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COE Document
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Recommendation No. R (95) 13
of the Committee of Ministers to Member States
Concerning Problems of Criminal Procedure Law
Connected with Information Technology
(Adopted by the Committee of Ministers on 11 September 1995
at the 543 meeting of the Ministers' Deputies)
The Committee of Ministers, under the terms of Article 15.b of the
Statute of the Council of Europe.
Considering that the aim of the Council of Europe is to achieve a
greater unity between its members;
Having regard to the unprecedented development of information
technology and its application in all sectors of modern society;
Realizing that the development of electronic information systems
will speed up the transformation of traditional society into an
information society by creating a new space for all types of
communications and relations;
Aware of the impact of information technology on the manner in
which society is organised and on how individuals communications and
interrelate;
Conscious that an increasing part of economic and social relations
will take place through or by use of electronic information systems;
Concerned at the risk that electronic information systems and
electronic information may also be used for committing criminal offenses;
Considering that evidence of criminal offenses may be stored and
transferred by these systems;
Noting that criminal procedure laws of members states often do not
yet provide for appropriate powers to search and collect evidence in these
systems in the course of criminal investigations;
Recalling that the lack of appropriate special powers may impair
investigating authorities in the proper fufilment of their tasks in the
face of the ongoing development of information technology;
Recognising the need to adopt the legitimate tools which
investigating authorities are afforded under criminal procedure laws the
the specific nature of investigations in electronic information systems;
Concerned by the potential risk that member states may not be able
to render mutual legal assistance in an appropriate way when requested to
collect electronic evidence within their territory from electronic
information systems;
Convinced of the necessity of strengthening internation
co-operation and achieving a greater compatibility of criminal procedural
laws in this field;
Recalling Recommendation No. R (81) 20 of the Committee of
Ministers on the harmonisation of laws relating to the requirement of
written proof and to the admissibility of reproductions of documents and
recordings on computers, Recommendation No. R. (85) 10 on letters rogatory
for the interception of telecommunications, Recommendations No. R (87) 15
regulating the use of personal data in the police state and
Recommendations No. R (89) 9 on computer-relating crime,
Recommends the governments of member states:
i. when reviewing their internal legislation and practice, to be
guided by the principles appended to this recommendation; and
ii. to ensure publicity for these principles among those investigating
authorities and other professional bodies, in particular in the field of
information technology, which may have an interest in their application.
Appendix to Recommendation No R. (95) 13
concerning problems of criminal procedure law
connected with information technology
I. Search and seizure
-----------------------------
1. The legal distinction between searching computers systems and siezing
data stored therein and intercepting data in the course of transmission
should be clearly delineated and applied.
2. Criminal procedure laws should permit investigating authorities to
search computer systems and seize data under similar conditions as under
traditional powers of search and seizure. The person in charge of the
system should be informed that the system has been searched and of the
kind of data that has been siezed. The legal remedies that are provided
for in general against search and seizure should be equally applicable in
case of search in computer systems and in case of seizure of data therein.
3. During execution of a search, investigating authorities should have the
power, subject to appropriate safeguards, to extend the search of other
computer systems within their jurisdiction which are connected by menas of
a network and seize the data therein, provided immediate action is
required.
4. Where automatically processed data is functionally equivalent to a
traditional document, provisions in the criminal procedure law relating to
search and seizure of documents should apply equally to it.
II. Technical Surveillance
-------------------------------------
5. in view of the convergance of information technology and
telecommunications, law pertaining to technical surveillance for the
purpose of criminal investigations, such as interception of
telecommunications, should be reviewed and amended, where necessary, to
ensure their applicability.
6. The law should permit investigating authorities to avail themselves of
all necessary technical measures that enable the collection of traffic
data in the investigation of crimes.
7. When collected in the course of a criminal investigation and in
particular when obtained by means of intercepting telecommunications, data
which is the object of legal protection and processed by a compuer system
should be secured in an appropriate manner.
8. Criminal procedure laws should be reviewed with a view to making
possible the interception of telecommunications and the collection of
traffic data in the investigation of serious offenses against the
confidentiality, integrity and availability of telecommunications or
computer systems.
III. Obligations to co-operate with the investigating authorities
--------------------------------------------------------------------
9. Subject to legal privileges or protection, most legal systems permit
investigating authorities to order persons to hand over objects under
their control that are required to serve as evidence. In a parallel
fashion, provisions should be made for the power to order persons to
submit any specified data under their control in a computer system in the
form required by the investigating authority.
10. Subject to legal privileges or protection, investigating authorities
should have the power to order persons who have data in a computer system
under their control to provide all necessary information to enable access
to a computer system and the data theirin. Criminal procedure law should
ensure that a similar order can be given to other persons who have
knowledge about the functioning of the computer system or measures applied
to secure the data therein.
11. Specific obligations should be imposed on operators of public and
private networks that offer telecommunications services to the public to
avail themselves of all necessary technical measures that enable the
interception of telecommunications by the investigating authorities.
12. Specific obligations should be imposed on service providers who offer
telecommunications services to the public, either through public or
private networks, to provide information to identify the user, when so
ordered by the compentant investigating authority.
IV. Electronic Evidence
------------------------
13. The common need to collect, preserve, and present electronic evidence
in ways that best ensure and reflect their integrity and irrefutable
authenticity, both for the purposes of domestic prosecution and
international co-operation, should be recognized. Therefore, procedures
and technical methods for handling electronic evidence should be further
developed, and particularly in such a way as to ensure their compatability
between states. Criminal procedural law provisions on evidence relating to
tradition documents should similarly apply to data stored in a computer
system.
V. Use of Encryption
---------------------
14. Measures should be considered to minimise the negative effects of the
use of cryptography on the investigation of criminal offenses, without
affecting its legitimate use more than is strictly necessary.
VI. Research, statistics and training
-------------------------------------
15. The risks involved in the development and application of information
technology with regard to the commission of criminal offenses should be
assured continuously. In order to enable the competent authorities to keep
abrest of new phenomena in the field of computer related offenses and to
develop appropriate counter-measures, the collection and analysis of data
on these offenses, including modus operandi and technical apsects, should
be furthered.
16. The establishment of specialised units for the investigation of
offenses, the combating of which requires special expertise in information
technology, should be considered. Training programmes enabling criminal
justice personnel to avail themselves of expertise in this field should be
furthered.
VII. International Cooperation
------------------------------
17. The power to extend a search to other computer systems should also be
applicable when the system is located in a foreign jurisdiction, provided
that immediate action is required. In order to avoid possible violations
of state sovereignity or international law, an unambigious legal basis for
such extended search and seizure should be established. Therefore, there
is an urgent need for negotiating international agreements as to how, when
and to what extent such search and seizure should be permitted.
18. Expedited and adequate procedures as well as a system of liason should
be available according to which the investigating authorities may request
the foreign authorities to promptly collect evidence. For that purpose
the requested authorities should be authorized to search a computer system
and seize data with a view to its subsequent transfer. The requested
authorities should also be authorized to provide trafficking data rtelated
to a specific telecommunication, intercept a specific telecommunication or
identify its source. For that purpose, the existing mutual legal
assistance instruments need to be supplemented.
_________________________________________________________________________
Subject: COE Document
_________________________________________________________________________
David Banisar ([email protected]) * 202-544-9240 (tel)
Electronic Privacy Information Center * 202-547-5482 (fax)
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