International review of criminal policy - Nos. 43 and 44/General aspects

A. General aspects

239. As modern society is heavily information-dependent, computer-related crimes are easily committed on an international scale. International access to information and the mobility of data are fundamental to the working of our economic systems. Distance, time and space have ceased to be obstacles in commercial transactions. There is no longer any need for the physical presence of human agents. As the manipulation and storage of data take place within the dimension of international telecommunication networks, the usual border controls are bypassed. International instruments containing principles of the transborder flow of data, such as those by the United Nations or OECD, focus clearly on the principle of free flow of information, tempered by concerns to protect the confidentiality and integrity of the transmitted information, particularly in the case of sensitive data. Given the utility of paperless commercial transactions in international commerce and the rapidly improving sophistication of electronic communications, the volume of cross-boarder computer has increased significantly.

240. Currently, whole sectors of economy, such as banking and international aviation, rely heavily or even exclusively on international telecommunication networks. With the continuing development of standards and norms for electronic data interchange (EDI), such as that under the auspices of the United Nation Electronic Data Interchange for Administration, Commerce and Transportation (UN/EDIFACT), the use of EDI will increase substantially in the decade to come.

241. The international element in the commission of computer crime create new problems and challenges for the law. Systems may be accessed in one country, the date manipulate in another and the consequences felt in a third country. Hackers can operate physically operate in one country, move electronically across the world from one network to another and easily access databases on a different continent. The result of this ability is that different sovereignties, jurisdictions, laws and rules will come into play. More than in any other transnational crime, the speed, mobility, flexibility, significance and value of electronic transactions profoundly challenge the existing rules of international crime law.

242. There are a number of complex issues to confront, given the multiplicity of countries potentially involved in a crime. How can it be determined which country the crime was actually committed? Who should have jurisdiction to prescribe rules of conduct or of adjudication? In crimes involving multinational contacts, there will be frequently be conflicts of jurisdiction. Countering computer crimes committed from a distance and having and increasing range of international targets (such as country of commission of the crime, the number of actors and victims involved, and the range of potential consequences) will require a well-developed network of inter-State cooperation to attain effective investigation and prosecution. In the light of the technicalities of international interaction, cooperation between nations in criminal matters is crucial.

243. These issues have to be addressed by all countries, whether they be producers, users or consumers of the new information technologies, since these technologies ate becoming an integral part of economic, social and culture development.

244. In seeking solutions to the above problems, the international community should strive for the following:

1. Maximizing cooperation between nations in order to address, firstly, the potential for enormous economic losses and, secondly, the general threat to privacy and other fundamental values that near-instantaneous cross-border electronic transactions may create;
2. Worldwide protection so as to avoid "data paradises" or computer crimes havens where computer criminals can find refuge or launch there attacks;
3. A lawfully structured cooperation scheme, taking into account and balancing the necessities of international trade and relations on the one hand and the rights and freedoms of the individual on the other hand.