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The U.N. Manual edited by Micheal J. O'Brien

Forward.

Computer systems offer some new and highly sophisticated opportunities for law-breaking and they create the potential to commit traditional types of crimes in non-traditional ways. In addition to suffering the economic consequences of computer crime, society relies on computerized systems for almost everything in life, from air, train and bus traffic control to medical service coordination and national security. Even a small glitch in the operation of these systems can put human lives in danger. Society's dependence on computer systems, therefore, has a profound human dimension.

The rapid transnational expansion of large-scale computer networks and the ability to access many systems through regular telephone lines increases the vulnerability of these systems and the opportunity for misuse or criminal activity. The consequences of computer crime may have serious economic costs as well as serious costs in terms of human security.

1. When future historians scrutinize the second half of the twentieth century, they will be reviewing what is sure to be known as the Information Revolution. Humankind has progressed further in the last 50 years than in any other period of history. One of the reasons for this rapid advance in technology is the computer. Technological capabilities have increased at an accelerating pace, permitting ever larger and more sophisticated systems to be conceived and allowing ever more sensitive and critical functions to be assigned to them.1

2. Indeed, the world is undergoing a second Industrial Revolution. Information technology today touches every aspect of life, irrespective of location on the globe. Everyone's daily activities are affected in form, content and time by the computer. Businesses, Governments and individuals all receive the benefits of this Information Revolution. While providing tangible benefits in time and money, the computer has also had an impact on everyday< life, as computerized routines replace mundane human tasks. 2 More and more of out businesses, industries, economies, hospitals and Governments are becoming dependent on computers. Computers are not only used extensively to perform the industrial and economic functions of society but are also used to perform many functions upon which human life itself depends. medical treatment and air traffic control are but two examples. Computers are also used to store confidential data of a political, social, economic or personal nature. They assist in the improvement of economies and of living conditions in all countries. Communications, organizational functioning and scientific and industrial progress have developed so rapidly with computer technology that our form of living has changed irreversibly.

3. With the computer, the heretofore impossible has now become possible, The computer has allowed large volumes of data to be reduced to high-density, compact storage, nearly imperceptible to the human senses, It has allowed an exponential increase in speed, and even the most complex calculations can be completed in milliseconds. The miniaturization of processors has permitted worldwide connectivity and communication. Computer literacy continues o grow.

4. The burgeoning of the world of information technologies has, however, a negative side: it has opened the door to antisocial and criminal behaviour in ways that would never have previously been possible. Computer systems offer some new and highly sophisticated opportunities for law-breaking, and they create the potential to commit traditional types of crimes in non-traditional ways. In addition to suffering the economic consequences of computer crime, society relies on computerized systems for almost everything in life, from air, train and bus traffic control to medical service coordination and national security. Even a small glitch in the operation of these systems con put human lives in danger. Society's dependence on computer systems, therefore, has a profound human dimension. The rapid transnational expansion of large-scale computer networks and the ability to access many systems through regular telephone lines increases the vulnerability of these systems and the opportunity for misuse or criminal activity. The consequences of computer crime may have serious economic costs as well as serious costs in terms of human security.

A. The international problem

6. When the issue is elevated to the international scene, the problems and inadequacies are magnified. Computer crime is a new form of transnational crime and effectively addressing it requires concerted international cooperation. This can only happen, however, if there is a common framework for understanding what the problem is and what solutions there may be.

7. Some of the problems surrounding international cooperation in the area of computer crime and criminal law can be summarized as follows:

1. The lack of global consensus on what types of conduct should constitute a computer-related crime;

2. The lack of global consensus on the legal definition of criminal conduct;

3. The lack of expertise on the part of police, prosecutors and the courts in this field;

4. The inadequacy of legal powers for investigation and access to computer systems, including the inapplicability of seizure powers to intangibles such as computerized data;

5. The lack of harmonization between the different national procedural laws concerning the investigation of computer-related crimes;

6. The transnational character of many computer crimes;

7. The lack of extradition and mutual assistance treaties and of synchronized law enforcement mechanisms that would permit international cooperation, or the inability of existing treaties to take into account the dynamics and special requirements of computer-crime investigation.

B. Regional action

9. In 1983, OECD undertook a study of the possibility of an international application and harmonization of criminal laws to address the problem of computer crime or abuse. In 1986, it published Computer-Related Crime: Analysis of Legal Policy, a report that surveyed the existing laws and proposals for reform in a number of Member States and recommended a minimum list of abuses that countries should consider prohibiting and penalizing by criminal laws, for example, computer fraud and forgery, the alteration of computer programmes and data and the copyright and interception of the communications or other functions of a computer or telecommunication system. A majority of members of the Committee on Information, Computer and Communications Policy also recommended that criminal protections should be developed for other types of abuse, including the theft of trade secrets and unauthorized access to, or use of, computer systems.

