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Computer Crime Page 5 of 7:
146. Computer-specific procedural law problems arise not only in the prosecution of computer-crime cases but also in many other fields of criminal investigation. This is especially illustrated by the prosecution of economic crimes , predominantly in the field of banking, where most of the relevant evidence is stored in automated data-processing systems. In the field of traditional crime, computer-stored evidence is already a significant issue, as is illustrated by cases of drug traffickers conducting their business using personal computers and international telecommunication systems. In future, new optical storage devices based on compact disc technology will further encourage the destruction of originals (if paper originals still exist) after he information has been recorded in automated data-processing ystems. Owing to these new technical developments and to the rowing use of computers in all areas of economic and social ife, courts and prosecution authorities will depend to an ncreasing extent on evidence stored or processed by modern nformation technology.
147. The resulting replacement of visible and corporeal objects of proof by invisible and intangible evidence in the field of information technology not only creates practical problems but also opens up new legal issues: the coercive powers of prosecuting authorities, discussed in paragraphs 148-165; specific problems with personal data, discussed in paragraphs 166-170; and the admissibility of computer-generated evidence, discussed in paragraphs 171-175. The relevant problems are dealt with not only at the national level but also by various international organizations, as discussed in paragraphs 176-185.
B. The coercive powers of prosecuting authorities
148. In accordance with the practical requirements of investigations in the field of information technology and based on the various coercive powers existing in most legal systems, an analysis of the coercive powers of prosecuting authorities has to differentiate among search and seizure in automated information systems; duties of active cooperation; and wire-tapping of telecommunication systems and "eavesdropping" of computers.
1. Search and seizure in automated information systems
149. Collecting data stored or processed in computer systems generally first requires entry to and search of the premises in which the computer system is installed (powers of search and entry of premises); it is then necessary that the data can be seized or captured (powers of seizure and retention).
150. With respect to the investigation of computer data permanently stored on a corporeal data carrier, the general limitation of the powers of search and seizure to the search and seizure of (corporeal) objects relevant to the proceedings or to finding the truth does not, in most countries, pose serious problems, since the right to seize and to inspect the corporeal data carrier or, in case of internal memories, the central processing unit also includes the right to inspect the data. In other words, there is no difference whether the data are fixed with ink on paper or by magnetic impulses in electronic data carriers. This conclusion is even more evident for provisions in which the powers of search and/or the powers of seizure are directed towards "anything" that would be admissible as evidence at a trial. The same evaluation also applies mutatis mutandis for powers of confiscation.
151. Application of the traditional powers of search and seizure might, however, cause problems in cases where data are not permanently stored in a corporeal data carrier. In these instances, it is questionable whether pure data or information can be regarded as an object in the sense of criminal procedural law. The same holds true if the legal principle of minimum coercion or of proportionality makes it unlawful to seize comprehensive data carriers, or complete computer installations, in order to gather only a small amount of data. Similarly, search and seizure of comprehensive data carriers could cause serious prejudice to business activities or infringe the privacy rights of third parties. Uncertainties may also arise in cases in which data carriers (such as core-storage, fixed-disk devices or chips) cannot be taken away to be evaluated on a police computer but must be analyzed using the computer system in question. In all these cases one might consider applying the powers of search not only to detect a computer installation and data but also to fix (especially to print) the relevant data on a separate data carrier and then seize this new object, which might be a diskette or a printout.
152. However, such a construction depends on the question of whether and to what degree the powers of search and seizure include the power to use technical equipment and (copyrightable) programs belonging to a witness or to an accused, in order to search and/or fix computer data. Only a few laws state that in the execution of search and seizure all necessary measures may be taken. Consequently, in many legal systems an effective search for pure data or information is not provided for by the law.
153. Special problems also arise with respect to search and seizure in computer networks. Here, it is questionable whether and to what extent the right to search and seize a specific computer installation includes the right to search databases that are accessible by this installation but that are situated in other premises. This question is of great practical importance since perpetrators increasingly store their data in computer systems located elsewhere in order to hinder prosecution. Specific problems of public international law arise with respect to search and seizure of foreign databases via international telecommunication systems. In these international systems, the direct penetration by prosecuting authorities of foreign data banks generally constitutes an infringement of the sovereignty of the State of storage (and often in a punishable offence); however, there might be some specific exceptions that could be developed internationally in which direct access to foreign data banks via telecommunication networks could be permissible and the lengthy procedure of mutual assistance avoided.
154. Problems of interpretation also arise with respect to extra safeguards for specific information. This is not only an issue with respect to the materials of professional legal advisers, doctors, journalists and other people who may , in some legal systems, be exempt from giving evidence. One of the latest disputes in this area is the question of how far the privileges of the press should also be applicable to electronic bulletin boards. Even more intricate questions arise with the application of safeguards and specific provisions to papers , documents and letters, especially in the fields of electronic mail and telecommunication systems. Owing to the rationale of these privileges , they should generally apply equally to paper-based and computer-stored material , especially as between traditional mail and electronic mail.
