CONSULTANCY TERMS OF REFERENCE

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1 CONSULTANCY TERMS OF REFERENCE Assignment: Consultancy to review existing Commonwealth Mutual Legal Assistance tools for cross-border cybercrime investigations Duration: 3 months (60 working days) General Information The focus of this Consultancy will be as follows: Primarily, review the Commonwealth Model Law on Computer and Computer related crime (the Model Law ) and propose amendments or additions which will facilitate timely formal and informal cooperation in cybercrime matters; and Secondarily, conduct a broad review of the existing provisions of the Model Law to ensure that they conform to international good practice and, where appropriate, suggest possible updates. Background The scope and borderless nature of the Internet allows cybercrime to operate easily across boundaries, often escaping the jurisdiction of a single country, which necessitates a corresponding cross-national response from governments. Recognising this, the Commonwealth Heads of Government mandated the Commonwealth Secretariat (the Secretariat ) to encourage collaboration by member states with relevant international organisations and agencies, to develop appropriate programmes of technical assistance, in order to enhance capacity in resource constrained settings. 1 A major component of this technical assistance is the provision of model law and technical tools to member states in combating cyber vulnerabilities. In 2002, Law Ministers endorsed the Model Law, which aims for a high degree of convergence with the Budapest Convention on Cybercrime. The model law however fell short of adopting the Budapest Convention provisions relating to international cooperation. The Ministers nevertheless agreed to the recommendation of the expert group to the effect that Harare Scheme on Mutual Assistance in Criminal Matters should be amended to permit requests between states for the preservation of specified stored computer data, in particular, but not limited to, traffic data to complement the 1 Commonwealth Heads of Government 2013 Communique at 64

2 effectiveness of the model law. The Model Law provides the member states with legislative options, flexible alternatives to the Convention regime and guidance on key legal definitions, offences and procedural law. The two systems are wholly compatible save in so far as the Model Law does not deal with mutual legal assistance. In 2011, Harare Scheme was amended in line with the recommendation of the expert group to accommodate the challenges posed by the prevalence of cybercrime following the exponential growth in the internet use. Thus the revised Harare Scheme, as endorsed by Law Ministers in 2011, provides for the preservation of computer information, the interception of telecommunications, the interception of transmission data, and the disclosure of intercept material to ensure real time cooperation. Once again, though the new provisions were inspired by the Budapest Convention, the formalities and the bureaucracy associated with requests for assistance make it unsuitable for the expedited responses required by cybercrime. It is therefore proposed that the revised Model Law should reflect international good practice necessary for cooperation through expedited means of communications. This is intended to complement traditional, formal assistance in appropriate cases. Purpose of the Assignment The Consultant would be engaged to: 1. Produce a summary report outlining challenges associated with the existing Model Law. This may include, but should not be limited to, the absence of any provisions from the current draft, developments in technology such as peer-2-peer networking, revenge porn, cloud computing and user distributed information, and any practical difficulties which have been encountered in the operation of the existing model, such as delays in receiving mutual legal assistance. This report should make use of publicly available information such as the UNODC s Comprehensive Cybercrime Study 2 and Reports and Discussion papers of the Council of Europe s Cybercrime Convention Committee 3. 2 UNODC Comprehensive Study on Cybercrime Draft February 2013 available at 3 Council of Europe, Documents of the Cybercrime Convention Committee (T-CY) As available at CY/TCY2013/TCYreports/TCY_Reports_en.asp in particular 21_model_law_study_v15.pdf

3 2. Include a provision/chapter/annex in the Model Law on international cooperation measures. This should have regard to existing Commonwealth schemes and international good practice to expedite proceedings. The purpose of this review will be to design practical cooperation mechanisms in a manner consistent with international human rights standards. This revision exercise may consider: i. Measures to expedite the preservation and supply of electronic evidence in criminal matters; ii. Provisions on investigative powers for electronic evidence; iii. Obligations to establish electronic evidence fast response focal points and agreed timescales for responses; and iv. Removal of territorial limitations on the conducting of searches of connected computer systems to cover situations comparable to the doctrine of hot pursuit Undertake a general review of Model Law and update it accordingly, bring it into line with international good practice. This exercise should take into account, but not be limited to, general developments in: i. Modes of offending (such as revenge porn ); ii. Procedural law; iii. Electronic Evidence; and iv. Extra territorial bases of jurisdiction. The review should also consider the compatibility of the Model Law with international human rights standards and may provide guidance, for example, in relation to the use of investigatory powers, data retention and individuals rights to access information held on them. Deliverables Produce an inception report that includes project plans, issue logs and risk registers detailing how the Consultant proposes to complete the Assignment; Produce a report summarising the Consultants research findings and recommendations; and 4 Within the European Union Hot pursuit allows police officers, in relation to certain offences serious offences, from one Schengen State, who catch criminals in the act, to pursue the perpetrators into another member state and detain them.

4 Produce a draft revised Model Law encompassing the following aspects: o Provisions relating to international cooperation; and o General updates to conform to international good practice. Person Specification Qualifications Advanced University Degree (Master s degree or equivalent) in law; Expertise in cybercrime and security; Desirable Legislative drafting skills and working knowledge of key international instruments in the field of cybercrime including the Commonwealth Model Law, the Harare Scheme and the Budapest Convention; Experience & Knowledge A minimum of years of relevant professional experience; Desirable Experience in working with key stakeholders in the field of cybercrime; Abilities & Skills Excellent writing skills, including the ability to write accurate and engaging copy for a range of audiences; Ability to interpret and process large amounts of complex information; Ability to coordinate, manage and engage with diverse group of stake holders and work flexibly, on own initiative and as part of a team; First class ability to prioritise and manage own workload; Ability to manage relationships with tact and diplomacy; Experience of writing for a wide range of audiences;

5 Highly proficient in MS Word and Excel; Experience of desktop publishing software; and Adhere to the Gender Equality values of the Commonwealth as enshrined in the Charter and Secretariat s Gender Equality Policy.

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