Title 1 – Common provisions

139. The Section begins with two provisions of a general nature that apply to all the articles relating to procedural law.

Scope of procedural provisions (Article 14)

140. Each State Party is obligated to adopt such legislative and other measures as may be necessary, in accordance with its domestic law and legal framework, to establish the powers and procedures described in this Section for the purpose of “specific criminal investigations or proceedings.”

141. Subject to two exceptions, each Party shall apply the powers and procedures established in accordance with this Section to: (i) criminal offences established in accordance with Section 1 of the Convention; (ii) other criminal offences committed by means of a computer system; and (iii) the collection of evidence in electronic form of a criminal offence. Thus, for the purpose of specific criminal investigations or proceedings, the powers and procedures referred to in this Section shall be applied to offences established in accordance with the Convention, to other criminal offences committed by means of a computer system, and to the collection of evidence in electronic form of a criminal offence. This ensures that evidence in electronic form of any criminal offence can be obtained or collected by means of the powers and procedures set out in this Section. It ensures an equivalent or parallel capability for the obtaining or collection of computer data as exists under traditional powers and procedures for non-electronic data. The Convention makes it explicit that Parties should incorporate into their laws the possibility that information contained in digital or other electronic form can be used as evidence before a court in criminal proceedings, irrespective of the nature of the criminal offence that is prosecuted.

142. There are two exceptions to this scope of application. First, Article 21 provides that the power to intercept content data shall be limited to a range of serious offences to be determined by domestic law. Many States limit the power of interception of oral communications or telecommunications to a range of serious offences, in recognition of the privacy of oral communications and telecommunications and the intrusiveness of this investigative measure. Likewise, this Convention only requires Parties to establish interception powers and procedures in relation to content data of specified computer communications in respect of a range of serious offences to be determined by domestic law.

143. Second, a Party may reserve the right to apply the measures in Article 20 (real-time collection of traffic data) only to offences or categories of offences specified in the reservation, provided that the range of such offences or categories is not more restricted than the range of offences to which it applies the interception measures referred to in Article 21. Some States consider the collection of traffic data as being equivalent to the collection of content data in terms of privacy and intrusiveness. The right of reservation would permit these States to limit the application of the measures to collect traffic data, in real-time, to the same range of offences to which it applies the powers and procedures of real-time interception of content data. Many States, however, do not consider the interception of content data and the collection of traffic data to be equivalent in terms of privacy interests and degree of intrusiveness, as the collection of traffic data alone does not collect or disclose the content of the communication. As the real-time collection of traffic data can be very important in tracing the source or destination of computer communications (thus, assisting in identifying criminals), the Convention invites Parties that exercise the right of reservation to limit their reservation so as to enable the broadest application of the powers and procedures provided to collect, in real-time, traffic data.

144. Paragraph (b) provides a reservation for countries which, due to existing limitations in their domestic law at the time of the Convention’s adoption, cannot intercept communications on computer systems operated for the benefit of a closed group of users and which do not use public communications networks nor are they connected with other computer systems. The term “closed group of users” refers, for example, to a set of users that is limited by association to the service provider, such as the employees of a company for which the company provides the ability to communicate amongst themselves using a computer network. The term “not connected with other computer systems” means that, at the time an order under Articles 20 or 21 would be issued, the system on which communications are being transmitted does not have a physical or logical connection to another computer network. The term “does not employ public communications networks” excludes systems that use public computer networks (including the Internet), public telephone networks or other public telecommunications facilities in transmitting communications, whether or not such use is apparent to the users.

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