10. Following the completion of the OECD report, the Council of Europe initiated its own study of this issue with a view to developing guidelines to assist legislators in determining what conduct should be prohibited by the criminal law and how this should be achieved, having regard for the conflict of interest between civil liberties and the need for protection. The minimum list of OECD was expanded considerably by adding other types of abuses that were recommended as deserving of the application of the criminal law. The Select Committee of Experts on Computer-Related Crime of the Committee on Crime Problems examining these questions also addresses other areas, such as privacy protection, victims, prevention, procedural issues such as the international search and seizure of data banks, and international cooperation in the investigation and prosecution of computer crime. Recommendation R(89)9 of the Council of Europe on computer-related crime, which contains guidelines for national legislatures, was adopted by the Committee of Ministers of the Council of Europe on 13 September 1989.

11. In 1992, OECD developed a set of guidelines for the security of information systems, which is intended to provide a foundation on which States and the private sector may construct a framework for the security of information systems. In that same year, the Council of Europe began a study that will concentrate on procedural and international cooperation issues related to computer crime and information technology.

C. The need for global action

12. Despite these international efforts, much remains to be accomplished in order to achieve international cooperation. While much of the international work has so far been centered in western European and OECD countries, the potential extent of computer crime is as broad as the extent of the international telecommunication systems. All regions of the world must become involved in order to prevent this new form of criminality.

13. Ensuring the integrity of computer systems is a challenge facing both developed and developing countries. It is predicted that within the next decade, it will be necessary for developing nations to experience significant technological growth in order to become economically self-sufficient and more competitive in world markets. As dependence on computer technology grows in all nations, it will be crucial to ensure that the rate of technological dependence does not outstrip the rate at which the corresponding social, legal and political frameworks are developing. It is important to plan for security and crime prevention at the same time that computer technology is being implemented.

14. The participation of both developed and developing nations in international computer-crime initiatives is an encouraging trend. For example, the three associated conferences on computer crime at Wurzburg in October 1992 were attended by delegates from Africa, Asia, eastern and western Europe, Latin America, the Middle East and North America. An adequate response to computer crime requires that both developed and developing nations should encourage regional and international organizations to examine the issue and promote crime prevention programmes on a national level.

15. This strategy is necessary, both immediately and in the long term, to ensure international cooperation and to foster the political will to create a secure information community and the universal criminalisation of computer crime.

D. Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders

17. In preparation for the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, the Asia and Pacific Regional Preparatory Meeting indicated concern with the effects of technological progress, as reflected in computer crimes (A/CONF.144)RPM.2).

18. At the 12th plenary meeting of the Eighth Congress, which took place in 1990, the representative of Canada introduced a draft resolution on computer-related crimes on behalf of the 21 sponsors. At its 13th plenary meeting, the Congress adopted the resolution, in which it, inter alia, called upon Member States to intensify their efforts to combat computer crime by considering, if necessary, the following measures:

1. "Modernization of national criminal laws and procedures, including measures to:

   • Ensure that existing offences and laws concerning investigative powers and admissibility of evidence in judicial proceedings adequately apply and, if necessary, make appropriate changes;

   • In the absence of laws that adequately apply, create offences and investigative and evidentiary procedures, where necessary, to deal with this novel and sophisticated form of criminal activity;

   • Provide for the forfeiture or restitution of illegally acquired assets resulting from the commission of computer-related crimes;

2. Improvement of computer security and prevention measures, taking into account the problems related to the protection of privacy, the respect for human rights and fundamental freedoms and any regulatory mechanisms pertaining to computer usage;

3. Adoption of measures to sensitize the public, the judiciary and law enforcement agencies to the problem and the importance of preventing computer-related crimes;

4. Adoption of adequate training measures for judges, officials and agencies responsible for the prevention, investigation, prosecution and adjudication of economic and computer-related crimes;

5. Elaboration, in collaboration with interested organizations, of rules of ethics in the use of computers and the teaching of these rules as part of the curriculum and training in informatics;

6. Adoption of policies for the victims of computer-related crimes which are consistent with the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, including the restitution of illegally obtained assets, and measures to encourage victims to report such crimes to the appropriate authorities." 5

19. In its resolution, the Eighth Congress also recommended that the Committee on Crime Prevention and Control should promote international efforts in the development and dissemination of a comprehensive framework of guidelines and standards that would assist Member States in dealing with computer-related crime and that it should initiate and develop further research and analysis in order to find new ways in which Member States may deal with the problem of computer-related crime in the future. It also recommended that these issues should be considered by an ad hoc meeting of experts and requested the Secretary-General to consider the publication of a technical publication on the prevention and prosecution of computer-related crime.

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