Octopus Cybercrime Community

Crimes Act 2013 provides for most of the offences under the Budapest Convention, with the notable exception of offences related to infringements of copyright and related rights which was also inadequately covered under the Copyright Act (1998).

The Council of Europe recommended, during a mission held in July 2018, for the Samoan government to consider amending its existing laws rather than enacting a new standalone legislation.

The analysis found that the CA provided for most of the offences under Chapter II Section 1 of the Budapest Convention, with the notable exception of offences related to infringements of copyright and related rights which was also inadequately covered under the CRA. Minor interventions may be considered to further harmonize the provisions of the CA with the Budapest Convention and international best practice.

Certain aspects of the CA are technology-specific and not technology-neutral. Moreover, certain offences in the CA exceed the scope of offences under the Budapest Convention such as the criminalization of illegal remaining & obstruction or interruption of a person in the lawful use of data. Other offences have a more limited scope, such as illegal access which does not necessarily extend to the mere entering of an electronic system; and system interference which is only attracted if the conduct is committed with knowledge that it will result in danger to life.

Most investigative and procedural powers provided by the Budapest Convention are missing in the CA and PPA, including the power to seek expedited preservation of stored computer data, expedited preservation and partial disclosure of traffic data, production order & real-time collection of traffic data. The power to search and seize under Section 33 provides for traditional search and seizure which is premised on “entering a place”, and is not adequate to enable searching/similarly accessing or seizing/similarly securing computer data.

Section 33 of CPA provides for traditional search and seizure powers, but does not have adequate provisions to enable the search (or similar accessing) and seizure (or similar securing) of stored computer data.

Section 33 of CPA has a prerequisite of independent authorisation and to that extent is consistent with the requirement for conditions and safeguards under Article 15 of the Budapest Convention.

• CA: Crimes Act 2013
• TA: Telecommunications Act 2005
• CRA: Copyright Act 1998
• CPA: Criminal Procedure Act 2016
• PPA: Police Powers Act 2007
• EA: Extradition Act 1974
• MACMA: Mutual Assistance in Criminal Matters Act 2007

With regard to international cooperation, the following observations could be made. MACMA enables Samoa to request and provide various forms of international assistance. Though Section 3 of MACMA provides a list of different forms of cooperation, this list is not exhaustive and thus may enable cooperation in various forms including cooperation with respect to the exchange of electronic evidence. Yet, MACMA does not specifically provide for any of the specialized powers that would enable sharing of spontaneous information, requesting or assisting in regard to the expedited preservation of stored computer data, expedited disclosure of partial traffic data, real-time collection of traffic data or interception of content data. Moreover, there is no provision enabling Samoan authorities to conduct trans-border access to stored computer data with consent or where publicly available.

Though MACMA enables cooperation with respect to search and seizure in other jurisdictions, this power is not entirely consistent with Article 31 of the Budapest Convention as it much like the corresponding domestic power under the CPA is premised on the search of a premise and seizure of an “article or thing”. MACMA also does not provide for the establishment or designation of a 24/7 Network, and Samoa does not have any such network to enable the provision of technical assistance or cooperation with respect to electronic evidence.