INTERNATIONAL COOPERATION FOR CYBER-CRIME PROSECUTION
International cybercrimes often challenge the effectiveness of domestic and international law and law enforcement. Because existing laws in many countries are not tailored to deal with cyber crime, criminals increasingly conduct crimes on the Internet in order to take advantages of the less severe punishments or difficulties of being traced. No matter in developing or developed countries, governments and industries have gradually realized the colossal threats of cyber crime on economic and political security and public interests. However, complexity in types and forms of cyber crime increases the difficulty in fighting back. In this sense, fighting cyber crime calls for international cooperation. Various organizations and governments have already made joint efforts in establishing global standards for legislation and law enforcement both on a regional and on an international scale. U.S.-China’s cooperation is one of the most striking progress recently because they are the top two source countries of cyber crime. Information and communication technology (ICT) plays an important role in helping ensure interoperability and security based on global standards. General countermeasures have been adopted in cracking down cyber crime, such as legal measures in perfecting legislation and technical measures in tracking down crimes over the network, Internet content control, using public or private proxy and computer forensics, encryption and plausible deniability, etc.
The Convention on Cybercrime, also known as the Budapest Convention on Cybercrime or the Budapest Convention, is the first international treaty seeking to address Internet and computer crime by harmonizing national laws, improving investigative techniques, and increasing cooperation among nations. It was drawn up by the Council of Europe in Strasbourg, France, with the active participation of the Council of Europe’s observer states Canada and Japan.
The Convention and its Explanatory Report was adopted by the Committee of Ministers of the Council of Europe at its 109th Session on 8 November 2001. It was opened for signature in Budapest, on 23 November 2001 and it entered into force on 1 July 2004. As of March 2014, 42 states have ratified the convention, while a further 11 states had signed the convention but not ratified it.
On 1 March 2006, the Additional Protocol to the Convention on Cybercrime came into force. Those States that have ratified the additional protocol are required to criminalize the dissemination of racist and xenophobic material through computer systems, as well as threats and insults motivates by racism or xenophobia.
Its ratification by the United States Senate by unanimous consent in August 2006 was both praised and condemned. The United States became the 16th nation to ratify the convention. The Convention entered into force in the United States on 1 January 2007.
“While balancing civil liberty and privacy concerns, this treaty encourages the sharing of critical electronic evidence among foreign countries so that law enforcement can more effectively investigate and combat these crimes”, said Senate Majority Leader Bill Frist.
“The Convention includes a list of crimes that each signatory state must transpose into their own law. It requires the criminalization of such activities as hacking (including the production, sale, or distribution of hacking tools) and offenses relating to child pornography, and expands criminal liability for intellectual property violations. It also requires each signatory state to implement certain procedural mechanisms within their laws. For example, law enforcement authorities must be granted the power to compel an Internet service provider to monitor a person’s activities online in real time. Finally, the Convention requires signatory states to provide international cooperation to the widest extent possible for investigations and proceedings concerning criminal offenses related to computer systems and data, or for the collection of evidence in electronic form of a criminal offense. Law enforcement agencies will have to assist police from other participating countries to cooperate with their mutual assistance requests”.
Although a common legal framework would eliminate jurisdictional hurdles to facilitate the law enforcement of borderless cyber crimes, a complete realization of a common legal framework may not be possible. Transposing Convention provisions into domestic law is difficult especially if it requires the incorporation of substantive expansions that run counter to constitutional principles. For instance, the United States may not be able to criminalize all the offenses relating to child pornography that is stated in the Convention, specifically the ban on virtual child pornography, because of its First Amendment’s free-speech principles. Under Article 9(2)(c) of the Convention, a ban on child pornography includes any “realistic images representing a minor engaged in sexually explicit conduct”. According to the Convention, the United States would have to adopt this ban on virtual child pornography as well, however, the U.S. Supreme Court, in Ashcroft v. Free Speech Coalition, struck down as unconstitutional a provision of the CPPA that prohibited “any visual depiction” that “is, or appears to be, of a minor engaging in sexually explicit conduct”. In response to the rejection, the U.S. Congress enacted the PROTECT Act to amend the provision, limiting the ban to any visual depiction “that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct”. 18 U.S.C
The United States will not become a Party to the Additional Protocol to the Convention on Cybercrime. The Convention was signed by Canada, Japan, the United States, and the Republic of South Africa on 23 November 2001, in Budapest. As of March 2014, the non–Council of Europe states that have ratified the treaty are Australia, Dominican Republic, Japan, Mauritius, Panama, and the United States.On October 21, 2013, The Foreign Ministry of Colombia through a press release, stated the Council of Europe invited Colombia to adhere to the “Convention of Budapest”.Colombia has not acceded to the convention.
- 0 Comment