<div dir="ltr"><div class="gmail_default" style="font-size:small"><div id="gmail-:1k7" class="gmail-Ar gmail-Au gmail-Ao"><div id="gmail-:1kb" class="gmail-Am gmail-aiL gmail-Al editable gmail-LW-avf gmail-tS-tW gmail-tS-tY" aria-label="Message Body" role="textbox" aria-multiline="true" tabindex="1" style="direction:ltr;min-height:212px" aria-controls=":1st" aria-expanded="false"><div class="gmail_default">Lot of hacking through Otter to make notes. How many days I can keep this up, i don't know, but I will continue running it into Otter.</div><div class="gmail_default"><br></div><div class="gmail_default"><a href="https://joly.substack.com/p/51969f5d-7820-4672-9bec-0df5dd5cf3ef">https://joly.substack.com/p/51969f5d-7820-4672-9bec-0df5dd5cf3ef</a> </div><div class="gmail_default"><br></div><div class="gmail_default">Day 2 had delegates getting into the body of the draft text, discussing some sections that were hopefully just about ready for primetime. Any which didn't gather consensus were 'parked' i.e. punted off to 'informal' sessions.. Also, the Chair introduced a 3 minute timer, after which speaker's microphones would be automatically cut.</div><div><br></div><div><div class="gmail_default">Before we got into it, Costa Rica got in its 2c on human rights and gender in the preamble.</div><div class="gmail_default"><br></div><blockquote style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex" class="gmail_quote">Costa Rica believes that human rights are not simply just rhetoric. It is not an item of the agenda that can be included or deleted. Human rights are intrinsically related to the dignity of human beings. This is why they are present in a cross kind of way in all international documents. So, taking this into account, we do not see it possible for the preamble of the convention not to have a solid reference to the importance of protecting human rights in cyberspace. Costa Rica strongly believes that all rights are applicable in cyberspace and should be guaranteed in the same way as they are outside of cyberspace. It would not be possible to build an instrument that establishes a commoncriminal policy with the purpose of protecting society from cybercrime, as mentioned in paragraph four in the preamble, without taking into account the protection of human rights, we cannot leave outside a specific mention in paragraph 10, on the importance of incorporating a gender perspective, in all efforts to prevent and combat crime in cyberspace. Because Costa Rica regrets that gender violence online is just as serious as real gender violence, it's very important for this convention to take into account the adverse and diverse differentiated impact of gender violence that also extends to cyberspace. This is why we support the dimensions that included in the preamble should be maintained in the next version of the text. We aspire to a free, open, safe and peaceful cyberspace for all people.</blockquote><div class="gmail_default"><br></div><div class="gmail_default">Then we were on to Chapter I - General provisions - Article 1<br></div><blockquote style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex" class="gmail_quote">
Article 1. Statement of purpose
The purposes of this Convention are to:
</blockquote><blockquote style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex" class="gmail_quote">(a) Promote and strengthen measures to prevent and combat [cybercrime] [the
use of information and communications technologies for criminal purposes] more
efficiently and effectively;
</blockquote><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex"> (b) Promote, facilitate and strengthen international cooperation in preventing
and combating [cybercrime] [the use of information and communications
technologies for criminal purposes]; and [agreed ad referendum]</blockquote><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex"> (c) Promote, facilitate and support technical assistance and capacity-building
to prevent and combat [cybercrime] [the use of information and communications
technologies for criminal purposes], in particular for the benefit of developing
countries.</blockquote><br></div><div><div class="gmail_default">A lot of countries wanted the inclusion of 'technology transfer' in c), however not the U.S, which thought it should go in Article 54, a whole section dedicated to technical assistance. Some countries agreed. This was eventually parked til 54 itself be fully defined.<br><br>Then, on to
Chapter II - Criminalization. This contains articles 6 to 16, much referred to later, which listed criminal behaviors.</div><blockquote style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex" class="gmail_quote">
Article 6. Illegal access
<br> Article 7. Illegal interception <br>
Article 8. Interference with [computer data] [digital information]<br>
Article 9. Interference with [a computer system]
[an information and communications technology device] <br>
Article 10. Misuse of devices
<br>
Article 11. [Computer] [Information and communications technology]-related forgery
<br>
Article 12. [Computer] [Information and communications technology]-related theft
or fraud
<br>
Article 13. Offences related to
online child sexual abuse or child sexual exploitation material
<br>
Article 14. Solicitation or grooming for the purpose of committing a sexual offence
against a child
<br>
Article 15. Non-consensual dissemination of intimate images
<br>
Article 16. Laundering of proceeds of crime
