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[890] The International Telecommunication Union (ITU) with headquarter in Geneva was founded as International Telegraph Union in 1865. It is a specialised agency of the United Nations. The ITU has 191 Member States and more than 700 Sector Members and Associates.
[891] For more information on the C5 Action Line see Meeting Report of 2nd Facilitation Meeting for WSIS Action Line C5, 2007, page 1, available at: http://www.itu.int/osg/spu/cybersecurity/pgc/2007/events/docs/meetingreport.pdf.
[892] For more information see http://www.itu.int/osg/csd/cybersecurity/gca/.
[893] 1. Elaboration of strategies for the development of a model cybercrime legislation that is globally applicable and interoperable with existing national and regional legislative measures, 2. Elaboration of strategies for the creation of appropriate national and regional organizational structures and policies on cybercrime. 3. Development of a strategy for the establishment of globally accepted minimum security criteria and accreditation schemes for software applications and systems. 4. Development of strategies for the creation of a global framework for watch, warning and incident response to ensure cross-border coordination between new and existing initiatives.5. Development of strategies for the creation and endorsement of a generic and universal digital identity system and the necessary organizational structures to ensure the recognition of digital credentials for individuals across geographical boundaries. 6. Development of a global strategy to facilitate human and institutional capacity-building to enhance knowledge and know-how across sectors and in all the above-mentioned areas. 7. Advice on potential framework for a global multi-stakeholder strategy for international cooperation, dialogue and coordination in all the above-mentioned areas.
[894] See: http://www.itu.int/osg/csd/cybersecurity/gca/hleg/index.html.
[895] Meeting Report, The Cybercrime Convention Committee, 2nd Multilateral Consultation of the Parties, 2007, page 2, available at: http://www.coe.int/t/e/legal_affairs/legal_co%2Doperation/combating_economic_crime/6_cybercrime/t%2Dcy/FINAL%20T- CY%20_2007_%2003%20-%20e%20-%20Report%20of%20the%20meeting1.pdf.
[896] The term "phishing" originally described the use of e-mails to "phish" for passwords and financial data from a sea of Internet users. The use of "ph" linked to popular hacker naming conventions. See Gercke, Computer und Recht, 2005, page 606; Ollmann, The Phishing Guide Understanding & Preventing Phishing Attacks, available at: http://www.nextgenss.com/papers/NISR-WP-Phishing.pdf. Regarding the phenomenon phishing see Dhamija/Tygar/Hearst, Why Phishing Works, available at: http://people.seas.harvard.edu/~rachma/papers/why_phishing_works.pdf; Report on Phishing, A Report to the Minister of Public Safety and Emergency Preparedness Canada and the Attorney General of the United States,, available at: http://www.usdoj.gov/opa/report_on_phishing.pdf,
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[897] For an overview about the different legal approaches see: Gercke, Internet-related Identity Theft, 2007, available at: http://www.coe.int/t/e/legal_affairs/legal_co-operation/combating_economic_crime/3_Technical_cooperation/CYBER/567%20port%20id-d- identity%20thef%20paper%2022%20nov%2007.pdf; See as well: Chawki/Abdel Wahab, Identity Theft in Cyberspace: Issues and Solutions, Lex Electronica, Vol. 11, No. 1, 2006, available at: http://www.lex-electronica.org/articles/v11-1/ chawki_abdel-wahab.pdf; Peeters, Identity Theft Scandal in the U.S.: Opportunity to Improve Data Protection, Multimedia und Recht 2007, page 415; Givens, Identity Theft: How It Happens, Its Impact on Victims, and Legislative Solutions, 2000, available at: http://www.privacyrights.org/ar/id_theft.htm.Regarding the economic impact see for example the 2007 Javelin Strategy and Research Identity Fraud Survey; 2006 Better Bureau Identity Fraud Survey; 2006 Federal Trade Commission Consumer Fraud and Identity Theft Complaint Data; 2003 Federal Trade Commission Identity Theft Survey Report.
[898] There are two aspects that need to be taken into consideration in this context: to avoid redundancy, a new approach should focus on offences that are not intended to be covered within further amendments of the Convention on Cybercrime. The second aspect is related to the difficulties in finding a common position all countries can agree on. Based on the experiences with the negotiations of the Convention on
Cybercrime, it is likely that negotiations of criminalisation that go beyond the standards of the Convention will proceed with difficulties.
