The Budapest Convention: Procedure and Co-operation

In one line

The half of the Budapest Convention that matters most is not the offences but the machinery: preserve the evidence in hours, produce it in days, and help each other around the clock.

In the wording a student can write in an exam: Chapter II section 2 of the Convention on Cybercrime requires each Party to establish procedural powers of expedited preservation of stored computer data and of traffic data, production orders, search and seizure of stored computer data, and real-time collection of traffic data and interception of content data, all subject to the conditions and safeguards in articles 14 and 15; article 22 requires jurisdiction over the offences on territorial, flag, registry and nationality bases; and Chapter III requires Parties to co-operate through extradition, mutual assistance including expedited preservation and disclosure, trans-border access to stored data in the two cases article 32 permits, and a 24/7 Network under article 35.

Why the procedural chapter is the important one

Because the offences were the easy part. Every State already had, or could easily enact, offences of unauthorised access and damage to data.

What no State had was procedure that worked at network speed. Chapter 20 explains the problem: logs are overwritten in days, an IP address without a time is useless, and a mutual legal assistance request takes months. By the time an ordinary request is answered the evidence is gone.

So the Convention's real innovation is a set of powers designed for evidence that expires, and article 16 is its centrepiece.

Articles 14 and 15: scope and safeguards

Article 14 applies the procedural powers to the offences the Convention establishes, to other criminal offences committed by means of a computer system, and to the collection of evidence in electronic form of any criminal offence. So the powers are general, not confined to cybercrime.

Article 15 is the safeguards article and it should be quoted in an answer about criticism. Each Party shall ensure that the establishment, implementation and application of the powers are subject to conditions and safeguards provided for under its domestic law, which shall provide for the adequate protection of human rights and liberties, including rights arising under the European Convention on Human Rights, the International Covenant on Civil and Political Rights and other applicable international human rights instruments, and which shall incorporate the principle of proportionality.

Article 15(2) requires such conditions and safeguards to include, as appropriate in view of the nature of the power, judicial or other independent supervision, grounds justifying application, and limitation of the scope and duration.

Article 15(3) requires Parties to consider the impact of the powers on the rights, responsibilities and legitimate interests of third parties.