</blockquote><br></div><div><div class="gmail_default">The chair asked delegates to be "flexible'</div><div class="gmail_default"><br></div><blockquote style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex" class="gmail_quote">Noting that in Article four of this convention, we reiterate the principle of sovereignty of states, and therefore, no one takes away your right to make laws within your domestic jurisdiction. It will however, be difficult for us to reach consensus if we continue to insist that what is peculiar to us must also be imposed on every other person.</blockquote><div><br></div><div><div class="gmail_default">However, many of the articles have the wording: </div><blockquote style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex" class="gmail_quote">
Each State Party shall adopt such legislative and other measures as may be
necessary to establish as criminal offences under its domestic law
</blockquote><br></div><div><div class="gmail_default">The USA noted that Article 16 </div><blockquote style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex" class="gmail_quote"> is drafted can be read to include money laundering offenses that have no connection whatsoever to cybercrime,</blockquote><div class="gmail_default">so</div><blockquote style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex" class="gmail_quote">To remedy this, we would propose a new paragraph three that would make clear that in offense is only considered an offense under the article where the predicate offense is an offense established in accordance with articles six to 15.</blockquote><div><span class="gmail_default">They also noted a tautology in the article<br></span><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex"><span class="gmail_default">
Each State Party shall include as predicate offences, relevant offences
established in accordance with this Convention;
</span> </blockquote></div><div class="gmail_default">since article 16 itself is in the Convention!</div><br></div><div class="gmail_default">Russia complained about the lack of time spent on preparing these articles, adding</div><blockquote style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex" class="gmail_quote">once again, we have to note with great regret the lack in the draft of the convention, articles that we proposed as recognizing as offenses using ICTs, for terrorist purposes, for the proliferation of weapons, drugs, incitement to illegal activities, or other activities. inducement to suicide, rehabilitation of Nazism, justification of genocide and illegal impact on critical infrastructure.</blockquote><div class="gmail_default">before they were cut off by the timer.</div><div class="gmail_default"><br></div><div class="gmail_default">The Chair responded suggesting delegates focus on what was in the draft, not what wasn't.</div><br></div><div><div class="gmail_default">Russia got back on the mic and, somewhat grudgingly agreed.</div><div class="gmail_default"><br></div><div class="gmail_default">Articles 6 & 7 contains the phrase "dishonest intent". Russia wanted it changed to "unlawful aim", Mauritania "illegal intent",. Cameroon "criminal intent". The Chair insisted that states could use whatever language they wanted, but Cameroon responded</div><blockquote style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex" class="gmail_quote">Mr. Chairman, what we're doing here, no, don't don't try to present this as kind of light or or inconsequential work, we are expressing positions as sovereign states. So<span class="gmail_default">,</span> please let us go to the end of what we're trying to express. You can't just say that afterwards, each state can do as it wishes, no, once we have a convention, if we adopt a convention that each state has already agreed to this, the specific provisions, so Mr. Chairman, I really would like to support your methodology. However, the adaptions of ad referendum, which are increasing in number<span class="gmail_default">,</span> will ultimately<span class="gmail_default">,</span> could actually<span class="gmail_default">,</span> muzzle states. So, we should not in any way restrict the sovereign right of states to to express their views on the wording or the provisions of this convention.</blockquote><div class="gmail_default">without mention of 6, 7 was parked.</div><div class="gmail_default"><br></div><div class="gmail_default">On to article 8 - Interference with data, which is</div><blockquote style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex" class="gmail_quote"> when committed
intentionally and without right, the damaging, deletion, deterioration, alteration or
suppression of [computer data] [digital information]. </blockquote><div class="gmail_default">Russia wanted "copying," added before "damaging". However the U.S, suggested copying was covered in Article 6 (Access), and other delegates. Russia wouldn't back down. .Parked.</div><div class="gmail_default"><br></div><div class="gmail_default">On to Article 9 - Interference with a device. No objections.</div><div class="gmail_default"><br></div><div class="gmail_default">On to Article 10 -
Misuse of devices
</div><div class="gmail_default">This essentially pertained to hacks aka "devices". Russia objected to</div><blockquote style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex" class="gmail_quote">
A State Party may
require by law that a number of such items be possessed before criminal liability
attaches.
