By Yaman Akdeniz, CyberLaw Research Centre, Faculty of Law, University of Leeds, Leeds LS2 9JT. E-mail: lawya@cyber-rights.org  

Copyright © 2001 Paper to be presented, SPTL Conference, Glasgow, 10 September, 2001.

Abstract

This paper will include a critical assessment of the recently drafted Council of Europe ("CoE") Cyber-Crime Convention. This will involve an analysis of the CoE Convention and the process that led to the drafting of the Convention between 1997-2001. The non-transparent process that led into the development of the Convention will be rigorously criticised in this paper.

The Convention has been developed by an international and well respected organisation with a primary mission to strengthen democracy, human rights, and the rule of law throughout its member states. Although the draft Convention states in the preamble that a proper balance needs to be ensured between the interests of law enforcement and respect for fundamental human rights, the balance is certainly in favour of the law enforcement agencies with no due respect for human rights.

Major problems associated with the Cyber-Crime Convention can be categorised under the following headings:

• Lack of commitment to data protection principles
• Compatibility with the European Convention on Human Rights
• Problems related to interception of communications
• Production orders and private encryption keys
• Conditions and Safeguards and Judicial Warrants
• Mutual Assistance and requirement for Dual-Criminality
• The inclusion of content related crimes within the Convention

Another major problem lies in relation to procedural law and the extension of such provisions within the Convention to "other criminal offences committed by means of a computer system" not covered by articles 2-11 of this Convention.

Any co-ordinated policy initiative at an international level should offer the best protection for individual rights and liberties. The development of the Internet requires the instillation of trust in Internet users and affirmation that their expectation of privacy in correspondence is legitimate. But it seems to be the Council of Europe which is lacking in trust and instead seeks to develop intrusive surveillance systems into the national legal systems of its member states. Therefore, it should be remembered in the words of Judge Pettiti that "the mission of the Council of Europe and of its organs is to prevent the establishment of systems and methods that would allow ‘Big Brother’ to become master of the citizen’s private life." But the Convention unfortunately suggests otherwise.

See generally http://www.cyber-rights.org/cybercrime/