Article 32b of the
“A Party may, without the authorisation of another Party [..] access or receive, through a computer system in its territory, stored computer data located in another Party, if the Party obtains the lawful and voluntary consent of the person who has the lawful authority to disclose the data to the Party through that computer system.”
The Cybercrimes Convention Committee held its ninth full session
But in a recent report, the Committee’s ad hoc sub-group on jurisdiction and transborder access to data said that new developments, such as cloud storage of data and the activities of law enforcement authorities, made it necessary to revise the reach of article 32b.
“Current practices regarding direct law enforcement access to data as well as access via Internet service providers and other private sector entities…illustrate that law enforcement authorities of many States access data stored on computers in other States in order to secure electronic evidence. Such practices frequently go beyond the limited possibilities foreseen in Article 32b and the
This poses risks to human rights, they warn.
“Personal data are increasingly stored by private entities, including cloud service providers. Access by law enforcement, or the disclosure to law enforcement authorities of personal data stored in a foreign jurisdiction by such private sector entities may violate data protection regulations,” they add.
The NSA and other intelligence agencies use software that enables them to intercept private communications around the world.
Of the at least 95 corporations that develop and distribute this kind of software worldwide, 32 are in the U.S., 17 are British and the rest come from some two dozen other nations, according to confidential documents from intelligence contractors published by Wikileaks in
The list mentions 78 different products, including Trojan viruses, audio transmitters, audio and video recorders, and tracking tools.
“Any technology with such a huge potential for the violation of fundamental rights should be the focus of the highest level of legal protection, especially if it’s in the hands of private corporations that operate according to purely business objectives,” two officials from Spain’s
Pichardo, the law professor, said national legislation tends to take precedence in cases that invoke international principles.
“If we already have a charge of espionage, the serious problem of asking for data from other states is redundant,” she said.
GutiÉrrez believes the existing international legal frameworks do not protect citizens, and specific laws are necessary. His studies focus on how to move from ICTs to technologies of learning and communication.
“When citizens are active in a social network like
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