Chapter 5: International Dimensions of Crime PDF

Introduction to Cybercrime and Environmental Laws and Protection 1 Chapter 5 International dimensions of crime At the end of this chapter the student should be able to: Gain knowledge about International Laws and Cybercrimes...

Introduction to Cybercrime and Environmental Laws and Protection 1 Chapter 5 International dimensions of crime At the end of this chapter the student should be able to: Gain knowledge about International Laws and Cybercrimes Understand Human Rights and Cybercrimes Enumerate the Determinant Factors for Preventing Cybercrime Explain the Cybercrime Prevention Framework Cybercrime often has an international dimension. E-mails with illegal content often pass through a number of countries during the transfer from sender to recipient, or illegal content is stored outside the country. Within cybercrime investigations, close cooperation between the countries involved is very important. The existing mutual legal assistance agreements are based on formal, complex and often time-consuming procedures, and in addition often do not cover computer-specific investigations. Setting up procedures for quick response to incidents, as well as requests for international cooperation, is therefore vital. A number of countries base their mutual legal assistance regime on the principle of "dual criminality". Investigations on a global level are generally limited to those crimes that are criminalized in all participating countries. Although there are a number of offenses such as the distribution of child pornography that can be prosecuted in most jurisdictions, regional differences play an important role. One example is other types of illegal content, such as hate speech. The criminalization of illegal content differs in various countries. Material that can lawfully be distributed in one country can easily be illegal in another country. The computer technology currently in use is basically the same around the world. Apart from language issues and power adapters,  Introduction to Cybercrime and Environmental Laws and Protection 2 there is very little difference between the computer systems and cellphones sold in Asia and those sold in Europe. An analogous situation arises in relation to the Internet. Due to standardization, the network protocols used in countries on the African continent are the same as those used in the United States. Standardization enables users around the world to access the same services over the Internet. The question Is what effect the harmonization of global technical standards has on the development of the national criminal law. In terms of illegal content, Internet users can access information from around the world, enabling them to access information available legally abroad that could be illegal in their own country. Theoretically developments arising from technical standardization go far beyond the globalization of technology and services and could lead to the harmonization of national laws. However, as shown by the negotiations over the First Protocol to the Council of Europe Convention on Cybercrime (the "Convention on Cybercrime"), the principles of national law change much more slowly than technical developments. Although the Internet may not recognize border controls, there are means to restrict access to certain information. The access provider can generally block certain websites and the service provider that stores a website can prevent access to information for those users on the basis of IP-addresses linked to a certain country ("IP-targeting"). Both measures can be circumvented, but are nevertheless instruments that can be used to retain territorial differences in a global network. The Open Net Initiative reports that this kind of censorship is practiced by about two dozen countries Cybercrimes and International Organizations From a legal perspective, the following conventions have tackled the issue of cybercrime, where the UN has a draft a treaty on an International Court or Tribunal for cyber space. The convention took place in Mumbai in November 2016. In the treaty mentions who has jurisdiction over internet crimes, and who is considered a cybercriminal and thus must be liable to punishment. The Council of Europe Convention on Cybercrime (2001) states types of cybercrimes, and declares that any person liable to these actions is sanctioned through deprivation of liberty, however to what extent, is not mentioned. The CECC has met every year since and added more definitions to what is considered as cybercrimes.  Introduction to Cybercrime and Environmental Laws and Protection 3 The League of Arab States Convention on Combating Information Technology Offences states that each member state of the convention should be committed to fulfill its obligations arising from the convention, however without the interference of other states interior affairs. The convention also clearly stated that no state judicial is entitled to jurisdiction on other states, and that every state should respect the sovereignty of other states. Moreover, the Convention also endows with the imposition of sanctions on the following crimes: entry i.e., hacking, interference with the private lives, withholding some information, amendment, mail fraud, or posting obscene material. The Commonwealth of Independent States Agreement on Cooperation in Combating Offenses related to Computer Information (2007) define the type of criminal acts, who are the competent authorities, forms of cooperation to combat cybercrime, and how to request their assistance in case of being victimized. The Shanghai Cooperation Organization Agreement in the Field of International Information Security (2008-2012) states that the members are: firmly convinced that terrorism, separatism and extremism, as defined in this Convention, regardless of their motives, cannot be justified under any circumstances, and that the perpetrators of such acts should be prosecuted under the law. The African Union Convention on Cyber Security and Personal Data Protection (June 27. 