International review of criminal policy - Nos. 43 and 44/Mutual assistance in transborder computer related crime

D. Mutual assistance in transborder

computer-related crime

268. As discussed above, transnational computer crime can be efficiently addressed only if the countries involved agree to provide maximum cooperation in countering it. This cooperation is usually organized by multi- or bilateral conventions may given rise to a number of problems of which States should be aware.

269. First, as for other forms of international cooperation, the requirement of dual criminality may be an issue. Refusal of assistance could be based on the ground that the act in relation to which the request is made is not an offence in the territory of the requested State. Thus there is a clear need to make the substantive criminal law of computer crime correspond from State to State.

270. Even if the dual criminality rule is not an aspect of all incidents of mutual assistance, it is often a requirement in cases of search and seizure, which is a particularly important means of assistance where data are concerned. Double criminality, furthermore, is basic to other common cooperation modes, such as extradition, or other schemes for solving jurisdictional conflicts as discussed above. Unless domestic criminal legislation, as it develops, moves beyond expressions of sovereignty to espousing common principles as agreed among nations, conflicts will not be avoided. Efforts by States to harmonize their domestic laws will prevent conflicts of jurisdiction and, at minimum, will lay the basic groundwork for cooperation.

271. It is, therefore, imperative that States undertake action to achieve this aim. Such action may range from the undertaking of consultations among States prior to enacting domestic legislation; solutions for harmonization, such as recommended guidelines for national legislation; and the elaboration of a convention of substantive law that defines computer crime under international law, including the governing principles in jurisdiction and cooperation.

272. Secondly, a form of mutual assistance rendered to requesting States is the search and seizure of data banks or carriers that store or transmit information. The target of request is not the carrier itself but the intangible specific data. If seizure remains applicable only to physical objects, the carrier is still at issue. The technical storage capacity of such data banks and carriers often far exceeds the volume of content requested by the investigating State. Explicit rules should be elaborated in relation to the surplus of information a data bank or carrier might contain, which would allow the execution of letters rogatorys upon only the targeted data. Notions such as relevance, proportionality and defined purpose should necessarily be included.

273. A final concern relates to potential grounds of refusal, which almost uniformly include the protection of the essential interests of the requested party. Data that relate to the privacy of nationals, including, for example, financial or medical information, could be considered sufficiently sensitive by a State, in its role of protecting its citizens, to be an essential interest. Many computer-related investigations may concern tax fraud or violations of customs, import and export rules, equally subject to the essential public interest qualification. Again, it is to be expected that States interpret their treaty obligations in a practical manner, in a spirit of cooperation and international comity.