[899] Further information on the ITU Cybercrime Legislation Toolkit is available at: http://www.itu.int/ITU-D/cyb/cybersecurity/projects/cyberlaw.html.
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[900] Regarding the extent of transnational attacks in the most damaging cyber attacks see: Sofaer/Goodman, Cyber Crime and Security - The Transnational Dimension in Sofaer/Goodman, The Transnational Dimension of Cyber Crime and Terrorism, 2001, page 7, available at: http://media.hoover.org/documents/0817999825_1.pdf.
[901] Regarding the need for international cooperation in the fight against Cybercrime see: Putnam/Elliott, International Responses to Cyber Crime, in Sofaer/Goodman, The Transnational Dimension of Cyber Crime and Terrorism, 2001, page 35 et seq. available at: http://media.hoover.org/documents/0817999825_35.pdf; Sofaer/Goodman, Cyber Crime and Security - The Transnational Dimension in Sofaer/Goodman, The Transnational Dimension of Cyber Crime and Terrorism, 2001, page 1 et seq. available at: http://media.hoover.org/documents/0817999825_1.pdf.
[902] Dual criminality exists if the offence is a crime under both the requestor and requesting party's laws. The difficulties the dual criminality principle can cause within international investigations is currently addressed in a number of international conventions and treaties. One example is Art. 2 of the EU Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA).
[903] Regarding the dual criminality principle in international investigations see: United Nations Manual on the Prevention and Control of Computer- Related Crime, 269, available at http://www.uncjin.org/Documents/EighthCongress.html; Schjolberg/Hubbard, Harmonizing National Legal Approaches on Cybercrime, 2005, page 5, available at: http://www.itu.int/osg/spu/cybersecurity/ presentations/session12_schjolberg.pdf.
[904] See Convention on Cybercrime, Art. 23 - Art. 35.
[905] See Gercke, The Slow Wake of a Global Approach against Cybercrime, Computer Law Review International 2006, 141 et seq.
[906] See above: Chapter 2.6.7.
[907] See Spam Issue in Developing Countries. Available at: http://www.oecd.org/dataoecd/5/47/34935342.pdf.
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[908] See Spam Issue in Developing Countries, Page 4, available at: http://www.oecd.org/dataoecd/5/47/34935342.pdf.
[909] Regarding the network protocols see: Tanebaum, Computer Networks; Comer, Internetworking with TCP/IP - Principles, Protocols and Architecture.
[910] See for example the following surveys on national Cybercrime legislation: ITU Survey on Anti-Spam Legislation Worldwide 2005 -, page 5, available at http://www.itu.int/osg/spu/spam/legislation/Background_Paper_ITU_Bueti_Survey.pdf; Mitchison/Wilikens/Breitenbach/Urry/Portesi - Identity Theft - A discussion paper, page 23 et seq, available at: https://www.prime-project.eu/community/furtherreading/studies/IDTheftFIN.pdf; Legislative Approaches to Identity Theft: An Overview, CIPPIC Working Paper No.3, 2007; Schjolberg, The legal framework - unauthorized access to computer systems - penal legislation in 44 countries, available at: http://www.mosstingrett.no/info/legal.html.
[911] Regarding the international dimension see above: Chapter 3.2.6.
[912] With regard to the Convention on Cybercrime see: Explanatory Report to the Convention on Cybercrime, No. 33.
[913] Regarding concerns related to the speed of the ratification process see Gercke, The Slow Wake of a Global Approach against Cybercrime, Computer Law Review International 2006, 144.
[914] See below: Chapter 6.1.9.
931 See above: Chapter 3.2.6 and Chapter 3.2.7.
[916] The issue was addressed by a number of international organisations. The UN General Assembly Resolution 55/63 points out: "States should ensure that their laws and practice eliminate safe havens for those who criminally misuse information technologies". The full text of the Resolution is available at: http://www.unodc.org/pdf/crime/a_res_55/res5563e.pdf. The G8 10 Point Action plan highlights: "There must be no safe havens for those who abuse information technologies".
[917] For details see Gercke, National, Regional and International Legislative Approaches in the Fight Against Cybercrime, Computer Law Review International 2008, page 7 et seq.
