1. Overview of the Budapest Convention on Cybercrime (2001)
Computer Crime and Intellectual Property Section
United States Department of Justice
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2. United States Department of Justice
Agenda
Introduction
Substantive Offenses
Procedural Laws
Enhanced Cooperation
Current Status
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3. United States Department of Justice
Origin
Council of Europe experts’ group began drafting 1997
Expert’s group included non-European countries: Canada, Japan, South Africa, United States
Convention completed and signed by 30 countries in 2001
Now 71 countries: 57 ratifications, 4 signatures, and 10 invitations to accede
Cabo Verde, Mauritius, Morocco, and Senegal are member states
Intention to accede from Nigeria, Tunisia, and Ghana
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4. United States Department of Justice
Origin
Only instrument of its type to set out an international standard for cybercrime laws
Does not dictate statutory language or method of implementation
Instead, it sets out CAPABILITIES and allows maximum flexibility in implementation
Membership includes countries from every continent
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5. Substantive Offenses
Attacks on Computers and Data
Article 2 - Accessing whole or part of a computer system, without right
hacking to steal credit card information or other data
Article 3 - Illegal Live Reading/Listening of Content
obtaining electronic communications, without right
or voice content
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6. Substantive Offenses Attacks on Computers and Data
Article 4 - Data Interference
deletion, modification or suppression of computer data, without right
hacking to delete company’s customer database
Article 5 - System Interference
serious hindering, without right, of the functioning of a computer system
“denial of service” attacks
Article 6 - Misuse of Devices
Access device fraud; credit card fraud
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7. Substantive Offenses Computer-Related Crimes
Article 7 - Computer-related Forgery
manipulating a computer without right resulting in inauthentic data, with intent it be acted upon
Article 8 - Computer-related Fraud
manipulating computer data without right to cause loss of property to another
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Substantive Offenses
Content Offenses
Article 9 - Offenses related to Child Pornography
Article 10 - Offenses related to infringements of copyright and related rights
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9. Jurisdiction and other liability
Article 22 – Jurisdiction: offenses cover crimes within country, aircraft, or ships and by nationals outside of territory
Note: articles also cover “attempt” or “aiding abetting,” as well as corporate liability
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10. United States Department of Justice
Procedural Laws
Preservation
Article 16: Expedited preservation of computer data for up to 90 day; renewable for additional time
Article 17 - Expedited preservation and partial disclosure of traffic data
Article 18 - Production Order for data stored by a provider
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11. Procedural Laws Seizure and Monitoring
Article 19 - Search and seizure of stored computer data
Article 20 - Real-time collection of traffic data
IP Address, header information
Article 21 – Real-time collection of the content of electronic communications
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12. International Cooperation
Extradition
Article 24 – Extradition: computer crimes will be included offenses under existing extradition treaties
If country does not extradite, it generally must be willing to prosecute domestically
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13. International Cooperation
Other Mechanisms
Article 25: Allows for emergency requests by phone, fax,
Article 27: Acts as a Mutual Legal Assistance Treaty (MLAT) where parties do not have an existing MLAT
Article 32: Cross-border access to publicly available data or with the consent of the data owner
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14. International Cooperation
Other Mechanisms
Article 29: Expedited preservation of electronic data for foreign requests (with no dual criminality requirement)
Article 30: Expedited disclosure of stored traffic data
Article 31: Expedited seizure of stored content data
Article 35: 24/7 Network
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Guidance Notes
Guidance on the applicability of the Convention to:
Definition of “computer system”
Botnets
Transborder access under Article 32
Identity Theft
DDOS attacks
Critical infrastructure attacks
Malware
Spam
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16. Current Status of Convention
Open to any country to request accession to Convention
More countries expressing interest
Provides important benefits for mutual cooperation to those countries that join it
Useful as an international standard whether or not a country joins
80% of countries with modern cybercrime laws used the Convention as a model
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17. Implementation Committee (T-CY)
Participation in the
Implementation Committee (T-CY)
The Parties shall, as appropriate, consult periodically to facilitate:
the effective use and implementation of this Convention, including the identification of any problems thereof
the exchange of information on significant legal, policy or technological developments pertaining to cybercrime
consideration of possible supplementation or amendment to the Convention.
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18. Support for Capacity Building
GLACY+ EU/COE Joint Project on Global Action on Cybercrime
“Global Action on Cybercrime Extended” to strengthen the capacities of States worldwide to apply legislation on cybercrime and electronic evidence and enhance their abilities for effective international cooperation
Cooperation with African Union Commission to jointly assist African countries in the strengthening of their domestic legislation on the basis of the Budapest Convention and the Malabo Convention and institutional capacities
African Forum on Cybercrime, October 16 – 18, 2018, Addis Ababa
Cooperation with the ECOWAS Commission on judicial training and electronic evidence
US funded capacity building program for legislators, investigators, prosecutors, and judges
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