Substantive Aspects of Cybercrime Law 2x Flashcards
What is the purpose of the Second Additional Protocol to the Convention on Cybercrime?
To enhance cooperation and the collection of electronic evidence for criminal investigations or proceedings.
What does ‘competent authority’ refer to in the Protocol?
A judicial, administrative, or law-enforcement authority empowered by domestic law to collect or produce evidence.
Define ‘personal data’ according to the Protocol.
Information relating to an identified or identifiable natural person.
What is an ‘emergency’ as per the Protocol?
A situation where there is a significant and imminent risk to the life or safety of a natural person.
What is the function of a ‘central authority’?
It is designated to handle mutual assistance requests between Parties.
Under Article 6, what kind of information can be requested from domain name registration services?
Information identifying or contacting the registrant of a domain name.
What is required in a request for domain name registration information?
Date of request, issuing authority, domain name, list of requested information, and reason for the request.
What does Article 7 of the Protocol cover?
Procedures for obtaining stored subscriber information from a service provider in another Party’s territory.
What kind of data can be requested under Article 8?
Subscriber information and traffic data.
How does Article 9 facilitate expedited disclosure of stored data in emergencies?
By allowing 24/7 contact points to request immediate assistance in obtaining electronic data.
What does Article 10 regulate?
Emergency mutual assistance between Parties.
What is the role of joint investigation teams as described in Article 12?
They allow authorities from different Parties to work together on criminal investigations.
What safeguards does Article 13 require?
That measures taken under the Protocol respect human rights and fundamental freedoms.
What is the primary concern of Article 14?
Protection of personal data shared between Parties.
How should personal data be handled under the Protocol?
Data should be relevant, accurate, and retained only as long as necessary.
What restrictions exist on the onward transfer of personal data?
It requires authorization from the transferring Party.
How are security incidents related to personal data handled?
The receiving Party must notify the transferring Party of significant risks and take action to mitigate harm.
What kind of remedies does Article 13 provide for violations of data protection rules?
Both judicial and non-judicial remedies must be available.
What is the territorial scope of the Protocol as defined in Article 18?
It applies to territories specified by each Party at the time of signature or ratification.
What does Article 19 allow Parties to do?
Make reservations or declarations regarding specific provisions of the Protocol.
How can a Party withdraw from the Protocol?
By notifying the Secretary General of the Council of Europe, with the withdrawal taking effect three months later.
What role does the Council of Europe play in this Protocol?
It oversees implementation and maintains a register of authorities responsible for cooperation.
What obligations do Parties have under Article 2?
To adopt necessary legislative measures to comply with the Protocol.
How does Article 5 ensure broader cooperation?
It mandates Parties to cooperate to the widest extent possible in criminal matters.
What is the significance of video conferencing under Article 11?
It allows remote testimony and statements to facilitate investigations.
How can a Party refuse cooperation under the Protocol?
Based on conditions like prejudice to its sovereignty, security, or public order.
What happens if a Party systematically breaches data protection requirements?
Other Parties may suspend data transfers after consultations.
What is the deadline for responding to requests for subscriber information under Article 8?
20 days for subscriber information, 45 days for traffic data.
How does Article 23 ensure ongoing assessment of the Protocol?
Parties periodically review the effectiveness of its implementation.
What does Article 25 require the Secretary General to do?
Notify Parties of signatures, ratifications, reservations, and other communications.
What is the purpose of the Convention on Cybercrime?
To harmonize laws, improve procedural capabilities, and enhance international cooperation to combat cybercrime.
When and where was the Convention on Cybercrime opened for signature?
On November 23, 2001, in Budapest.
What are the three main objectives of the Convention?
1) Harmonizing substantive criminal law, 2) Establishing procedural powers, and 3) Enhancing international cooperation.
What is the significance of ‘without right’ in the Convention’s provisions?
It ensures that actions criminalized under the Convention are those conducted without legal justification or authorization.
What does Article 2 of the Convention criminalize?
Illegal access, commonly known as hacking, to a computer system without authorization.
