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Enforcement Across BordersExcerpts from Michael A. Sussman, The Critical Challenges from International High-Tech and Computer-Related Crime at the Millenium, 9 Duke J. Comp. & Int’l L. 451(1999) [Citations omitted]THE CHALLENGESImagine this scene out of tomorrow’s headlines: A hacker, going on-linethrough the Internet, breaks into computers that the Federal AviationAdministration (FAA) uses for air traffic control. He disrupts a regionalair traffic network, and the disruption causes the crash of a DC-10 in theRocky Mountains, killing all aboard. The FAA and the FBI know therehas been a hacker intrusion, originating through the Internet, but nothingelse. Since anyone can access the Internet from anywhere in the world, theFBI has no idea where the hacker may be located. Moreover, they do notknow the motive of the attack or the identity of the attackers. Is it aterrorist group, targeting the United States and likely to strike again at anytime, or is it a fourteen-year-old hacker whose prank has spun tragicallyout of control?Let us follow this scenario a bit further. Within thirty minutes of the planecrash, the FBI tracks the source of the attack to an Internet ServiceProvider (ISP) in Germany. Assuming the worst, another attack couldoccur at any time, and hundreds of planes in flight over the United Statesare at risk. The next investigative step is to determine whether the ISP inGermany is a mere conduit, or whether the attack actually originated witha subscriber to that service. In either case, the FBI needs the assistance ofthe German ISP to help identify the source of the attack, but it is now 3:00a.m. in Germany.Does the FBI dare wait until morning in Europe to seek formal legalassistance from Germany or permission from the German government tocontinue its investigation within their borders?Does the Department of Justice authorize the FBI’s computer experts toconduct a search, without German consent, on the German ISP from theirterminals in Washington?Does the FBI agent need a U.S. court order to access private informationoverseas? What would be the reach of such an order?If the FBI agent plows forward and accesses information from computersin Germany, will the German government be sympathetic to the U.S.plight, will the violation of German sovereignty be condemned, or both?What are the diplomatic and foreign policy implications of the UnitedStates remotely (and without advance notice) conducting a search that mayintrude into German sovereignty?The legal and policy implications of possible “transborder searches,” suchas the one contemplated in this scenario, are quickly becoming a concernfor law enforcement agencies around the globe as they grapple with newchallenges posed by networked communications and new technologies.Traditional investigative procedures – and particularly the oftencumbersome procedures that govern investigations at the internationallevel – may not be adequate to meet the need in computer crime cases forimmediate law enforcement action reaching beyond national borders. Theglobalization of criminal activity has created vexing problems that, insome cases, defy simple solutions….…At a meeting of senior law enforcement officials from the G-8 countriesin January 1997, Attorney General Reno stated:“Until recently, computer crime has not received the emphasis that otherinternational crimes have engendered. Even now, not all affected nationsrecognize the threat it poses to public safety or the need for internationalcooperation to effectively respond to the problem. Consequently, manycountries have weak laws, or no laws, against computer hacking – a majorobstacle to solving and to prosecuting computer crimes.”The solution to this problem is simple to state: “[countries] need to reach aconsensus as to which computer and technology-related activities shouldbe criminalized, and then commit to taking appropriate domestic actions.”But it is not as easy to implement. An international “consensus”concerning the activities that universally should be criminalized may taketime to develop. Meanwhile, individual countries that lack this kind oflegislation will each have to pass new laws, an often cumbersome andtime-consuming process. In the United States, for example, action by boththe Congress and the President is required for new legislation.***In response to these needs the west came up with the Budapest convention in2001 and the Russians came up with the parallel Yekaterinburg convention adecade later. One of the fundamental differences between the two is the issue ofsovereignty on the Internet. Budapest Convention:
QuestionsPlease review the two conventions and discuss whether they would solve theinternational cyber crime prosecution quagmire and which of the two is bettersuited for handling these incidents today?What would happen if half the world adopted one and the other half adopted theother?What other mechanisms should we have to improve enforcement of internationalcyber crime?Do you think that countries will use hacking as a tool for military warfare? Wouldthese conventions help diffusing international cyber warfare?