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[1306] Harrison/Heuston/Morrissey/Aucsmith/Mocas/Russelle, A Lesson Learned Repository for Computer Forensics, International Journal of Digital Evidence, Vol. 1, Issue 3.
[1307] See in this context ABA International Guide to Combating Cybercrime, 128 et seq.
[1308] Regarding hash-value based searches for illegal content see: Kerr, Searches and Seizures in a digital world, Harvard Law Review, 2005, Vol. 119, page 546 et seq.
[1309] Marsico/Rogers, iPod Forensics, International Journal of Digital Evidence, Vol. 4, Issue 2
[1310] Casey Practical Approaches to Recovering Encrypted Digital Evidence, International Journal of Digital Evidence, Vol. 1, Issue 3, available at: https://www.utica.edu/academic/institutes/ecii/publications/articles/A04AF2FB-BD97-C28C-7F9F4349043FD3A9.pdf;
[1311] Regarding the models of Forensic Investigations see: Ciardhuain, An Extended Model of Cybercrime Investigations, International Journal of Digital Evidence, Vol. 3, Issue 1.
[1312] Gercke, Cybercrime Training for Judges, 2009, page 56, 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.
[1313] This process is from great importance because without ensuring the integrity of the relevant evidence the information might not be useful within criminal proceedings. For more information see: Ciardhuain, An Extended Model of Cybercrime Investigations, International Journal of Digital Evidence, Vol. 3, Issue 1.
[1314] This process is from great importance because without ensuring the integrity of the relevant evidence the information might not be useful within criminal proceedings. For more information see: Ciardhuain, An Extended Model of Cybercrime Investigations, International Journal of Digital Evidence, Vol. 3, Issue 1.
[1315] This includes stored files as well as deleted files that have not yet been completely removed from the hard disk. In addition experts might be able to identify temporary, hidden or encrypted files. Howard, Don't Cache Out Your Case: Prosecuting Child Pornography Possession Laws Based on Images Located in Temporary Internet Files, Berkeley Technology Law Journal, Vol. 19, page 1233.
[1316] Regarding legal approaches related to the use of encryption technology see below: Chapter 6.2.9.
[1317] Chaski, Who's at the Keyboard? Authorship Attribution in Digital Evidence Investigations, International Journal of Digital Evidence, Vol. 4, Issue 1.
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[1318] Gercke, Cybercrime Training for Judges, 2009, page 55, 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.
[1319] Regarding the chain of custody in cybercrime investigations see: Nagaraja, Investigator's Chain of Costody in Digital Evidence Recovery, available at:
http://www.bprd.gov.in/writereaddata/Linkimages/Investigators%20Chain%20of%20custody%20in%20digital%20evidence%2Qrecovery%20Dr%2 0M%20K%20Nagaraj a313518100.pdf.
[1320] Regarding the chain of custody in cybercrime investigations see: Nagaraja, Investigator's Chain of Costody in Digital Evidence Recovery, available at:
http://www.bprd.gov.iп/writereaddata/linkimages/InvestigatDrs%20Chain%20of%20custDdy%2Qin%20digital%20evidence%20recovery%20Dr%2 0M%20K%20Nagaraj a313518100.pdf.
[1321] See Gercke, Convention on Cybercrime, Multimedia und Recht. 2004, page 801 for further reference.
[1322] Taylor, The Council of Europe Cybercrime Convention - A civil liberties perspective, available at http://crime- research.org/library/CoE_Cybercrime.html; Cybercrime: Lizenz zum Schnueffeln Finacial Times Germany, 31.8.2001; Statement of the Chaos Computer Club, available at http://www.ccc.de.
[1323] See Breyer, Council of Europe Convention on Cybercrime, DUD, 2001, 595 et seqq.
[1324] Regarding the possibilities of making reservations see Article 42 of the Convention on Cybercrime: Article 42
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.
1:M2 See above: Chapter 5.1.4.
