CHALLENGE OF BORDERLESS ‘CYBER-CRIME’ TO INTERNATIONAL EFFORTS TO COMBAT
Three-Day Symposium, Held in Conjunction
The rule of law in international relations, the spread of computer related crime and the collision of international law and technology were among the issues discussed this morning at the final session of a Symposium entitled, "The Rule of Law in the Global Village -- Issues of Sovereignty and Universality".
The Symposium was held in conjunction with the High-level Political Signing Conference for the United Nations Convention against Transnational Organized Crime, which is taking place in Palermo, Italy. The theme of this morning’s meeting was, "The Challenge of Borderless Cyber-Crime".
United Nations Under-Secretary-General for Legal Affairs Hans Corell moderated this morning’s session. He observed that the idea of the rule of law in international relations and at the national level had lately been the subject of much attention in the United Nations. Secretary-General Kofi Annan had addressed it on many occasions over the past few years. Part of his annual report to the General Assembly this year was devoted to ways to enhance the rule of law. The General Assembly and the Security Council had also dealt with the topic.
In addressing the issue of what problems were posed by cyber-crime, Mr. Corell noted that the scope of international cooperation was currently limited by international agreements and by the national law of the State from which information has been requested. There were also differing priorities between developed and developing countries. Those differences complicated international cooperation and also expanded the gap between the two groups. Another area where problems presented themselves was in criminal investigations, he said. Such problems included limited availability of specialized computer crime units; possible lack of powers to investigate the content of a computer system against the will of a right holder; encryption policies; and verification of authenticity of evidence.
Only a universal agreement would enhance the prospects of establishing an international legal instrument in the field in the long run, he said. If that was not attainable, there was the possibility of a model regulation or a non-binding instrument.
There was no authoritative, comprehensive elaboration of the principle of universal jurisdiction concerning cyber-crime, he said. There were different views concerning the offences that constituted crimes under international law which were subject to universal jurisdiction. There were also different opinions with respect to the significance of the obligation to prosecute or extradite, as contained in various treaties, as evidence of universal jurisdiction. Whether States were not only permitted, but also required, to exercise jurisdiction with respect to crimes under international law, was also subject to different opinions.
In concluding remarks at the end of the meeting, he said it was interesting to note that the issue of the rule of law had been brought to the forefront of the attention of Member States in recent years. Rule of law was the only way to provide peace and security for the future. There was a growing understanding that the notion of State sovereignty must be seen in a new light. The people, not the sovereignty of a country, must be the focus.
Cyber-crime, he observed, might pose a real challenge to all States, including the most powerful and well organized. All States had a common interest in protecting themselves and their people. The phenomena that had been discussed, including cyber crime, money-laundering, drug trafficking, poverty and HIV/AIDS, were linked. He noted the importance, in the various interventions, placed on international cooperation. The need for a truly universal jurisdiction, in the light of cyber-crime, might present itself with even greater emphasis than before. Through cooperation and good will a solution might be found.
Peter N. Grabowsky, of the Australian Institute of Criminology, commented on a paper entitled "The Mushrooming of Cyber-Crime". He said that computer-related crime, like crime in general, might be explained by the conjunction of three factors: motivation, opportunity and the absence of capable guardianship. The most appropriate strategies for the control of computer-related crime entailed a mixture of law enforcement, technological and market-based solutions. He set out 11 varieties of computer-related crime: theft of services; communications in furtherance of criminal conspiracies; information piracy and forgery; the dissemination of offensive materials; cyber-stalking; extortion; electronic money-laundering; electronic vandalism and terrorism; telemarketing fraud; illegal interception; and electronic funds-transfer fraud.
He said that the transnational nature of the crime being considered must be emphasized. Crimes committed in one area of the world often originated in other areas. In that respect, he cited computer viruses, child pornography and theft of medical records. A basic legislative framework was required. While uniformity might be elusive, a degree of harmonization or consistency would help. Appropriate mechanisms of legal assistance must be elaborated on an expedited basis.
