Tuesday, 6 June 2017

Budapest Convention to Change Digital Evidence Sharing Rules

When crimes are committed in Europe, police investigators are sometimes limited in the kinds of digital evidence they can collect and use for prosecutorial purposes. Despite the Budapest Convention on Cybercrime being opened and maintained for the last 16 years, a lack of clear rules relating to how digital evidence can be used continues to be a problem for European police officials. Now the Convention aims to change that.

News reports say that the Convention is getting ready to sign a new deal that will make it a lot easier for police officials to collect, use and share digital evidence with other participating countries, even if that evidence does not reside on a server located within the borders of the investigating country.

Why the Changes Are Necessary:

Being involved in the data centre sector, we are painfully aware of national laws that require operators in certain countries to make sure data belonging to domestic customers is stored only on domestic servers. We are constantly reminded about national laws requiring the security of that data. It is just part of the game.

Under the current rules, police officials have to be concerned about how digital evidence is shared across European borders. There are times when a police agency could freely access digital data in another country but fail to do so out of fears that such evidence would not be admissible in court. There are other times when accessing cross-border data is actually against the law.

In order to get around the rules, police agencies in member countries take advantage of what are known as Mutual Legal Assistance Treaties. However, going through the treaty process is painfully slow. It is so slow, in fact, that cases can fall apart while police agencies are waiting for approval to get the necessary evidence.

What the New Rules Do:

If new rules are agreed upon without any changes to the current proposals, they will allow police agencies to speed up investigations through faster access to digital data. The rules cover everything from mobile phone use to e-mail to websites and social media. Essentially, any kind of data that can be transmitted online will be subject to better and faster collection by police agencies.

The rules will also put in place policies for reacting to emergency situations. The Budapest Convention is looking to the US for guidance here. That country already has emergency policies in place, policies that enabled France to quickly get information they needed during the Charlie Hebdo attack a couple of years ago.

Based on the known trouble that police agencies go through to collect and use digital evidence, it is quite obvious that some rule changes are needed. There is a danger though. As America's NSA has proven, not carefully thinking through the rules to account for the possibility of digital information being used improperly can lead to all sorts of unintentional spying. The Budapest Convention does need to act, but they need to do so carefully and circumspectly.



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