LIMITATIONS AND FLAWS IN THE BATTLE AGAINST HIGH-TECH CRIME IN VIETNAM Текст научной статьи по специальности «Компьютерные и информационные науки»

УДК 343.1

Фам Ньы Хан

Волгоградская академия МВД Российской Федерации

Факультет Адъюнктура Россия, Волгоград Cavoi89@yandex.ru Pham Nhu Han

Volgograd Academy of the Ministry of Internal Affairs of

Russia.

Faculty of Postgraduate Studies Russia, Volgograd

Ш

a a e

Фам Куок Чинь

Академия национальной безопасности Вьетнама Кафедра профессиональных основ

Вьетнам, Ханой chinhphamquoc.designer1986@gmail.com

Pham Quoc Chinh People's Security Academy Department of Professional Fundamentals

Vietnam, Ha Noi

ОГРАНИЧЕНИЯ И НЕДОСТАТКИ В БОРЬБЕ С КИБЕРПРЕСТУПНОСТЬЮ ВО ВЬЕТНАМЕ Аннотация: высокотехнологичные преступления существуют более 10 лет во Вьетнаме, но такие преступления были разработаны быстрому развитию информационных технологий. В настоящее время ситуация с высокотехнологичной преступностью продолжает развиваться комплексно, что

происходит во многих сферах, таких как экономика, культура-общество, безопасность-оборона и др., что приводит к тяжелым экономическим потерям. Нарушать деятельность органов, организаций и органов государственной исполнительной власти, а также ограничивать эффективность использования приложений информационных технологий для содействия социально-экономическому развитию, особенно угроз безопасности - национальной обороны, общественного порядка и безопасности.

Ключевые слова: электронные данные, доказательство, трудность, уголовное дело, электронное доказательство, недостаток.

LIMITATIONS AND FLAWS IN THE BATTLE AGAINST HIGH-TECH

CRIME IN VIETNAM Annotation: high-tech crime has only existed in Vietnam for more than a decade, but such crimes have developed due to the rapid development of information technology. At present, the situation of high-tech crime continues to develop in a complex manner, which occurs in many fields such as economy, culture-society, security-defense, Etc., causing severe economic losses. Disrupt the activities of agencies, organizations, and government executive branches, and limit the effectiveness of using information technology applications to promote social and economic development, especially threats to security - national defense, social order, and security.

Keywords: electronic data, evidence, difficulty, criminal case, electronic evidence, flaw.

High-tech crime in Vietnam is characterized by organized crime and transnational crime. In the course of dealing with high-tech criminal cases, it has become clear that there are two primary groupings of subjects:

Category 1: The subject of the crime is the data integrity of government agencies, organizations, and individuals, the stable operation of computer networks, telecommunication networks, the Internet, and digital devices (as defined in Sections 286, 287, 288, and 293 of the Penal Code 2015), such as spreading viruses, disrupting the operation of computer networks [1].

The object of the crime is most of the objects protected by criminal law, namely the independence, sovereignty, unity, and territorial integrity of the motherland; political system; economic system; culture, national defense, and security; social security and order; legal rights and interests of organizations; citizens' life, health, honor, dignity, freedom, property, and other legitimate rights and interests.

Electronic data is one of the new sources of evidence under the Criminal Procedure Code 2015 [2]. The results of criminal investigations, prosecutions, and trials over the past period have shown their value—authenticity and objectivity of electronic data, a contribution to the fight against crime in the current period. Thus, the collection, use, transformation, and use of this source of evidence as case evidence.