2014) states the online activities should be exercised freely except: ✓ Gambling, even in the form of legally authorized betting and lotteries: ✓ Legal representation and assistance activities; ✓ Activities exercised by notaries or equivalent authorities in application of extant texts. Scholars and Cybercrimes Many Scholars have written about cybercrimes, but have approached the problem in many ways. Due to the different types of cybercrimes, some scholars focused on categorizing them and others focused on specific types of crimes. Kit Burden stated that there are two types of cybercrimes, the ones that are "e- enabled", meaning crimes that were known to the world before the internet, but are facilitated through the World Wide Web, and "true" cybercrimes, meaning crimes that would not exist outside the online environment.  Introduction to Cybercrime and Environmental Laws and Protection 4 The Cyber-Criminal - Understanding the behavioral analysis of the criminal: For some time now, forensic psychologists and behavioral scientists have been working in collaboration with law enforcement agencies to incorporate psychological science into criminal profiling. But what is criminal profiling? Criminal profiling seeks to identify criminals by analyzing their behavior after they have engaged in a crime. The fundamental rational is simple: If a certain behavior and evidence in a crime are found to be in common with other crimes, then there is a big probability that it is the same criminal activity because behavior is related to the psycho-socio characteristics of an offender. Behavior is shaped by the choices criminals make while committing a crime. This could include the method of the crime, the location of the crime, and the choice of the targeted victims i.e., victimology, etc. This data is then combined with physical evidence collected from the scene of the crime. Once the data has been collected, it is then compared with the characteristics of recognized personality types and mental abnormalities. This process later develops a practical working description of an offender, for example when a baby is kidnapped, but a body has not been found, it usually signifies that the kidnapper may be a female between the age of 30 and 40 who had recently lost a child of her own. The lack of body signifies that the baby will be substituted for the "lost baby of the kidnapper. If the baby was a child or if the baby was murdered then the whole profile would be completely different. Criminal profiling emerged as a new tool for investigation at the beginning of the 20th century, starting with the case of the infamous Jack the Ripper killings in England. However, it has only been recent that this science has caught the eye of the public, after TV shows such as CSI, Criminals minds, the Mentalist, lie to me and so on included studying the mind of the killer in their plot. However, what can profiling contribute to when dealing with cybercrimes? Research has proved that criminal profiling is estimated to have a success rate of 83 percent when assisting traditional investigations. Moreover, due to the fact that cybercrime is a new unpaved addition to the new world", officials would seek all the help they can get in order to catch the invisible criminal, especially when physical evidence is lacking in a cybercrime.  Introduction to Cybercrime and Environmental Laws and Protection 5 The world of cybercrime restructures the rules of criminal investigation. Unlike traditional crime scenes, the evidence found mostly exists only in the cyber-world: in a network, computer, or the Internet. Moreover, it is this faceless aspect of cybercrime that compiles its challenge. However, if cyber criminals depend on the pseudo-anonymous nature of the Internet and need this technology to camouflage their true identities, then it is up to security leaders to use this to their advantage. Fortunately, a cyber criminal's facelessness is considered as a signature behavior, a motivation and an MO (modus operandi). Criminal profiling relies heavily on such clues because not all cyber criminals have the same maturity in technique, behavior, characteristics and motives, making every cybercrime unique. This means that hackers are not the same as traffickers furthermore hackers also aren't all the same. Consequences for developing countries Finding response strategies and solutions to the threat of cybercrime is a major challenge, especially for developing countries. A comprehensive anti- cybercrime strategy generally contains technical protection measures, as well as legal instruments. The development and implementation of these instruments need time. Technical protection measures are especially cost-intensive. Developing countries need to integrate protection measures into the roll-out of the Internet from the beginning, as although this might initially raise the cost of Internet services, the long-term gains in avoiding the costs and damage cited by cybercrime are large and far outweigh any initial outlays