The Budapest Convention was adopted in 2001 and is still highly relevantand keeps evolving.
With the new 2nd Additional Protocol, the mechanism of the Budapest Convention will remain of significant relevance. It will more effectively address challenges related to e-evidence in foreign, multiple or unknown jurisdictions. Let’s explore it in more detail.
The second additional protocol will address the new challenges of cyberspace
Why do we need the Protocol?
The evolution of information and communication technologies – while bringing unprecedented opportunities for mankind – also raises challenges, including for criminal justice and thus for the rule of law in cyberspace.
While cybercrime and other offences entailing electronic evidence on computer systems are thriving and while such evidence is increasingly stored on servers in foreign, multiple, shifting or unknown jurisdictions, that is, in the cloud, the powers of law enforcement are limited by territorial boundaries.
As a result, only a very small share of cybercrime that is reported to criminal justice authorities is leading to
court proceedings and convictions, and most often victims do not obtain justice.
What does the Protocol solve?
The Protocol is designed to respond to the following challenges:
How to obtain the use of an account or Internet Protocol address used to commit an offence more efficiently? Such “subscriber information” is essential to proceed with an investigation.
How and under what conditions to cooperate directly with a service provider in another Party to obtain such information?
How to obtain the disclosure of data – including content data – from another Party without delay in an emergency where lives are at risk?
How can government-to-government cooperation, including mutual assistance, be made more efficient and can additional tools be made available for cooperation on cybercrime and electronic evidence?
And how can innovative effective and efficient means of cooperation be reconciled with rule of law and data protection requirements?
The Protocol will provide for innovative tools to obtain the disclosure of electronic evidence, in particular:
Direct cooperation with service providers (Article 6 and Article 7)
Expedited forms of cooperation between Parties for the disclosure of subscriber information and traffic data (Article 8)
Expedited cooperation and disclosure in emergency situations (Articles 9 and 10)
Additional toolsfor mutual assistance (Articles 11 and 12)
Data protection and other rule of lawsafeguards (Articles 13 and 14)
The provisions of this Protocol will be of operational and policy benefit and will ensure that the Budapest Convention continues to stand for a free Internet where governments meet their obligation to protect individuals and their rights in cyberspace.
The Protocol was adopted in November 2021 and opened for signature on 12 May 2022.
