T-CY TRANSBORDER ACCESS
The increasing reliance of societies on ICT is accompanied by increasing offences against and by means of computer systems. Cybercrime violates the rights of individuals and, therefore, governments have the positive obligation to protect society against crime, among other things, through effective law enforcement.
A primary goal of law enforcement is to secure evidence. In relation to cybercrime but also many other types of crime, this takes the form of electronic evidence. Electronic evidence is volatile and may be stored in multiple or unknown jurisdictions. While the primary means to secure electronic evidence stored in another State is mutual legal assistance, unilateral access to data may also be necessary in certain situations.
The Budapest Convention on Cybercrime – through Article 32 – allows for transborder access to data in very limited circumstances.
In order to address the issues raised by
transborder access to data, the Cybercrime Convention
Committee (T-CY) decided to establish an ad-hoc sub-group on jurisdiction and transborder access to data and data flows”
(“Transborder Group”) tasked to
develop an instrument – such as an amendment to the Convention, a Protocol or Recommendation
– to further regulate the transborder access to data and data flows, as well as the use of
transborder investigative measures on the Internet and related issues, and to present a report
containing its findings to the Committee.
In December 2014, the
T-CY, at its
12th Plenary, decided:
to adopt the report on Options for further action by the T-CY
to set up
working group on criminal justice access to evidence stored in the cloud, including through mutual legal assistance (“Cloud evidence group”):
the main task
of the Cloud evidence group is to explore solutions on criminal justice access to evidence stored on servers in the cloud and in foreign jurisdictions, including through mutual legal assistance.
public hearing held on 3 June 2013,
report of the Transborder Group for 2013 and the
decision of the 10th Plenary of the Cybercrime Convention Committee (T-CY), the dialogue with relevant stakeholders continued in 2014.
conference on Article 15 safeguards and criminal justice access to data
was held on 19-20 June 2014, in Strasbourg.
The aim of the conference was to identify solutions allowing law enforcement to obtain electronic evidence not only in an effective manner but also in a manner consistent with rule of law and data protection requirements.
The conference was part of a dialogue of the T-CY with other multiple stakeholders on the question of transborder access to data. It brings together some 100 cybercrime experts as well as data protection authorities, civil society, industry and academia.