Interference with elections through malicious cyber activities corrupts the democratic election process and creates social discord. In order for such interference to be successfully prosecuted as a criminal offence, there is a need for global compliance to international standards for investigations and prosecutions related to election interference.
The Convention on Cybercrime, also known as the “Budapest Convention”, is regarded as an international standard in dealing with cybercrime and electronic evidence. It serves as a guideline for any country developing comprehensive national legislation against Cybercrime, and as a framework for international cooperation between State Parties to this treaty.
In a recent communication, the Council of Europe Cybercrime Convention Committee (T-CY) highlights aspects of election interference by means of computer systems covered by the Budapest Convention.
How does the Budapest Convention apply to election interference?
In December 2012, the T-CY issued a Guidance Note which addresses how Articles of the Convention may apply to election interference by electronic means, or preparatory acts facilitating such interference.
In addition, the domestic procedural and international mutual legal assistance tools of the Convention are available for investigations and prosecutions related to election interference. The scope and limits of procedural powers and tools for international cooperation are defined by Articles 14.2 and 25.1 of the Budapest Convention:
2 Except as specifically provided otherwise in Article 21, each Party shall apply the powers and procedures referred to in paragraph 1 of this article to:
a the criminal offences established in accordance with Articles 2 through 11 of this Convention;
b other criminal offences committed by means of a computer system; and
c the collection of evidence in electronic form of a criminal offence.
The Parties shall afford one another mutual assistance to the widest extent possible for the purpose of investigations or proceedings concerning criminal offences related to computer systems and data, or for the collection of evidence in electronic form of a criminal offence.
The procedural powers of the Convention are subject to the conditions and safeguards of Article 15.
The Convention’s procedural powers (Articles 14-21) may be used to investigate election interference. For example, the identification of a person suspected of interfering in an election through use of a computer system, by obtaining electronic evidence or the person’s IP address.
Mutual legal assistance provisions
The Convention’s international cooperation powers (Articles 23-35) help to foster effective mutual legal assistance between Parties to ensure that procedural provisions can be successfully executed. This includes facilitating the search and seizure of stored computer data, production orders, as well as other international cooperation provisions.
What types of conduct constitute election interference?
The T-CY outlines various different types of conduct which are criminalised under the Budapest Convention as election interference, as well as examples to illustrate this conduct in practice. It is noted however that this is still a developing area of law and as such this list is not exhaustive.
|Article 2 – Illegal access||A computer system is illegally accessed to obtain sensitive political information|
|Article 3 – Illegal interception||A non-public data transmission is illegally intercepted to obtain sensitive political information|
|Article 4 – Data interference||Computer data is altered to manipulate voting results|
|Article 5 – System interference||A denial of service attack is used to prevent the counting of votes|
|Article 6 – misuse of devices||Procurement of passwords to access sensitive data from political candidates|
|Article 7 – Computer-related forgery||Forgery of computer data to hide questionable sources of campaign funds|
|Article 11 – Attempt, aiding and abetting||Crimes specified in the treaty may be attempted, aided or abetted in furtherance of election interference|
|Article 12 – Corporate liability||Crimes covered by Articles 2-11 of the Convention in furtherance of election interference may be carried out by legal persons that would be liable under Article 12|
|Article 13 – Sanctions||Parties should ensure that criminal offences related to election interference “are punishable by effective, proportionate and dissuasive sanctions, which include deprivation of liberty”|