[governance] FOURTH DRAFT statement on enhanced cooperation

[Katitza Rodriguez]

hi

Here a quick reply since I have to start cooking in a few minutes!...

>> 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.
>
> I see the Budapest Convention as an expression of a basic level of law 
> which should be implemented, nationally in each country for sure, but 
> mindful that many of the enforcement problems are a result of the 
> cross-border nature of the Internet.

Sounds in theory, reasonable. But: How you fix the dual criminality 
problem? "The Convention requires that the government help enforce other 
countries' "cybercrime" laws -- even if the act being prosecuted is NOT 
illegal in country A. Countries that have laws limiting freedom of 
expression on the Net could oblige the FBI to uncover the identities of 
anonymous U.S. critics or monitor their communications on behalf of 
foreign governments. An ISPs can be obliged to obey other jurisdictions' 
requests to log their users' behavior without due process or 
compensation." 
https://www.eff.org/deeplinks/2006/08/worlds-worst-internet-laws-sneaking-through-senate


 >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!

> When that was going on, I was one of the "outsiders", wondering why 
> they were doing this in apparent secrecy, and also concerned to 
> influence some of it. It's one of the reasons why I redoubled my 
> efforts to improve my "radar" and get involved in such things from an 
> earlier stage. Of course, ten years is a lifetime on the Internet.
>
>> And Parminder is right, this is also an European Institution that 
>> deals with Treaties that might affect other countries.
>
> It's an institution with its Headquarters in Europe, but its reach is 
> further. As ever, participation is the key thing. At the last 
> conference I went to, there was a sizeable contingent from Africa.
Convention 108 was open for signatures for third parties, though I guess 
countries were not able to negotiate the text of the convention? I am 
not familiar with that part of the discussion. See my previous email.
>
>> 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.
>
> Do you mean a revised version might be worse for citizens? A good 
> reason to get involved if a redrafting exercise does happen.
I did not say a "revised version". I did not know CoE are planning to 
review/revise Budapest Convention? or, Are they?

Many things have changes since the Budapest Convention, and for 
instance, we have some worst provisions since the EU Data Retention 
Directive

>> 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.
>
> I can't agree that the Budapest Convention is worse than lawlessness. 
> But each country can, of course, make its own decisions about what 
> laws they want to have internally. That's more than we Europeans can - 
> once it's been through Brussels, we have to accept it!

I did not say lawlessness. This is something you said it. I said I will 
fight. They can always pass a law that does not have some terrible 
provisions. This is something will happen at the national level. It is 
also true that the text is general and vague that may allow different 
interpretations! We also need to see if the States will be passing the 
other legal frameworks that are needed before implementing the 
Directive.  So whatever happens, we will need to assess the strategy at 
the local level and decide the best strategy to pursue.
>
>> 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.
>
> I don't claim to understand in detail where their funding comes from, 
> or how they apportion it to different projects. But I do know they are 
> more worried about citizens' rights than you appear to think.
Depends of the Division and area. Some of them are very pro-human rights 
(and might be even reading this list). Some others might have the 
intention but I have not see the political will to promote those strong 
legal safeguards at the implementation level (not a the norm-setting 
level).

K

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