The 2015 Penal Code regulates specific actions of criminal offenses in 8 articles of legislation (from Articles 285 to Article 294 (annulling Article 292)); there are 7 groups of activities that are defined as crimes: (1) development with the intention of (2) deleting, damaging, or changing software and data, or preventing data transmission on a computer network, or otherwise obstructing or disrupting computer network operation;(3) Disseminating information on a computer network that is in violation of the law.buying, selling, exchanging, gifting, repairing, changing, or publicizing lawful private information of agencies, organizations, and individuals on computer networks without permission; buying, selling, exchanging, gifting, repairing, changing, or publicizing lawful private information of agencies, organizations, and individuals on computer networks without the owners'

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permission;(4) Using other people's administrative privileges or other techniques to unlawfully enter another's computer network to obtain control; performance of electronic media; stealing, modifying, deleting, forging data. (5) Making, storing, buying, selling, using, and circulating fake bank cards; illegal access to accounts of agencies, organizations, and individuals in order to appropriate property; e-commerce fraud; using information about accounts, bank cards of agencies or organizations, individuals to appropriate property or pay for goods or services; using information about accounts, bank cards of agencies or organizations, individuals to appropriate property or pay for goods or services; using information about accounts, bank cards of agencies or organizations, individuals to appropriate property or pay for goods or services(6) Making, purchasing, selling, exchanging, and giving tools, equipment, and software that can be used to attack computer networks; unlawfully collecting, storing, trading, buying, selling, or publicizing information about other people's bank accounts; (7) Unauthorized use of radio frequencies set aside for emergencies, safety, search and rescue, national defense, and security.

According to crime statistics from December 1, 2009, to November 31, 2019, high-tech crimes are concentrated on computer networks, telecommunication networks, and electronic means to conduct criminal activities. Possession of property (Article 290 of the Criminal Code), 61%, and use of information on computer networks and telecommunication networks, such as the Criminal Code, 36.8%.

In terms of execution methods, 45% of crimes are organized and conspiratorial, mainly for the 18-30 age group; victims of high-tech crimes are mostly individuals. [3, c.2035]

In terms of criminal methods, the standard methods used by high-tech criminals are as follows: stealing, purchasing, and selling credit card information; using credit card information to pay for services and purchasesIllegal access to telecommunications network connections, setting up illegal signal transceivers, and stealing telecommunications fees; attacking emails from individuals and companies

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that use victim information to obtain property; stealing, embezzling, and controlling information from businesses, individuals, or organizations in order to threaten, extort, sabotage, or smear operations;setting up online trading websites, defrauding property or property in the form of multi-level sales; Through chat, and then through cheating, confiscation of property, evil, prostitution, human trafficking; On the Internet Publish information, spread corrupt cultural products, prostitution, drug trafficking, and abduct women and children; organize games of chance; use computer networks, telecommunication networks, and the Internet to put information on the Internet and carry out activities against the people's government; terrorist actions, terrorist funding, and money laundering; infringing on other people's dignity and freedom. [4, ^55]

Some limitations and shortcomings in the fight against high-tech crime in Vietnam. There are several limits and flaws in Vietnam's battle against high-tech crime:

First, there are no specific regulations on the necessary processes for handling electronic evidence. There are no specific regulations and procedures on seizing, preserving, and recovering electronic data to protect the safety and integrity of data and maintain the value of electronic evidence. There are no specific regulations on preserving and using this type of evidence.

The Criminal Procedure Code of 2015 specifies that covert electronic data gathering is a specific investigative and procedural measure (Article 223) relating to human rights and citizens' rights, although no legal document exists yet. There are precise directions for law enforcement authorities to put in place and follow under the legislation on this topic [5].

Second, victims and offenders are frequently unfamiliar with one another; victims are often unaware of when their property was taken and their personal information violated. Some victims have personal incentives to not report crimes to

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competent authorities. Victims and family members are frequently dispersed around the country, making it challenging to obtain statements, compare data, and conduct confrontations. Most of the victims used the internet and telecommunications networks, but they didn't know how to use information technology or know how high-tech criminals work, and they didn't take the right safety precautions.

Third, electronic data is vulnerable to change, erasure, and manipulation. Because criminals utilize high-tech to disguise information, collecting electronic evidence is sometimes extremely tough. When there is a chance of being revealed, they frequently crash websites or erase associated material. Data recovery takes a long time since electronic equipment is destroyed, and not all cases can be gathered and retrieved. Electronic data is kept in various devices, some of which are minimal and intended as clocks, buttons, pens, key chains, chargers, etc.