. </blockquote><div class="gmail_default">as vague. Parked.</div><br></div><div><div class="gmail_default">On to Article 11 - Forgery</div><blockquote style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex" class="gmail_quote">
deletion or suppression of
[computer data] [digital information] resulting in inauthentic data with the intent that
they be considered or acted upon for legal purposes as if they were authentic,
regardless of whether or not the data are directly readable and intelligible
</blockquote><div class="gmail_default">One would imagine this would include deep fakes etc, but that is creation rather than "deletion or suppression". Senegal took this up.<br><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex">We have a proposal for the wording of the criminalization of the use of falsified computer data. We think that there should be a specific offense here through the insertion of a specific text that criminalizes the fact of using computer data that is falsified. </blockquote></div><div class="gmail_default">The Chair suggested they draft it as a separate offense, They agreed.</div></div><div><br></div><div><div class="gmail_default">Russia wanted to delete para 2</div><blockquote style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex" class="gmail_quote"> A State Party may require an intent to defraud, or a similar dishonest intent,
before criminal liability attaches. </blockquote><div class="gmail_default">but was laughed off by EU, US, and even Egypt, since "may" indicates the provision is voluntary.</div></div><div><div class="gmail_default"><br></div><div class="gmail_default">No further objections.</div><div class="gmail_default"><br></div><div class="gmail_default">On to Article 12 - ICT related theft or fraud</div><br></div><div><div class="gmail_default">Again, Russia wanted "dishonest" changed to "illegal", but Australia pushed back.<br><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex">We believe it's confusing and circular to add an additional unlawful intent element. And that dishonest intent is appropriate here. Dishonest intent provides clear parameters about when conduct will be an offence, where it is done with dishonest intent and not limited only to intentional conduct. So we consider that the existing references to dishonest intent actually enhance the flexibility of the convention, applying to a range of different legal systems. </blockquote></div><div class="gmail_default"><br></div><div class="gmail_default">There was much discussion on 'fraud' vs 'theft'.. Some wanted theft removed, however India, Iran, China and Russia all wanted to retain.</div><div class="gmail_default"><br></div><div class="gmail_default">At this point the session timed out and Meeting #3 was concluded</div><div class="gmail_default"><br></div><div class="gmail_default">The afternoon session Meeting #4 started out on Chapter IV - procedural measures and law enforcement, </div><blockquote style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex" class="gmail_quote">Article 23. Scope of procedural measures <br>
Article 25. Expedited preservation of
stored [computer data] [digital information]
<br>
Article 26. Expedited preservation and
partial disclosure of traffic data
<br>
Article 27. Production order
<br>
Article 28. Search and seizure of stored [computer data] [digital information]
<br>
Article 29. Real-time collection of traffic data
<br>
Article 30. Interception of content data
</blockquote><br></div><div><div class="gmail_default">On Article 23 - scope</div><div class="gmail_default">SIngapore kicked things off by suggesting that the scope be tightened to the offenses define in Articles 6 to 16, A lot of countries supported this.</div><div class="gmail_default"><br></div><div class="gmail_default">The US had reservations: 1) 6 to 16 still being defined 2) "we don't yet know the fate of article 17"</div><div class="gmail_default">Article 17 reads</div><blockquote style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex" class="gmail_quote">Article 17. Offences relating to other international treaties<br>States Parties shall adopt such legislative and other measures as may be<br>necessary to ensure that offences established in accordance with applicable<br>international conventions and protocols also apply when committed through the use<br>of [a computer system] [an information and communications technology device].