The contradiction behind the CSAM.country-code rule

 

Author: Carolina Christofoletti

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Traditional rules of criminal jurisdiction might have become inadequate to deal with Internet Crimes. When criminal jurisdiction rules were created, law enforcement agencies were dealing with evidence that existed in their own mother language. It is not like that anymore. Russian discussions posted by an Indian in Jamaica appear in a .br illegal websites.

What is tricky about Internet Crimes, and especially when we are talking about Child Sexual Abuse Material (CSAM) crimes is that removal rules (managed by CSAM hotlines accordingly to national laws) contradict, sometimes, prosecution rules (jurisdiction rules) and victim identification best practice.

Sometimes, for the very fact that CSAM images were found in a foreign URL, those cases are sent to foreign jurisdictions and assessed accordingly to its legislation. What happens with this case is that, first, if the foreign country ISP access this foreign material as simply illegal and remove it, this material is lost forever for the victim’s national jurisdiction.

I wish there was, somewhere in the international legal chaos, a duty of those hosting platforms to access it in a way that they did not only remove it, but really in which circumstances (ex. We are a .ru but the posting IP was a Brazilian, so I am sending a tip for the Brazilian police with this IP address). This is but my Mutual Cooperation Agreement for Criminal Matters dream. What happens, in fact, is that the images are sometimes removed and without further.

At least from the Brazilian’s law perspective, except from removing the file, there is no duty for ISP to help anyway with law enforcement authorities, be it national or international. Keep this in mind.

The tendency here is to say that, because the platform is a .br, the investigation of this case belongs to Brazil – even if what we have here is a Ukrainian criminal network, speaking a local dialect. Where is that written? In public law, nowhere. In private law, in some agreements to CSAM material sharing between law enforcement authorities and CSAM hotlines.

Already from my example, you might conclude with me that putting the Brazilian Police to deal with the Ukrainian Criminal Network is, nowhere, adequate. What do Brazilian police know about Ukrainian CSAM networks? Nothing. They do not even speak the same language compared to criminals and, any steps they take their, criminals will notice that they have a super weird, already from their linguistic feature, behaviour. An officer speaking that dialect inside the Ukrainian police investigating a .br website, you may agree with me, is much more adequate from a Law Enforcement point of view. Brazilians do not even have Cyrillic keyboards.

I must admit that I am unaware, specifically for the Brazilian case, what is the linguistic distribution of .br pages here, even though I could suspect that, in symmetry, for example, not everything hosted, for example, in the Netherlands is written in Dutch. What I can but affirm is that Brazilian Child Sexual Abuse Material (CSAM) hotline receives, still, lots of reports in in-Russian-written HTMLs, hosted somewhere in a .ru websites and that those pages come to be “blocked” (the real removal data is missing and belongs to Russia).

In some occasions, Brazilian victims came to be identified in those pages, what makes us ask what would Brazilian law enforcement authorities discover if they could, rather than sending those pages for Russian to removal, read the Cyrillic tips there, helped by Cyrillic readers that reported it with additional details on the commentary section (you can read more about this case here).

Follow. The problem with the .country-code rule is, especially when they are set by default on CSAM hotlines, that national materials slip from national hands to a foreign jurisdiction, ending up sometime at an international database where they come to be, sometime later on, rescued.

When facing a CSAM image, a Brazilian sitting at a CSAM hotline in Brazil or in the Brazilian Police may easily recognize a room at the Copacabana Palace (the most famous Rio de Janeiro Hotel) in a CSAM image coming from a .ru Website that, maybe, a Russian Police Officer seating in the other side of the ocean at a Law Enforcement Agency and looking at the same image would only recognize it as “Brazilian material” after having to with deal with hard, time-consuming OSINT – if this ever comes into place.

And when things such as a Brazilian facing a CSAM image that one recognize as Brazilian happen in the CSAM assessment points (Police or Hotlines), this material should be, by default, rule, sent to the local police, instead of being uploaded to some foreign place. Do you hear criminals speaking with victims in Brazilian Portuguese within those horrible images? Please, this image might be Brazilian. Do not send it somewhere else. Do not send it to Russia because, if Russia simply decide to remove it without any further, a victim loses (maybe the single chance she/he has prior to be identified as a duplicate), to be identified.

More than that, the .countrycode rule is a fictional rule with no legal basis. Maybe, even if the site is a .ru one, the applicable law might also be (legal concurrency) the Brazilian one because, you may agree with me, if a material was created in Brazil, its legal nature shall not change for the simple fact that they come to appear in a jurisdiction with other rules. This CSAM material is born as illegal, no mater what Russia says.

So, where, or with legal or practical fundament (rather than the visibility of the country code end), those these rules come from? Wouldn’t it be more meaningful that the rule for .countrycode non-TOR websites remained just the same as the .onion pages and that, if criminals are not Brazilians, at least tips about Brazilian victims could reach the Brazilian Police?

Think about it.