155. In some countries attempts have been made to resolve these uncertainties and loopholes in the field of search and seizure of data and information by legislative amendments. In the United Kingdom, the general power of seizure provided by section 19 of the Police and Criminal Evidence Act of 1984 is directed to "anything which is on the premises" and, under certain conditions, provides the power "to require any information which is contained in a computer" (for the latter duty of active cooperation, see paragraphs 157-162). In Canada, section 14 of the Competition Act and similar provisions in the Environmental Protection Act and the Fisheries Act permit searching for "any data contained in or available to the computer system". Furthermore, section 3(1) of the legislation proposed by the Law Reform Commission of Canada with respect to search and seizure defines objects of seizure as "things, funds, and information" which are reasonably believed to be takings of an offence, evidence of an offence or contraband.
156. Such sui generis provisions for gathering data not only provide legal certainty and a basis for efficient investigations in an EDP environment but, with respect to legal policy, can also be based on the argument that copying data is often a less severe inhibition than the seizure of data carriers. Moreover, sui generis provisions have the advantage of being able to solve specific questions of search and seizure of data, such as compensation of costs for the use of EDP systems, subsequent erasure of copied data that are no longer required for the prosecution, or search and seizure in telecommunication networks.
2. Duties of active cooperation
157. The aforementioned powers of entry, search and seizure, and even a sui generis power of gathering data, do not, in many cases, guarantee a successful investigation, since the traditional authorities often lack the knowledge of computer hardware, operating systems and standard software necessary to access modern data-processing systems. The very complexity of modern information technology creates many problems regarding access to computer systems, which can be solved, but only partially, by better police training. This is mainly the case with respect to specific security software and encryption designed to prevent unauthorized access to information. Serious problems are also caused by the multitude of data stored in computer systems and by the limited time and financial resources available to prosecuting authorities for checking these data. Consequently, the duties of citizens to cooperate with prosecuting agencies become of much greater importance in computerized environments than in non-technical, "visible" areas.
158. The traditional legal systems of most countries include two instruments that might be used to achieve the cooperation necessary for gathering evidence in a computerized environment: the duty to surrender seizable objects of evidence and the duty to testify. In some countries, additional and more extensive provisions or reform proposals have been enacted or suggested.
159. The duty to surrender seizable objects is often coupled with the powers of search an seizure. In many countries the holder of a seizable object is obliged to deliver it on request to the (judicial) authorities; however, some legal systems do not provide such an obligation, and in some countries the respective court orders are not enforceable. The duty to surrender seizable objects can help the investigating authorities, especially in selecting specific data carriers from among the many tapes and diskettes that are usually stored in a computer centre. However, the obligation to surrender seizable objects does not generally include the duty to print or deliver specific information stored on a data carrier. Consequently, in many countries the powers of seizure and the duties to surrender seizable objects can only support voluntary printing of specific information. Practice with respect to search and seizure in the field of banking shows that banks often voluntarily print out specific data in order to prevent the seizure of large volumes of data carriers. However, the threat of a comprehensive seizure and serious prejudice to business activities cannot be regarded as a satisfactory legal solution for the relevant problems.
160. In many cases an important duty of active cooperation can be based on the duties to testify, i.e. the duty of (unsuspected) witnesses to "testify", to "tell the truth", to "answer questions" etc. This is especially the case in countries in which the traditional duties to testify contain the more extensive obligation that the witness refresh his or her knowledge of the case, e.g. by examining account books, letters, documents and objects that are available to the said witness without special inconvenience, and to make notes and bring them along to the court. However, in most legal systems the traditional duties to testify cannot be extended to efficient duties of cooperation , especially not to the printing out of specific information. The main reason for this conclusion is the fact that the duty to testify, and consequently the duty of witnesses to refresh their knowledge, refers only to knowledge they already had in mind and not to new information. A different conclusion would also confuse the roles of witnesses and experts. Furthermore, in many countries the witness must testify before a judge, and in some countries before the public prosecutor, but not before police conducting the investigation; in some legal systems, the duties to testify exist only at a later stage of the proceedings and not during the police investigation. Moreover, the requirement that a (written or oral) court summons be given to the witness in due time prior to the proceedings could make such proceedings ineffective.
161. To make investigations in computerized environments more efficient, some countries have recently enacted or suggested new compulsory duties to produce specific information. According to the police and Criminal Evidence Act 1984 1of the United Kingdom, the constable "may require any information which is contained in a computer and is accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible". In Canada, the Mutual Legal Assistance Act provides for an evidence gathering order addressed to a person "to make a copy of a record or to make a record from data and to bring the copy or record with him". However, with respect to data accessible via international telecommunication networks, these provisions leave open the question whether and to what degree a State, in accordance with international public law, has the right to oblige its citizens to gather evidence in foreign countries. Furthermore, other than in respect of recognized privileges, it is unclear under which conditions citizens have the right to deny cooperation.
