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What the Convention seeks to achieve is an equivalence of laws applying to the digital environment, allowing law enforcement to employ similar techniques to those already employed in relation to other forms of communication. This is particularly important where the provision of information may disclose operational information such as technical capability or techniques, or the subject of ongoing investigations.

However, it is the incorporation of both mutual assistance and extradition provisions that may raise concerns as to the extent to which local law enforcement will be required to act at the behest of foreign law enforcement agencies.

In the event that there is no mutual assistance treaty or arrangement between the parties, art 27 of the Convention sets out the basis on which mutual assistance requests will be dealt with. For example, art 30, which relates to mutual assistance regarding the accessing of stored computer data, makes no provision in respect of grounds of refusal.

See Convention art 27 1. As a general principle, at least in common law countries, serious criminal offences will not be tried in absentia. Yet that country may have no interest in prosecuting, or may have one of a number of competing claims to prosecution. Ibid art 27 5. Under art 24 each of the offences established under arts Convention art 22 4. Where parties require a treaty as a precondition of extradition but none is in existence, the Convention may provide the necessary legal basis for extradition.

For example, a party may impose less than 12 months maximum on the offence of unauthorised access with no aggravating factors. Such an offence would therefore not be extraditable under the Convention. In general, there is also a practical impediment — the complexity and cost of the extradition process ensures that it is typically reserved for serious offences.

For example, Englishman Gary McKinnon fought his extradition to the United States in respect of his alleged unauthorised access to United States federal computers. The Convention merely ensures the possibility of extradition for these offences; it is up to individual parties to determine whether extradition will be granted. Where extradition is refused solely on the basis of nationality, or because the requested party claims jurisdiction over the case, then on request, the requested party must prosecute the matter under its domestic laws and report the outcome Supra Note Convention art 24 2.

While much of the criticism of the Convention has concerned the protection or lack thereof of individual rights, it has also been criticised for its lack of protection in relation to the rights of states. Internationally, the penalty level attached to international cooperation may vary from as low as six months to up to four years under theUNTOC.

Because computer data may be stored anywhere in the world, simply accessing a webpage or an email account may involve the accessing of data stored in another country. However the fact that law enforcement agencies LEAs have the capacity to conduct such searches does not make it lawful. It would ordinarily be regarded as a breach of territorial sovereignty for LEAs from one country to conduct investigations within a foreign country without the permission of that country. This was apparently due to a lack of actual experience of such searches at the time, and the difficulty in formulating general principles when so much turns on the individual circumstances of the case.

The second and more controversial aspect is contained in art 32 b. Accordingly, transborder Convention Explanatory Report. This is not to say that art 32 b is uncontroversial. For example, the owner of an email account whose data is stored in another country may voluntarily disclose or allow access to that data to local law enforcement.

Clearly consent given as a result of duress, coercion or deception is not voluntary. Similarly, consent given by minors or persons with a cognitive impairment may also not be sufficient, subject to domestic law. However, for LEAs in one country to encourage a citizen of another country to assist with their investigations may itself be a breach of sovereignty and in some jurisdictions is a criminal offence.

To what extent does the service provider have authority to disclose that data? This serves to emphasise that it is for individual parties to determine the extent to which their citizens may lawfully disclose data. Concerns as to the potential broad sweep of this provision could be addressed, for example, by strict data protection laws.

Note that the authority in art 32 b is not simply to disclose the data, but to disclose to the party through a computer system. Therefore, restrictions on disclosure could be targeted to prohibit disclosure to foreign agencies.

Given that it may be cited as a reason for not ratifying the Convention, it is imperative that it be addressed as was envisaged at the time of its drafting. One option would be to remove art 32 from the Convention. Less drastic would be to allow parties to make a reservation to that provision.

Yet another alternative would be to provide for a notification requirement. That is, where a country seeks to access or receive data under art 32 b , they must notify the party in which the person or organisation is resident. Such requests are not covert, the requested person being under no obligation to keep the request confidential. Notification would also provide a level of supervision, which would help to address concerns as to voluntariness.

It may be that such an approach addresses the concerns of countries otherwise reluctant to ratify on the basis of this provision. The Charter of Fundamental Rights of the European Union, which might provide a suitable model, is a salient example. The Charter enshrines a number of civil and political rights including the right to a fair trial, presumption of United States Constitution amend V.

