[governance] FOURTH DRAFT statement on enhanced cooperation

[Katitza Rodriguez]

Hi Roland,

Sorry for not replied to your earlier email. I am happy to talk about 
Re: OECD with you.

On 11/14/10 12:59 AM, Roland Perry wrote:
> In message <4CDB0DC0.9080204 at eff.org>, at 13:25:20 on Wed, 10 Nov 
> 2010, Katitza Rodriguez <katitza at eff.org> writes
>> For example, it is dangerous to see the Budapest Convention exported 
>> to other countries, as it has serious implications for citizen's 
>> fundamental rights.
>
> Citizens also need the right not online safety.

I do not understand the comment. Can you clarify, please?
>
>> Despite the serious concerns that the Budapest Convention / Council 
>> of Europe itself contain, the harm to third countries outside Europe, 
>> for instance, Latin America is dangerous.  While the EU for instance 
>> has the Ecommerce Directive, The Data Protection Directive, the 
>> E-Privacy Directive, Charter of Fundamental Rights, and other check 
>> and balance in place etc, many countries lack of these regulatory 
>> frameworks
>
> It's my understanding that the Council of Europe (which is a human 
> rights organisation, not a policing one) will only allow countries to 
> sign up to the Budapest Convention, if they also agree to implement 
> sufficient human rights safeguards as well.

We need to see that in practice, Roland. The Council of Europe is a 
democratic institution, and its principles are based in the respect of 
the European Convention on Human Rights - which is a good HR text. They 
promote democratic principles, human rights, and the rule of law, they 
have different check and balances in place within the organization 
including the European Court of Human Rights. Unfortunately, nothing is 
perfect, and the Budapest Convention is definitely not one of its 
brilliant outcomes. The text is so ambiguous that allows several 
implementations. This should not be allowed when you are dealing with a 
text that restrict citizens fundamentals rights. It is true that they 
have agreed to implement sufficient human rights safeguards in "text", 
but I am not sure if this will happen in "practice". We are observing. 
Besides, I disagree with the emphasis put forward on the need of 
collaboration between the law enforcement community and the business 
sector. There is a need to strengten digital due process of law within 
the cybercrime discussions. I would like to see a this kind of strategy 
coming from the division who works on that area, and who are actually 
working in the implementation of the Convention, at the national level. 
It is finally what it is implemented at the national level, what matters.

In addition, while there is an acknowledgment of the importance of 
Convention 108, I haven't see a truly effort to promote that Convention 
at the national level. There might be a budget problem, too. We might 
need to see analysis if the funding from some business sector reps. goes 
to promote the Budapest Convention only, but not necessarily to the HR 
aspects.

We should also not forget that the group who drafted the Budapest 
Convention met in secret for several years before the first draft was 
released!  And Parminder is right, this is also an European Institution 
that deals with Treaties that might affect other countries. However, 
taking into account the discussions on this area at some national,  
regional and international, and the erosion of the right to privacy, 
another treaty might be even worst than this. By now, we need to fight 
the implementation of the Budapest Convention at the national levels, 
and pressure the Council of Europe to adopt recommendations that 
strengthens digital due process concerns and citizens rights.

Note apart:
There is also opportunity for civil society to participate as an 
observer status within the Council, EDRI and others participate as part 
of the Media Division discussions. I haven't heard anything beside the 
Octopus meeting on the cybercrime front. I have not done an analysis of 
the budget / funding to see where the business sector funds goes, and if 
its has an impact on the promotion of the Budapest Convention, and no 
funding to promote and to respect of citizen's fundamental rights and 
due process concerns.

  K.
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