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(Anadolu Agency (Turkey) Via Acquire Media NewsEdge) Treaty Help Can Confront Cyber Espionage
Governments that engage in large-scale electronic espionage, like the United States, and companies that develop spying software could theoretically face legal action for violating the Convention on Cybercrime.
The convention, adopted in Budapest in 2001 and in force since 2004, is the first international treaty seeking to address Internet and computer crime. It has a provision that aims to protect the right of privacy of data communication from unauthorized interception, IPS wrote.
The treaty, also known as the Budapest Convention, requires member-states to criminalize four kinds of conduct against confidentiality or the integrity and availability of computer systems or data: illegal access, illegal interception, data and system interference, and misuse of devices for the purpose of committing these offences.
These are precisely the practices engaged in by the US, British and other governments, according to documents leaked to the media in June by former US National Security Agency (NSA) contractor, Edward Snowden.
Cyber surveillance "violates the convention and perpetrators can be sued" under the Cybercrime Convention Committee, Lorena Pichardo, a law school professor at the National Autonomous University of Mexico (UNAM), told IPS.
The convention was adopted by the Council of Europe, which was set up to promote democracy and protect human rights and the rule of law in Europe. But the treaty has also been signed by non-member states, like Canada, the United States and Japan. The United States ratified it in 2006.
So far, 51 states have signed the convention and 40 have ratified it.
It is possible to file a complaint with the Cybercrime Convention Committee, but any action taken is based on the national laws that its members must approve in order to live up to the convention. Complainants can also turn to the European Court of Human Rights.
A complaint "can be successful, but it would be partial, because among the countries that are party to the convention, there are interests at stake. The law can be bent and accommodated to national legislation", Enoc Gutierrez, a professor of information and communications technology at the Autonomous University of the State of Mexico, told IPS.
In a 2012 study that analyzed Mexican, US and EU laws, Gutierrez and his colleagues Lucio Ordonez and Victor Saucedo argued the need for special legislation and a special court on computer crime.
The problem is that the convention does not take into account that cybercrimes can include espionage by a state. The general impression is that when a government seeks cross-border access to computer data, it is doing so to investigate crimes and pursue criminals.
Article 32b of the Budapest Convention introduced an exception to the principle of territorial sovereignty:
"A party may, without the authorization 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 on June 4-5--one day before the Guardian and the Washington Post published the first leaks by Snowden. In the meeting, the committee did not debate anything related to cyber espionage.
But in a recent report, the committee's ad hoc sub-group on jurisdiction and trans-border 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.
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