Crimes Act Cth s 3LA. As the technology evolves and changes so too our responses will need to evolve and change. About 3, cybercrime related incidences are reported in Kenya every month according to a tally released by an organization tracking internet security. The Bill further implores a wide range of offences relating to aspects such as unauthorized access, the access with the intent to commit other offences, child pornography and other wide arrays of computer-related crimes.

The Draft of Computer and Cybercrimes Bill seeks to align the law in order to advance procedures relating to forensics. This calls for a greater need for national and international coordination, cooperation and legal measures. A cyberspace treaty or a set of treaties should be the global framework for peace, security and justice in cyberspace. Each country should be able to determine what it considers necessary to effectively combat cybercrime, looking to the national, regional and international standards in enacting laws that best suit its national circumstances.

Nonetheless, the Convention provides a crucial benchmark against which such efforts can be measured, providing an internationally recognized framework for the harmonization of cybercrime laws.

The most serious cybercrimes and cyberattacks of global concern should be investigated and prosecuted based on international law, and sentenced by an international Court or Tribunal for cyberspace.

In view of this, African countries through the African Union and other regional bodies need to come together to establish and pass universal laws and penalties to govern all trans-border crimes. There is a strong and desperate need for state governments to provide funding to the anti- cybercrime agencies involved to enable them purchase modern technological equipment that will match them to the strength of the crimes committed and not continue to play a catch-up game.

There is a need for states to retrain more specialized police officers in cybercrime related fights. Also, computer studies and issues concerning cybercrime should be one of the top disciplines on the curriculum of Police Academies. Another issue of serious concern is the high levels of computer illiteracy among law enforcement officers.

This is partly due to the fact that, entry levels into police academies are very low. In Kenya for example, to get into the lowest rank of the police academy which is constable; candidates are expected to have completed Secondary school with at least a C- grade in the Kenya Certificate of Secondary Education Exams twelfth grade.

This calls for the need that student recruits into these academies to be selected from college graduates with degrees in IT, Criminal Justice, and IT related fields. There is also need for individuals and organizations to implore data-encryption in order to curb the vice of cyber-crime. Salifu A The impact of internet crime on development p. Awe J Fighting cybercrime in Nigeria www. Elizabeth G. Froomkin, A. Genderen R H Cyber crime investigation and the protection of personal data and privacy p.

John F. Kathleen F. League Against Racism and Antisemitism v. Marc D. Convention Explanatory Report. Jeffrey O. Cybercrime Questionnaire By Gertjan Boulet. Download file. However, in other cases, it can be a complete disaster , with your computer turning into a very expensive brick which which no amount of antivirus can protect. In this list, we will highlight some of the worst and notorious computer viruses that have caused a lot of damage in real life.

These malware have caused tremendous harm, amounting to billions of dollars and disrupting critical real life infrastructure. We are all tired of our PC getting infected or compromised but truth is sometimes, instead of having Read more. It was so bad that governments and large corporations took their mailing system offline to prevent infection. What it did was use social engineering to get people to click on the attachment ; in this case, a love confession. The attachment was actually a script that poses as a TXT file, due to Windows at the time hiding the actual extension of the file.

The two were never charged, as there were no laws about malware. This led to the enactment of the E-Commerce Law to address the problem. Code Red first surfaced on and was discovered by two eEye Digital Security employees. The worm targeted computers with Microsoft IIS web server installed , exploiting a buffer overflow problem in the system. It leaves very little trace on the hard disk as it is able to run entirely on memory, with a size of 3, bytes.

Once infected, it will proceed to make a hundred copies of itself but due to a bug in the programming, it will duplicate even more and ends up eating a lot of the systems resources.

It will then launch a denial of service attack on several IP address, famous among them was the attack on the White House website. It also allows backdoor access to the server, allowing for remote access to the machine. The most memorable symptom is the message it leaves behind on affected web pages, "Hacked By Chinese! A total of million servers were affected, which is amazing when you consider there were 6 million IIS servers at the time.

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Post a comment East Asia Forum welcomes comments, both for adding depth to analysis and for bringing up important new issues. The editors retain the right to refuse and edit comments at any time. He gave assurance, however, that the Committee would remove all the vagueness in the bill. Senator Pimentel observed that Section 4 c b is also vulnerable to constitutional challenge because a computer can generate the image of a person above 18 and make him appear younger, although there was no real person involved.