They were making it challenging to identify unskilled investigators and prosecutors, resulting in their skipping and not seizing. Some people prefer to store data on the servers of online storage companies like Google Drive, OneDrive, Dropbox, Box, and others, hosted abroad or at a company-provided location. As a result, to gather data, service providers must be coordinated through international cooperation channels, but this activity is complicated owing to differences in legal rules across nations, language difficulties, and other factors. In terms of language, service providers often say that they can't give or answer because they need to keep their clients' identities private.

Fourth, high-tech thieves no longer have difficulty penetrating and damaging the Web with today's growth of security information sharing forums. Many websites in Vietnam are not well-protected because they use software that has a lot of flaws. This allows high-tech criminals to get into and attack them.

Fifth, specialized equipment and software are required to collect, recover, decode, analyze, and assess electronic data. These are regularly changed, purchased,

or updated (such as smartphone analytics software). This specialized equipment and software are often costly, and investigation funding is unavailable.

Sixth, because investigators, prosecutors, and judges have limited access to information technology, they have difficulty discovering and prosecuting high-tech crimes. They are still unsure about how to handle electronic evidence. On the other hand, prosecutors have not been trained in basic skills in high-tech crimes, such as skills in seizing and preserving electronic means and data; skills in analyzing, assessing, and transforming electronic evidence; skills in using electronic evidence; judicial review results to prove crimes, build indictments, exercise the right to prosecute, supervise investigations, supervise trials in court... There are no procedures to control the seizure, preservation, copying, analysis, and elaboration of electronic data reports following the principles of the International Organization of Computer Evidence (IOCE) (March 2000) and the Criminal Procedure Code 2015 regulations on electronic evidence.

Seventh, high-tech crimes are non-traditional, transnational crimes committed in cyberspace. There aren't many countries in the world that Vietnam has signed mutual legal assistance agreements with. Many parts of Vietnamese law don't work with the laws of other countries, which makes it hard for judicial mandates and international cooperation in dealing with high-tech crimes to work.

Regulations governing electronic evidence, as well as methods for gathering, storing, processing, and utilizing evidence in criminal cases

Electronic data is defined as "signs, characters, numbers, pictures, sounds, or similar forms produced, stored, transmitted, or received by electronic means," according to Article 99 of the Criminal Procedure Code of 2015. Electronic data is gathered from various electronic sources, including electronic media, computer networks, telecommunications networks, transmission lines, and other electronic

sources. For electronic data to be valid as evidence, it depends on how it is generated, kept, communicated, and how its integrity is preserved, among other things. [6, c.57] Exhibits, testimony, presentations, electronic data, findings of judicial entrustment, and international collaboration... are all sources of evidence listed in the Criminal Procedure Code of 2015 (Article 87).

As a result, the 2015 Criminal Procedure Code recognizes electronic data, the findings of judicial entrustment implementation, and international collaboration as sources of evidence. Currently, there are nine provisions of the law in the Criminal Procedure Code that govern the collection and treatment of electronic data evidence. First, seizing and retaining electronic means and data Article 88 of the 2015 Criminal Procedure Code defines the order and methods for searching, seizing, creating records, sealing, and conserving exhibits such as computer hard drives, cellphones, USB sticks, memory cards, optical discs, video cameras, cameras, emails, etc.

Procedure-conducting agencies seek electronic data from agencies, companies, and people, as well as facts about electronic data in order to explain the case. Searches of people, households, workplaces, locations, and vehicles may provide electronic data (Article 192 of the Criminal Procedure Code 2015).

The agency in charge of the process can issue search warrants to seize electronic data (Clause 1, Article 113 of the Criminal Procedure Code 2015).

