The Sovereignty cry: Denying the criminal mathematics of transnational CSAM crimes

Author: Carolina Christofoletti

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The problem with computer crimes is that it has exacerbated the old “jurisdiction” problem in such a way that criminals learn profiting from it. Collect for me, please, the statistic about how many nationals commit Child Sexual Abuse Material (CSAM) crimes against non-national victims (self-generated) or in non-national servers and let us start to map the geographical distribution. We already know that CSAM forums are full of “legal paragraphs” and discussions.

Maybe, transnationality here is a matter of “facility of access”. But, on the other hand, we must also count on the hypothesis that is it simply a way of complicating already complicated things: Whose jurisdiction is that.

With legal paragraphs crossed and compared, like International Tax Lawyers, criminals may know where the ideal “no prosecution” solution is. For sure, that is not on the case I am mentioning. Bad news for this criminal.

Internal Private Law would call this mathematic fraud, and against Criminal Law Mathematics is the case I am arguing today. I want, in this opportunity, to expose the “frauding” issue from a Criminal Law point of View.

And I will begin exposing you, very briefly, to what extent the prohibition of applying foreign criminal law nationally has contributed, in a great extent, to the cybercrime chaos. And I will start not from the legal, but from the practical point.

Why could criminals be interested in international victims? Do you know, by the way, that criminals use tools such as “Google Translator” to simplify communication?

I come from the presupposition that criminals act rationally, and I could spend a huge time talking about how problematic, as a matter of disorganization, transnational cybercrimes are.

Forget Mutual Cooperation Agreements, because we are not talking about them now. Those are, as the word says, cooperation ones. Cooperating does not mean, in any case, a compromise to punish. I want to analyse with you the punishing situation.

Pay attention to the case: An Egypt showing his genitalia and sending pornography to a Brazilian child through an American platform. The tip comes not through NCMEC, but through the parents, who diligently came to know about what was going on.

The scenario: A Brazilian victim, her/his parents who do not want only a platform blocking but justice, and the legal complications.

I am using this Brazil vs. Egypt example to rise a discussion that I have, in other opportunities, already referred to: The prohibition of applying Brazilian Criminal Law in Egypt, to punish the crime committed in Brazil according to Brazilian Laws. What a chaos.

Criminal law has those anti-logics. If a foreign person shows his or her genitalia to a child in Brazil, he or she will be punished accordingly to Brazilian Law. But, if one takes the same camera and broadcast it from Egypt, only Egypt law shall be applied, as long as the person in question does not enter the Brazilian territory. Makes sense? No.

And why not? Because the criminal nature of the act depends on the existence of the legal good, and if the legal good in question is in Brazil, the criminal act (understood as the violation of the legal good) occurred in Brazil.

But keep going:

Brazil says, explicit, in its 7th Article of Brazilian Criminal Code, that Brazilian Law will only be applicable if the defendant enters, after the crime, the Brazilian territory. No need to say that Brazil: If the crime occurred in Brazil, it is already yours.

But if the criminal fled to Egypt, the criminal offence occurred in Brazil will be, if a symmetric (from international solidarity derived) provision exists in Egypt. Conclusion: Crimes committed in Brazil by someone siting behind a computer abroad is not ruled by Brazil, but by Egypt. The “apply Brazilian Law” rule does not exist and the criminal quality of that must be deduced, from zero, from Egyptian law.

Sitting in front of a computer somewhere else: And there comes the problem. Usually, no country extradites (except for Haya crimes, where we call it not extradition, but “entrega” – translation to be checked) its nationals, which, in case, keep siting in Egypt.

Brazilian law will only be applied in Brazil, that is, if we succeed in moving this criminal to the jurisdiction of his/her crimes.

Moreover, extradition request usually have the double crime requirement that shall be met, meaning that the act shall be considered a crime in both jurisdictions. But if it is already a crime in Egypt, Egypt may not extradite, but punish there if this symmetry rule exists. Is that the case, the crime committed in Brazil will be punished, entirely, under Egypt’s Law.

The issue arises when countries disagree about the legal qualification of all that.

Watch out the problem: A criminal offence, committed in Brazil, should meet only the Brazilian requirements (the adjudication chain stabilized with the commission of the act). But, in order for Egypt to punish the criminal under its jurisdiction, we will analyse the act according to Egypt’s law: be it more severe or softer, and accordingly to how Egyptians evaluate everything – what might be quite different about how Brazilians do.

When an Egyptian citizen, powered by an American platform, tries to groom a child in Brazil into performing sexual acts in front of the camera, we have a problem that Cybercrime Specialists need to solve, and with National Parliaments: We need to agree that, once a Crime against Children enters your territory, it will be punished – and accordingly to the law of the country where it was committed.

Sovereign countries count on the solidarity of the international community to protect with their own laws their own nationals against transnational criminal act, and it must remain so. Judge Learned Hand said in 15. Slater v. Mexican Nat’l R.R., 194 U.S. 120, 126 (1904) that “No court can enforce any law but that of its own sovereign”. In order to enforce one owns sovereignty internationally, the international communities of states should cooperate to keep, reciprocally, everyone’s interest in executing its own law. Applying Foreign Criminal Law to Foreign Crimes is not a problem of sovereignty, but, on the contrary, a reinforcement of that sovereignty through solidarity.

The international community of states shall, so, agree to punish with foreign laws whoever is crossing national borders, though digitally, to commit crimes in a foreign territory. You have the right not to extradite but, if a State wants its own law to be enforced, it shall also agree in enforcing the other’s law.

Think about it.