance of " Convention On Cyber Crime" offered by the Council of Europe - will promote strengthening of the international cooperation in the prevention of transnational computer crimes.

National limitation of legislation as well as the lack of a single international legal base can be considered as on of the main reasons of prompt increase of transnational computer crimes.

The growth of cyber crimes parallel with the weak legal  over them turn into a certain  vicious circle which could only be broken by the proper unity of criminal law strategies of struggle with crimes of this kind. And international cooperation should become an important constituent part of such strategy as it is obvious that it is practically impossible to control of transnational computer crimes at a level of separate states. These are problems to be urgently solved by international community in the sphere of struggle with cyber crimes on the threshold of the 21^st century.

 

REFERENCES

 

1.     WHITE PAPER. The Clinton Administration’s Policy on Critical Infrastructure Protection:
Presidential Decision Directive 63. May 22, 1998. http://www.fas.org/irp/offdocs/paper598.htm

2.     Louise Shelley. Director of Transnational Crime and Corruption Study Center, American University (Washington D.C., USA).  www.american.edu/transcrime

3.     Vienna Declaration on Criminality and Justice: Meeting the Challenges of the Twenty-first Century. Tenth United Nations Congress on the Prevention of Crime and the Treatment of Offenders. Vienna, 10-17 April 2000.

http://www.uncjin.org/Documents/congr10/4r3e.pdf