Max Planck Institute for Foreign and International Criminal Law

Computer crime is a global phenomenon: criminal offenses may be committed from anywhere in the world and may have effects beyond the borders of the offender’s country, across entire continents, or even on a worldwide scale. The prevention and prosecution of these criminal acts require all affected countries to cooperate and to develop the necessary legal instruments. Up to now, the Council of Europe’s “Convention on Cybercrime” of 2001 is the most influential international instrument in the field. Still, it covers only some computer-related criminal offenses and legal issues. Further problem areas are regulated by other international instruments or they are not regulated at all.

The project takes broad aim at current computer-specific issues of substantive criminal law and criminal procedure as well as at selected related issues. As far as the substantive criminal law is concerned, the main focus is on offenses against the confidentiality, integrity, and availability of computer data and systems (the so-called CIA offenses); additional areas of examination include other computer-related offenses, “illegal content,” infringements of intellectual property, as well as privacy offenses and the general principles of criminal liability of Internet service providers. In the area of criminal procedure, computer-specific, coercive investigatory powers and the law of evidence are being analyzed as are questions concerning the obligatory retention of telecommunication data for evidentiary purposes and the protection of civil liberties during the criminal process. Related issues include the law on international cooperation, jurisdiction over Internet crimes, blocking orders against Internet providers, and further perspectives for self-regulation and public-private co-regulation in the area of cybercrime prevention.

The project has several objectives: (1) First of all, the present state of international harmonization instruments for the prevention of computer crime will be analyzed. (2) This will be followed by a comparative examination of the extent to which these instruments have been implemented in selected legal systems and how much national regulations differ from each other and from the international standards. (3) Based on this evaluation, “best practices” and alternative prevention strategies will be developed. (4) Since the harmonization of cybercrime legislation takes place in quite different areas of law, the project will also examine questions of legal harmonization, such as why harmonization is more successful in some areas than in others, who the agents of change are and how the forces behind them can be described, as well as where normative conflicts might occur among the various provisions. Thus, the project is not only an important element of the Institute’s research program concerning the functional boundaries of criminal law, especially with respect to complex crime, but is as well a central element of the Institute’s activities regarding criminal law integration and the development of a theory on the harmonization of criminal law.

A first step involved the preparation of a comprehensive review of existing instruments of international harmonization. This review was attached to the questionnaire sent to the country reporters and will be part of the final general report. Country reports have been arriving at the Institute since the end of 2009 and are currently undergoing revision; the comparative cross-sectional analysis is underway.

The project is part of the preparations for the 18th International Congress on Comparative Law, which is to be held in Washington, D. C., in August 2010 by the International Academy of Comparative Law. The country report for Germany as well as the comparative general report are being written at the Institute; the other country reports are being written by external project members. Prof. Ulrich Sieber is the general reporter. The results of the study will be discussed with an international community of experts at the Washington Congress.