What is Cybercrime investigation?
First and foremost, it is a criminal investigation. Secondly the criminal investigation includes electronic evidence that necessitates skilled digital forensic experts to gather the evidence according to set legal standards.
Cybercrime is ill defined. The Cybercrimes Act 19 of 2020 for instance does not define cybercrime, rather it criminalizes acts where information and communication technologies (ICT) are utilized to commit a crime. The Cybercrime act is technologically neutral in defining cybercrime which enables the growth of ICT without the act aging or becoming redundant.
Likewise, the Council of Europe Cybercrime Convention, the League of Arab States Convention, and the Draft African Union Convention on cybercrime contains no definition of cybercrime for the purposes of their respective instruments.
It is therefore the most accurate in defining cybercrime, to start with the crime which was committed as defined by traditional law (law as it was before computers and the internet) in the first instance. In other words, was theft, fraud, murder, crimen injuria or other crimes committed while utilizing ICT.
Cyberbullying for instance constitutes intimidation or crimen injuria (assault if the threat is imminent) through an electronic social medium and its prosecution and conviction will be founded on the traditional criminal elements of intimidation or crimen injuria. Specifically defined cybercrimes such as Cyber fraud and Cyber extortion are described as the act of fraud and extortion by means of ICT.
The criminal elements of both Cyber fraud and Cyber extortion, are based on the common law crimes of fraud and extortion. Cybercrime and crimes where ICT are utilized should be seen as one concept. Cybercrime investigation necessitates digital forensic investigation and legal experts which includes: • Computer digital forensic experts (the IT guy). • Investigators trained in cybercrime investigation (the detective). • legal experts trained in ICT law.
Cybercrime investigation therefore has 3 distinct role-players or 3 distinct skill sets: • Computer digital forensics. • Cybercrime investigation skills combined with traditional investigation skillsets. • Cyber law expertise. “Offline” crimes such as murder, robbery, fraud, intimidation and so on, almost always have an ICT component.
Communications are predominantly electronic and electronic evidence plays a role in investigation and criminal prosecution. Inevitably crimes such as fraud and cyber fraud will be prosecuted interchangeably as either a cybercrime or as a common law crime. Regardless, electronic evidence is as pertinent in a traditional crime where ICT is utilized as in a cybercrime where the whole crime was committed online.