What is the primary concern of Article 3 of the Convention?
Illegal interception of non-public transmissions of computer data without authorization.
What offense is covered under Article 4 of the Convention?
Data interference, which involves damaging, deleting, or altering computer data without right.
How does Article 5 of the Convention define system interference?
Intentional hindering of the lawful use of computer systems, including denial-of-service attacks.
What is the purpose of Article 6 regarding misuse of devices?
To criminalize the production, sale, distribution, or possession of tools designed to commit cyber offenses.
Which offenses are included in Title 2 of the Convention?
Computer-related forgery (Article 7) and computer-related fraud (Article 8).
How does Article 7 define computer-related forgery?
The input, alteration, deletion, or suppression of computer data to create false information with legal effects.
What is the definition of computer-related fraud in Article 8?
The manipulation of computer data or systems to obtain an economic benefit unlawfully.
What content-related offense is covered under Article 9?
Offenses related to child pornography, including production, distribution, and possession.
How does Article 10 address intellectual property violations?
By requiring Parties to criminalize copyright and related rights infringements when committed via a computer system.
What ancillary offenses are established in Article 11?
Attempt and aiding or abetting cybercrimes.
What does Article 12 regulate?
Corporate liability for cybercrime offenses committed for the benefit of a legal entity.
What procedural measures are included in Chapter II of the Convention?
Expedited preservation of stored data, search and seizure, real-time collection, and interception of data.
How does Article 14 ensure international cooperation?
By enabling mutual assistance in cybercrime investigations and legal proceedings.
What role does the 24/7 network established under Article 35 play?
It provides a rapid response mechanism for cybercrime-related requests among Parties.
What jurisdictional principles does Article 22 define?
Each Party must establish jurisdiction over offenses committed within its territory or by its nationals.
How does Article 32 enable transborder access to stored computer data?
By allowing access with the consent of the data owner or when the data is publicly available.
What safeguards does Article 15 provide?
It ensures that investigative measures respect human rights and fundamental freedoms.
What is the purpose of Article 37 on reservations?
It allows Parties to limit the application of specific provisions under certain conditions.
What is the role of the Council of Europe in relation to the Convention?
To oversee implementation, monitor compliance, and facilitate cooperation between Parties.
What kind of evidence is the Convention designed to protect?
Electronic evidence, which is crucial for prosecuting cybercrimes.
Why was the Convention created according to the Explanatory Report?
To address new types of cybercrime and the use of technology to commit traditional crimes.
How does the Convention handle issues of dual criminality?
It harmonizes laws to facilitate extradition and legal assistance in cybercrime cases.
What is the significance of ‘traffic data’ in the Convention?
It helps trace the origin, destination, and route of a communication for investigative purposes.
What does Article 36 state about future amendments?
The Convention can be updated as technology evolves and new cyber threats emerge.
What is the main purpose of the Budapest Convention on Cybercrime?
The main purpose is to pursue a common criminal policy aimed at the protection of society against cybercrime, by adopting appropriate legislation and fostering international cooperation.
What does Article 2 of the Convention address?
Article 2 addresses illegal access, making it a criminal offense to intentionally access a computer system without the right. A country may require that the offense involves infringing security measures or other dishonest intent.
What is the significance of Article 3 - Illegal Interception?
Article 3 makes it a criminal offense to intentionally intercept, without right, non-public transmissions of computer data using technical means, including electromagnetic emissions from a computer system.
How does the Convention define ‘computer system’?
A ‘computer system’ is defined as any device or a group of interconnected devices, one or more of which, pursuant to a program, performs automatic processing of data.
What does Article 5 - System Interference, criminalize?
Article 5 criminalizes the intentional and unauthorized serious hindering of a computer system’s functioning by inputting, transmitting, deleting, or altering computer data.
What is Article 7 - Computer-Related Forgery?
Article 7 criminalizes the intentional and unauthorized input, alteration, deletion, or suppression of computer data that results in inauthentic data intended to be considered authentic for legal purposes.
What are the key aspects of Article 9 - Offenses Related to Child Pornography?
