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Project On Cybercrime PDF
The idea of launching the present working group came out of the work of the Project Against Cybercrime. This project, launched in September 2006 is currently funded from the budget of the Council of Europe and a voluntary contribution by the Microsoft Corporation.
It is the view of the Council of Europe that participants of the first meeting of the working group have already demonstrated, through their day-to-day work with law enforcement authorities, a willingness to support them in the fight against cybercrime, to the extent they practically and legally can.
This support has taken the form of the establishment of processes or policies in responding to legal requests from law enforcement authorities (“criminal compliance”), or in responding to other types of requests on the development of training and tools for law enforcement. A working group was established to support the drafting of a study regarding the cooperation between law enforcement agencies and providers.
The output of the study will be a set of guidelines aimed at improving the cooperation between law enforcement agencies and service providers against cybercrime, based on good practices or processes already established by industry, both in terms of criminal compliance and in terms of other types of cooperation.
The guidelines should function as a policy paper for requests for cooperation against cybercrime generally, but they also provide very practical guidance on criminal compliance to law enforcement and service providers of all sizes and from all countries. For example, advising Internet service providers (ISPs)
that it is good practice to provide a designated point of contact to handle the relationship with law enforcement, or advising law enforcement that it is good practice to train their personnel on which information and how to request information from ISPs, and understand the differences between them.
Other examples include reminding ISPs that they have to define which law is applicable to the request; that is good practice to provide guidance to law enforcement on how to make a request; that ISPs should articulate what information they are able to provide and disclose; whether they have after-hours emergency procedures or not; reminding law enforcement that they should – to the extent possible – limit the interactions with ISPs to trained personnel, and where possible prioritize their requests so that the service providers may address those that are most important first, etc.
These guidelines may subsequently become a Recommendation, that is, a soft law instrument of the Council of Europe. It is obvious that cybercrime investigations will need to be based on legal regulations established by the applicable laws of each country.
The guidelines are not designed to substitute the existing legal structures, but to give basic guidelines with regard to their application, and are subject to all aspects of national law.
The study focuses on the international standards defined by the Convention on Cybercrime. Due to the differing national legal standards and a lack of detailed comparative law analysis in this field, it is necessary to draft the guidelines on criminal compliance on a level that is on the one hand concrete and precise enough to be applicable in carrying out investigations and on the other hand to be abstract enough to ensure that the guidelines are not in conflict with existing legal standards.
The guidelines should also provide a framework for cooperation against cybercrime in general.
The Council of Europe Cybercrime unit is often approached by international parties to describe what the ideal relationship between law enforcement and the Internet industry should be. This study should provide valuable guidelines in this area. The study reflects the good/common practices which have already been developed in some countries yet endeavors not to be country specific.
The guidelines are designed to avoid the creation of substantial burdens on either party since the relationship between law enforcement and the Internet industry needs to operate smoothly and efficiently in both directions. Bidirectional communication Analysis of systematic structures of cooperation shows that it is bidirectional in nature:
• Law enforcement agencies are on the one hand responsible for the prevention and investigation of crime, and on the other hand knowledgeable about cybercrime trends;
• Internet industries are on the one hand victims of crime and on the other hand knowledgeable about cybercrime trends and hold data about their customers who are perpetrators or victims of criminal acts.
Legal framework In general terms, the Internet industry and law enforcement agencies (LEAs) recognize a common interest in the prevention, detection, and investigation of cybercrime and threats to national security and information infrastructure generally.
Online safety, security, and reliability on the Internet are dependent upon the early detection of criminal activity that might undermine the achievement of these objectives.
However, this requires effective legislation which balances investigation instruments and fundamental rights, such as the right of individuals to privacy of communications and the right of individuals to be protected against criminal activities.
This requires all parties to act in respect of established principles that ensure a balance between the rights stated in the Convention for the Protection of Human Rights and Fundamental Freedoms. This is especially true of “qualified rights”, such as the right to respect for private and family life and freedom of expression.
These can only be restricted if a clear legal basis states this possibility, if the restriction seeks to achieve one of the legitimate aims set out in the Convention, and if the action is necessary for a democratic country, which means that the action must be in response to a “pressing social need” and must be no greater than that necessary to address the social need (proportionality principle).
The purpose of the study is to develop guidelines that support cooperation within the given legal framework. It does not intend to develop new legislative approaches. In addition, this study will not focus on issues associated with data retention or data protection, which are covered extensively in other studies and documents.
It will focus on the relationship between law enforcement agencies and the Internet industry in relation to cybercrime issues and will not deal with the relationship of either party with other parties relating to other types of content investigations.
1.2.1 Working group The working group includes members with different backgrounds (provider/law enforcement, industry/public sector, and practitioner/academic).
In order to ensure that the recommendations are applied in the everyday work of cooperation, it is necessary that representatives of all relevant areas are involved.
The involvement of associations that represent a significant number of businesses in relevant areas is essential as their input will be able to support the acceptance of the recommendations within the businesses they represent.
Who will the guidelines help The guidelines are designed to help law enforcement agencies at a national and international level to understand the best-of-breed relationship structures which work with the Internet industry around the world.
The guidelines are also designed to help the Internet industry to understand the best-of-breed relationship structures which work with law enforcement agencies around the world.
1.3 Why create the study? There are no globally applicable comprehensive descriptions available that outline how law enforcement agencies and personnel can interact with Internet industry organizations and personnel during the course of a cybercrime investigation.
Few guidelines for cooperation Regarding criminal compliance specifically, there is a lack of clarity on the very concept of cooperation between industry and law enforcement agencies.
Often the perception is that it is purely a legal issue when a law enforcement agency requests customer-related data which is needed for an investigation from an ISP. If law enforcement legally has the right to obtain information, it will obtain it.
In other countries, typically in North America, the industry must also define and publish its privacy policy as part of its business ethos, which in turn has an impact on the level of information it can share with law enforcement agencies without breaching this ethos.
Raising awareness for fundamental principles of cooperation An essential requirement for cooperation is respecting the fundamental principles of the parties involved.
• Service providers must constantly balance the responsibility to protect customer information and comply with established privacy principles alongside cooperation efforts with law enforcement to protect and promote public safety.
In this context, service providers typically establish criminal compliance programs to help maintain that balance by evaluating demands and requests from law enforcement, consistent with its legal obligations in applicable jurisdictions.
• Law enforcement agencies are mandated to investigate crime at a national level. Cybercrime, due to its international dimension and constantly changing nature, requires substantial cooperation between national law enforcement agencies in different countries and access to knowledge, expertise, and log records in the process of the crime investigation.
The level of such knowledge and expertise varies within agencies and between agencies in different countries. The range of criminal procedural law is also very different.
| Language | English |
| No. of Pages | 71 |
| PDF Size | 0.4 MB |
| Category | Law |
| Source/Credits | rm.coe.int |
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