Senator Sotto manifested that he was submitting to the Committee his proposal on preserving the domain name for inclusion in the committee amendments. Senator Angara stated that the Committee had already done so. Senator Sotto also gave notice that Senate President Enrile wishes to interpellate on the measure. At the outset, Senate President Enrile stated that he was supportive of the measure but that he was concerned over how the various crimes were defined in the bill.

Adverting to Section 4 1 Illegal Access , he stated that it would be very difficult to prove an intentional access to computer data since every access is assumed to have been made deliberately.

As regards Section 4 2 Illegal Interception , Senate President Enrile asked how one could prove the intentional or non-intentional interception of transmission of computer data considering that the very act of interception has a presumption of intent. Moreover, he pointed out that the degree of recklessness should also be qualified.

He said that proving intent is one of the most difficult thing that a prosecutor can do based on his experience in criminal law. Senator Angara explained that the Committee copied the terms from the Budapest Convention on Cybercrime.

However, he acknowledged that it would have been better if such provisions were adopted to suit the Philippine legal system. Asked whether the enforcement of the provisions in the Budapest convention had been successful, Senator Angara replied that he was not aware how things had turned out. He suggested that said crimes be made mala prohibita rather than mala in se in order to make the mere act a punishable crime by itself. Senator Angara accepted the suggestion, acknowledging that intent is one of the hardest things to prove in a criminal case.

There being no other interpellation, upon motion of Senator Sotto, there being no objection, the Body closed the period of interpellations. Senator Sotto stated that the Body has already closed the period of interpellations and being a substitute bill, there will be no committee amendments. He said that the parliamentary status was the period of individual amendments. He said that the Secretariat shall likewise submit the copies of the proposed amendments introduced individually by the senators and the corresponding explanation behind each amendment for purposes of convenience.

He stated that these documents will soon be distributed to the Members. Miriam Defensor Santiago. At this juncture, Senator Guingona expressed concern that the definition of cybersex smacked of prior restraint and he feared that this would violate the Constitution. Senator Angara stated that the Committee did not intend to impose any prior restraint. Senator Angara explained that the particular provision was amended upon the request of Senator Cayetano P so that there will be no conflict with the definition of child pornography on the bill and that of RA He asked why the definition would suggest or imply prior restraint.

In answer, Senator Guingona argued that the definition leaves to the judge the discretion to interpret, for example, lascivious exhibition that can be very broad. He admitted that he was very uncomfortable with the definition because it is akin to legislating morality. He suggested that the whole section be deleted. Senator Angara disagreed that it was tantamount to legislating morality as he pointed out that deleting the definition would imply that the Body is not in agreement that cybersex, probably one of the rampant crimes committed against children, is indeed a crime.

As proposed by Senator Defensor Santiago, and accepted by the Sponsor, there being no objection, the Body approved the following amendments, one after the other:. Senator Defensor Santiago explained that while Sections 4 A and B of the Act define offenses against confidentiality, integrity and availability of computer data and systems and computer-related offenses, said offenses apply to computer data and computer system. It is clear, she noted, that owners of computer systems or data are protected from hacking or interference as criminalized in said subsections but the same should also apply to online programs, emails and social networks.

Senator Defensor Santiago explained that damage and fraudulent intent should be sufficient whether or not there is an economic benefit. It is possible, she said, that the intention of the computer-related fraud is not for economic gain but to destroy. Senator Defensor Santiago observed that Section 9 lacks the parameters to ensure that the authority granted therein will not be abused by law enforcement authorities. Senator Angara stated that the amendment further strengthens the restraint to be exercised by law enforcers before they search any of the computer data.

Senator Sotto added that it is very difficult nowadays to classify the telephone as part of the computer system. Preliminarily, Senator Sotto stated that there are numerous abuses in technology, particularly the video and photo uploading and unnecessary write-ups and comments in social networking systems.

He read the definition of libel in Mendez vs. Court of Appeals GR No. Thus, the elements of libel are: a imputation of a discreditable act or condition to another; b publication of the imputation; c identity of the person defamed; and, d existence of malice. Senator Sotto further cited the ruling in Lacsa vs. Words calculated to induce suspicion are sometimes more effective to destroy reputation than false charges directly made.

Ironical and metaphorical language is a favored vehicle for slander. A charge is sufficient if the words are calculated to induce the hearers to suppose and understand that the person or persons against whom they were uttered were guilty of certain offenses, or are sufficient to impeach their honesty, virtue, or reputation, or to hold the person or persons up to public ridicule.

