The use of the Internet

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20 THE USE OF THE INTERNET FOR TERRORIST PURPOSES E. Regional and subregional counter-terrorism legal instruments 57. In addition to the universal counter-terrorism instruments, several regional and subregional instruments offer valuable substantive and procedural standards for criminalizing acts of terrorism that may be perpetrated by means of the Internet. These instruments, which complement the universal counter-terrorism instruments, may vary in scope and in their degree of enforceability. 1. Council of Europe 58. In 2001, the Council of Europe elaborated the Council of Europe Convention on Cybercrime, 48 which is currently the only multilateral, legally binding instrument addressing criminal activity conducted via the Internet. The Council of Europe Convention on Cybercrime seeks to harmonize national laws relating to cybercrime, to improve domestic procedures for detecting, investigating, and prosecuting such crimes and to provide arrangements for fast and reliable international cooperation on these matters. 49 The Convention establishes a common minimum standard for domestic computer-related offences 50 and provides for the criminalization of nine such offences, including offences relating to unauthorized access to and illicit tampering with computer systems, programs or data; computer-related fraud and forgery; and attempting, aiding or abetting the commission of such acts. 51 59. The Council of Europe Convention on Cybercrime also includes important procedural provisions which may facilitate investigations and evidence-gathering in connection with acts of terrorism involving use of the Internet. These provisions apply to any criminal offence committed by means of a computer and the collection of evidence in electronic form and are subject to applicable safeguards provided for under domestic law. 52 60. For example, the Council of Europe Convention on Cybercrime requires parties to adopt legislation requiring Internet service providers (ISPs) to preserve specified data stored on their servers for up to 90 days 53 (renewable), if requested to do so by law enforcement officials during the course of a criminal investigation or proceeding, until the appropriate legal steps may be taken to compel disclosure of such data. 54 This expedited procedure for the preservation of stored data is crucial given the transient 48 Council of Europe, European Treaty Series, No. 185 (also available from www.coe.int/cybercrime). 49 Ibid., preamble. 50 Explanatory report to the Council of Europe Convention on Cybercrime, para. 33. Available from http://conventions.coe.int/Treaty/en/Reports/Html/185.htm. 51 Ibid., arts. 2-8 and 11. 52 Ibid., art. 14, para. 2 (b) and (c), and art. 15. Such conditions shall include protection of human rights and liberties, including rights arising pursuant to obligations undertaken under the European Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, other applicable international human rights instruments, and judicial or other independent supervision. 53 A minimum of 60 days is imposed with respect to preservation effected in response to a request for mutual legal assistance (Council of Europe Convention on Cybercrime, art. 29). 54 Council of Europe Convention on Cybercrime, art. 16.
CHAPTER II. THE INTERNATIONAl CONTExT nature of electronic data and the often time-consuming traditional mutual legal assistance procedures in transnational cases. 55 The issuance of a preservation order, or similar measure, also has several benefits compared with traditional search and seizure procedures, as the ISP may be better placed to rapidly secure the evidence in question. Additionally, a preservation measure may be less disruptive to the legitimate business of the ISP, with lower potential for reputational harm to the business, 56 which may facilitate ongoing cooperation. The search and seizure procedure with respect to stored data, established pursuant to article 19 of the Council of Europe Convention on Cybercrime, provides protections regarding stored data that are similar to those generally afforded to tangible evidence 57 under the relevant domestic legislation. 58 61. The Council of Europe Convention on Cybercrime also requires parties to implement legislation relating to the production of stored subscriber data. 59 Such information may be crucial during the investigative stage to establish the identity of a perpetrator of a terrorist act involving use of the Internet, and may include the physical location of such person, as well as other related communication services employed in the commission of the act. The Convention also requires signatory States to establish minimum standards to enable real-time collection of traffic data 60 associated with specified communications and the interception of content data in relation to specified serious offences under domestic law. 61 62. The Council of Europe Convention on Cybercrime may be applied in conjunction with counter-terrorism instruments, such as the Council of Europe Convention on the Prevention of Terrorism, 62 to provide a legal basis for cooperation against the use of the Internet for terrorist purposes. The Council of Europe Convention on the Prevention of Terrorism requires parties to criminalize certain acts under domestic law that may lead to the commission of terrorist offences, such as public provocation, recruitment and training, all of which may be committed through the Internet. The Convention also mandates national and international cooperation measures aimed at preventing terrorism, including investigative measures. For example, article 22 of the Convention provides for the sharing with another party of unsolicited information relating to investigations or proceedings, within the limits imposed by domestic law, in the common interest of responding to criminal acts (spontaneous information). 55 Explanatory report to the Council of Europe Convention on Cybercrime, para. 157. 56 Ibid., para. 155. 57 Such as the data medium upon which the data is stored. 58 Explanatory report to the Council of Europe Convention on Cybercrime, para. 184. 59 See Council of Europe Convention on Cybercrime, art. 18. “Subscriber data” is defined to include any information, other than traffic data or content data, relating to the user’s identity, postal or geographic address, telephone and other access number, billing and payment information or any other information concerning the site or location where the communication equipment is installed that is available on the basis of the service agreement with the Internet service provider. 60 Pursuant to article 1 (d) of the Council of Europe Convention on Cybercrime, “traffic data” includes information that indicates a communication’s origin, destination, route, time, date, size, duration or type of underlying service. 61 Pursuant to articles 20 and 21, respectively, of the Council of Europe Convention on Cybercrime. 62 Council of Europe, Treaty Series, No. 196. Also available from http://conventions.coe.int/Treaty/en/treaties/ html/196.htm. 21
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