Addressing the volatility of computer data

The cumbersome and often lengthy process of traditional MLA requests would mean that, in several cases, volatile computer data and therefore evidence useful for the investigation and prosecution of cybercrimes would be lost.

This leads, firstly, to a need for an expedited, but only preliminary preservation of data in one state—the transfer of the data, then, may be delayed until the normal proceedings have been concluded, without the risk that the data are lost in the meantime. To address this need, Article 29 CCC and Article 37 Arab ITO Convention provide for a procedure for expeditious preservation of data, with limited grounds for refusal.

Secondly, in case it is determined that some communication to be preserved preliminarily involves yet another state besides the requesting and the executing states, it is of the utmost importance to share this information as quickly as possible. Therefore, this information—but not any information relating directly to the suspect—can be expeditiously shared, under Article 30 CCC and Article 38 Arab ITO Convention.

Thirdly and most importantly, communications between states parties need to be accelerated, to facilitate the preliminary measures described above, and to particularly facilitate the initiation of shadow proceedings in all states that have jurisdiction over a specific cybercrime—thus enabling each state to use its own investigatory powers and, at a later stage, to share any information gained with the other states involved. For these reasons, the G-8 created in 1998 a 24/7 network for high-tech crime” which since then has expanded to cover more than seventy states world-wide. In a similar vein, Article 35 CCC, Article 13 Directive 2011/93/EU, and Article 43 Arab ITO Convention call for the creation of such a network of contact points, to be available around the clock. To meet these requirements of international law, states parties regularly join the G-8 24/7 network, which therefore has become the focal point for a coordinated transnational fight against cybercrime, including TOC.

 
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