Posted on 15/02/2017
On 10 January 2017, I successfully defended my PhD thesis ‘Investigating Cybercrime’. In this blog post, I would like the share my main research results.
My study shows that in cybercrime investigations, evidence is often gathered by following the two digital leads of IP-addresses and nicknames. I explain how evidence is gathered, based upon these leads. In cybercrime investigations, law enforcement officials often encounter the three challenges of anonymity, encryption and jurisdiction. These challenges can leave law enforcement officials empty-handed in certain circumstances.
However, law enforcement officials can use digital investigative methods to deal with these challenges. The following four investigative methods are identified and further analysed in the study: (1) gathering publicly available online information, (2) issuing data production orders to online service providers, (3) applying online undercover investigative methods, and (4) performing hacking as an investigative method.
Regulating digitale investigative methods on a national level
On a national level, my research shows that the identified digital investigative methods are not regulated in a foreseeable manner in the Netherlands. The reason is that the scope and manner in which investigative methods are applied are not sufficiently clear. In addition, I argue that the quality of the law for certain investigative methods is not adequate. The main and concrete results of my analysis are as follows:
- The manual and automated gathering of publicly available online information should be regulated in detail, outside criminal procedural law. These regulations should indicate how data protection regulations should be applied in a concrete manner when these digital investigative methods are used.
- The regulations for undercover investigative methods (both online and offline) should be improved by incorporating supervision by an investigative judge.
- A warrant requirement should apply for obtaining traffic data and content data from online service providers. The category of ‘content data’ should be defined more clearly by the legislator or Public Prosecution Service.
- Regulating hacking as an investigative power is necessary. The proposal to regulate this investigative method in the Computer Crime Act III is adequate. However, the investigative power is formulated in a rather broad manner and the legal consequences of its application to ‘disrupt cybercrime’ are uncertain.
Regulating digital investigative methods on an international level
On an international level, my research shows that the application of digital investigative methods are not sufficiently taken into consideration in mutual legal assistance treaties. States should realise and take into consideration that unilateral cross-border digital evidence-gathering activities already take place.
The application of digital investigative methods can endanger both State sovereignty and the legal certainty of individuals in certain circumstances. At the same time however, I argue that unilateral cross-border digital evidence-gathering activities should be permissible in certain circumstances. Ideally, States agree on what terms these evidence-gathering activities are allowed and protect the right and freedoms of the individuals involved in mutual legal-assistance treaties or on an ad-hoc basis. In the meantime, States should create a policy for their law enforcement authorities to determine under which circumstances unilateral cross-border digital evidence-gathering activities are allowed. I provide recommendations about these restrictions for the Dutch legislator.
Finally, I would like to say that it has been a pleasure performing research as a PhD Candidate at Leiden University. I will continue to do research in cybercrime, cybersecurity, digital investigations and privacy in the future.
This is a cross-post from LeidenLawBlog. My book is also commercially available at bol.com (among others).