Developing computer law

Investigation and prosecution of international high-tech crimes must be coordinated among all concerned States, regardless of where harm has occurred.

Legal systems must protect the confidentiality, integrity, and availability of data and systems from unauthorized impairment and ensure that serious abuse is penalized.

'Cyberspace' is the emerging invisible, intangible world of electronic information and processes stored at multiple interconnected sites. The digital revolution leads to 'convergence' (of telecommunications, computer/Internet and broadcasting) and to dynamic multimedia value chains. Deregulation and competition are major driving forces in the new interactive electronic environment.

The Convention on Cybercrime, also known as the Budapest Convention on Cybercrime or the Budapest Convention, is the first international treaty seeking to address Internet and computer crime by harmonizing national laws, improving investigative techniques, and increasing cooperation among nations. It was drawn up by the Council of Europe in Strasbourg, France, with the active participation of the Council of Europe's observer states Canada, Japan, Philippines, South Africa and the United States. The Convention and its Explanatory Report was adopted by the Committee of Ministers of the Council of Europe at its 109th Session on 8 November 2001. It was opened for signature in Budapest, on 23 November 2001 and it entered into force on 1 July 2004.

The treaty seeks to control internet crimes by requiring participating nations to create a specific, uniform body of laws to deal with unauthorized access, interference, fraud and forgery, child pornography, copyright infringement. Racism, and xenophobia are to be addressed in a separate protocol to be added later. It has three primary objectives: (1) Harmonization of the national laws which define offences; (2) Definition of investigation and prosecution procedures to cope with global networks; and (3) Establishment of a rapid and effective system of international co-operation.

The treaty addresses these "crimes:" (1) Offences against the confidentiality, integrity and availability of computer data and systems: illegal access, illegal interception, data interference, system interference, misuse of devices; (2) Computer-related offences: forgery and computer fraud; (3) Content-related offences: production, dissemination and possession of child pornography. A protocol is to cover the propagation of racist and xenophobic ideas over the web; (4) Offences related to infringement of copyright and related rights: the wide-scale distribution of pirated copies of protected works, etc.

The Convention embodies basic rules which will make it easier for the police to investigate computer crimes, with the help of new forms of mutual assistance. These include: (1) preservation of computer-stored data, (2) preservation and rapid disclosure of data relating to traffic, (3) system search and seizure, (4) real-time collection of traffic data, and (5) interception of content data.

Information on the proposed treaty caused an immediate response from the Internet user community. An international coalition of 28 organizations – from the United States, France, Britain, Australia, Bulgaria, Canada, Italy, South Africa, Austria, the Netherlands, and Denmark –  notified the Council of its opposition to the treaty. The largest concern was that the treaty process would force national governments to enact laws to broaden police power. The claim was that police agencies and powerful private interests acting outside of the democratic means of accountability were seeking to use a closed process to establish rules that would have the effect of binding legislation.

In the end, as of April 2018, 57 states have ratified the convention, while a further four states had signed the convention but not ratified it.

Lawyers, regulators, business executives, investment bankers, diplomats and civil society representatives need shared essentials of plurilateral 'governance' to safeguard both competition and public interest objectives, at a scale congruent to 'cyberspace', in the transition to an 'international law of cooperation'.