CHAPTER ONE: CONNECTIVITY AND CYBERCRIME for example, that the use of computer systems is fundamentally a ‘game-changer’ when it comes to the nature and extent of consumer fraud, but not for trafficking in narcotic drugs? Is the use of online financial services to conceal the origin of criminal profit118 significantly different from traditional financial transactions to require the definition of a separate offence of computer-related money-laundering? To some extent, the list of 14 acts presented in this Study represents an attempt to distil contemporary practice in terms of those acts that are commonly spoken of as ‘cybercrime.’ Other acts referred to by countries, in particular online gambling, are not consistently criminalized across countries. The act of gambling through the internet is allowed in many countries, but is prohibited directly or indirectly in other countries.119 Irrespective of its legal status, internet gambling sites may frequently be the subject or object of computer-related fraud or computer data interception or interference.120 Within the general term ‘online gambling’, a distinction is sometimes made between the internet as a mere communication medium – akin to remote telecommunication gambling on a physical world event – and the case of a ‘virtual’ casino in which the player has no means of verifying the results of the game.121 The latter, in particular, is often seen as distinct from offline gambling, due to its potential for compulsive engagement, fraud,122 and abuse by minors. In accordance with the principle of national sovereignty, at least one regional approach recognizes the right for countries to set the objectives of their policy on betting and gambling according to their own scale of values and to define proportionate restrictive measures.123 The inclusion of online gambling in a general description of cybercrime may thus face challenges concerning the universality of its criminalization. Discussion It is notable that responding countries did not identify a large range of conduct outside of the 14 cybercrime acts listed in the Study questionnaire. Some degree of consensus may therefore exist on at least a core of conduct included in the term ‘cybercrime.’ Nonetheless, as discussed in this Study, the determination of whether it is necessary to include specific conduct in a description of ‘cybercrime’ depends, to a large extent, on the purpose of using the term ‘cybercrime’ in the first place. From the international legal perspective, the content of the term is particularly relevant when it comes to agreements for international cooperation. One feature of international and regional cybercrime instruments, for example, is the inclusion of specialized investigative powers not usually found in non-cyber specific instruments.124 States parties to instruments agree to make such powers available to other States parties through mutual legal assistance requests. While some 118 119 120 121 122 123 124 shared ‘online’ with networks of like-minded individuals – the additional acts of distributing, receiving and collecting the material ‘online’ are new criminal offences. An overview of this exemplified scenario and further examples can be found in: UK Home Office, 2010. Cyber Crime Strategy. p.45. Council of Europe Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism (MONEYVAL), 2012. Criminal money flows on the Internet: methods, trends and multi-stakeholder counteraction. Fidelie, L.W., 2008. Internet Gambling: Innocent Activity or Cybercrime? International Journal of Cyber Criminology, 3(1):476-491; Yee Fen, H., 2011. Online Gaming: The State of Play in Singapore. Singapore Academy of Law Journal, 23:74. See, for example, McMullan, J.L., Rege, A., 2010. Online Crime and Internet Gambling. Journal of Gambling Issues, 24:54-85. Pereira de Sena, P., 2008. Internet Gambling Prohibition in Hong Kong: Law and Policy. Hong Kong Law Journal, 38(2):453-492. See for example, European Court of Justice, Sporting Exchange Ltd v Minister van Justitie, Case C-203/08. para 34: ‘Because of the lack of direct contact between consumer and operator, games of chance accessible via the internet involve different and more substantial risks of fraud by operators compared with the traditional market for such games.’ Ibid. para 28. Such powers include orders for stored computer data, real time collection of computer data, and expedited preservation of computer data. See, for instance, Draft African Union Convention, COMESA Draft Model Bill, Commonwealth Model Law, Council of Europe Cybercrime Convention, and League of Arab States Convention. 21