Title 3 of Section 2 requires that member states make common provisions for production orders of a “computer system or a computer-data storage medium”. Title 4, Article 19 makes similar provisions in respect of search and seizure procedures. These specific provisions are necessary for cross-border considerations as they permit authorities in each member state to have consistent search and seizure laws and will facilitate and eliminate jurisdictional complications. A cybercrime offence committed in one member state will be exactly the same as an offence committed in another member state.
It will therefore make little difference which member state assumes jurisdiction over the matter. Article 25 of Title 3, Chapter III provides perhaps the most enlightening provision by stating that: “The Parties shall afford one another mutual assistance to the widest extent possible for the purpose of investigations or proceedings concerning criminal offences related to computer systems and data, or for the collection of evidence in electronic form of a criminal offence. ”
Although a number of countries did not indorse the Council of Europe Cybercrime Convention 2001 they did take steps to bring their countries legislation in respect of cybercrime into harmony with the Council of Europe Cybercrime Convention 2001. For instance the Parliament of Australia enacted the Cybercrime Act 2001 which was assented to on October 1st, 2001. Author Jody Westby explains that with or without the Council of Europe Cybercrime Convention, many nations responded to the widespread potential of cybercrime following the September, 11th terror attacks on US soil.
The response was to introduce or modify existing criminal legislation and codes so as to permit jurisdiction by one nation over another in instances where it was necessary to prosecute a party or parties of one nation who committed a crime against a computer in another nation. The Council of Europe Cybercrime Convention is the only international treaty in place at the moment.
It is encouraging that industrialized countries that have not ratified the Convention have at least legislated laws consistent with the Convention because one of the biggest challenges to the prosecution and investigation of cybercrime arises out of conflicting laws of the nations affected by misconduct over the internet. Even when both the victim and the offender originate out of the same jurisdiction the evidence may exist in another jurisdiction. Moreover the offence complained of could encompass several jurisdictions, for instance a “telemarketing scam.
” The challenges and difficulties with the dynamics of cybercrime are endless and resolving these issues will depend on the co-operation of the countries impacted. In the spirit of the Council of Europe Cybercrime Convention, harmony of laws and mutual assistance goals is the only realistic means of controlling and deterring cybercrime globally. As Westby maintains, any resolution first requires co-operation between national borders at the investigative process all the way to the prosecutorial process.
This might involve an initial consensus as to which jurisdiction is to have the lead charge over the matter. But none of these options would be remotely possible without some international treaty such as the Council of Europe Cybercrime Convention. Mark M. Richard, Counselor for Justice Affairs to the US Mission to European Union in an address to the EU’s meeting on the 29th Article at Brussels on April 14, 2005 made the following observation:
“With the globalization of communications networks, public safety is increasingly dependent on effective law enforcement cooperation across borders. ” As there is no conceivable way to draft and implement a single codified law capable of application in every country without compromising the sovereignty of nations, the Council of Europe Cybercrime Convention is by far perhaps the best method of accomplishing goals calculated to close the gap between the conflicting laws of different nations.