Max Planck Institute for Foreign and International Criminal Law

Identity theft, botnets, child pornography: as the information society becomes increasingly dependent on the Internet and its range of functions, the magnitude of Internet crime increases accordingly. What was dismissed several years ago as the pranks of overly enthusiastic “computer freaks” has in the meantime developed into a highly professional and organized underground industry that is globally networked and operates for the most part clandestinely.

In the fight against this special form of crime, law enforcement authorities encounter several difficulties: for example, in the area of Internet crime, there are very few scenarios these days that do not involve more than one country; also, the methods and technical capabilities of offenders develop faster than the law can react. In addition, the special characteristics of investigations in the Net play a role: leads and evidence are usually digital, can thus be followed or seized only with a great deal of effort, and – due to their transient nature – are frequently deleted or obfuscated before appropriate steps can be taken. Furthermore, investigations in the digital environment pose the inevitable risk of seriously infringing on the fundamental rights of affected persons through the collection of comprehensive information – a phenomenon that is clearly illustrated by the controversial covert "online search and seizure" measure proposed by the German government. These specific problems in the prosecution of Internet crime have not yet been sufficiently explored; earlier research on the prosecution of crime in the Net has dealt only with the abstract, theoretical prerequisites for law enforcement action with respect to the Internet without touching upon the practical difficulties that arise regardless of the factual circumstances.

Hence, the goal of this project is to identify and analyze the legal and practical problems that arise in the context of investigating and prosecuting Internet crime. In the process, recommendations for reform will be developed that would facilitate more effective prosecution of this dynamic area of crime. The relationship between invasive investigative measures and the protection of the affected liberty interests will be described in order to obtain insights into the question of how to guarantee an appropriate balance of interests between law enforcement authorities and individuals (and how the aforementioned reform recommendations support this balancing of interests).

With respect to methodology, interviews with practitioners will be conducted in order to discuss the problems they encounter in their everyday work, and the relevant academic literature in information technology will be evaluated. An analysis of existing law based on statutory interpretation as well as an evaluation of the case law and the legal literature will also be conducted.

This study is composed of three stages. In the first stage, the basic principles (especially the technical and definitional) will be presented. In the second stage, the problems identified by means of the interviews with practitioners will be analyzed with respect to their legal and practical causes and to possible solutions. In the third stage, the organization and structure of law enforcement agencies will be examined in order to uncover any deficits in workflow or in human and technical resources.

The findings to date suggest numerous possible improvements in the aforementioned area of organization and structure that could facilitate more effective prosecution of Internet crime. In addition, it has become clear that, from a functional perspective, many conventional methods of investigation cannot easily be applied to digital case scenarios and thus require adaptation. These include the way data, as intangible evidence, should be dealt with in criminal procedure. In addition, current forms of international cooperation do not adequately address the problems posed by the short-lived nature of digital leads and the ensuing need for instantaneous action.