On page 6, line 37, as proposed by Senator Sotto and accepted by the Sponsor, there being no objection, the Body approved the insertion of a new paragraph, to wit:. Senator Angara pointed out that cyberspace is just a new avenue for publicizing or communicating a libellous statement which is subject to prosecution and punishment as defined by the Revised Penal Code. There being no other individual amendment, upon motion of Senator Sotto, there being no objection, the Body closed the period of individual amendments.

Submitted to a vote, there being no objection, Senate Bill No. Upon motion of Senator Sotto, there being no objection, the Body considered, on Third Reading, Senate Bill No, , printed copies of which were distributed to the senators on January 26, , Pursuant to Section 67, Rule XXIll of the Rules of the Senate, upon motion of Senator Sotto, there being no objection, Secretary Reyes read only the title of the bill, to wit:.

With 13 senators voting in favor, one against, and no abstention, the Chair declared Senate Bill No. He said that the bill not only constitutes a prior restraint on said freedoms but also legislates morality which, he felt as a libertarian, is not within the realm of the legislature.

He stressed that no one has the right to say what is moral and immoral, impose it on others, and make it a crime.

He added that the bill sets the country back because in this 21st century, instead of moving forward, morality is being legislated.

It should not be allowed and it is unconstitutional, he said. At the instance of Senator Angara, there being no objection, the Body approved the insertion of the Joint Explanation of the Conference Committee on the disagreeing provisions of Senate Bill No. The bicameral conference committee agreed to use the Senate version as the working draft of the conferees.

Section 3, Definition of Terms, of the Senate version was adopted with the following amendments:. Subparagraph f , Computer Data , of the Senate version was adopted as subparagraph e of the reconciled version;. Subparagraphs e , Computer Program , and t Computer System , of the House version were adopted as subparagraphs t and g of the reconciled version;. Subparagraph j , Without Right , of the Senate version was adopted as subparagraph h of the reconciled version;.

Subparagraph h , Cyber , of the House version was adopted as subparagraph i of the reconciled version;. Subparagraph C3 , Unsolicited Commercial Communications , of the Senate version was adopted with the following amendments:. Section 5, Other Offenses, of the Senate version was adopted as Section 5 of the reconciled version. Provided , That the penalty to be imposed shall be one degree higher than that provided for by the Revised Penal Code and special laws. Section 6, Liability under Other Laws , of the Senate version was adopted as Section 7 as the reconciled version.

Section 7, Penalties , of the Senate version was adopted as Section 8 of the reconciled version, with the following amendments:. Section 8, Corporate Liability , of the Senate version was adopted as Section 9 of the reconciled version with the following amendments:.

Section 15, Duties of Law Enforcement Authorities , of the Senate version was adopted as Section 11 of the reconciled version. Section 10, Preservation of Computer Data , of the Senate version was adopted as Section 13 of the reconciled version.

Section 11, Disclosure of Computer Data , of the Senate version was adopted as Section 14 of the reconciled version. Section 12, Search, Seizure, and Examination of Computer Data , of the Senate version was adopted as Section 15 of the reconciled version. Sections 13, Custody of Computer Data , 14, Destruction of Computer Data , and 15, Exclusionary Rule , of the House version were adopted as Sections 16, 17, and 18 of the reconciled version, with an amendment on the Sections referred to on Destruction of Data to reflect the renumbering of the reconciled version: new Sections referred to are now Sections 13 and Section 13, Restricting or Blocking Access to Computer , of the Senate version was adopted as Section 19 of the reconciled version.

Section 14, Non-compliance , of the Senate version was adopted as Section 20 of the reconciled version. Section 16, Jurisdiction , of the Senate version was adopted as Section 21 of the reconciled version. Section 18, Cybercrime Investigation and Coordinating Center , of the House version was adopted as Section 23 of the reconciled version. Section 19, Composition , of the House version was adopted as Section 24 of the reconciled version with the following amendments:. Sections 25, 26 and 27 of the Senate version were adopted as Sections 29, 30 and 31 of the reconciled version.

In case of a conflict between the statements amendments stated in this Joint Explanation and the provisions of the consolidated bill in the accompanying Conference Committee Report, the latter shall prevail. Submitted to a vote, there being no objection, the Conference Committee Report on the disagreeing provisions of Senate Bill No.

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