[governance] FOURTH DRAFT statement on enhanced cooperation

[Katitza Rodriguez]

One more precision.

Convention 108, which drawn up within the Council of Europe by a 
committee of governmental experts under the authority of the European 
Committee on Legal Co-operation (CDCJ), was opened for signature by the 
Member States of the Council of Europe on 28 January 1981 in Strasbourg. 
Since inception of the Convention, Article 23(1) has provided for 
accession by non-member States:

"After the entry into force of this convention, the Committee of 
Ministers of the Council of Europe may invite any State non member of 
the Council of Europe to accede to this convention by a decision taken 
by the majority provided for in Article 20.d of the Statute of the 
Council of Europe and by the unanimous vote of the representatives of 
the Contracting States entitled to sit on the committee."

On 11/14/10 7:44 AM, Katitza Rodriguez wrote:
> 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.


-- 
Katitza Rodriguez
International Rights Director
Electronic Frontier Foundation
katitza at eff.org
katitza at datos-personales.org (personal email)

Please support EFF - Working to protect your digital rights and freedom of speech since 1990

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