[1326] "Although Parties are obligated to introduce certain procedural law provisions into their domestic law, the modalities of establishing and implementing these powers and procedures into their legal system, and the application of the powers and procedures in specific cases, are left to the domestic law and procedures of each Party. These domestic laws and procedures, as more specifically described below, shall include conditions or safeguards, which may be provided constitutionally, legislatively, judicially or otherwise. The
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modalities should include the addition of certain elements as conditions or safeguards that balance the requirements of law enforcement with the protection of human rights and liberties. As the Convention applies to Parties of many different legal systems and cultures, it is not possible to specify in detail the applicable conditions and safeguards for each power or procedure." See: Explanatory Report to the Council of Europe Convention on Cybercrime No. 145.
[1327] "There are some common standards or minimum safeguards to which Parties to the Convention must adhere. These include standards or minimum safeguards arising pursuant to obligations that a Party has undertaken under applicable international human rights instruments. " See: Explanatory Report to the Council of Europe Convention on Cybercrime No. 145.
[1328] For the transformation of safeguards to Internet-related investigation techniques see: Taylor, The Scope of Government Access to Copies of Electronic Communication Stored with Internet Service Providers: A Review of Legal Standards, Journal of Technology Law and Policy, Vol. 6, Issue 2, available at: http://grove.ufl.edu/~techlaw/vol6/issue2/taylor.pdf.
[1329] This is especially relevant with regard to the protection of the suspect of an investigation.
[1330] See: Article 37 - Accession to the Convention
1. After the entry into force of this Convention, the Committee of Ministers of the Council of Europe, after consulting with and obtaining the unanimous consent of the Contracting States to the Convention, may invite any State which is not a member of the
Council and which has not participated in its elaboration to accede to this Convention. The decision shall be taken by the majority provided for in Article 20.d. of the Statute of the Council of Europe and by the unanimous vote of the representatives of the Contracting States entitled to sit on the Committee of Ministers.
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[1331] ABA International Guide to Combating Cybercrime, page 139.
[1332] "interception of telephone conversations represents] a serious interference with private life and correspondence and must accordingly be based upon a "law" that is particularly precise. It is essential to have clear, detailed rules on the subject, especially as the technology available for use is continually becoming more sophisticated" - Case of Kruslin v. France, Application no. 11801/85.
[1333] "the requirements of the Convention, notably in regard to foreseeability, cannot be exactly the same in the special context of interception of communications for the purposes of police investigations as they are where the object of the relevant law is to place restrictions on the conduct of individuals. In particular, the requirement of foreseeability cannot mean that an individual should be enabled to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly", Case of Malone v. United Kingdom, Application no. 8691/79
[1334] "Powers of secret surveillance of citizens, characterising as they do the police state, are tolerable under the Convention only insofar as strictly necessary for safeguarding the democratic institutions", Case of Klass and others v. Germany, Application no. 5029/71.
[1335] "The expression "in accordance with the law", within the meaning of Article 8 § 2 (art. 8-2), requires firstly that the impugned
measure should have some basis in domestic law", Case of Kruslin v. France, Application no. 11801/85.
[1336] "Furthermore, tapping and other forms of interception of telephone conversations constitute a serious interference with private life and correspondence and must accordingly be based on a 'law' that is particularly precise. It is essential to have clear, detailed rules on the subject", Case of Doerga v. The Netherlands, Application no. 50210/99.
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[1337] "it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him, and compatible with the rule of law", Case of Kruslin v. France, Application no. 11801/85.
"Nevertheless, the law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for private life and correspondence.", Case of Malone v. United Kingdom, Application no. 8691/79
[1338] "The cardinal issue arising under Article 8 (art. 8) in the present case is whether the interference so found is justified by the terms of paragraph 2 of the Article (art. 8-2). This paragraph, since it provides for an exception to a right guaranteed by the Convention, is to be narrowly interpreted. Powers of secret surveillance of citizens, characterising as they do the police state, are tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions", Case of Klass and others v. Germany, Application no. 5029/71.
[1339] "Proportionality shall be implemented by each Party in accordance with relevant principles of its domestic law. For European countries, this will be derived from the principles of the 1950 Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms, its applicable jurisprudence and national legislation and jurisprudence, that the power or procedure shall be proportional to the nature and circumstances of the offence. Other States will apply related principles of their law, such as limitations on overbreadth of production orders and reasonableness requirements for searches and seizures." See: Explanatory Report to the Council of Europe Convention on Cybercrime No. 146.