He said an awareness of computer ethics should be raised and instilled in children. Motivated offenders and opportunities would increase, he stressed, and "pulling the plug" was not a viable option. The concept of guardianship should be evoked -- those with assets to protect should invest in their protection. Such protection could take a variety of forms. Self-defence, he suggested, should be the first line of defence. International cooperation was imperative.
Tan Ken Hwee, State Counsel and Deputy Public Prosecutor in the International Affairs Division of the Attorney-General’s Chambers in Singapore, spoke on the subject of "Prosecuting Foreign-Based Computer Crimes -- Where International Law and Technology Collide". He said the assumption of the traditional notion of State sovereignty was being challenged by today’s technologies. Many of the issues had existed for a long time -- the increase in use of the Internet had merely accelerated them. Globalization or the borderless nature of the Internet did not sit easily with the classic types of jurisdiction.
He observed that Internet protocols disregarded territorial borders. They were only concerned about the best way to get from point A to point B. He also noted that so-called "naming conventions", such as e-mail or World Wide Web addresses, were not geographically linked. The State of Tuvalu had, for example, sold the rights to the "dot tv" appellation.
One estimate of reported losses suffered by businesses and governments due to cyber-crime over the past four years was on the order of $600 million. Of all the cyber-crime activity occurring in the world, an increasing proportion "crossed borders", in the sense that the physical location of the computers being hacked into, or the computers being used as intermediaries, or the perpetrators, were increasingly seen to be present in different countries. There was a German assessment, he noted, that 80 per cent of cyber-crime in that country came from abroad.
One way to approach the problem entailed unilateral action by States, he said. Another possibility was to leave things to ad hoc cooperation regimes, although this was not likely to be satisfactory. The other approach was to have a comprehensive international agreement, incorporating a cooperation regime. In that respect, he cited the Council of Europe’s draft international cyber-crime treaty.
Cormac Callanan, of the European Association of Internet Providers, made a presentation entitled "Between Freedom and Control: Dilemmas of Internet Providers". He said the Association’s objective was to help deliver the benefits of new communications technologies to individuals and businesses, while meeting the legitimate concerns of parents and weaker members of society. The Association had always recognized the fundamental fact that the Internet always had been a global medium.
He said the Internet had been described as a mirror of society. Like a mirror, it reflected all aspects of life, allowing the same ease of expression of evil as it did of good. In fact, it could be argued that with its relative anonymity and global dimensions, it facilitated the full expression of "our darker side" more than any other communications medium so far.
The responses to the challenges posed by the illegal and harmful use of the Internet must be sufficiently flexible to reflect rapid change in technology and services, he said. Measures that did not provide for review and adaptation were not suited to an environment characterized by constant evolution. The specific measures suggested must be seen in the context of the particular stage reached in Internet development and must be sufficiently flexible to accommodate change.
Henk Marquart Scholtz, Secretary-General of the International Association of Prosecutors, made brief remarks following the main presentations. He described the Association’s work and expressed its willingness to collaborate with the United Nations in supporting the implementation of the Palermo Convention.
Over the course of the three-day Symposium, speakers addressed a variety of themes, including "The Rule of Law -- Lofty Idea and Harsh Reality", "Towards Universal Jurisdiction: Promise or Threat?" and "Coping with Transnational Crimes: The Need for a Common Response". Papers and talks were given on, among other topics, extradition and mutual legal assistance, regional efforts against organized crime, the importance of combating the crime of trafficking in humans, and countering abuses in the banking sector.
Participants in the Symposium included Piero Fassino, Minister of Justice of Italy, Penuell Mpapa Maduna, Minister of Justice of South Africa, Baltasar Garzon Real, Spanish Magistrate, and Guido Rossi, Chairman of the International Scientific and Professional Advisory Council of the United Nations Criminal Justice Programme.
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