The Convention on Cybercrime: A Harmonized Implementation of International Penal Law: What Prospects for Procedural Due Process?, 23 J. Marshall J. Computer & Info. L. 329 (2005)

Authors

Miriam F. Miquelon-Weismann

Abstract

The CoE Convention on cybercrime provides a treaty-based framework that imposes on the participating nations the obligation to enact legislation criminalizing certain conduct related to computer systems, create investigative procedures and ensure their availability to domestic law enforcement authorities to investigate cybercrime offenses, including procedures to obtain electronic evidence in all of its forms and create a regime of broad international cooperation, including assistance in extradition of fugitives sought for crimes identified under the CoE Convention. Since there is no internationally recognized legal definition of computer crime, this article briefly presents the generally recognized categories of cybercrime and then proceeds in a presentation of the historical development of International Cybercrime Law as well as the practical impediments to international investigation, enforcement and prosecution including the absence of global consensus on the legal definition of criminal conduct, the transnational character of many cybercrimes and the lack of extradition and mutual legal assistance treaties. A presentation of the CoE Convention provisions follows where special emphasis is given to Procedural Safeguards under the CoE Convention, where it is being noted that while the complicated problem of guaranteeing civil rights protection to citizens living in different cultures and political systems is recognized, no specific minimal procedural guarantees of due process incident to treaty implementation are established, and the methods of collecting evidence under the Convention the CoE Convention which, similarly, do not require the enactment of certain minimal procedures by a party nor do they contain any minimal requirements concerning confidentiality of materials obtained through a production order. Notably, the CoE Convention contains significant restrictive language in the areas of transborder search and seizure and data interception, deferring authority to domestic laws and territorial considerations. The issues of Jurisdiction and Extradition and the relative problems are also being examined as well as the pre-existing mutual legal assistance treaties ("MLATs") or other reciprocal agreements between parties. Finally the author examines the CoE Convention as a harmonization model and concludes that it does not adequately safeguard procedural due process. Although the decentralized nature of international penal law may explain such flexible harmonization to achieve law enforcement goals aimed at the timely eradication of cybercrime, cybercrime prosecutions will most certainly raise issues relating to concurrent jurisdiction and/or the application of domestic law to foreign nationals especially regarding the means of investigating and prosecuting the conduct. In view of the fact that in its present form, the CoE Convention allows state intrusions into the sphere of individual privacy rights to gather evidence for use in subsequent criminal prosecutions without adequate guarantees of procedural due process, an addition of a Protocol to the treaty is proposed, modeled after the proposed CoE Constitution providing minimal guidelines for procedural due process, extended to citizens of all participating nations.

Recommended Citation

Miriam F. Miquelon-Weismann, The Convention on Cybercrime: A Harmonized Implementation of International Penal Law: What Prospects for Procedural Due Process?, 23 J. Marshall J. Computer & Info. L. 329 (2005)