[1340] The list is not concluding. See: Explanatory Report to the Council of Europe Convention on Cybercrime No. 146.
[1341] "National legislatures will have to determine, in applying binding international obligations and established domestic principles, which of the powers and procedures are sufficiently intrusive in nature to require implementation of particular conditions and safeguards." See: Explanatory Report to the Council of Europe Convention on Cybercrime No. 147.
[1342] See below 6.2.9
060 See below 6.2.10.
[1344] "Also, the explicit limitation in Article 21 that the obligations regarding interception measures are with respect to a range of serious offences, determined by domestic law, is an explicit example of the application of the proportionality principle." See: Explanatory Report to the Council of Europe Convention on Cybercrime No. 146.
"Due to the higher privacy interest associated with content data, the investigative measure is restricted to 'a range of serious offences to be determined by domestic law'." See: Explanatory Report to the Council of Europe Convention on Cybercrime No. 230.
[1345] See below 6.2.4.
B63 See below 6.2.7.
[1347] As explained in more detail below, Art. 16 does not oblige the provider to transfer the relevant data to the authorities. It only authorise the law enforcement agencies to prevent the deletion of the relevant data. The advantage of a separation of the obligation to preserve the data and the obligation to disclose them is the fact that it is possible to require different conditions for their application.
[1348] A definition of the term "subscriber information" is provided in Art. 18 Subparagraph 3 Convention on Cybercrime.
[1349] A definition of the term "computer data" is provided in Art. 1 Convention on Cybercrime.
[1350] As described more in detail below the differentiation between "computer data" and "subscriber information" the Art. 18 Convention on Cybercrime enables the signatory states to develop graded safeguards with regard to the production order.
[1351] "Determining the source or destination of these past communications can assist in identifying the identity of the perpetrators. In order to trace these communications so as to determine their source or destination, traffic data regarding these past communications is required",See: Explanatory Report to the Council of Europe Convention on Cybercrime No. 155.; Regarding the identification of suspects by IP-based investigations see: Gercke, Preservation of User Data, DUD 2002, 577 et seq.
136" Gercke, Preservation of User Data, DUD 2002, 578.
[1353] The cost issue was especially raised within the discussion about data retention legislation in the EU. See for example: E-communications service providers remain seriously concerned with the agreement reached by European Union Justice Ministers to store records of every e-mail, phone call, fax and text message, Euroispa press release, 2005, available at: http://www.ispai.ie/EUROISPADR.pdf; See as well: ABA International Guide to Combating Cybercrime, page 59.
[1354] Directive 2002/58/EC of the European Parliament and of The Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications). The document is available at: http://europa.eu.int/eur-lex/pri/en/oj/dat/2002/l_200/l_20020020730en00370047.pdf.
[1355] The discussion already took place at the beginning of 2000. In a G8 Meeting in Tokyo experts discussed the advantaged and disadvantages of data retention and data preservation. The experts expressed their concerns regarding an implementation of a data retention obligation. "Given the complexity of the above noted issues blanket solutions to data retention will likely not be feasible." Report for the workshop on Potential Consequences for Data Retention of Various Business Models Characterizing Internet Service Providers, G8 Government-Industry Workshop on Safety And Security in Cyberspace Tokyo, May 2001. A similar discussion took place during the negotiation of the Convention on Cybercrime. The drafters explicitly pointed out, that the Convention does not establish a data retention obligation. See Explanatory Report to the Convention on Cybercrime, No. 151., available at: http://conventions.coe.int/Treaty/EN/Reports/Html/185.htm.
[1356] Regarding The Data Retention Directive in the European Union, see Bignami, Privacy and Law Enforcement in the European Union: The Data Retention Directive, Chicago Journal of International Law, 2007, Vol. 8, No.1, available at:
http://eprints.law.duke.edu/archive/00001602/01/8_Chi._J.__]nt'l_L._233_(2007).pdf; Breyer, Telecommunications Data Retention and Human Rights: The Compatibility of Blanket Traffic Data Retention with the ECHR, European Law Journal, 2005, page 365 et seq.
