Today, the Center for Democracy & Technology, along with 93 other civil society organizations, sent a letter to the Secretary General of the Council of Europe, Thorbjørn Jagland, requesting transparency and meaningful civil society participation in the Council of Europe’s negotiations of the draft Second Additional Protocol to the Convention on Cybercrime. The Second Additional Protocol will address cross-border access to data by law enforcement authorities. This new international text may also include ways to create more effective Mutual Legal Assistance Treaties (MLATs), as well as “[p]rovisions allowing for direct cooperation with service providers in other jurisdictions with regard to requests for subscriber information, preservation requests, and emergency requests.”
The Second Additional Protocol is currently being discussed at the Cybercrime Convention Committee (T-CY) of the Council of Europe, a committee which aims to facilitate the effective use and implementation of the Convention. The T-CY aims to finalize the Second Additional Protocol by December 2019. While the Council of Europe has made clear its intention for “close interaction with civil society”, civil society groups are asking to be included throughout the entire process—not just during the Council of Europe’s Octopus Conferences. The Octopus Conference is valuable as it brings together in Strasbourg international experts on cybercrime, and will allow stakeholders to make their views on the protocol known. A consultation with external stakeholders is scheduled for July 12, the second day of the conference. However, as explained in our letter, there is no need for civil society participation to be limited to this forum. Rather we call for the T-CY to:
“develop a detailed plan for online debriefing sessions after each drafting meeting, both plenary and drafting, and to invite civil society as experts in the meetings, as is customary in all other Council of Europe Committee sessions. With a diligent approach to making all possible documents public and proactively engaging with global civil society, the Council of Europe can both build on its exemplary approach to transparency and ensure that the outcome of this process is of the highest quality and achieves the widest possible support.”
Multiple initiatives are in the works to address cross-border data demands. Congress recently passed the CLOUD Act, which permits the U.S. Department of Justice to authorize foreign governments to serve direct surveillance demands on U.S. providers. The European Commission is expected to unveil a proposal on E-evidence on April 17, a version of which has already been leaked. This Second Additional Protocol will be a multilateral agreement and if it lacks human rights protective safeguards, it poses tremendous risk. Therefore it is vital that the negotiations be transparent, and that civil society be able to fully participate in the protocol’s creation. We want to engage in this process to ensure the new protocol will uphold the highest human rights standards.