That Convention requires inclusion in domestic legislation of offences regarding the "confidentiality, integrity and availability of computer data and systems", including unlawful conduct involving -
• access to a computer systemThe Convention recognises that some activity that would otherwise be unlawful is permitted on an exception basis if conducted by the state, eg by law enforcement or national security agencies.
• interception of communications
• damage, deletion, deterioration, alteration or suppression of computer data
• serious hindering of the functioning of a computer system, and
• misuse of devices designed for the purposes of committing such offences.
The Convention also requires signatories to establish computer related and content related offences aimed at addressing the specific use of technology to commit crimes such as -
• forgeryThe Convention is wideranging.
• fraud
• child pornography, and
• infringements of copyright and related rights
Article 11 requires signatories to establish offences for ancillary liability, such as attempting to commit Convention offences and aiding and abetting the commission of such offences. Article 12 requires signatories to ensure that corporate liability applies to commission of the offences.
Article 13 requires signatories to ensure the offences are punishable by "effective, proportionate and dissuasive sanctions", including imprisonment.
Article 14 requires signatories to ensure law enforcement agencies have appropriate powers and procedures for criminal investigations and prosecutions of Convention offences, other criminal offences committed by means of a computer system and the collection of evidence in electronic form. That requirement is bounded by Article 15, with signatories to ensure that all powers and procedures are subject to conditions and safeguards providing for the adequate protection of human rights and liberties.
Articles 16 to 21 require signatories to establish powers enabling domestic agencies to -
• obtain the preservation of stored computer data (including traffic data) for up to 90 daysThe obligation to preserve information does not automatically require release of preserved information. One signatory's law enforcement agencies can request that another signatory preserve the information in anticipation of obtaining a lawful authority to access the information.
• enable the disclosure of traffic data to allow the identification of service providers involved in the path of the communication
• order the production of specified computer data
• search and seize a computer, or part of it, in which computer data is stored
• collect traffic data on a real-time basis, and
• intercept the content of communications.
Article 22 requires signatories to establish jurisdiction over any offence established in accordance with the Convention when the offence is committed -
• in its territorywhere it was committed or if the offence is committed outside the territorial jurisdiction of any State. The Article also requires signatories to consult where more than one Party claims such jurisdiction.
• on board a ship flying a flag of that signatory
• on board an aircraft registered under the laws of that signatory , or
• by one of its nationals, if the offence is punishable under criminal law
Articles 23 to 28 contain general obligations relating to international cooperation, including in relation to mutual assistance, extradition and the disclosure of unsolicited information.
Articles 29 to 34 detail the types of assistance that may be requested between signatories, which must be able to -
• preserve stored computer data at the request of another Party for a period of at least 60 daysArticle 34 provides that mutual assistance regarding the interception of content data is to be provided only to the extent permitted under applicable treaties and domestic law.
• facilitate partial disclosure of traffic data to enable the identification of service providers in another State involved in the transmission of a communication and the path of the communication
• provide assistance in accessing, seizing or securing, and disclosing data stored by means of a computer system
• provide mutual assistance in obtaining the real-time collection of traffic data, and
• to the extent permissible under domestic law, provide mutual assistance in the interception of communications.
Article 35 requires signatories to establish a 24 hour, 7 day per week, point of contact to receive requests and provide assistance.
Article 39 provides that the purpose of the Convention is to supplement applicable multilateral or bilateral treaties or arrangements and therefore does not affect other rights, restrictions, obligations or responsibilities of a Party.
The Convention provides scope for Reservations and Declarations. Article 22(2) allows signatories to reserve the right not to extend the jurisdictional coverage of offences to any Convention offence committed on board a ship flying a flag of that Party, on board an aircraft registered under the laws of that Party, or by one of its nationals, if the offence is punishable under criminal law where it was committed or if the offence is committed outside the territorial jurisdiction of any State. Australia proposes to use this reservation in relation to the offences in articles 7, 8 and 9. (Although the jurisdictional coverage of Commonwealth offences extends to these circumstances, State and Territory offences do not.).
Article 29 (expedited preservation of stored computer data) provides for a right of reservation in circumstances where the condition of dual criminality cannot be fulfilled in respect of offences other than Convention offences. Further, a signatory may refuse to preserve data only if the offence that has resulted in the request is a political offence or is likely to prejudice the requested signatory’s sovereignty, security, public policy or other essential interests.
Articles 40 and 42 provide for the making of declarations and reservations in the implementation of the Convention requirements. Only reservations listed in Article 42 can be made in relation to the obligations placed on the signatories by the Convention. Reservations must be made in writing at the time of signing or when depositing an instrument of ratification or accession. Article 43 then provides that, where a reservation is made, a signatory may wholly or partially withdraw it by notification to the Secretary General of the Council of Europe. Australia intends to avail itself of the reservations relating to Article 14(3) and Article 22(2).
Article 45 provides that disputes between signatories regarding interpretation of the Convention shall be settled through negotiation or any other peaceful means, including submission of the dispute to the European Committee on Crime Problems, to an arbitral tribunal for a binding decision or to the International Court of Justice.