[918] For an overview about the law see: Landes, Layovers And Cargo Ships: The Prohibition Of Internet Gambling And A Proposed System Of Regulation, available at: http://www.law.nyu.edu/JOURNALS/LAWREVIEW/issues/vol82/no3/NYU306.pdf; Rose, Gambling and the Law: The Unlawful Internet Gambling Enforcement Act of 2006 Analyzed, 2006, available at: http://www.gamblingandthelaw.com/columns/2006_act.htm. For more information see below: Chapter 6.1.j.
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[919] Regarding filter obligations/approaches see: Zittrain/Edelman, Documentation of Internet Filtering Worldwide, available at: http://cyber.law.harvard.edu/filtering/; Reidenberg, States and Internet Enforcement, University of Ottawa Law & Technology Journal, Vol. 1, No. 213, 2004, page 213 et. seq., available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=487965; Regarding the discussion about filtering in different countries see: Taylor, Internet Service Providers (ISPs) and their responsibility for content under the new French legal regime, Computer Law & Security Report, Vol. 20, Issue 4, 2004, page 268 et seq.; Belgium ISP Ordered By The Court To Filter Illicit Content, EDRI News, No 5.14, 18.06.2007, available at: http://www.edri.org/edrigram/number5.14/belgium-isp; Enser, Illegal Downloads: Belgian court orders ISP to filter, OLSWANG E-Commerce Update, 11.07, page 7, available at: http://www.olswang.com/updates/ecom_nov07/ecom_nov07.pdf; Standford, France to Require Internet Service Providers to Filter Infringing Music, 27.11.2007, Intellectual Property Watch, available at: http://www.ip- watch.org/weblog/index.php?p=842; Zwenne, Dutch Telecoms wants to force Internet safety requirements, Wold Data Protection Report, issue 09/07, page 17, available at:
http://weblog.leidenuniv.nl/users/zwennegj/Dutch%20telecom%20operator%20to%20enforce%20Internet%20safety%20requirements.pdf; The 2007 paper of IFPI regarding the technical options for addressing online copyright infringement, available at:
http://www.eff.org/files/filenode/effeurope/ifpi_filtering_memo.pdf; Regarding self-regulatory approaches see: ISPA Code Review, Self-Regulation of Internet Service Providers, 2002, available at: http://pcmlp.socleg.ox.ac.uk/selfregulation/iapcoda/0211xx-ispa-study.pdf. Zittrain, Harvard Journal of Law & Technology, 2006, Vol. 19, No. 2, page 253 et seq.
[920] See: Poullet, The Yahoo! Inc. case or the revenge of the law on the technology?, available at: http://www.juriscom.net/en/uni/doc/yahoo/poullet.htm; Goldsmith/Wu, Who Controls the Internet?: Illusions of a Borderless World, 2006, page 2 et seq.
[921] The OpenNet Initiative is a transatlantic group of academic institutions that reports about Internet filtering and surveillance. Among others the Harvard Law School and the University of Oxford participate in the network. For more information see: http://www.opennet.net.
[922] Haraszti, Preface, in Governing the Internet Freedom and Regulation in the OSCE Region, available at: http://www.osce.org/publications/rfm/2007/07/25667_918_en.pdf.
[923] For an overview about legal approaches see also: ITU Global Cybersecurity Agenda / High-Level Experts Group, Global Strategic Report, 2008, page 18 et seq., available at: http://www.itu.int/osg/csd/cybersecurity/gca/global_strategic_report/index.html.
[924] Sieber, Multimedia Handbook, Chapter 19, page 17. For an overview of victims of early hacking attacks see: http://en.wikipedia.org/wiki/Timeline_of_computer_security_hacker_history; Joyner/Lotrionte, Information Warfare as International Coercion: Elements of a Legal Framework, EJIL 2002, No5 - page 825 et sqq.
[925] These range from the simple proof that technical protection measures can be circumvented, to the intention of obtaining data stored on the victimised computer. Even political motivations have been discovered. See: Anderson, "Hacktivism and Politically Motivated Computer Crime", 2005, available at: http://www.aracnet.com/~kea/Papers/Politically%20Motivated%20Computer%20Crime.pdf;
[926] Regarding the independence of place of action and the location of the victim, see above 3.2.7.
