The Harare Scheme on Mutual Assistance in Criminal Matters: Possible Amendments to the Scheme and Discussion of Interception of Communications and Related Matters

Author:Commonwealth Secretariat

Introduction and terms of reference. Possible amendments to the harare scheme on mutual assistance. Preservation of Computer Data. Possible action. Interception of communications. Possible action. Annex 1. Summary of Recommendations of the expert working group. Annex 2. Scheme relating to mutual assistance in criminal matters within the commonwealth including amendments made by Law Ministers in... (see full summary)


Introduction and terms of reference

1. At their meeting at St. Vincent and the Grenadines in November 2002, Law Ministers asked their Senior Officials to consider amendments to the Harare Scheme to allow for provisions relating to the interception of communications (including computer communications) and to the preservation of computer data.

2. In 2004, Senior Officials considered possible amendments/additions to the Harare Scheme to provide for the interception of communications, including the preservation and interception of computer communications as part of a series of proposed amendments to the Scheme. Several member countries raised concerns about the amendments, in particular the non-admissibility of evidence gathered through interception and the limited use of the contents of such intercept at the investigation stage. Consequently, Senior Officials were of the view that further consideration should be given to the entire issue.

3. Senior Officials agreed to establish an expert working group charged with preparing draft proposals for the treatment in the Harare Scheme of the preservation of computer data and to examine in depth the issues surrounding the interception of communications, both in domestic law and in the context of mutual legal assistance. Senior Officials stated that work done under the auspices of international agreements should be taken into account and they specifically requested the Expert Working Group to, inter alia:

* prepare draft proposals for the treatment in the Harare Scheme of the preservation of computer data; * consider the interception of communications in domestic law and in the context of Mutual Legal Assistance

* consider the need for adequate safeguards; and

* consider the issue of costs relating to these measures.

4. The Expert Working Group met in Marlborough House, London from 7-9 September 2005 and compiled a report for presentation to Senior Officials at the meeting immediately before the Law Ministers Meeting in October 2005. This paper is a summary of that report. The recommendations of the Expert Working Group are set out in Annex 1.

Possible amendments to the harare scheme on mutual assistance

Preservation of Computer Data

5. The importance of the preservation of data and interception of communications in the investigation of crime has been discussed previously in the paper on Evidence (SOLM(04)6) and the paper by the Commonwealth Secretariat on the Harare Scheme on mutual legal assistance in criminal matters SOLM(04)4.

6. At the meeting the Expert Working Group considered whether proposed amendments to the Harare Scheme could be extended to incorporate both the preservation of data (computer and telephonic) and interception of communications (computer and telephonic). However, interception of communications is an intrusive measure and a sensitive issue amongst member states and requests for mutual legal assistance are routinely declined.

7. Preservation of data is however a less intrusive measure. It deals with existing data held by the providers and requests relating to subscriber information and stored traffic computer data (not telecommunications data) and could be readily adapted into the Harare Scheme. It is distinct from interception of communications as it provides basic information about traffic computer data and is analogous to requests for documentary evidence.

8. Preservation of telecommunication traffic data was confined to computer data. It proved impossible to reach a consensus on a definition of "traffic data", sufficiently precise and technically correct to be applied to both computer and telephonic traffic data.

9. As a request for mutual assistance for the preservation of computer data was not considered contentious and could be possibly carried out under existing domestic law, a request could be made to preserve stored computer data pending a formal mutual legal assistance request. Nevertheless, the Expert Working Group thought it may still be very useful to specifically include preservation of computer data in the Harare Scheme for the following reasons:

* whilst a request for preservation of computer data can arguably be met under the domestic law of most member states, this may not be an option available in all states. Creating specific provision(s) for it in the Harare Scheme allows member states to determine how it will be implemented under their own domestic law;

* preservation of computer data needs to be defined precisely so as to exclude the inadvertent preservation of data that had been stored in its transmission, for example when e-mail is temporarily stored by mailboxes during the course of its journey from sender to recipient. This would amount to intercept, not preservation;

* specific measures are required to reflect the importance of immediacy in responding to requests for the preservation of computer data. Accordingly, supplementary provisions have been drafted to deal with such requests. These are set out under the heading "REQUESTS FOR THE PRESERVATION OF COMPUTER DATA".