on technical protection measures and network safeguards. The risks associated with weak protection measures could in fact affect developing countries more intensely, due to their less strict safeguards and protection. The ability to protect customers, as well as firms, is a fundamental requirement not only for regular businesses, but also for online or Internet-based businesses. In the absence of Internet security, developing countries could encounter significant difficulties promoting e- business and participating in online service industries. The development of technical measures to promote cyber security and proper cybercrime legislation is vital for both developed countries and developing countries. Compared with the costs of grafting safeguards and protection measures onto computer networks at a later date, it is likely that initial measures taken right from the outset will be less expensive. Developing countries need to bring their anti- cybercrime strategies into line with international standards from the outset.  Introduction to Cybercrime and Environmental Laws and Protection 6 Preventing cyber-crime and Future opportunities for managing cybercrime Cyber Crime which is also known as "Internet crimes' or Computer crimes' is any criminal activity that uses a computer either as an instrument, target or a means for perpetuating further crimes or offenses or contraventions under any law. Determinant Factors for Preventing Cyber Crime 1. Law Enforcement The law enforcement is very weak and in order to strengthen the law, the maximum fine should be increased as well as imprisonment so that the guilty will be charged. 2. Attitude awareness In order to prevent cyber-crimes, creating attitude awareness during online business is important. Business entrepreneurs from the survey are unaware er-crime, thus, awareness programs on preventing cyber-crime should educate them in order to ensure entrepreneurs feel safe during online business transaction. 3. Ethics A good ethics while doing online business transaction should be addressed by entrepreneurs and they should respect potential buyers and seller by giving detail information and respect each other during online business. 4. IT Technology Information technology infrastructure is comprehensive; thus, cybercrime prevention strategies should remain a top concern as enterprise now must support more devices such tablets and smartphones. The enterprise should equip them with knowledge and update technology security devices so that can protect from cyber criminals.  Introduction to Cybercrime and Environmental Laws and Protection 7 Cybercrime prevention framework Figure 3 shows example of cyber-crime prevention framework obtained from the survey done in order to look at cyber-crime prevention from the perspective of government and non-government organizational (NGO). Prevention of cyber-crime highlight that government leadership plays an important part in crime prevention, combined with cooperation and partnerships across ministries and between authorities, community organizations, non- governmental organizations, the business sector and private citizens. ATTITUDE AWARENESS IT TECHNOLOGY PREVENTING CYBERCRIME ETHICS LAW ENFORCEMENT Figure 3: Cybercrime Prevention Framework  Introduction to Cybercrime and Environmental Laws and Protection 8 This research identifies four factors such law enforcement, attitude awareness, ethics and IT technology have impact toward preventing cybercrime. At present law enforcement should be reviewed by the government so that the new amendment will protect online business users. Creating attitude awareness during online business transaction is important to help both parties' seller and buyer. Apply good ethics will increase trust toward buyers while online business transaction. The business entrepreneur should equip with latest information technology, and updated security system will prevent being attack by a cybercriminal. Understanding the rights of the victim Committing crimes online facilitates anonymity of identity and location. Moreover, as mentioned above, due to lack of territory and ease of access, one can commit a cybercrime thousands of miles away. This makes it easier for the criminal to commit crimes but harder for police and other law enforcement organizations to bring them to justice. What makes cybercrime an even bigger opportunity for a criminal is the fact that law enforcement agencies seldom have qualified agents that can deal with the issue, consequently considering cybercrime the least of their priorities. Furthermore, if, by any chance the offender was identified and arrested, then the criminal will be taken to court. Compensation and justice however, will depend on the role the victim played in the crime and how ignorant they were. International Laws and Cybercrimes When one looks at existing international laws that could contribute to the international affairs of cyber law, we can take Article 1 of the United Nations Code of Conduct for Law Enforcement Officials, that clarifies that the responsibility of law enforcement is to execute the duty forced upon them by law, "by serving the community" and "by defending all persons from illicit acts." This duty is extended to the complete range of prohibitions under penal statutes. However, as cybercrime acts grow to be more common and widespread, law-enforcement agencies progressively face the question of what "serving" and "protecting" in the perspective of a crime within global dimensions really means.  