[927] These can for example be passwords or fingerprint authorisation. In addition, there are several tools available that can be used to circumvent protection measures. For an overview of potential tools, see Ealy, "A New Evolution in Hack Attacks: A General Overview of Types, Methods, Tools, and Prevention", available at: http://www.212cafe.com/download/e-book/A.pdf.
[928] Regarding the supportive aspects of missing technical protection measures, see Wilson, "Computer Attacks and Cyber Terrorism, Cybercrime & Security", IIV-3, page 5. The importance of implementing effective security measures to prevent illegal access is also highlighted by the drafters of the Convention on Cybercrime. See: Explanatory Report to the Council of Europe Convention on Cybercrime, No. 45.
[929] Gercke, The Convention on Cybercrime, Multimedia und Recht 2004, Page 729.
[930] Explanatory Report to the Council of Europe Convention on Cybercrime, No. 44. "The need for protection reflects the interests of organisations and individuals to manage, operate and control their systems in an undisturbed and uninhibited manner".
[931] With regard to data espionage see above, Chapter 2.4.b and below, Chapter 6.1.2.
[932] With regard to data interference see above, Chapter 2.4.d and below, Chapter 6.1.3.
[933] Sieber, Informationstechnologie und Strafrechtsreform, Page 49 et seq.
[934] For an overview of the various legal approaches towards criminalising illegal access to computer systems, see Schjolberg, "The Legal Framework - Unauthorized Access To Computer Systems - Penal Legislation In 44 Countries, 2003", available at: http://www.mosstingrett.no/info/legal.html.
[935] Art. 2 Convention on Cybercrime enables the member states to keep those existing limitations that are mentioned in Art. 2, sentence 2 Convention on Cybercrime. Regarding the possibility to limit the criminalisation see as well: Explanatory Report to the Council of Europe Convention on Cybercrime, No. 40.
[936] An example of this is the German Criminal Code, which criminalised only the act of obtaining data (Section 202a). This provision was changed in 2007. The following text presents the old version:
Section 202a - Data Espionage
(1) Whoever, without authorization, obtains data for himself or another, which was not intended for him and was specially protected against unauthorized access, shall be punished with imprisonment for not more than three years or a fine.
(2) Within the meaning of subsection (1), data shall only be those which stored or transmitted electronically or magnetically or otherwise in a not immediately perceivable manner.
[937] This approach is not only found in national legislation, but was also recommended by the Council of Europe Recommendation N° (89) 9.
[938] For an overview of the various legal approaches in criminalising illegal access to computer systems, see Schjolberg, "The Legal Framework - Unauthorized Access To Computer Systems - Penal Legislation In 44 Countries, 2003", available at: http://www.mosstingrett.no/info/legal.html.
[939] Regarding the system of reservations and restrictions, see Gercke, "The Convention on Cybercrime", Computer Law Review International, 2006, 144.
[940] Gercke, Cybercrime Training for Judges, 2009, page 27, available at: http://www.coe.int/t/dghl/cooperation/economiccrime/cybercrime/Documents/Reports- Presentations/2079%20if09%20pres%20coe%20train%20manual%20judges6%20_4%20march%2009_.pdf.
[941] With regard to software tools that are designed and used to carry out such attacks see: Ealy, A New Evolution in Hack Attacks: A General Overview of Types, Methods, Tools, and Prevention, page 9 et seqq., available at: http://www.212cafe.com/download/e-book/A.pdf. With regard to Internet related social engineering techniques see the information offered by anti-phishing working group, available at: http://www.antiphishing.org; Jakobsson, The Human Factor in Phishing, available at: http://www.informatics.indiana.edu/markus/papers/aci.pdf; Gercke, Computer und Recht 2005, page 606; The term "phishing" describes an act that is carried out to make the victim disclose personal/secret information. The term "phishing" originally described the use of e-mails to "phish" for passwords and financial data from a sea of Internet users. The use of "ph" linked to popular hacker naming conventions. See Gercke, Computer und Recht, 2005, page 606; Ollmann, The Phishing Guide Understanding & Preventing Phishing Attacks, available at: http://www.nextgenss.com/papers/NISR-WP-Phishing.pdf. For more information on the phenomenon of phishing see below: Chapter 2.8.d.
