Harmonisation and Cybercrime Jurisdiction: Uneasy Bedfellows? An analysis of the jurisdictional trajectories of the Council of Europe’s Cybercrime Convention
Abstract
This thesis examines the Council of Europe’s Cybercrime Convention and
suggests there is a structural imbalance: while improving the procedures for
investigating cybercrimes, it has failed to address the prosecutorial
complexities and disputes resulting from multijurisdictional cybercrimes, by
following the usual trend of ‘suppression’ conventions. This trend is to expand
the procedural mechanisms through which States can acquire evidence in
relation to the ‘suppressed’ offences, while suggesting that State Parties adopt
broad rules in relation to criminal jurisdiction. These procedural powers have
provided powerful tools for policing cybercrime, and the Convention has been
innovative by developing mechanisms for facilitating networking interactions
between law enforcement, and on most interpretations, even providing for
directly contacting foreign service providers for data. The traditional
limitations of enforcement jurisdiction are gradually being transformed, but the
resulting difficulties for jurisdictional concurrency are not appreciated. Given
the malleability of the concept of ‘territoriality’, and the flexibility afforded in
international law in its interpretation, seizures of jurisdiction over many
cybercrimes have sometimes been on the most tenuous of grounds. This results
in a problem of concurrent jurisdiction on a scale previously unseen in the
context of other transnational offences. It is often assumed that once
substantive criminal harmonisation occurs, jurisdictional conflict between
States dissipates, but I highlight three areas where concurrency is beginning to
generate difficulties: investigatory and prosecutorial negotiations, cybercrime
extraditions, and the law relating to ne bis in idem. I argue that these problems
are only going to be exacerbated given the inroads that are being made in
investigative powers and enforcement jurisdiction, coupled with the global
reach of cybercrime which brings more and more States into play. I provide
both the theoretical and practical case for more refined approaches towards the
concept of territoriality, and consider some of the potential mechanisms for
dealing with these uneasy bedfellows in the Cybercrime Convention.
Authors
O'Flynn, Micheál AaronCollections
- Theses [3831]