This post was authored by Gene Burrus, Assistant General Counsel
November 2016 marks the 15th anniversary of the Convention on Cybercrime of the Council of Europe, commonly referred to as the Budapest Convention.
The treaty is the preeminent binding international instrument in the area of cybercrime. It serves as a guideline for countries developing national legislation and provides a framework for international cooperation between countries’ law enforcement agencies, so critical to cybercrime investigation and prosecution.
Since its inception, 50 countries have recognized this reality by acceding to it, with an additional six signing it, and a further 12 having been invited to do so. Its influence extends far beyond those countries, with a number of international organizations participating in the Convention Committee and many other countries looking at it for best practices.
The Budapest Convention’s success lies in part in the fact that it has not held still. As technology evolved, the Convention’s members sought to adopt a set of recommendations to make mutual legal assistance requests more efficient, as well as begun to investigate how to ensure that its premises are still valid under the new paradigm of cloud computing.
The importance of this to Microsoft, and its customers, is large and increasing. Estimates of global financial losses from cybercrime exceed $400 billion a year. And that number understates the less tangible impacts on privacy, trust, innovation and adoption of new technologies. Thus, effectively fighting cybercrime is of critical importance to Microsoft’s business.
In addition, the process of detecting and investigating cybercrime often involves private technology providers like Microsoft and partnerships between Microsoft and law enforcement. Driving towards the objectives of the Budapest Convention – to drive a common harmonized set of criminal prohibitions, and to facilitate international cooperation – is directly beneficial to our customers. Greater harmonization among national approaches on criminalizing behavior, criminal procedure and investigative capabilities are critical to helping companies like Microsoft ensure compliance with what otherwise might be conflicting legal obligations under different legal regimes.
The Convention’s main objectives are two-fold: to drive a common harmonized set of criminal prohibitions, and to facilitate international cooperation. Setting prohibitions and facilitating cooperation is important for Microsoft when it is looking to help protect customers. The first step in fighting cybercrime often consists of ensuring that the country where a perpetrator might live actually has laws against cybercrimes. Absent this, a perpetrator can act with impunity in a so called safe haven. The Convention defines a number of different types of crimes that can be committed online, providing a common frame of reference for its members, including:
- Hacking crimes involving unlawfully accessing, intercepting or interfering with computers and computer networks;
- Computer related fraud crimes;
- Content related crimes, such as child pornography.
Secondly, the Convention aims to provide for criminal procedure necessary to investigate and prosecute cybercrimes, and to set up a fast, efficient, effective regime for cooperation between law enforcement in different nations. The latter is critical for Microsoft to help protect its customers. By its very nature cybercrime is almost always international in its scope. Perpetrators sitting in one country often attack victims in other countries, frequently using servers and networks sitting in yet others. Therefore, there must be procedures and mechanisms in place to facilitate and enable cooperation between and among the countries where the victims, the perpetrators, and the computer systems are physically located.
Finally, and outside the scope or the powers of the Budapest Convention, the practical reality of motivating a country housing a perpetrator, but which may have few nationals as victims itself, to spend resources addressing that crime must be overcome. That will continue to be easier said than done, until all countries come to a realization that trust in the online environment is mutually beneficial and difficult to maintain. Lack of trust it will impact all online economies, no matter where the criminals come from.
On its 15th birthday the Budapest Convention has been established as the gold standard of international conventions in the area of cybercrime. It’s a critical tool in our efforts to help protect and secure our products and our customers against cybercriminals. We hope that in the coming years more countries join it in an effort to eradicate the most modern of crimes.