[942] Explanatory Report to the Council of Europe Convention on Cybercrime, No. 46.
[943] The relevance of attacks by insiders is highlighted by the 2007 CSI Computer Crime and Security Survey. The survey notes that 5% of the respondents reported that 80-100% of their losses were caused by insiders. Nearly 40% of all respondents reported that between 1 % and 40% of the losses related to computer and network crimes were caused by insiders. For more details, see: 2007 CSI Computer Crime and Security Survey, page 12, available at: http://www.gocsi.com/.
[944] Reservations and restrictions are two possibilities of adjusting the requirements of the Convention to the requirements of individual national legal systems.
[945] Explanatory Report to the Council of Europe Convention on Cybercrime, No. 46.
[946] Explanatory Report to the Council of Europe Convention on Cybercrime, No. 39.
[947] Explanatory Report to the Council of Europe Convention on Cybercrime, No. 39.
[948] The element "without right" is a common component in the substantive criminal law provisions of the Convention on Cybercrime. The Explanatory Report notes that: "A specificity of the offences included is the express requirement that the conduct involved is done "without right". It reflects the insight that the conduct described is not always punishable per se, but may be legal or justified not only in cases where classical legal defences are applicable, like consent, self defence or necessity, but where other principles or interests lead to the exclusion of criminal liability. The expression 'without right' derives its meaning from the context in which it is used. Thus, without restricting how Parties may implement the concept in their domestic law, it may refer to conduct undertaken without authority (whether legislative, executive, administrative, judicial, contractual or consensual) or conduct that is otherwise not covered by established legal defences, excuses, justifications or relevant principles under domestic law. The Convention, therefore, leaves unaffected conduct undertaken pursuant to lawful government authority (for example, where the Party's government acts to maintain public order, protect national security or investigate criminal offences). Furthermore, legitimate and common activities inherent in the design of networks, or legitimate and common operating or commercial practices should not be criminalised". See Explanatory Report to the Council of Europe Convention on Cybercrime, No. 38.
[949] Explanatory Report to the Council of Europe Convention on Cybercrime, No. 47.
[950] Jones, Council of Europe Convention on Cybercrime: Themes and Critiques, Page 7.
[951] See for example: World Information Technology And Services Alliance (WITSA), "Statement On The Council Of Europe Draft Convention On Cyber-Crime, 2000", available at: http://www.witsa.org/papers/COEstmt.pdf; "Industry group still concerned about draft Cybercrime Convention, 2000", available at: http://www.out-law.com/page-1217.
[952] Explanatory Report to the Council of Europe Convention on Cybercrime No. 47 and Explanatory Report to the Council of Europe Convention on Cybercrime No. 62" (Dealing with Article 4).
[953] Granger, Social Engineering Fundamentals, Part I: Hacker Tactics, Security Focus, 2001, available at: http://www.securityfocus.com/infocus/1527.
[954] This is especially relevant for phishing cases. See in this context: Jakobsson, The Human Factor in Phishing, available at: http://www.informatics.indiana.edu/markus/papers/aci.pdf; Gercke, Computer und Recht 2005, page 606; The term "phishing" describes an act that is carried out to make the victim disclose personal/secret information. The term "phishing" originally described the use of e-mails to "phish" for passwords and financial data from a sea of Internet users. The use of "ph" linked to popular hacker naming conventions. See Gercke, Computer und Recht, 2005, page 606; Ollmann, The Phishing Guide Understanding & Preventing Phishing Attacks, available at: http://www.nextgenss.com/papers/NISR-WP-Phishing.pdf. For more information on the phenomenon of phishing see below: Chapter 2.8.d.
[955] Gercke, Cybercrime Training for Judges, 2009, page 28, available at: http://www.coe.int/t/dghl/cooperation/economiccrime/cybercrime/Documents/Reports- Presentations/2079%20if09%20pres%20coe%20train%20manual%20judges6%20_4%20march%2009_.pdf.
