Computer Crime Research Center


International Cooperation in Fighting Transnational Computer Crime

Date: June 16, 2004
Source: Computer Crime Research Center
By: Vladimir Golubev

Wide use of computer technologies in our everyday life and creation of global computer networks eases commitment of criminal actions and often offenders remain unpunished. There is a dangerous trend or a merger of cyber criminality and transnational and organized crime.

Professor V. Nomokonov regards investigations into transnational organized crime are connected with peculiar difficulties related to not only high latency of organized crime in general, but also trans-boundary character of organized criminal groups activity. The introduction of organized criminal groups beyond frontiers and use of capabilities presented by the Internet is conditioned, above all, by interrelated process of economic and criminal globalization.

Anonymity and absence of frontiers makes the Internet an efficient weapon in hands of criminals. Investigation and prevention of computer crimes turns into a "headache" of law enforcement officers. In the virtual space criminals usually act from sites in other countries. In such cases it is necessary to cooperate with foreign law enforcement agencies, and that is possible not always.

Taking into consideration the globalization of such crime, it is more and more obvious that no state is able to cope with such threats independently.

During investigation of transnational cyber crimes law enforcement of a concrete state, authorities of which extend only on its territory exclusively, should cooperate with each other in accordance with international legal documents accepted by these countries. Depending on relations between interested countries and corresponding information or other facts, a necessity to develop additional authorities and procedures on investigating of such crimes may appear.

As early as 1997 year, at the G8 meeting "Principles and Action Plan to Combat High-Tech Crime" were accepted. Such questions were discussed:
- measures directed to provide sufficient number of trained personnel, who have certain experience in equipping and training law enforcement officers;
- collaboration in development of judicial standards of search and establishing authenticity of electronic data.

UN plays a key role in international cooperation to combat cyber crime. A number of important documents are directed to prevent computer related crimes, to combat cyber crime, a number of international agreements are aimed at cooperation in preventing computer crime.

International computer networks allow performing such activity on a vast territory, where the principle of exterritoriality may act. For example, law enforcement agency of one state may receive data from the network in frames of legal search of computer information in this state, but, at the same time, it establishes that some of received data, stored in the network of another state, and these data are protected by laws of another state.

Similarly, a state can legally intercept electronic messages transferred through its territory, even if people from other states send these messages, where they are legally protected from penetration of this state in the sphere of private communication. Law enforcement officers working on the Internet also may commit secret actions according to laws of their countries, under terms when such actions or methods are prohibited by legislation of other countries where such officers act. All these cases are new and do not have analogs. Nowadays there is neither aid, nor recommendations on solving appearing problems established in international law.

Besides, there is no wide consensus on possible elimination of trans-boundary sequels of internal legal investigative actions. It is recognized that a state authorized to take investigative or coercive actions towards any citizen on the territory where it has an exclusive jurisdiction. Some cases may occur, when data stored at the other territory are read or copied or, possibly, deleted. From the point of view of a state, where this data search was conducted; such actions may comprise corpus delicti according to the internal criminal law, and may be a violation of a national sovereignty.

At the same time, according to the other opinion, international law does not prohibit such interference, as these data are technically available and may be accessed from the state, where the search was conducted, without any interference of this state. Data stored in any segment of the network may be regarded as public, and, thus, the question of access to them from any state is regulated by the internal law only, but not the international. From this point, an appeal to the country, where the search was committed, is not necessary at any stage of the investigation process. By international law, the question on whether data are or are not public is still ambiguous.

As regards opinion that any interference in operation of computer network located on the territory of any state is a violation of territorial integrity of this state, it is expedient to consider two different ideas on the state of international law. One opinion is based on the principle that countries must not have the right to unilaterally search, copy or on other alteration of data/computer systems located on the territory of other states, as such actions are not admitted in case of physical presence. In order to obtain evidence from other state it is necessary to follow current procedures of mutual legal aid. This opinion is based on traditional principles, but it does not foresee practical problems of computer crimes investigations.

The more pragmatical opinion is that international law currently does not solve problems of violating national laws or sovereignty. Followers of such position assert that international law may be formed depending on international consensus on admissibility of such actions and clear definition of conditions when such actions are prohibited. A notification of a state where the search is committed is proposed as the key element to solve the problem.

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