[governance] FOURTH DRAFT statement on enhanced cooperation

[Roland Perry]

In message <4CE02316.5060209 at eff.org>, at 09:57:42 on Sun, 14 Nov 2010, 
Katitza Rodriguez <katitza at eff.org> writes

>>> 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-sneakin
>g-through-senate

The point of the Treaty is to ensure that the same basket of "computer 
crimes" are criminal in both jurisdictions. It also allows a refusal of 
assistance for a "political offence" or one where there isn't dual 
criminality - Article 29(4) & 29(5).

>>> 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.

It's true that people signing up later would not have had much input to 
the text, but the changes might be to weaken it - and presumably we are 
mainly aiming for a consistent and reasonably strong law everywhere?

>>> 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?

I was responding to your words "another treaty". As I appear to have 
wrongly interpreted that as an indication that you knew of revisions to 
the Budapest Treaty, which "another" treaty did you have in mind?

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

That Directive is in effect a "blanket retention" scheme, and as such is 
a superset of the Data Preservation measures in the Budapest Treaty. As 
ever, it's the parameters of the disclosure of data (both safeguards and 
the willingness to spend the money on forensic analysis) which are more 
important than the retention.

>> 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.

In the absence of the provisions contained in the Convention, we have 
lawlessness.

>I said I will fight.

Which I interpreted as "stop it from happening".

>They can always pass a law that does not have some terrible provisions.

A Budapest-lite? Yes, having laws with slightly less "bite" can be 
achieved, but the benefit of the Convention is that it's the same 
everywhere (as a minimum amount of implemented law, anyway) so it's 
easier to do cross-border policing.

>> 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).

I would expect that before a new country is allowed to sign up, that 
someone is checking that all the safeguards in the Convention have in 
fact been implemented in local law.
-- 
Roland Perry
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