</blockquote><div class="gmail_default">CARICOM wanted Article 17 to be moved out of the Criminalization Chapter to elsewhere in the Convention,</div><div class="gmail_default"><br></div></div><div><div class="gmail_default">Iran wondered about the meaning of the word 'specific' in the phrase "specific criminal investigation". Others responded that it was required as a safeguard against creep. <br><br><div class="gmail_default">Russia opposed Singapore, saying<br><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex">We do not think that law enforcement bodies at the national level, we don't believe that they shouldn't have the opportunity to use all possible authority and measures to prevent and counter this kind of these kinds of offenses.</blockquote></div></div><div class="gmail_default">They also wanted some mention of 'prevention', and to delete 'specific', suggesting it would lead to "legal uncertainty".</div><div class="gmail_default"><br></div><div class="gmail_default">However, nobody else supported them. Article 23 was parked.</div><div class="gmail_default"><br></div><div class="gmail_default">On to
Article 25. Expedited preservation of data. This includes the wording</div><blockquote style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex" class="gmail_quote"> State Party shall adopt such legislative and other
measures as may be necessary to oblige that person to preserve and maintain the
integrity of [those computer data] [that digital information] for a period of time as
long as necessary, up to a maximum of ninety days, to enable the competent
authorities to seek its disclosure. </blockquote><div class="gmail_default">Many countries, led by Russia, wanted 'maximum' changed to 'minimum'. India wanted 'person' changed to 'legal person'.</div></div><div class="gmail_default"><br></div><div class="gmail_default">On Article 28 - Production, Austria </div><div><div class="gmail_default">Before Russia was cut off earlier, they talked about this, and wanted emphasis on "state party's territory" for clarity. It would seem that this clause does not mean that that States are required to produce for external case, however Austria later cautioned<br><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex">If you say that the competent authorities should search or similarly access in the territory of that state party, that means that the access is going to take place in the territory of the state party, but the data or the computer system might be anywhere else in the world. And I was wondering, those delegations who hold sovereignty aspects very dearly, whether they would want to live with this effect that access is going to take part in Austria, for example, but the data or the computer system would be in Russia or in China. I don't think we want to have that effect. Right? I hope we can all agree to that. </blockquote></div><div class="gmail_default">Russia said they would think about that.</div><div class="gmail_default"><br></div><div class="gmail_default">On articles 29 and 30, the 'snooping' clauses, the EU withdrew it's earlier objections, based on proposed safeguards in Chapter V -
International cooperation. Malaysia, Switzerland, Mexico voiced similar concerns. </div><br></div><div><div class="gmail_default">Norway noted that all these articles are dependent on Article 20 - Statute of Limitations as a safeguard, but Article 20 actually calls for extending or even suspending SoL's for 'serious cybercrimes'. Australia argued that determining the "serious' threshold should be left to states, rather that the definition in Article 2 (h) </div><blockquote style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex" class="gmail_quote">“Serious crime” shall mean conduct constituting an offence punishable by
a maximum deprivation of liberty of at least four years;
</blockquote><br></div><div><div class="gmail_default"><br></div></div><div><br></div><div><div class="gmail_default">Then focus turned to articles 31 to 34</div><blockquote style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex" class="gmail_quote">
Article 31. Freezing, seizure and confiscation of the proceeds of crime<br>
Article 32. Establishment of criminal record <br>
Article 33. Protection of witnesses
<br>
