even where expedited mechanisms exist they are not always used. Human rights
considerations, and the protection of civil liberties, may require judicial authorisation before
evidence can be collected. The timescale involved may not meet the operational
requirements of cybercrime investigations, especially if several different countries are
involved.
1.20 This can create multiple practical challenges for investigators. The procedural
requirements that matter most will often be those of another country, which requires close
co-operation and access to fast and accurate legal assistance from the country involved.
The extent to which human rights and independent judicial oversight are engaged may
depend on the nature of the investigation or specific locations or types of information
involved, and investigators need to ensure that they neither over- nor under-estimate these.
On one hand, where the applicable law permits fast and informal co-operation it is important
to use it effectively, but on the other hand where the nature of the co-operation sought does
engage fundamental human rights interests it is equally important that they are not
circumvented. Information that is on a public website or ‘subscriber/traffic data’ that only
identify parties and locations without disclosing content may be more easily obtainable than
the content of communications themselves.
1.21 These challenges are most commonly seen in the context of human rights, but they
have national sovereignty and practical investigative aspects, and evidentiary aspects as
well. For example, direct investigative measures can interfere with parallel criminal
investigations in other countries, and most states reserve the right not to provide assistance
where such investigations might be prejudiced. They may not co-operate with or allow the
investigation of conduct which they themselves do not regard as criminal. Evidence collected
in one country and used in another must often satisfy the legal admissibility requirements of
both, and the use of digital evidence sometimes generates forensic challenges not
encountered with tangible evidence.
The offenders’ view
1.22 The Internet brings criminals together to share information on how to commit crimes
and how to avoid detection. Increasingly, successful attacks are founded on knowledge, cooperation and deals created and shared between networks of individuals and groups. The
Internet makes it possible for individuals to commit major transnational offences, but the
majority of cybercrime represents new dimensions in domestic and transnational organised
crime. Not only do networks permit much larger and more transnational organised criminal
groups to form, they also permit entirely new organisational structures and relationships to
form, challenging both legal definitions and investigative techniques. The technologies have
transformed illicit markets by creating whole new digital commodities and transforming
others into forms that can be more easily created or trafficked. Both identity-related crime
and the creation of and trafficking in images of child abuse are pre-existing forms of
criminality that have been so transformed.
1.23 Various forms of malware require much more skill to create than they do to use,
which has made them a valuable commodity among offenders and at the same time opened
up various forms of on-line crime to a wider and less-skilled body of offenders. The black
market in malware is lively and enterprising individuals offer all levels of service for hire. One
example is the infamous ‘Zeus’ application, which spreads from one device to another by
various means, directing each infected device to copy specified information such as
passwords or financial transaction dates, and return it to locations from which the offenders
can retrieve it. In May 2011 the source code for Zeus was leaked online, allowing offenders
to download, copy, and modify it for their own purposes. In December 2012, Symantec
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