[1357] Art. 6 Periods of Retention
Member States shall ensure that the categories of data specified in Article 5 are retained for periods of not less than six months and not more than two years from the date of the communication.
Directive 2002/58/EC of the European Parliament and of The Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications). The document is available at: http://europa.eu.int/eur-lex/pri/en/oj/dat/2002/l_201/l_20120020731en00370047.pdf.
[1358] See: Preface 11. of the European Union Data Retention Directive: "Given the importance of traffic and location data for the investigation, detection, and prosecution of criminal offences, as demonstrated by research and the practical experience of several Member States, there is a need to ensure at European level that data that are generated or processed, in the course of the supply of communications services, by providers of publicly available electronic communications services or of a public communications network are retained for a certain period, subject to the conditions provided for in this Directive."
[1359] Directive 2002/58/EC of the European Parliament and of The Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications). The document is available at: http://europa.eu.int/eur-lex/pri/en/oj/dat/2002/l_201/l_20120020731en00370047.pdf.
[1360] See for example: Draft Bill to amend title 18, United States Code, to protect youth from exploitation by adults using the Internet, and for other purposes - Internet StoppingAdults Facilitating the Exploitation of Today's Youth Act (SAFETY) of 2007, available at: http://www.govtrack.us/congress/bill.xpd?bill=h110-837. Regarding the current situation in the US see: ABA International Guide to Combating Cybercrime, page 59.
[1361] See Gercke, The Convention on Cybercrime, Multimedia und Recht 2004, page 802.
[1362] However, it is recommended that States consider the establishment of powers and procedures to actually order the recipient of the order to preserve the data, as quick action by this person can result in the more expeditious implementation of the preservation measures in particular cases. Explanatory Report to the Convention on Cybercrime, No. 160.
[1363] Gercke, Cybercrime Training for Judges, 2009, page 63, available at: http://www.coe.int/t/dghl/cooperation/economiccrime/cybercrime/Documents/Reports- Presentations/2079%20ifQ9%20pres%20coe%2Qtrain%20manual%20judges6%20_4%20march%2009_.pdf.
[1364] See Gercke, The Convention on Cybercrime, Multimedia und Recht 2004, page 803.
[1365] 'Preservation' requires that data, which already exists in a stored form, be protected from anything that would cause its current quality or condition to change or deteriorate. Explanatory Report to the Convention on Cybercrime, No. 159.
[1366] Explanatory Report No 152.
[1367] Regarding the advantages of a system of graded safeguards see above: Chapter 6.2.3.
[1368] "The reference to 'order or similarly obtain' is intended to allow the use of other legal methods of achieving preservation than merely by means of a judicial or administrative order or directive (e.g. from police or prosecutor)". See Explanatory Report to the Convention on Cybercrime, No. 160.
[1369] The drafters of the Convention on Cybercrime tried to approach the problems related to the need of immediate action from law enforcement agencies on the one hand side and the importance of ensuring safeguards on the other hand side in a number of ways. Another example for the approach is related to the production order (Art. 18). The drafters suggested that the requirements for the
handout of data to law enforcement agencies could be adjusted in relation to the categories of data. See Explanatory Report to the Convention on Cybercrime No. 174: „The conditions and safeguards referred to in paragraph 2 of the article, depending on the domestic law of each Party, may exclude privileged data or information. A Party may wish to prescribe different terms, different competent authorities and different safeguards concerning the submission of particular types of computer data or subscriber information held by particular categories of persons or service providers. For example, with respect to some types of data, such as publicly available subscriber information, a Party might permit law enforcement agents to issue such an order where in other situations a court order could be required. On the other hand, in some situations a Party might require, or be mandated by human rights safeguards to require that a production order be issued only by judicial authorities in order to be able to obtain certain types of data. Parties may wish to limit the disclosure of this data for law enforcement purposes to situations where a production order to disclose such information has been issued by judicial authorities. The proportionality principle also provides some flexibility in relation to the application of the measure, for instance in many States in order to exclude its application in minor cases."