Introduction to Cybercrime and Environmental Laws and Protection 9 A study done by the United Nations Office of Drugs and Crimes reported that more than half of the world's countries testified that between fifty and one- hundred percent of cybercrime acts faced by the police involve an international element. Thus, responding countries pointed out that the majority of cybercrime acts are discovered by the police through individual victim reports. Therefore, the UNODC came to the conclusion that cybercrimes generally transpire globally, but are reported locally. Here, one finds the need for collaboration between nation states in order to avoid jurisdiction problems. Cyberattacks are becoming highly developed and more difficult to discover especially when new techniques promptly find their way to a broader audience. There are certain International Organizations that have started to tackle the issue of cybercrimes. Starting from 2005 when the "Electronic Transaction and Information Law was presented to the Law House in Indonesia in July, and when the "Council of Europe Convention on Cybercrime" was ratified in Norway on the 4th of November, when the State Senate in the Netherlands formed a committee that introduced a proposal for legislation on Computer crime on the 20th of December, and when the "Computer security and Critical information in Infrastructure Protection Bill 2005 (Sb254) was introduced to the National Assembly in Nigeria on the 22nd of December. Up to this day when in November 2016 an International Convention on Cyber Crimes will take place in Mumbai India that will try to establish an international unified cyber law. When one looks at the International Organizations and their significance, one must look at whether they are binding on states or none-binding. Almost half are non-binding. For binding mechanisms, the geographic scope is usually determined by the nature and framework of the organization. Hence, for instance, the League of Arab States Convention's main principle is "to strengthen and improve cooperation between the Arab States. Likewise, the "Commonwealth of Independent States Agreement that abolished the USSR, labels "the members as Independent States, and the Draft African Union Convention is foreseen to be open to "Member States of the African Union." However, not all members of the organization may be participants to the original agreement and where the agreement is prone to ratification, approval, or acceptance not all participants may have accepted such changes or agreements. Some ratifications, additions and changes are opened for signature external of  Introduction to Cybercrime and Environmental Laws and Protection 10 the membership of the organization where this "additional belief was developed. For example, The Council of Europe Cybercrime Convention was open for membership by states of the Council of Europe AND by "non-member States which have contributed in its expansion." Founding states become the current states that have power over the entry of new states applying for membership, usually with accordance to the rules that were set in the "original" treaty agreement Treaties may be one of three things when it comes to its recruitment policies. It is "open" when any state may become a member by simply articulating their intent to join and follow the presented treaty terms. It is "semi- open" when membership is approved by a majority vote from the contracting states. And finally, it is considered as "closed" when membership requires a unanimous vote from the contracting states. An example of a closed membership is the Council of Europe Cybercrime Convention, where after the Committee of Ministers of the Council of Europe consult with the contracting states of the Convention and obtain their unanimous consent, may they "invite any State that is not a member of the Council and has not participated in its foundation and expansion. Similarly, the Common wealth of Independent States Agreement is open for membership by any other State prepared to be bound by the requirements, only after all Parties agree." On the other hand, The Shanghai Cooperation Organization Agreement is said to be "open to membership by any State that believes in the same principles and goals of the Agreement. Organizations and Treaties developed under the sponsorship of the United Nations usually have the broadest geographical scope. The Convention on Law of the Sea is open for membership by any State." Globally, 82 countries have ratified and/or signed 1 of the binding cybercrime organizations, and some countries have signed and became members of more than one organization Even though there is a possibility of joining more than one international organization that contributes to dealing with cybercrimes, facts point out that even till this day no single 10 has a global geographic reach of membership. The Council of Europe Cybercrime Convention has the leading number of signatures memberships with 43 member states, and 5 Non-member States of the Council of Europe. The League of Arab States Convention has 18 countries/members, the Commonwealth of Independent States Agreement has 10 countries/members, and the Shanghai Cooperation Organization Agreement has 6 countries/members.  