10. The proposed procedures recommend that requests for preservation of computer data can be made and received in the first instance by "an agency or authority competent to make such a request under the laws of the requesting country" and such a request can only be refused "to the extent that it appears to the requested country that compliance would be contrary to the laws and/or constitution of that country, or would prejudice the security, international relations, or other essential public interests of that country" rather than the more general grounds for refusal. This distinction was drawn so as to prevent the loss of potentially valuable evidence at the initial stage.

11. As the request for preservation of computer data is a preliminary step to seeking production of the data, it is inevitable that there will be a lapse of time before a request for assistance can be submitted through the Central Authorities. The Group agreed that the previously suggested 40 day period was insufficient and suggested that a period of between 90 - 120 days would be more realistic.

12. The proposed amendments do not however reflect the lack of a common standard of communications infrastructure in Commonwealth member states. Some countries may not have the technical knowledge or wherewithal in any event to respond to requests to preserve; it is therefore important to recognise that if this situation arose it should not be considered by the requesting state to constitute a refusal under the Scheme.

13. At the same time the proposed amendments cannot extend to requests for preservation of computer data made by non-Commonwealth states to Commonwealth states unless there is an existing bilateral treaty between them. Whilst preservation of computer data has long been a tool of investigation in domestic criminal proceedings, it had not been formally adopted by the international community as a basis for mutual legal assistance until the more recent multilateral instruments - the Council of Europe Convention on Cybercrime 2001 and the Convention on Mutual Assistance in Criminal Matters Between Member States of the European Union 2000.

Possible action

14. Senior Officials are asked to recommend to Law Ministers that the Harare Scheme be amended as drafted by the Expert Working Group. The Harare Scheme with relevant provisions in bold is set out at Annex 2.

15. Senior Officials may wish to recommend to Law Ministers that Commonwealth countries should be encouraged to accede, sign and ratify the Council of Europe Convention on Cybercrime 2001.

Interception of communications

16. Interception of communications is a highly intrusive and controversial method of law enforcement. Essentially it violates the expectation of privacy of an individual. Equally, it is a vital tool in the investigation of serious crime in an era of advanced and rapidly emerging technology.

17. Most states employ this tool of investigation with the necessary safeguards set out under their domestic law and international obligations. However, states are reluctant to afford mutual legal assistance for interception involving communications of their citizens unless adequate safeguards can be identified and agreed which would have to be reflected in the Harare Scheme.

18. At the same time technology is moving at a phenomenal pace that has created its own difficulties. There seems to be little consensus amongst technical experts on what amounts to, for example, live data and what information falls within preservation and at what point can it be said that interception occurs. Equally, the market practice of the industry prevents any meaningful assessment of costs, which may depend upon where the service providers are located. For example, service providers in the UK have wide differentials in their charging practices whilst some states are seeking to regulate the industry in this regard.

19. In accordance with the recommendations of Senior Officials, the Group heard from delegates concerning the operation of domestic legislation in Australia, Canada, India, Jamaica, Kenya, Malaysia, South Africa, and the UK. An expert from the United States also gave a presentation outlining the US scheme on Mutual Legal Assistance (MLA) in Electronic Crime. For the sake of completion the Expert Working Group also sought the views of the Council of Europe, as it has the only global convention dealing with cybercrime offences, definitions and international co-operation. A summary of the domestic laws of each of the eight member States communications in the context of mutual legal assistance is summarised in the table included at Annex 3.

20. At the same time the Expert Working Group considered what safeguards would be necessary to allow for requests for mutual assistance in the interception of communications. To that end they identified the following as initial safeguards which require further deliberation...

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