Before execution, the investigating authority's search warrant was granted by the Procuracy at the same level (Clause 2, Article 35 of the Criminal Procedure Code 2015). Procurators must be present to oversee the search (Article 193 of the Criminal Procedure Code 2015). All search cases must be documented in writing and kept in the case file (Articles 133, 178, and 193 of the 2015 Criminal Procedure Code).

People with information technology competence are invited to join in the seizure of electronic media and electronic data. Electronic data that cannot be acquired must be backed up to storage media and seized as evidence when using

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electronic methods. Article 196 of the Criminal Procedure Code 2015 says that it's important to grab any other devices that are connected to the electronic means you're taking.

Seized electronic means and electronic data must be retained intact (Articles 107 and 199 of the 2015 Criminal Procedure Code); procedure-conducting authorities are accountable for keeping them according to each stage of proceedings (Article 90 of the Criminal Procedure Code 2015).

When presenting electronic data as evidence (at a court hearing), it must be accompanied by a storage device or an electronic duplicate of the data. Agencies with the authority to conduct legal proceedings also have the authority to make decisions to hire experts to recover, search, and assess electronic data. Electonic data can only be found and searched on copies, and the results must be changed into something that can be read, heard, or seen to get the results back [7].

Second, the requirements for using electronic data as evidence in criminal

trials.

When gathering, maintaining, copying, analyzing, and converting electronic data into electronic evidence. There are several basic standards: Trained professionals must collect and recover electronic evidence when accessing original information stored on computers or digital devices. Data must be recorded (copied) following the correct procedures, using internationally recognized and verifiable equipment and software. The integrity of the electronic data saved on the system and the evidence's objectivity integrity show verifiability in court. They must show the data recovery method, uncover the proof, and, if required, replicate the process with the same findings as those given at the trial. In certain circumstances, requiring access to the original equipment to retrieve evidence is required.

Electronic evidence can be changed or destroyed by improper opening, checking, and saving, and can be unintentionally destroyed by a virus available on the

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computer, destroyed by USB. So, it is important to use a virus-free computer and software approved by law or used around the world to find, search for, collect, store, and examine this kind of evidence.

To become a source of evidence, electronic data must meet the attributes of objectivity, legitimacy, and relevance.

This data is accurate, exists objectively, has a clear origin, is not falsified or deformed, has been found and saved on computers, mobile phones, emails, USBs, accounts on the network, on servers of internet service providers.

Evidence collected by the provisions of the 2015 Criminal Procedure Code, electronic data is accurate and carries traces of the crime, but if it is not collected according to the order and procedures prescribed by the 2015 Criminal Procedure Code, regulations have no legal value and cannot be used as a basis for settling criminal cases (Clause 2, Article 87 of the 2015 Criminal Procedure Code).

The collection process must use technology that is allowed by law when it searches for and seizes exhibits, backs up data, intercepts collection on the network, preserves, recovers, analyzes, searches, and monitors the network.

Electronic devices such as computers, servers, tablets, media devices, USB, CD/DVDs, routers, wifi, smartphones, home electronics (some devices have storage memory). data information, network connectivity, remote access, remote control, GPS global positioning system, etc. must be specifically recorded in the minutes (not generally such as a sack, carton box, or sealed), must be sealed, stored in accordance with regulations (ensure the specifications are on and off (ON/OFF); pack, do not place near magnets, radio waves, places that are too hot and humid, etc.);

It's especially important to keep some devices safe in a special bag so that they can't be changed or tampered with after they've been legally seized.

Data recovery specialists copy data using data recovery technology and software, such as write-protected devices (Read-Only), and only utilize this copy for data recovery, analysis, retrieval, and conversion into readable, audible, or visual

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form. Data recovery is performed exclusively on the copy (not the original); this procedure is repeated before the Court. The original was kept under the rules.

The data obtained is related to the criminal act, the offender, the victim, the consequences, etc., which is used to determine the circumstances of the case. Relevance is reflected in the principle and technology of forming electronic traces, information about space and time of data formation (logfile, IP, metadata, hash function), a storage address, and content. information (source and content of emails, chats, messages, attack technology, victims, damage...), access cookies.

