Mutual Assistance in Criminal Matters: Cyberworld Realities Crossing Borders: Promoting Regional Law Enforcement Coope

1. Mutual Assistance in Criminal Matters: Cyberworld RealitiesCrossing Borders: Promoting Regional Law Enforcement Cooperation8 April 2009 Shannon Cuthbertson Specialist Adviser Mutual Assistance and Extradition Branch International Crime Cooperation Division Attorney-General’s Department Canberra, Australia www.ag.gov.au/extraditionandma

2. What do we understand as mutual assistance in criminal matters? • formal government-to-government assistance cf • international cooperation conducted on a police-to-police basis

3. When is a mutual assistance request required? • To obtain evidential material in a form which will be admissible in court • When coercive powers are required to be exercised (eg search warrant) • If the other country requires a request • To enforce asset recovery orders

4. Growth in Mutual Assistance in Criminal Matters in Australia Ten years ago – 1997/1998 • 104 incoming requests for assistance • 77 outgoing requests for assistance Today • 290 incoming requests • 225 outgoing requests

5. Reciprocity Mutual assistance is founded on reciprocity – countries assist on the understanding that they will receive reciprocal assistance as required • Australian law does not required the existence of a treaty for the provision of assistance under the Mutual Assistance in Criminal Matters Act 1987 • However, Australia has pursued an active treaty negotiation process in recent years eg: • MA Treaty with Malaysia entered into force in December 2006 • MA Treaty with China entered into force in March 2007 • MA Treaty with Thailand – signed but not yet in force • Australia does not require mutual assistance requests to be submitted through diplomatic channels – may be transmitted directly to the Attorney-General’s Department from foreign counterpart authorities

6. Mutual Assistance Review • Discussion Paper issued in September 2006 • Objective to ‘develop a responsive, streamlined mutual assistance system that effectively supports the investigation and prosecution of criminal offences, helps to ensure that criminals are denied the proceeds of their crimes, and which incorporates appropriate safeguards’

7. Mutual Assistance Review – Issues considered by Review include: • Forensic procedures – obtaining DNA material without consent in response to an MA request • Telecommunications interception at the request of a foreign country • Use of surveillance devices at the request of a foreign country • Registration of non-conviction based proceeds of crime orders • Exposure draft legislation soon to be released

8. Current law enforcement environment – the challenges of cyberspace • Cybercrime: • criminal activity perpetrated using computers or computer networks (also referred to as ‘technology-enabled crime’) • criminal activity facilitated through information and communications technologies • Examples: • phishing, vishing (through VOIP) and SMishing (via SMS) • use of malware, including bot malware • dissemination of child pornography and child abuse material • online fraud eg advance fee fraud • money laundering through online currency markets

9. Convention on Cybercrime • Entered into force on 1 July 2004 • Chapter III – International cooperation – obligations include: • Expedited preservation of stored computer data • Search and seizure of stored computer data • Real-time collection of traffic data • Real-time collection or recording of content data • 24/7 network – designated point of contact available on a 24/7 basis to provide immediate assistance in criminal investigations and proceedings relating to cybercrime

10. Cybercrime Convention – Australia’s status • Australia not a party or signatory to the Cybercrime Convention • Convention obligations: • Australian law does not currently provide for law enforcement authorities to secure the preservation of computer data held by carriers/carriage service providers to assist domestic investigations or following a request by a foreign country • Access to stored computer data – overt access possible under search warrant executed under the Mutual Assistance Act; covert access not currently possible

11. Cybercrime Convention – Australia’s status cntd. • Real-time collection of traffic data – now possible for domestic purposes, but not at the request of a foreign country • Interception of content data – not possible on behalf of foreign law enforcement agencies • 24/7 network – Australian Federal Police Operation Coordination Centre – Australia has been part of a high-tech crime contact network since 1999

12. Cybercrime Convention – other common law jurisdictions • United Kingdom: signed 23 November 2001; not yet ratified • Canada: signed 23 November 2001; not yet ratified • United States: ratified 29 September 2006; however, US cannot intercept communications solely for the purposes of foreign criminal investigations

13. European Community developments • Programme of measures to implement the principle of mutual recognition of decisions in criminal matters – adopted 2001 • First measures adopted under the programme: • European arrest warrant • Orders freezing assets or evidence

14. European Community developments cntd. • Proposal for a Council Framework Decision on the European Evidence Warrant for obtaining objects, documents and data for use in proceedings in criminal matters: • issued 2003 • limited to evidentiary material already in existence, including evidence obtained from a search of private premises; historical data on the use of electronic communications networks • would not include: • obtaining evidence in real-time such as telecommunications interception, covert surveillance or monitoring of bank accounts • taking of evidence from the body of a suspect, witness or any other person (including DNA samples)

15. Mutual recognition of judicial decisions • issues of sovereignty – requires high level of mutual confidence between participating States, including in the administration of respective criminal justice systems and in relation to respect for human rights and fundamental freedoms

16. Expedited mutual assistance processes– the way of the future? • proposed amendments to Mutual Assistance Act will enhance Australia’s ability to cooperate effectively and expeditiously with foreign countries but • all States will need to look beyond confines of national sovereignty towards the establishment of significantly streamlined mechanisms for international cooperation in criminal matters: ‘It is all but impossible anymore, in legal terms, to apprehend crime as a national phenomenon’