Extracted from the Papers of Ian Brown and Joss Wright at the Oxford Internet Institute
By: Fred Jankilevich / Attorney At Law
July 1st 2019
The current state of affairs pertaining Comprehensive strategies for Crime Prevention and Criminal Justice presently emphasises Resolution 65/230 of the General Assembly. Pertaining the above-cited resolution, the expert group emphasises its comprehensive studies from United Kingdom Experts regarding the problem over the past decade and Experts from European Union Member States.
Further thus, Directive 67/189 of the General Assembly highlights the work of the above-stated intergovernmental expert group, commencing with the Vienna session that was held in January 2011. Concretely, from January 17th to January 21st. As a result thereof, the Expert group reviewed and adopted a collection of topics and a methodology for the study. The study is relevant in the sense that it categorises twelve areas of study for the subject matter, including but not limited to: Connectivity, A Global Picture, Legislative Framework, Criminalisation, Law Enforcement, Investigation, Electronic Evidence, International Cooperation, Criminal Justice and Prevention.
The result is a methodology which has as a primary objective the development, gathering, collection and evaluation of data to develop a final report. The focus of the study, therefore, in summary, constituted an expert report whose primary focus was the study of cyber criminal prevention and criminal justice focused towards the strategic aspects of prevention and enforcement. In this sense, the study rendered by the Expert group represents a ‘snapshot’ in time of crime prevention and criminal justice efforts to prevent and combat cybercrime. In short, it paints a global picture, highlighting lessons learned from current and past efforts. It presents possible options for future responses. Additionally, the report infers that fundamental changes in Law Enforcement are required, so that evidence is gathered and mechanisms of international cooperation in criminal matters are established.
From this stance, its important to stand out the findings of The Commission and the instructions of directive 65/230. The Resolution was important at the moment of publication because it instructed the intergovernmental expert group to conduct a comprehensive review about the problem of cybercrime. The study and research surrounding this problem can thus be classified as a result of the following findings: 1) Impact of international fragmentation 2) Reliance on traditional means in formal international cooperation 3) The Role of Evidence ‘Location’ 4) National legal frameworks 5) Criminal Justice capacity 6) Cybercrime prevention
A further review of the study evaluates the problem of cybercrime from the perspective of governments, private sector, academia and international organisations. Pertaining the findings its possible to infer: Fragmentation at the international level and diversity of national cybercrime laws may correlate with the existence of multiple instruments. Regarding cloud computing and data centres, the study concludes that the role of evidence ‘location’ needs to be redirected, including a view to obtain consensus on issues that concern direct access to extraterritorial data by Law Enforcement authorities. In summary, the findings and statistical data that corresponds available national legal frameworks indicate an insufficient harmonisation of ‘core’ cybercrime offences, investigative powers, and admissibility of electronic evidence.
As far as Law Enforcement pertains, its possible to manifest that authorities, prosecutors and judiciary require further consolidation of long-term, sustainable comprehensive technical support and assistance for the investigation and combat against cybercrime. Finally, in terms of preventive activities and guidelines, the expert group concluded at the time of publication that all countries require strengthening through holistic approaches to further involvement awareness, raising public and private partnerships. The expert group conclusively suggests the integration of cybercrime strategies with a broader cybersecurity perspective.
As a result, a series of options to strengthen existing and new national / international legal responses to cybercrime were originally emphasised. The options to strengthen and propose new national and international legal responses to cybercrime included, but were not limited to: The development of an international model provision, the development of a multilateral instrument on international cooperation, the development of a comprehensive multilateral instrument on cybercrime. The delivery of an enhanced technical aid for the prevention and combat against cybercrime in the developing world.
Therefore, it can be inferred as is emphasised by the study that the options presented are informed responses of countries to answer a question in the about possibilities and options to be considered. The proposed framework was initially the strengthening of an existent and new legal-strategic response against cybercrime.
Further thus, as a result of the study, the United Kingdom experts and the constituent European Member State researchers highlighted that an expedited mechanism for international cooperation procedures in criminal matters involving cybercrime should be developed globally. As a result therefrom, it was established that a strengthening of existing informal police-to-police networks must be forged. Further development of existing formal international cooperation and bilateral agreements is also crucial.
Regarding the United Kingdom and the European Union concretely, experts recommended at that time that accession to the Council of Europe Cybercrime Convention would promote international cooperation and harmonization of national cybercrime laws. As a consequence, some countries recommended also that a new international legal instrument on cybercrime should be developed. Other countries recommended that harmonization of legislation could be promoted through the development of international model legal provisions.
While cybercrime policy to date remains controversial, the initial study has set the foundation for a series of recommendations and policies pertaining existing and new national / international instruments for the furtherance of combat against cybercrime. They are herein conclusively stated:
- A development of international model provisions on criminalisation of core cybercrime acts must exist.
- A development of international model provisions on investigative powers for electronic evidence must be furthered.
- A development of model provisions on jurisdiction to provide for common effective bases for jurisdiction in cybercrime criminal matters should be advanced.
- A development of model provisions on international cooperation regarding electronic evidence has to be strengthened in an ongoing manner.
- A development of multilateral instruments on international cooperation pertaining electronic evidence in criminal matters has to be consolidated recurrently.
- A development of comprehensive multilateral instruments on cybercrime, with a view to establishing an international approach in the areas of criminalisation, procedural powers, jurisdiction and international cooperation is a cyclical requirement to address the problem
- A strengthening of international, regional and national partnerships, including with the private sector and academic institutions, with a view to delivering enhanced technical assistance for the prevention and combating of cybercrime is crucial recurrently.