Article 34. Assistance to and protection of victims</blockquote><div> </div><div><span class="gmail_default">Article 31 - </span>Japan regretted that its earlier proposal to limit confiscations to serious crimes had not garnered support, but was trying again<span class="gmail_default">. </span><span class="gmail_default">Sweden, Albania, &</span>.<span class="gmail_default">Iceland support. </span>EU<span class="gmail_default"> supports and </span> wants to limit the scope to 6 to 16.<span class="gmail_default"> Costa Rica, Korea, Vanuatu and Paraguay supportalso for 32, 33. Nigeria, Iran oppose. China opposes as premature / repetitive Russia also opposes saying:</span></div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex"><span class="gmail_default">in fact,we don't understand what doubts countries can have the country the reference to to specific articles rather than the scope of the current convention.</span></blockquote><div><span class="gmail_default"></span>Re; "serious" <span class="gmail_default">language, presumably in japan's proposal</span>US notes para 10 wording </div><div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex">Nothing contained in this article shall affect the principle that the measures to which it refers shall be defined and implemented in accordance with the provisions of the domestic law of a State Party.</blockquote></div><div> I guess, agreeing with China & Russia that there is no real reason to be specific, since states can <span class="gmail_default"></span>d<span class="gmail_default">efine for themselves.</span><span class="gmail_default"></span></div><div><br></div></div><div class="gmail_default">Article 32-33. Singapore wanted scope changed to 6-16. Russia wanted the opposite, 34 too..Australia wanted to delete "in good faith" pertaining to witnesses, for more flexibility. Presumably bad faith witnesses also need protecting? Tanzania wants to change 'domestic law' to 'domestic legal system' and also add the word 'prosecutive' to the existing 'investigative'.</div><div class="gmail_default"><br></div><div class="gmail_default">Article 34 ( Victims) Egypt wanted to get rid of "with relevant stakeholders', and drop the "particular circumstances' para 8 entirely (gender). Argentina and Tanzania wanted to add "subject to its domestic law." Canada spoke up for gender. USA wanted to limit the scope from "Convention" to Articles 6 to 16, and yay to gender, NZ, Colombia, Iceland, Ecuador, Costa Rica, Panama, Albania also yay to keeping gender in there. Nigeria is non-committal, saying</div><blockquote style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex" class="gmail_quote">Nigeria is paying very close attention to the reference to gender in article 34 paragraph four, I understand that different jurisdiction have different understanding of gender, especially in this context. For Nigeria, gender in this context means sex, and if perhaps, it cannot any other meaning other than what is defined in domestic legislation. Perhaps it may be important to further clarify that as we make progress. </blockquote><div class="gmail_default">Norway said</div><blockquote style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex" class="gmail_quote"> we have supported at the last session more inclusive language in Article Five, we did agree to delete the language there, but that was really that was really because we saw that it was included other in other places. So deleting it also here would would not be acceptable.</blockquote><div class="gmail_default"><br></div><div class="gmail_default">On 33 and 34, Burkina Faso wants to add protection for whistleblowers, experts, and witnesses. Russia, Canada, Mauritania, Nigeria support..<br></div><div class="gmail_default"><br></div><div class="gmail_default">Finally, Yemen argues for applicability to trump scope restrictions</div><blockquote style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex" class="gmail_quote">We are now discussing offenses that had to do with information, and if they are serious, and they develop from day to day, and there are new crimes that appear every day. And we are looking here at an expanding in applicability, especially that the crimes referenced from six to 16 are not are not all of the crimes in ICT. So therefore, we were for expanding the applicability and the scope of application in procedural and content as long as the purpose here is to promote cooperation in fighting cyber crimes. So therefore, we believe that combating it, combating these crimes would would include all crimes electronic or content, even at any level or at the minimum level, as we say, and because we discover new crimes and these crimes develop and they they reappear and therefore, if we were to resolve the scope of applicability,</blockquote><div class="gmail_default"><br></div><span class="gmail_signature_prefix">--<span class="gmail_default"></span></span></div></div></div><div><br></div><span class="gmail_signature_prefix">-- </span><br><div dir="ltr" class="gmail_signature" data-smartmail="gmail_signature"><div dir="ltr"><div><div dir="ltr"><div><div>--------------------------------------<br>Joly MacFie +1<span title="Call with Google Voice">2185659365</span> </div><div>--------------------------------------</div>-</div></div></div></div></div></div>