Council of Europe – Convention on Cybercrime
coc | 2 de abril de 2010 | 11:10
The Convention aims principally at (1) harmonising the domestic criminal substantive law elements of offences and connected provisions in the area of cyber-crime (2) providing for domestic criminal procedural law powers necessary for the investigation and prosecution of such offences as well as other offences committed by means of a computer system or evidence in relation to which is in electronic form (3) setting up a fast and effective regime of international co-operation.
The Convention, accordingly, contains four chapters: (I) Use of terms; (II) Measures to be taken at domestic level – substantive law and procedural law; (III) International co-operation; (IV) Final clauses.
Section 1 of Chapter II (substantive law issues) covers both criminalisation provisions and other connected provisions in the area of computer- or computer-related crime: it first defines 9 offences grouped in 4 different categories, then deals with ancillary liability and sanctions. The following offences are defined by the Convention: illegal access, illegal interception, data interference, system interference, misuse of devices, computer-related forgery, computer-related fraud, offences related to child pornography and offences related to copyright and neighbouring rights.
Section 2 of Chapter II (procedural law issues) – the scope of which goes beyond the offences defined in Section 1 in that it applies to any offence committed by means of a computer system or the evidence of which is in electronic form – determines first the common conditions and safeguards, applicable to all procedural powers in this Chapter. It then sets out the following procedural powers: expedited preservation of stored data; expedited preservation and partial disclosure of traffic data; production order; search and seizure of computer data; real-time collection of traffic data; interception of content data. Chapter II ends with the jurisdiction provisions.
Chapter III contains the provisions concerning traditional and computer crime-related mutual assistance as well as extradition rules. It covers traditional mutual assistance in two situations: where no legal basis (treaty, reciprocal legislation, etc.) exists between parties – in which case its provisions apply – and where such a basis exists – in which case the existing arrangements also apply to assistance under this Convention. Computer- or computer-related crime specific assistance applies to both situations and covers, subject to extra-conditions, the same range of procedural powers as defined in Chapter II. In addition, Chapter III contains a provision on a specific type of transborder access to stored computer data which does not require mutual assistance (with consent or where publicly available) and provides for the setting up of a 24/7 network for ensuring speedy assistance among the Parties.
Finally, Chapter IV contains the final clauses, which – with certain exceptions – repeat the standard provisions in Council of Europe treaties.
Website to access the full text of the convention, the chart of signatures and ratifications and the list of declarations, reservations and other communications: http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=185&CM=8&DF=&CL=ENG
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The versatility and speed of computers made our society largely dependent on information technology, accumulating several functions from personal communication to large financial transactions. It did not take long for the possibilities of online invasion and control of data to call the attention of criminal behaviour. Unfortunately, no legal system was ready for this revolution, nations took years to adapt and renew their laws in order to deal with this new type of abuse and have not yet established proper mechanisms able to fulfil the needs of security and simultaneously guarantee the respect to the rights to free communication and privacy. Once more, we face the dichotomy between freedom and protection. As a matter of fact, this area grows even more nebulous once we consider all the necessary rigorous analysis, even the basic concepts are not well established and need discussing. Determining what is necessary to ensure peace and what is a threat to freedom is just the first step to effectively build a culture of freedom and peace.
The potential transnational nature of cybercrimes demands global cooperation, since computer networks do not respect borders, permitting criminal offences to be committed abroad and leaving the doubt of under which jurisdiction the crime has been committed, even whether it may or may not be considered a crime if there is no law prohibiting such action in one of the involved legal systems. Even though great advances have been achieved in regional and national levels, they still differ largely from nation to nation in very basic topics, such as what should be considered a cybercrime, hampering the construction of an effective global effort towards prevention and prosecution.