162. The question whether or not such duties to produce and hand over computer printouts should be recommended de lege ferenda is difficult to judge and requires a differentiation between the duties of witnesses and the duties of defendants or suspected persons. With respect to (innocent) witnesses, there are good arguments for the introduction of such a duty. However, with respect to the defendant or suspect, there are equally good arguments that a duty of active cooperation should be rejected since this duty could impede the accused's right to remain silent and could infringe upon the privilege against self-incrimination. It is true that the wording of article 14(3)g of the International Covenant on Civil and Political Rights only guarantees that, in the determination of any criminal charge against a person, everyone shall be entitled to the minimum guarantee of "not to be compelled to testify against himself or to confess guilt". However, the reasons underlying this guarantee could justify a general privilege against any active self-incrimination.
3. Wire-tapping and "eavesdropping"
163. Tapping telecommunication lines and eavesdropping on computer systems can assist criminal investigations, especially in cases where data are only transmitted and not permanently stored, where data merely cross a country or where permanent observation of telecommunications or computer activities is necessary. These investigative acts, however, constitute not only a highly efficient means of prosecution but also a very severe intrusion into the civil liberties of the person whose communications have been surveyed. This is primarily based on the fact that tapping telecommunication systems and eavesdropping on computers is, generally, a permanent and clandestine intrusion, whereas the above-mentioned powers of entry, search and seizure usually constitute a single, "visible" interference with civil liberties. Consequently, in most countries the statutory requirements for telephone tapping and the recording of telecommunications are much more stringent than for other coercive measures.
164. The question whether the traditional powers of wire-tapping can be applied to tapping other telecommunication services and computer systems is answered differently in various countries. No computer-specific issues arise in legal systems in which the statutory law permits, for example, "surveillance of the telecommunication traffic including the recording of its content". On the other hand, computer-specific problems of interpretation exist, especially in countries that permit only "monitoring of conversations" or "surveillance and tapping of the elecommunication traffic on sound carriers". Such clauses are articularly problematic if an analogous application of coercive owers in criminal procedural law is not jurisprudentially ermissible.
165. To avoid problems of interpretation, some countries have already enacted or proposed new legislation that would make it possible to tap all kind of telecommunications under the same conditions as must be met for tapping telephone conversations. In Denmark, a new provision of the Administration of Justice Act was passed in 1985, according to which the police. under certain conditions , may "interfere in private communication by ... tapping telephone conversations or other similar telecommunication". In 1986, in the United States, the Electronic Communication Privacy Act extended legal protection and powers of wire-tapping from aural communication (covered by the Omnibus Crime Control and Safe Street Act of 1968) to electronic communication. Similarly, in the Federal Republic of Germany, an amendment to the Criminal Procedural Code in 1989 11extended the possible use of wire-tapping to public telecommunication networks. With respect to future policy-making, such clarifications are helpful since telecommunication between computers probably does not merit more protection than telecommunication between persons.
C. Specific problems with personal data
166. Potentially coercive powers for collecting evidence in the field of information technology, as analyzed above, cover both personal and non-personal data. With respect to personal data, however, there are additional legal problems that mainly concern gathering, storing and linking personal data in the course of criminal proceedings. In this field of "privacy protection in criminal matters", legal requirements vary considerably among countries. Differences between various legal systems are found not only in substantive law requirements but also in the constitutional background, legal context and legislative technique of the relevant provisions.
167. An extensive discussion of the underlying constitutional implications regarding the gathering, storing and linking of personal data exists in only a few countries. For example, in the Federal Republic of Germany, the Federal Constitutional Court, in its famous "census decision", recognized that the State's storage of personal data, especially in computer systems, could influence citizen's behaviour and endanger their general liberty of action and must therefore be considered as a violation of civil liberties ("right of informational self-determination"), which requires an express and precise legal basis. This legal balance must balance the interests of the individual and the right to privacy, on the one hand, and the interests of society in the suppression of criminal offences and the maintenance of public order, on the other hand. The new Constitution of Spain of 1978, the new revised Constitution of Portugal of 1982, the Constitution of the Netherlands of 1983 and the new Constitution of Brazil of 1988 even contain specific safeguards protecting their citizens' privacy against the incursions of modern computer technology. However, in many other countries the gathering and storing of personal date are not (yet) considered to be of constitutional relevance and are dealt with by the legislature in ordinary statutory (non-constitutional) law on a voluntary basis.