Article 9 criminalizes the production, distribution, transmission, procurement, and possession of child pornography in digital form. The Convention defines child pornography broadly, including realistic depictions of minors engaged in sexually explicit conduct.
What does Article 10 cover regarding copyright infringement?
Article 10 establishes that copyright and related rights infringements, when committed on a commercial scale using a computer system, should be criminalized according to international intellectual property agreements.
What does Article 12 state about corporate liability?
Article 12 requires Parties to ensure that legal persons (corporations) can be held liable when individuals in leading positions commit offenses for the benefit of the corporation.
What are the provisions of Article 19 - Search and Seizure of Stored Computer Data?
Article 19 empowers authorities to search and access stored computer data and to seize or secure such data, ensuring its integrity and accessibility for investigations.
What is Article 21 - Interception of Content Data?
Article 21 allows the real-time collection or interception of content data of communications, subject to domestic legal safeguards and limitations, especially for serious offenses.
What does Article 22 establish about jurisdiction?
Article 22 establishes jurisdiction over cybercrime offenses committed within a country’s territory, on its ships or aircraft, or by its nationals abroad, depending on domestic legal provisions.
What does Article 24 cover in terms of extradition?
Article 24 ensures that cybercrime-related offenses should be treated as extraditable offenses between the Parties of the Convention, even if no prior extradition treaty exists between them.
What is the purpose of Article 25 - Mutual Assistance?
Article 25 obligates Parties to provide the widest possible mutual legal assistance in investigations related to cybercrime, including the collection of electronic evidence.
What does Article 29 - Expedited Preservation of Stored Computer Data, entail?
Article 29 allows authorities to order the rapid preservation of stored data to prevent its deletion or modification before a full investigation or legal request can be made.
What is the 24/7 Network established in Article 35?
Article 35 requires each Party to designate a point of contact available 24/7 to assist in urgent cybercrime investigations, including data preservation and legal information sharing.
How does Article 36 define the Convention’s entry into force?
Article 36 states that the Convention enters into force after five States, including three Council of Europe members, express their consent to be bound by it.
What does Article 37 say about accession to the Convention?
Article 37 allows non-member States of the Council of Europe to join the Convention if invited by the Committee of Ministers and approved by all Contracting States.
What are the amendment provisions under Article 44?
Article 44 provides that amendments can be proposed by any Party and must be reviewed by the European Committee on Crime Problems before being adopted by the Committee of Ministers.
What dispute resolution mechanisms does Article 45 establish?
Article 45 encourages Parties to settle disputes through negotiation, arbitration, or submission to the International Court of Justice.
What does Article 46 establish about consultations among the Parties?
Article 46 calls for periodic consultations among Parties to facilitate the effective implementation of the Convention and address emerging cybercrime challenges.
What are the conditions for denunciation under Article 47?
Article 47 allows any Party to denounce (withdraw from) the Convention by notifying the Secretary General of the Council of Europe, with the withdrawal taking effect three months later.
What is the role of procedural law in the Convention?
Procedural law provisions in the Convention establish legal measures for evidence collection, search and seizure, and real-time interception, ensuring investigations comply with human rights safeguards.
How does the Convention address international cooperation?
The Convention emphasizes international cooperation through extradition, mutual assistance, expedited data preservation, and a 24/7 network for cybercrime investigations.
Why is the principle of proportionality important in Article 15?
Article 15 ensures that the powers granted under the Convention are subject to safeguards, including proportionality, to balance law enforcement needs with fundamental human rights.
How does the Convention impact service providers?
The Convention requires service providers to cooperate with law enforcement in preserving and disclosing subscriber information, traffic data, and stored content, subject to legal procedures.
What is the scope of cybercrime offenses under the Convention?
The Convention covers offenses such as illegal access, data and system interference, computer-related fraud, child exploitation, and copyright infringement using computer systems.
Why is the Budapest Convention significant?
The Budapest Convention is the first international treaty to address cybercrime, providing a framework for criminalizing offenses, improving investigative powers, and fostering international cooperation.
