Cybercrime Convention: A Positive Beginning to a Long Road Ahead

By Hopkins, Shannon L. | The Journal of High Technology Law, Annual 2003 | Go to article overview

Cybercrime Convention: A Positive Beginning to a Long Road Ahead


Hopkins, Shannon L., The Journal of High Technology Law


I. INTRODUCTION

Information technology has developed rapidly throughout the past decade. (1) Such rapid progress has achieved significant advances in processing and transmitting data through use of computers and computer networks. (2) Some refer to this era as the "Information Revolution," in effect a second "Industrial Revolution." (3) Today, computers affect all aspects of our lives, from medical treatment to air traffic control, online banking and electronic messages ("email"). (4) The Internet (5) provides substantial benefits to society, including the ability to communicate with others real-time, access a library of information and transmit data instantly without leaving home. (6) In addition to these benefits, Internet expansion has fostered new kinds of crimes, additional means to commit existing crimes and increased complexities of prosecuting crimes. (7)

It seems that today, computer crimes affect everyone. (8) A common example is credit card theft whereby a perpetrator illegally obtains the victim's personal information by "hacking" (9) into a website where the victim maintains an account or makes purchases. (10) The perpetrator may steal or charge thousands of dollars to the victim's credit card before he is apprehended, if ever. (11) The problem persists because a perpetrator can easily remain anonymous by instantaneously manipulating or deleting data. (12)

The consequences of crimes committed over the Internet reach farther than traditional methods of committing crimes because there are no geographical border restrictions. (13) Current criminal laws are unable to respond quickly to the rapid changes in Internet technology. (14) When Congress enacts a statute, perpetrators of cyber crimes find new technology to bypass an essential element of the crime or impede investigations. (15) For example, prior to enacting the No Electronic Theft Act of 1997 (NET), (16) the United States could not prosecute an individual who hosted a computer bulletin board that enabled anyone to download software at no cost. (17) Authorities were unable to show that the perpetrator received a financial gain from illegal copying, which the law required for criminal wire fraud liability. (18) Similarly, the Philippines Department of Justice dropped charges against the creator of the "ILOVEYOU" virus because existing criminal laws in the Philippines did not apply to computer hacking. (19)

Internet investigations are inherently difficult to conduct because a maze of interconnected computer networks can transmit information instantaneously. (20) Criminals can delete or alter data as quickly as they create it. (21) The ability to destroy or alter data quickly makes it difficult to obtain evidence and perform investigative procedures. (22) For example, perpetrators of crimes can easily change the sender of an e-mail so the receiver cannot identify the e-mail's origin. (23) Likewise, a criminal could use a computer system to erase data subject to criminal investigations, thus, destroying valuable evidence. (24)

These factors make it difficult to prosecute cyber criminals and create an exigent need for international cooperation. (25) The Council of Europe (CoE) (26) attempted to address these concerns in the Cybercrime Convention. (27) The Cybercrime Convention is an international treaty designed to police cyber crime through international cooperation. (28)

Section II of this note will discuss the purpose and history of the Convention. It will then address why we need a Convention and lastly, where cyber crime is currently most prevalent. Section III will discuss the detailed provisions of the Convention. Finally, the last section of this note will argue that the Convention presents a good starting point for addressing international cyber crime issues, but in reality, is merely aspirational.

The Convention requires additional substantive guidance because it requires parties to prohibit the crimes contained therein, but does not explain how to do so. …

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