The minutes of search, sealing, testimonies, and reports must show three data attributes. Subjects must sign all printed copies on paper, photos, CDs/VCDs recording electronic data, etc., certifying the content, form, and origin of documents related to the case. This is also a must-have condition for converting evidence obtained during the reconnaissance and evidence-making phases into documents, records, and exhibits used as evidence.

Third, there is the issue of transforming electronic data into evidence.

Electronic data recovery, search, and evaluation to convert electronic data into demonstrating evidence in a form that can be read, heard, or seen (Article 107 of the Criminal Procedure Code 2015).

-Method for transforming the electronic data obtained:

Plus, convert electronic data to readable, visual, and audible representations by printing it on paper, printing photographs, and recording video snippets on optical discs.

+ Make a record, testify the act of producing this data, the data's origin, self-declared data and evidence discovered, signed for certification on each document, picture, optical disc, and printed out as a record from the subject's computer.

To improve its legal worth, electronic data is employed as a source of evidence that must be supplemented with other relevant evidence such as physical evidence and witness testimony.

Applying the "Assessment conclusion" findings to electronic data stored in electronic devices

In terms of judicial expertise, judicial expertise is the application of knowledge, means, scientific methods, and professional techniques to reach professional conclusions on issues relating to criminal or administrative cases, which are done at the request of the procedure-conducting agency in order to serve the case's settlement.

Articles 99 and 107 of the Criminal Procedure Code of 2015 define electronic data expertise as a new rule. Judicial examiners use the proper tools and technology to undertake electronic data expertise. execute data copying, recovery, decryption, analysis, and searching on material evidence that is storage devices.

Recovery, search, and evaluation findings are transformed into a format that can be read, heard, or seen.

When a competent procedure-conducting agency chooses to seek expertise, the person or entity in charge of the expertise must fulfill the principles set out in the Criminal Procedure Code, specifically: Recovery, search, and evaluation of electronic data (decryption, analysis, source identification, etc.); evaluation (recovery, search, and evaluation of electronic data) is limited to data copies; "The evidence value of electronic data is determined based on how the electronic data is generated, stored, or transmitted," according to Clause 3 of Article 99 of the Criminal Procedure Code 2015; how to protect and preserve the integrity of electronic data; the method for determining the author; and other pertinent criteria.

Recovering, finding, collecting, analyzing, and examining data existing in digital memory always requires coordination with investigators to determine which electronic data is valuable to use. must make a record of the recovered and analyzed electronic data contents, accompanied by testimonies and certifications of the offenders and witnesses about such information.

In the fourth point, we talk about using the results of judicial mandates and international cooperation as proof.

Crimes in information technology and telecommunications networks are transnational, with collusion between domestic and foreign entities, so the implementation of judicial mandates and international cooperation to collect documents and evidence to prove crimes in the fields of information technology and telecommunications networks is very necessary.

Article 87 of the 2015 Criminal Procedure Code has a new provision that says the results of judicial entrustment and international cooperation are a source of evidence;

Science and technology are growing at a rapid pace, so this supplement fits in with that. It also meets the need for international cooperation to solve problems in information technology and telecommunications networks.

In fact, in solving cases of international fraud, Vietnamese legal proceedings agencies have received much support in terms of experience (professional training) and technique (page 3). For example, during the investigation of the Pham Ngoc Van case (Ho Chi Minh City, happened in 2011), fraud to appropriate property was established through the establishment of a virtual exchange.Buy and sell gold, foreign currency, and oil on the Web with an ICTS software system installed by ACT Forex Company on a server located on Wall Street, New York City, USA. UNODP has helped the Supreme People's Procuracy get information about the case, which has helped them handle the case well [8].

The results of judicial entrustment implementation and other international cooperation are one of the new sources of evidence in the 2015 Criminal Code. Article 103 of the 2015 Criminal Code stipulates: "A competent foreign authority provides the results of judicial entrustment and other international cooperation considered evidence if it is consistent with the case's evidence."

