1. Dr.iur.Uldis Kinis1 “It is necessary to prevent the abuse of information resources and technologies for criminal and terrorist purposes, while respecting human rights.” World Summit on the Information Society. Geneva 2003- Tunis 2005. Document WSIS- 05/TUNIS/DOC/7 -18 November 2005. President of the PrepCom of the Tunis Phase. TUNIS COMMITMENT Security in Cyberspace – an Integral Part of State Security from the Criminal Law Perspective

2. 2 Key problems Identification of potential risks. Definition of critical infrastructure. Harmonization of Criminal legislation with international cyber criminal law standards, part. Cybercrime Convention, EC Framework decision 2005/222 JHA of 24 February 2005 on attacks against IS. Sinergy between IT law and Criminal law- principles and instruments to be used. Perquisites for criminal liability. Implementation of principle – mutis mutantis “what is illegal off line - remains to be illegal on line as well” Estimation of harm (social and material element) Building up safeguards and quarantines for stake holders against undue state power. Procedural remedies envisaged by CPL method of application Further framework..

3. 3 Definition of security under criminal law Security – relative state in a definite period of time, free of threats. Such state include economical, social, political and legal security. Any criminal delinquency included into penal law is connected with. Security – relative state in a definite period of time, free of threats. Such state include economical, social, political and legal security. Any criminal delinquency included into penal law is connected with violation of public interests to security. ISS in sense of CL must be considered as end result of a correlated complex of measures ( accessibility, integrity, confidentiality) and its task in to ensure a definite security level and ability to resist malicious or accidental actions. ISS in sense of CL must be considered as end result of a correlated complex of measures ( accessibility, integrity, confidentiality) and its task in to ensure a definite security level and ability to resist malicious or accidental actions. Content of expression” security is pit without bottom”D. Denning: 1) possible situation of minimal danger at a specific time; 2) Security is related to a complex of concrete measures- called “security policy” ; every IS must create own security policy. Content of expression” security is pit without bottom”D. Denning: 1) possible situation of minimal danger at a specific time; 2) Security is related to a complex of concrete measures- called “security policy” ; every IS must create own security policy.

4. 4 Identify risks No border restrictions “ it is hard to accuse an electron” Easy to use ADPS (automated data processing systems) like tool for committing conventional offences Jeopardy of state security, including military ( info ware crimes, cyber spaying, e- terrorism) Jeopardy of state economy interests ( money laundering, copyright crimes). Jeopardy of peoples fundamental rights and freedoms (offences against human dignity, interference into privacy) Jeopardy of minor interest (child pornography, pedophilia, promulgation of violence). Weakness of criminal justice system (lack of knowledge, equipment, subjective and objective factors).

5. 5 IT Development and Criminal law 1.Restructuring of criminality. Increasing level of social security. 2.Necessity to develop in criminal theory and practice new elements regarding doctrine of “ definition of criminal delinquency” and “corpus delicti” (object, objective element, subject and subjective element) 3.For development of Criminal law there is necessity to acknowledge and apply in practice, new IT law principles: a) legal continuity: b) technological neutrality. 4.Collisions regarding application of tehnical terms in criminal law. Definition of information system.

6. 6 Conventional offences and cybercrimes ??? Conventional offences Small gain, great risk Small gain, great risk Victim can identify you and Victim can identify you and fight back, gun use Police can catch you Police can catch you Severe prosecution Severe prosecution Gain should be carried from crime scene Gain should be carried from crime sceneCybercrimes High profit- low risk High profit- low risk No victim contact No victim contact No weapon use No weapon use Police is incapable Police is incapable If caught- probation or misdemeanor If caught- probation or misdemeanor The plunder is delivered! The plunder is delivered!

7. 7 Sine qua non for cyber criminal liability criminal delinquences are related to automated data processing Criminal delinquencies may be committed only from distance The action must be directed against one or several elements of ISS or against ISS it self. Delinquencies are committed only intentionally. The person committing criminal offence must be admitted as a subject of CL. Conditions excluding criminal liability should be taken into consideration. (part. For CIA offences)

8. 8 Determination of critical infrastructure A.Utmost jeopardy- IS - related with processing of state security issues. B.High jeopardy degree- IS - related central state aparatus, processing of information for critical areas for public safety, (hospitals, energy, water, gas etc, supply, airspace regulation, maintaining of integral state registers, banking sector etc. C. Medium high jeopardy- IS providing for society paid e- service related with processing of sesitive personal data for users and other persons. D. Low jeopardy degree- IS do not provide paid service. Do not perform person sensitive data processing and do not store information that is indispensable for state and municipality management.

9. 9 Procedural instruments for collecting and identifying e- evidences Article 191 “Preservation of stored data within an electronic information system” ; Article 192 “Disclosure of stored data” Article 219. Control of stored data within an electronic system Article 220. Control of content of transmitted data

10. 10 Futher framework 1. 1.Cyber jurisdiction problems and solutions; 2. 2.Development of Criminal law: Application of priciple “claim” for initiation of criminal proceedings for CIA offences. For estimation of intended harm for CIA offences is necessity to elaborate into Criminal law amendments, setting up criteria for such estimation (social and material element) In order to strengthen liability for misuse of automated data processing devices for any criminal purposes it is necessary to amend art 48 Criminal law “Aggravating circumstances” as follows: criminal delinquency is committed with the help of automated data processing systems.

11. 11 NY 7.30 a.m. Šanhaja 7.50 a.m. Keiptauna 8.00 a.m. San Paulu 8.15 Berne 8.25 a.m. Sidneja 8.30 NY 8.45 a.m.

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