[1370] Gercke, Cybercrime Training for Judges, 2009, page 64, available at: http://www.coe.int/t/dghl/cooperation/economiccrime/cybercrime/Documents/Reports- Presentations/2079%20iiQ9%20pres%20coe%2Qtrain%20manual%20judges6%20_4%20march%2009_.pdf.
[1371] An IP-address does not necessary immediately identify the offender. If law enforcement agencies know the IP-address an offender used to commit an offence this information does only enable them to identify the connection used to log on to the Internet. If a group of people had access to this connection (e.g. in an Internet café) further investigations are necessary to identify the offender.
[1372] If the offender is using services that do not require a registration or the subscriber information provided by the user are not verified Art. 18 Subparagraph 1b) will not enable the law enforcement agencies to immediately identify the offender. Art. 18 Subparagraph 1b) is therefore especially relevant with regard to commercial services (like providing Internet access, commercial e-mail or hosting services).
[1373] Gercke, The Convention on Cybercrime, Multimedia und Recht 2004, page 802.
[1374] "Often, however, no single service provider possesses enough of the crucial traffic data to be able to determine the actual source or destination of the communication. Each possesses one part of the puzzle, and each of these parts needs to be examined in order to identify the source or destination." See Explanatory Report to the Convention on Cybercrime, No. 167.
[1375] "Model Law on Computer and Computer Related Crime", LMM(02)17; The Model Law is available at: http://www.thecommonwealth.org/shared_asp_fiIes/uploadedfiIes/%7BDA009CD2-5204-4FAB-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.
[1376] Official Note: As noted in the expert group report, in some countries it may be necessary to apply the same standard for production orders as is used for a search warrant because of the nature of the material that may be produced. In other countries it may be sufficient to employ a lower standard because the production process is less invasive than the search process.
Official Note: Countries may wish to consider whether subparagraph c is appropriate for inclusion in domestic law because while it may be of great practical use, it requires the processing and compilation of data by court order, which may not be suitable for some jurisdictions.
[1377] The Commonwealth Model Law contains an alternative provision:
"Sec. 16": If a magistrate is satisfied on the basis of an ex parte application by a police officer that specified data stored in a computer system is reasonably required for the purpose of a criminal investigation or criminal proceedings, the magistrate may order that a person in control of the computer system disclose sufficient traffic data about a specified communication to identify:
(a) the service providers; and
(b)the path through which the communication was transmitted.
[1378] For an introduction to data retention see: Breyer, Telecommunications Data Retention and Human Rights: The Compatibility of Blanket Traffic Data Retention with the ECHR, European Law Journal, 2005, page 365 et seq; Blanchette/Johnson, Data retention and the panoptic society: The social benefits of forgetfulness, available at: http://polaris.gseis.ucla.edu/blanchette/papers/is.pdf.
[1379] Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC.
[1380] See for example: Briefing for the Members of the European Parliament on Data Retention, available at: http://www.edri.org/docs/retentionletterformeps.pdf; CMBA, Position on Data retention: GILC, Opposition to data retention continues to grow, available at: http://www.vibe.at/aktionen/200205/data_retention_30may2002.pdf; Regarding the concerns related to a violation of the European Convention on Human Rights see: Breyer, Telecommunications Data Retention and Human Rights: The Compatibility of Blanket Traffic Data Retention with the ECHR, European Law Journal, 2005, page 365 et seq.
[1381] See: Heise News, 13,000 determined to file suit against data retention legislation, 17.11.2007, available at: http://www.heise.de/english/newsticker/news/99161/from/rss09.
[1382] Case C-275/06.
[1383] See: Advocate General Opinion - 18.07.2007, available at: http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62006C0275:EN:NOT#top. The court does usually but not invariably follow the advisors conclusion.
[1384] In a G8 Meeting in Tokyo experts discussed the advantaged and disadvantages of data retention and data preservation. The experts expressed their concerns regarding an implementation of a data retention obligation. "Given the complexity of the above noted issues blanket solutions to data retention will likely not be feasible." Report for the workshop on Potential Consequences for Data Retention of Various Business Models Characterizing Internet Service Providers, G8 Government-Industry Workshop on Safety And Security in Cyberspace Tokyo, May 2001.
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