Article 494 of the 2015 Criminal Procedure Code also clearly stipulates the legal value of documents and objects collected through international cooperation in criminal proceedings: "Documents and objects collected by competent foreign agencies." According to the judicial entrustment of the competent authorities of Vietnam, the documents and objects sent to Vietnam by the competent authorities of a foreign country for criminal prosecution may be considered evidence. It is possible for these documents and things to be used as evidence if they meet the requirements of Article 89 of this Code, which talks about how evidence is used.

In order to contribute to enhancing the efficiency of the fight against high-tech crime in Vietnam in the future, the following challenges, flaws, and restrictions must be addressed as soon as possible. Crime using high technology is associated with the explosion of information technology and telecommunications. Along with the new trend, high-tech crimes will continue to increase. Therefore, it is necessary to organize the synchronous implementation of the above essential solutions to improve the effectiveness of the fight against this type of crime.

Список литературы:

1. Bo luat hinh su nuoc Cong hoa xa hoi chu nghia Viet Nam, s6: 100/2015/QH13 ngay 27.11.2015 /Уголовный кодекс Социалистической Республики Вьетнам №100/2015/QH13, 27 ноября 2015 года. URL: https: //thuvienphapluat.vn/van-ban/Trach-nhiem-hinh-su/Bo-luat-hinh- su-2015-296661.aspx (Дата обращения: 15.03.2022)

2. Bo luat T6 tung hinh su nuoc Cong hoa xa hoi chu nghia Viet Nam, s6: 101/2015/QH13 ngay 27.11.2015 /Уголовно-процессуальный кодекс Социалистической Республики Вьетнам №101/2015/QH13 27 ноября 2015 г. URL: https://thuvienphapluat.vn/van-ban/Trach-nhiem-hinh-su/Bo-luat-to-tung-hinh-su-2015-296884.aspx. (Дата обращения: 14.03.2022)

3. Dykstra, Josiah. "Seizing electronic evidence from cloud computing environments." Cloud Technology: Concepts, Methodologies, Tools, and Applications. IGI Global, 2015. p.2033-2062.

4. Uncel, Megan. "Facebook Is now friends with the court: Current federal rules and social media evidence." Jurimetrics 52 (2011): p.43-69.

5. Tran Van Luyen, PMng The Vac, Binh luan khoa hoc Bo luat To tung Hinh su 2015, NXB Cong an nhan dan, Ha Noi, 2018/ Чан Ван Луен, Фунг Тхе Вак, Научный комментарий к Уголовно-процессуальному кодексу 2015 г., монография, Изд. Народной общественной безопасности, Ханой, 2018 г.

6. Phan Van Chanh (2016), Ngu6n chung cu la du lieu dien tu theo quy dinh cua Bo luat T6 tung Hinh su nam 2015, Tap chi Dan chu va Phap luat, sO 8/2016, tr.57./ Фан Ван Чань (2016 г.), Источником доказательств являются электронные данные в соответствии с положениями Уголовно-процессуального кодекса 2015 г., Журнал демократии и права, № 8/2016, с.57.

7. Vien Nghien cuu Nha nuoc va Phap luat, Toi pham hoc, Luat hinh su va Luat To tung hinh su Viet Nam. Nxb Chinh tri Quoc gia. H, 1994 /Академия государства и пра-ва. Криминология, уголовное право, уголовный процесс Вьетнама. - Ханой: Изд-тво Государственная политика, 1994. - 431 с.

8. Bo Ngoc Quang . «Giao trinh Luat TO tung hinh su Viet Nam» (danh cho he dao tao Sau Bai hoc). Hoc vien Canh sat dan. Ha Noi, 2003/ До Нгок Куанг. Уголовный процесс Вьетнама (учебник для аспирантов). Полицейская Академия. - Ханой, 2003. - 321 с.