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T-CY Assessment Report: the Mutual Legal Assistance Provisions of the Budapest Convention on Cybercrime

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T-CY Assessment Report: the Mutual Legal Assistance Provisions of the Budapest Convention on Cybercrime T-CY CYBERCRIME CONVENTION COMMITTEE COMITÉ DE LA CONVENTION CYBERCRIMINALITÉ T-CY(2013)17rev Strasbourg, France (Provisional) 3 December 2014 T-CY assessment report: The mutual legal assistance provisions of the Budapest Convention on Cybercrime Adopted by the T-CY at its 12th Plenary (2-3 December 2014) www.coe.int/cybercrime Contents 1 Introduction ............................................................................................................................ 3 2 Assessment of frequency of mutual assistance and types of stored data ................................ 5 2.1 Types of data requested .................................................................................................................5 2.2 Frequency of requests ...................................................................................................................6 2.3 MLA versus police cooperation ........................................................................................................7 2.4 Spontaneous information ...............................................................................................................9 2.5 Tables on Questions 1.1 ± 1.4 ....................................................................................................... 11 3 Assessment of procedures and requirements for mutual assistance regarding accessing stored data .................................................................................................................................. 31 3.1 Requirements ............................................................................................................................. 31 3.2 Grounds for refusal ..................................................................................................................... 33 3.3 Language of the request .............................................................................................................. 35 3.4 Procedure for sending/receiving requests ........................................................................................ 37 3.5 Problems encountered ................................................................................................................. 38 3.6 Tables on questions 2.1 ± 2.5 ....................................................................................................... 40 4 Assessment of channels and means of cooperation ............................................................... 83 4.1 Authorities, channels and means of cooperation............................................................................... 83 4.2 Urgent requests/expedited responses ............................................................................................. 85 4.3 Role of 24/7 point of contact ......................................................................................................... 86 4.4 Direct contact to obtain data from physical or legal persons in foreign jurisdictions ............................... 88 4.5 Coordination in complex international cases .................................................................................... 89 4.6 Tables on questions 3.1 ± 3.4 ....................................................................................................... 90 5 Conclusions and recommendations ..................................................................................... 123 5.1 Conclusions .............................................................................................................................. 123 5.2 Recommendations ..................................................................................................................... 125 5.3 Follow up ................................................................................................................................. 128 6 Appendices .......................................................................................................................... 129 6.1 Listing of solutions proposed to make mutual assistance more efficient ............................................. 129 6.2 Compilation of relevant domestic legislation .................................................................................. 135 6.3 Extracts of the Budapest Convention on Cybercrime ....................................................................... 200 Contact Alexander Seger Executive Secretary of the Cybercrime Convention Committee (T-CY) Tel +33-3-9021-4506 Directorate General of Human Rights and Rule of Law Fax +33-3-9021-5650 Council of Europe, Strasbourg, France Email: [email protected] 2 1 Introduction Expeditious mutual legal assistance (MLA) is one of the most important conditions for effective measures against cybercrime and other offences involving electronic evidence given the transnational and volatile nature of electronic evidence. In practice, however, mutual legal assistance procedures are considered too complex, lengthy and resource intensive, and thus too inefficient. The Cybercrime Convention Committee (T-CY), at its 8th Plenary Session (5-6 December 2012), therefore, decided to assess in 2013 the efficiency of some of the international cooperation provisions of Chapter III of the Budapest Convention on Cybercrime. At its 10th Plenary (2-3 December 2013) it decided to extend this assessment to 2014. The Budapest Convention on Cybercrime is a criminal justice treaty. Chapter III on international FRRSHUDWLRQ UHIHUV WR FRRSHUDWLRQ ³IRU WKH SXUSRVH RI LQYHVWLJDWLRQV RU SURFHHGLQJV FRQFHUQLQJ criminal offences related to computer systems and data, or for the collection of evidence in HOHFWURQLFIRUPRIDFULPLQDORIIHQFH´1 The T-CY decided to focus the assessment in particular on Article 31 which SURYLGHVIRU³mutual DVVLVWDQFHUHJDUGLQJDFFHVVLQJRIVWRUHGFRPSXWHUGDWD´RQDQH[SHGLWHGEDVLV Article 31 ± Mutual assistance regarding accessing of stored computer data 1 A Party may request another Party to search or similarly access, seize or similarly secure, and disclose data stored by means of a computer system located within the territory of the requested Party, including data that has been preserved pursuant to Article 29. « 3 The request shall be responded to on an expedited basis where: a there are grounds to believe that relevant data is particularly vulnerable to loss or modification; or b the instruments, arrangements and laws referred to in paragraph 2 otherwise provide for expedited co-operation. The purpose of the present $VVHVVPHQW LV WR LGHQWLI\ VROXWLRQV DOORZLQJ IRU PRUH ³H[SHGLWHG´ mutual assistance and to render international cooperation in general more efficient. Article 31 is assessed in the context of the broader international cooperation regime, that is, in connection with Articles 23, 25, 26, 27, 28 and 35 Budapest Convention. A questionnaire prepared by the Bureau of the T-CY was circulated to Parties and Observers on 18 February 2013 with a deadline of 10 April 2013. The 9th Plenary of the T-CY (4-5 June 2013) held a first round of discussions based on the compilation of replies received (see table of replies received), a second round at the 10th Plenary on 2-3 December 2013 and a third round at the 11th Plenary on 17-18 June. Additional replies or comments were received following discussions in these Plenaries. The present report was adopted by the 12th Plenary of the T-CY on 2-3 December 2014. 1 See Articles 23 and 25.1 Convention on Cybercrime. The report is based on replies to the questionnaire and other comments and inputs received between April 2013 and November 2014 from the following States: 1. Albania 2. Armenia 3. Australia 4. Austria 5. Azerbaijan 6. Belgium 7. Bosnia and Herzegovina 8. Bulgaria 9. Costa Rica 10. Croatia 11. Cyprus 12. Dominican Republic 13. Estonia 14. Finland 15. France 16. Georgia 17. Germany 18. Hungary 19. Iceland 20. Italy 21. Japan 22. Latvia 23. Lithuania 24. Malta 25. Mauritius 26. Republic of Moldova 27. Montenegro 28. Netherlands 29. Norway 30. Philippines 31. Portugal 32. Romania 33. Serbia 34. Slovakia 35. Slovenia 36. Spain 37. Switzerland 38. ³7KHIRUPHU<XJRVODY5HSXEOLFRI0DFHGRQLD´ 39. Turkey 40. Ukraine 41. United Kingdom 42. United States of America 4 2 Assessment of frequency of mutual assistance and types of stored data 2.1 Types of data requested Within the framework of international cooperation, the following types of information are requested from foreign authorities: Subscriber information2 has been singled out in most replies as being the most often sought type of data. This includes information to identify the user of an IP address (or conversely, information on the IP address used by a specific person) or the owner of an email, social network or VOIP account as well as related technical information on the location, equipment used etc. Requests often comprise information on means of payment or billing data. This is followed by requests for traffic data, in particular for IP or mobile phone log files. Content data seems to be sought less often. Requests may be for content from emails, social networking accounts and chat messages or similar, or for illegal contents such as child abuse materials. With respect to the underlying offences: Fraud and other financial crimes are referred to in almost all replies. These include all variations, ranging from credit card fraud, online payment fraud, auction fraud, phishing and other types of computer-related forgery and fraud related to traditional crimes such as breach of trust, bribery, tax evasion, money laundering and similar.
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