[956] Article 42 - Reservations: By a written notification addressed to the Secretary-General of the Council of Europe, any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, declare that it avails itself of the reservation(s) provided for in Article 4, paragraph 2, Article 6, paragraph 3, Article 9, paragraph 4, Article 10, paragraph 3, Article 11, paragraph 3, Article 14, paragraph 3, Article 22, paragraph 2, Article 29, paragraph 4, and Article 41, paragraph 1. No other reservation may be made.
[957] This limits the criminalisation of illegal access to those cases where the victim used technical protection measures to protect it's computer system. Access an unprotected computer system would therefore not be considered a criminal act.
[958] The additional mental element/motivation enables the member states to undertake a more focused approach not implement a criminalisation of the mere hacking. See: Explanatory Report to the Council of Europe Convention on Cybercrime No. 47 and Explanatory Report to the Council of Europe Convention on Cybercrime No. 62
[959] This enables the member states to avoid a criminalisation of cases where the offender had physical access to the computer system of the victim and therefore did not need to perform an Internet-based attack.
[960] Framework Decision on attacks against information systems - 19. April 2002 - COM (2002) 173. For more details see above: Chapter 5.1.e.
[961] Article 2 - Illegal access to information systems:
1. Each Member State shall take the necessary measures to ensure that the intentional access without right to the whole or any part of an information system is punishable as a criminal offence, at least for cases that are not minor.
2. Each Member State may decide that the conduct referred to in paragraph 1 is incriminated only where the offence is committed by infringing a security measure.
[962] "Model Law on Computer and Computer Related Crime", LMM(02)17; The Model Law is available at: http://www.thecommonwealth.org/shared_asp_files/uploadedfiles/%7BDA109CD2-5204-4FAB-AA77-
86970A639B05%7D_Computer%20Crime.pdf. For more information see: Bourne, 2002 Commonwealth Law Ministers Meeting: Policy Brief, page 9, available at: http://www.cpsu.org.uk/downloads/2002CLMM.pdf.; Angers, Combating Cyber-Crime: National Legislation as a pre-requisite to International Cooperation in: Savona, Crime and Technology: New Frontiers for Regulation, Law Enforcement and Research, 2004, page 39 et seq.; United Nations Conference on Trade and Development, Information Economy Report 2005, UNCTAD/SDTE/ECB/2005/1, 2005, Chapter 6, page 233, available at: http://www.unctad.org/en/docs/sdteecb20051ch6_en.pdf.
[963] The Stanford Draft International Convention (CISAC) was developed as a follow up to a conference hosted in Stanford University in the United States in 1999. The text of the Convention is published in: The Transnational Dimension of Cyber Crime and Terror, page 249 et seq., available at: http://media.hoover.org/documents/0817999825_249.pdf; For more information see: Goodman/Brenner, The Emerging Consensus on Criminal Conduct in Cyberspace, UCLA Journal of Law and Technology, Vol. 6, Issue 1, 2002, page 70, available at:
http://www.lawtechjournal.com/articles/2002/03_020625_goodmanbrenner.pdf; Sofaer, Toward an International Convention on Cyber in Seymour/Goodman, The Transnational Dimension of Cyber Crime and Terror, page 225, available at: http://media.hoover.org/documents/0817999825_221.pdf; ABA International Guide to Combating Cybercrime, 2002, page 78.
[964] The element "without right" is a common component in the substantive criminal law provisions of the Convention on Cybercrime. The Explanatory Report notes that: "A specificity of the offences included is the express requirement that the conduct involved is done "without right". It reflects the insight that the conduct described is not always punishable per se, but may be legal or justified not only in cases where classical legal defences are applicable, like consent, self defence or necessity, but where other principles or interests lead to the exclusion of criminal liability. The expression 'without right' derives its meaning from the context in which it is used. Thus, without restricting how Parties may implement the concept in their domestic law, it may refer to conduct undertaken without authority (whether legislative, executive, administrative, judicial, contractual or consensual) or conduct that is otherwise not covered by established legal defences, excuses, justifications or relevant principles under domestic law. The Convention, therefore, leaves unaffected conduct undertaken pursuant to lawful government authority (for example, where the Party's government acts to maintain public order, protect national security or investigate criminal offences). Furthermore, legitimate and common activities inherent in the design of networks, or legitimate and common operating or commercial practices should not be criminalised". See Explanatory Report to the Council of Europe Convention on Cybercrime, No. 38.
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