168. In regulating the legality of gathering, storing and linking personal data (either on a constitutional, compulsory basis or on an ordinary, voluntary legal basis), various legal systems place the relevant provisions in different contexts and laws. A few countries, such as Germany, intend to place most of the respective provisions within the purview of their criminal procedural law.. This legislative technique has the advantage that the criminal procedural code retains its monopoly over the application of criminal law and thus retains the exclusive enumeration of powers regulating the infringement of civil liberties in the course of criminal prosecution. However, most countries (uniquely or in part) regulate the legality of police files within their general data protection acts; in most cases the relevant provisions are applicable both to the enforcement activity of the police (prosecution of crimes) and to its preventive action (maintenance of public order). Some countries exclude police files, completely or partly, from their general data protection laws and/or create specific acts or decrees for all types of (law enforcement or preventive) police data. In a number of countries, additional specific laws concerning criminal records exist. However, there are also legal systems without any statutory legal provisions regulating the general use of personal data in the police sector.
169. Apart from these questions of placement and context of the relevant statutes, the legislative technique, content and control mechanisms of the relevant laws also vary. With respect to legislative technique, some countries, such as Germany, consider a more detailed and precise regulation necessary; other countries resort to more or less general clauses.
170. As far as the contents of the various laws are concerned, serious limitations rarely seem to be applicable to police files. In many countries, far-reaching and precise regulations concerning the deletion of entries exist only with respect to registers of criminal convictions.
D. Admissibility of computer-generated evidence
171. The admissibility of computer-generated evidence is not only important for the use of computer records in the criminal trial process but is also essential to define the extent of the above-described coercive investigatory powers, including those of mutual assistance. In most countries coercive powers are applicable only to material that would be admissible in evidence at a trial, if specific computer data or printouts could not be used as evidence; consequently, they could also not be searched and seized. In practice, the various legal problems are particularly crucial since computer printouts and computer data can easily be manipulated, a phenomenon that is illustratively described as the "second-hand nature" of computer printouts.
172. The admissibility in courts of evidence from computer records depends to a great extent on the underlying fundamental principles of evidence in the particular country. It is necessary to differentiate among varying legal systems, including but not limited to (a) civil law countries and (b) common law countries. Other legal systems, such as Islamic law, incorporate elements from one of these two primary types of systems.
1. Civil law countries
173. Civil law countries and many other countries operate according to the principle of free introduction and free evaluation of evidence (systeme de l'intime-conviction). In these countries the judge can, in principle, consider all kinds of evidence and then weigh the extent to which the court can rely on the evidence. Legal systems based on these principles do not, in general , hesitate to introduce computer records as evidence. Problems occur only when procedural provisions contain specific regulations for the proof of judicial acts or proof with legal documents.
2. Common law countries
174. Contrary to the legal situation in civil law countries, common law countries are characterized by an oral and adversarial procedure. In these countries a witness can only testify concerning his or her personal knowledge, thereby permitting the statements to the verified by cross-examination. Knowledge from secondary sources, such as other persons, books or records, is regarded as hearsay evidence and is, in principle, inadmissible. Additionally, the "best-evidence" rule generally requires that originals, rather than copies, be introduced as evidence before the court in order to lessen the chance of fraud and error. There are, however, several exceptions to the hearsay and best-evidence rules, such as the "business records exception" or the "photographic copies exception". The business records exception, for example, permits a business record created in the course of everyday commercial activity to be introduced as evidence even if there is no individual who can testify from personal knowledge. If certain prerequisites are met, copies of certain types of records may also be permitted. The questions whether computer files are "real evidence" and whether computer printouts fall under one of the exceptions of the hearsay rule have been the subject of extensive debate. The courts in some common law countries have accepted computer printouts as falling within the business records exception. Other common law countries have elaborated new laws allowing computer records to be admitted as evidence if certain conditions are met.
3. Islamic law countries
175. Under Islamic law, computer crime falls within the area of taazir offences, which operates according to the same principles of evidence law as civilian systems: the free introduction and evaluation of evidence (systeme de l'intime-conviction). In adjudicating taazir offences the judge weighs the reliability of evidence, and thus computer records are generally admissible in the prosecution of computer crime.
E. International harmonization
176. In procedural law, international action has already commenced in all of the areas described above and has been concerned with (a) the field of coercive powers; (b) the legality of processing personal data in the course of criminal proceedings; and (c) the admissibility of computer-generated evidence in court proceedings.
1. Coercive powers in the field of information technology
177. One example of international harmonization of the above-mentioned coercive powers in information technology derives primarily from the guarantees of article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The European Court of Human Rights applied these guarantees especially in the area of wire-tapping. In the Klass case,the Court confirmed the legality of the German law on limitations of the secrecy of letters, post and telecommunication, which, under specific conditions, provides the authorities with the competence to supervise