Introduction to Cybercrime and Environmental Laws and Protection 11 Human Rights and Cyber Crimes Human Rights in the digital age has posed many controversial issues and the dilemma of being put under the position of choosing which human right/law is more appropriate to apply when dealing with the internet. Considering both article 3 and article 12 from the Universal Declaration of Human Rights, as they respectively declare: "Everyone has the right to life, liberty and security of person, and "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation Everyone has the right to the protection of the law against such interference or attacks. One notices that the progress in information communication technology is facilitating access to information altering these technologies in the process of becoming very susceptible for interception. What is even more frightening are the new recent discoveries that have exposed how new technologies are being secretly developed to facilitate these practices, with high efficiency Using this as an excuse, it is no longer a secret that the government has been keeping tabs on citizens' private information whether it is from phone calls or search history from explored engines such as Yahoo and Google, to "protect". This is why in December 2013, the United Nations General Assembly executed resolution 68/167, which articulates deep concern at the negative impact the interception and surveillance of the citizen's communication and online activities may have on human rights. The General Assembly came to the imperative realization that the rights people practice offline must also be protected online; and it is the States' responsibility to impose the respect and protection of the right to privacy in digital communication. That is why the General Assembly called on all States to inspect their procedures, legislation and practices related to communications inception, collection, and surveillance. It stressed the need for States to guarantee the complete and effective implementation of their obligations to adopt and implement the international human rights law. A year later, on the 13th of November 2014, at its 27th session, the Human Rights Council assembled a panel to discuss the right to privacy in the "digital age tackling the subject of surveillance. The report was then presented to the General Assembly at its sixty-ninth session. One month later, in December 2014, Resolution 69/166 was adopted, and the General Assembly encouraged the Human Rights Council to deem the possibility of establishing a special procedure to promote this aim.  Introduction to Cybercrime and Environmental Laws and Protection 12 In April 2015, the Human Rights Council executed resolution 28/16 at its twenty-eighth session, and decided to assign a Special Reporter, for a period of three years, on the right to privacy. The resolution assigned the Special Reporter, along with other responsibilities, to report on suspected violations of the right to privacy that are connected to the challenges cropping up from new technologies. States were obliged to fully cooperate and support the Special Reporter. Economic Impact of Cybercrimes Putting a number on the cost of cybercrime, and cyber is the tip of the iceberg, but the body of that iceberg is the effect on competitiveness, technology, trade and trust. While the cost of cybercrime to the global economy is an average of 400 billion dollars every year, the dollar amount, as much as it may seem, may not fully reveal the real damage done to the global economy. Cybercrime also slows the rate of innovation. disrupt trade, and create social costs from job loss. This larger effect could be more significant than any actual number. As the world evolves, so will all its aspects: the good and the bad. That being said, one must not forget to "modify" the definition of crime, meaning that the face of crime has evolved. Megabytes are substituting for bullets and the scary part is that no weapon can fight this ongoing battle except for the weapon of knowledge and cooperation. How can one combat the threat of cybercrime? Before tackling the issue on an international level and point out the importance of establishing a conventional relationship between states, there are critical elements every state should adopt in itself first, that will improve domestic law enforcement response to reported acts of cybercrime These elements include: 1. Establishing a successful legal framework that allows investigative measures to reach the proper balance between the respect for personal privacy and investigative authority;  Introduction to Cybercrime and Environmental Laws and Protection 13 2. Sufficient access to unintrusive investigative tools and inquiry methods during investigation, such as obtaining electronic evidence from third parties like internet service providers, to trace activity and not content. 3. Adequate training and technical capability for both specialized and non- specialized law enforcement agents. 4. Providing training workshops in schools, universities, banks companies, and relevant work fields that raise awareness on Cybercrimes 5. Introduce the "Hack for Good Program", in which law enforcement agencies hire the hackers they arrest in exchange for exemption of imprisonment to help them catch cybercriminals. In other words, using criminals to catch criminals". However, implementing these security measures and elements is difficult and could take time to master. This is why governments need to use what they have as domestic criminal laws as a base to build upon new laws for cybercrimes. Moreover, definitions for certain criminal acts must be ratified and updated in order to fit the new reality. Reference: Introduction to Cybercrime and Environmental Laws and Protection PCol Adelene Maghinay Florendo, PNP (Ret) PSSgt Rizza Ruth Maghunay Florendo