Globalization of Law Enforcement

By Christiane Schulzki Haddouti

Enfopol plans are not buried: Now globalization of law enforcement follows globalization of the economy - and prosecution.

Three days after the meeting of Justice and Interior Ministers of the G-8 nations in Moscow followed the Tampere summit of the European Union Council. Both had above all a single goal: The adjustment of different legal systems and better co-operation among prosecution authorities. The goals formulated in the Enfopol papers are thereby a component of the new common law and home policy.

Apart from organized crime the countries want to also get a grasp of high-tech crime. The European Union member nations co-operate closely with the other G-8 nations: Thus high-tech crime has its own G-8 workgroup of action which prepares proposals on that topic for the European Council and which this body usually accepts only slightly modified.

In Tampere the European Union heads of government decided to compile by December next year a measure and program to advance mutual acknowledgment of judicial decisions and judgments as well as the coordination of different legislation. In addition it aims, for example, that evidence seized before the courts of other member states becomes certified.

For investigation of transnational computer criminality that is crucial. Because here the investigators must be able to seize and use all necessary log files of service providers and telephone systems in different countries. Only then - with some luck - an author can be identified.

Close co-operation is tested first in common determination teams, which fight transnational drug and slave trade as well as terrorism. They are to be supported by Europol representatives. On the strategic level in a "operational task force" the European police heads will exchange effective methods and information on current trends of transnational crime and will plan operational measures.

Europol plays a key role here too. It is in the future operational data the member nations share and "the introduction, execution or coordination of determinations by the member nations" as well as the implementation of common determinations transnational teams pursue.

Parallel, a joint center is to be established named Eurojust, to which will be sent government lawyers, judges or police officers from member nations from the relevant justice system level. Eurojust is to coordinate the work between the national public prosecutor's offices and to support the bases of Europol analyses and criminal determinations. The necessary legal conditions for this purpose will not created until 2001. A European police academy is also to be established in which high-ranking members of prosecution authorities are to be trained.

In national criminal law the European advisory wants to agree upon common definitions, factual characteristics and sanctions. This applies in particular to areas such as financial crime, illegal drug trade, slave trade, environmental and high-tech crime.

Arrangements of legal proceedings by way of letters are still "too slow" and too much oriented toward bilateral co-operation. Together with industry, officials want to compile concrete measures so that transnational communication can be more easily arranged in the future. Since that means making access to connecting data and networks the first condition, in order to be able to investigate attacks, the Ministers want to create all the necessary legal and technical facilities now in order to be able to arrange quick and safe data storage.

The Enfopol workplan is still to be realized nevertheless, but no longer under the Enfopol name. Under the document, Enfopol sections 98 and 19 hearing plans become plans to make a hearing possible for new transnational telecommunications techniques. In Moscow the Ministers agreed that upon request of another nation communication data can be released on the basis of national laws.

In agreement with foreign investigators or government lawyers a nation may scan, copy or even seize data in a computer system in another country. This principle was realized already by agreement among the 24-State Contact Group, which assists each other across national borders. If the traces of a case lead for example into another country, then the Internet officer of the Federal Criminal Investigation Office will know who the member of the Contact Group is, and with whom the appropriate contact man in the other country should arrange contact. This then guarantees that evidence is secured locally. In about two years other European nations besides the G-8 nations will become members of the Contact Group.

On the European Union level the draft of a comprehensive legal aid convention states that within two years it should be actually already discharged. In the first half of this year new regulations were brought in: The telephone hearing, the legal basis for the application so-called "remote access", as well as regulations over the common groups of determinations. Within that, Article 11b provided that "remote access" can be accomplished through national monitoring measures "regarding telecommunications connections on a nation's own territory under engagement of national service tenderers by means of remote control in another member state which has an appropriate ground station". But its own letters rogatory are not necessary to the respective member state. Exactly as the Enfopol plan had demanded. Now they are integrated into the European Union legal aid convention.

In Article 12 of the legal aid convention provides that another member state can be required to technically monitor telecommunications traffic "in real time" or to deliver monitoring recordings already available. If the log files of an Internet Provider are already stored, they can be delivered according to article 12. If a nation does not need its technical support for monitoring in another nation, then this is also to be possible under certain conditions.

In Article 14 the question of costs is finally explained. Thus the requesting member nation bears the cost of supervision of the operator, but not however the capital outlays, which the operator must expend, in order to make the monitoring technically possible. This question is not yet fully clarified however. According to "opinion of the representative of the commission" this question is to be addressed in "a suitable committee". When the convention is to be adopted is still uncertain.

Even if there are no longer to be Enfopol plans under this title, then their goals are to be copied and pursued in other ways. High-tech crime was on the agenda both in Moscow and in Tampere. On June 29 legal aid conventions submitted by the German Federal Department of Justice to the "committee for the affairs of the European union" as well as to the legal committee of the German federal parliament show precisely the conditions being negotiated. On May 25 the European Union Council postponed the "advisory resolution over the monitoring of telecommunications traffic regarding new technologies".