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Harmonisation and Cybercrime Jurisdiction: Uneasy Bedfellows?

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Harmonisation and Cybercrime Jurisdiction: Uneasy Bedfellows? Harmonisation and Cybercrime Jurisdiction: Uneasy Bedfellows? An analysis of the jurisdictional trajectories of the Council of Europe’s Cybercrime Convention Micheál Aaron O’ Flynn School of Law Queen Mary, University of London 2014 Submitted in partial fulfillment of the requirements of the Degree of Doctor of Philosophy Queen Mary, University of London 1 2 I, Micheál Aaron O’ Flynn, confirm that the research included within this thesis is my own work or that where it has been carried out in collaboration with, or supported by others, that this is duly acknowledged below and my contribution indicated. Previously published material is also acknowledged below. I attest that I have exercised reasonable care to ensure that the work is original, and does not to the best of my knowledge break any UK law, infringe any third party’s copyright or other Intellectual Property Right, or contain any confidential material. I accept that the College has the right to use plagiarism detection software to check the electronic version of the thesis. I confirm that this thesis has not been previously submitted for the award of a degree by this or any other university. The copyright of this thesis rests with the author and no quotation from it or information derived from it may be published without the prior written consent of the author. Micheál O’ Flynn 23 December 2014. Details of collaboration and publications: • Some paragraphs from chapter four, section 4.3 are drawn from a previous publication: *O'FLOINN, M., 'It Wasn't All White Light Before Prism: Law Enforcement Practices in Gathering Data Abroad, and Proposals for Further Transnational Access at the Council of Europe', Computer Law and Security Review, 29(5) (2013), 610. * My previous publications are in the Irish spelling of my surname (O’ Floinn) and are referred to herein as such. 3 Acknowledgements I am extremely grateful to the School of Law QMUL for awarding me the Graduate Teaching Assistant PhD scholarship that made this project possible. My supervisors, Ian Walden and Peter Alldridge, have provided constant support, and it has been a pleasure to work with them over the past four years. Ian’s perceptive comments and attentiveness to detail have always pushed me to develop my ideas; he has provided unstinting support and encouragement on this project, as well as others en route. Peter warmly welcomed me to the Law Department—prior to even commencing my PhD studies—when I taught with him on the evidence module. He always made himself available, at the shortest of notice, even while packing for holidays! David Ormerod helped to shape my ideas for this project at a very early stage, prior to moving to the Law Commission. Ever since he has been a friend and a mentor, and has always promoted my work, for which I am grateful. I would like to thank Giulia Liberatore, Donal Coffey, and Georgia Douglas for commenting on draft chapters, and the participants at conferences organised by the Judicial College, the Office of Surveillance Commissioners, the Institute of Advanced Legal Studies, the European Academy of Law, McKay Law, and the Jill Dando Institute of Security and Crime Science, who commented on various aspects of this work. My parents, Michael and Mary, I thank you for your encouragement and faith in my abilities, and for always doing everything within your means to support me, and my education. You have both influenced me, and shaped me as a person, in so many ways. To my brothers, Seán and Eamonn, and my adoptive family, Sergio and Grazia, Francesca and Spence, and Riccardo, thank you for your patience and support. You have all endured this project in so many ways. Finally, I thank Giulia Liberatore. Your love and support have been unwavering throughout this project. This thesis is dedicated to you. 4 Abstract This thesis examines the Council of Europe’s Cybercrime Convention and suggests there is a structural imbalance: while improving the procedures for investigating cybercrimes, it has failed to address the prosecutorial complexities and disputes resulting from multijurisdictional cybercrimes, by following the usual trend of ‘suppression’ conventions. This trend is to expand the procedural mechanisms through which States can acquire evidence in relation to the ‘suppressed’ offences, while suggesting that State Parties adopt broad rules in relation to criminal jurisdiction. These procedural powers have provided powerful tools for policing cybercrime, and the Convention has been innovative by developing mechanisms for facilitating networking interactions between law enforcement, and on most interpretations, even providing for directly contacting foreign service providers for data. The traditional limitations of enforcement jurisdiction are gradually being transformed, but the resulting difficulties for jurisdictional concurrency are not appreciated. Given the malleability of the concept of ‘territoriality’, and the flexibility afforded in international law in its interpretation, seizures of jurisdiction over many cybercrimes have sometimes been on the most tenuous of grounds. This results in a problem of concurrent jurisdiction on a scale previously unseen in the context of other transnational offences. It is often assumed that once substantive criminal harmonisation occurs, jurisdictional conflict between States dissipates, but I highlight three areas where concurrency is beginning to generate difficulties: investigatory and prosecutorial negotiations, cybercrime extraditions, and the law relating to ne bis in idem. I argue that these problems are only going to be exacerbated given the inroads that are being made in investigative powers and enforcement jurisdiction, coupled with the global reach of cybercrime which brings more and more States into play. I provide both the theoretical and practical case for more refined approaches towards the concept of territoriality, and consider some of the potential mechanisms for dealing with these uneasy bedfellows in the Cybercrime Convention. 5 Table of Contents Chapter 1: Introduction ................................................................................ 13 1.1 Introduction ....................................................................................................... 13 1.2 Treaties and Transgovernmental Networks: A Powerful Combination ................................................................................................................. 16 1.3 A Structural Imbalance ................................................................................... 20 1.4 Methodology ...................................................................................................... 24 1.4.1. Interviews .................................................................................................................. 27 1.4.2. Observations at the COE ...................................................................................... 31 1.5 Chapter Outline ................................................................................................. 31 1.6 Looking forward ............................................................................................... 34 Chapter 2: Jurisdiction in International Law ......................................... 36 2.1 Introduction ....................................................................................................... 36 2.2 The Territorial Limits of Enforcement Jurisdiction ............................. 38 2.3 The Jurisdiction to Prescribe: The Vagaries of Public International Law 40 2.4 Territoriality and Trans-jurisdictional Offences .................................. 44 2.5 Extraterritorial Jurisdiction ......................................................................... 49 2.5.1. Nationality Jurisdiction ........................................................................................ 49 2.5.2. Passive Personality ................................................................................................ 51 2.5.3. The Protective Principle ...................................................................................... 52 2.5.4. Universal Jurisdiction ........................................................................................... 52 2.6 Resolving Concurrency? ................................................................................. 54 2.6.1. The Principle oF Legality ...................................................................................... 55 2.6.2. Jurisdictional Reasonableness and Ryngaert’s Rule of Reason .......... 56 2.7 Conclusion .......................................................................................................... 58 Chapter 3: The Suppression Process ........................................................ 61 3.1 Introduction ....................................................................................................... 61 3.2 Transnational Criminal Law ......................................................................... 62 3.2.1. Regularisation oF Relationships in the EU ................................................... 64 3.3 The Formation of Suppression Conventions ........................................... 67 3.3.1. Critiques of Guzman .............................................................................................. 69 3.3.2. Rational Choice and Suppression Conventions ......................................... 70 6 3.4 The Pattern of Suppression Conventions ................................................. 74 3.4.1. Jurisdiction
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