The Cybercrime Convention Committee's 2017 Guidance Note on Production Orders: Unilateralist transborder access to electronic evidence promoted via soft law'

Paul de Hert, C Parlar, J. Sajfert

Research output: Contribution to journalArticleProfessional

Abstract

This article provides a critical analysis of the Council of Europe Cybercrime Convention Committee's Guidance Note of Production Orders, published on 1 March 2017. The article looks at the legal controversies surrounding production orders with a cross-border element. It explains the Guidance Note's background and origins, the basic provisions in the Cybercrime Convention allowing the law enforcement authorities to order and obtain certain information and discusses the requirements that follow from the relevant provisions of the Convention. This analysis is complemented by four critical remarks on the way the Guidance Note pushes the boundaries of acceptable treaty interpretation on the necessity of the Guidance Note, its position in regard to extraterritorial enforcement jurisdiction and sovereignty, its reticence towards fundamental rights and its refusal to define or clarify the important notion of “subscriber information”. The article argues that unilateralism is not a solution. Instead of soft law plumbing, what is needed is an agreement between sovereign states checked by their constituencies.
Original languageEnglish
Pages (from-to)327-336
Number of pages10
JournalComputer Law and Security Review
Volume32
Issue number2
Publication statusPublished - 2018

Fingerprint

electronics
Plumbing
Law
International cooperation
Law enforcement
unilateralism
evidence
Council of Europe
fundamental right
law enforcement
treaty
sovereignty
jurisdiction
interpretation
Guidance
Soft law
Cybercrime
Cross-border
Authority
Treaties

Keywords

  • cyber jurisdiction

Cite this

@article{10115f6310ed47c9b3ea19bd06b4e36a,
title = "The Cybercrime Convention Committee's 2017 Guidance Note on Production Orders: Unilateralist transborder access to electronic evidence promoted via soft law'",
abstract = "This article provides a critical analysis of the Council of Europe Cybercrime Convention Committee's Guidance Note of Production Orders, published on 1 March 2017. The article looks at the legal controversies surrounding production orders with a cross-border element. It explains the Guidance Note's background and origins, the basic provisions in the Cybercrime Convention allowing the law enforcement authorities to order and obtain certain information and discusses the requirements that follow from the relevant provisions of the Convention. This analysis is complemented by four critical remarks on the way the Guidance Note pushes the boundaries of acceptable treaty interpretation on the necessity of the Guidance Note, its position in regard to extraterritorial enforcement jurisdiction and sovereignty, its reticence towards fundamental rights and its refusal to define or clarify the important notion of “subscriber information”. The article argues that unilateralism is not a solution. Instead of soft law plumbing, what is needed is an agreement between sovereign states checked by their constituencies.",
keywords = "cyber jurisdiction",
author = "{de Hert}, Paul and C Parlar and J. Sajfert",
year = "2018",
language = "English",
volume = "32",
pages = "327--336",
journal = "Computer Law and Security Review",
issn = "0267-3649",
publisher = "ELSEVIER ADVANCED TECHNOLOGY",
number = "2",

}

The Cybercrime Convention Committee's 2017 Guidance Note on Production Orders: Unilateralist transborder access to electronic evidence promoted via soft law'. / de Hert, Paul; Parlar, C; Sajfert, J.

In: Computer Law and Security Review, Vol. 32, No. 2, 2018, p. 327-336.

Research output: Contribution to journalArticleProfessional

TY - JOUR

T1 - The Cybercrime Convention Committee's 2017 Guidance Note on Production Orders: Unilateralist transborder access to electronic evidence promoted via soft law'

AU - de Hert, Paul

AU - Parlar, C

AU - Sajfert, J.

PY - 2018

Y1 - 2018

N2 - This article provides a critical analysis of the Council of Europe Cybercrime Convention Committee's Guidance Note of Production Orders, published on 1 March 2017. The article looks at the legal controversies surrounding production orders with a cross-border element. It explains the Guidance Note's background and origins, the basic provisions in the Cybercrime Convention allowing the law enforcement authorities to order and obtain certain information and discusses the requirements that follow from the relevant provisions of the Convention. This analysis is complemented by four critical remarks on the way the Guidance Note pushes the boundaries of acceptable treaty interpretation on the necessity of the Guidance Note, its position in regard to extraterritorial enforcement jurisdiction and sovereignty, its reticence towards fundamental rights and its refusal to define or clarify the important notion of “subscriber information”. The article argues that unilateralism is not a solution. Instead of soft law plumbing, what is needed is an agreement between sovereign states checked by their constituencies.

AB - This article provides a critical analysis of the Council of Europe Cybercrime Convention Committee's Guidance Note of Production Orders, published on 1 March 2017. The article looks at the legal controversies surrounding production orders with a cross-border element. It explains the Guidance Note's background and origins, the basic provisions in the Cybercrime Convention allowing the law enforcement authorities to order and obtain certain information and discusses the requirements that follow from the relevant provisions of the Convention. This analysis is complemented by four critical remarks on the way the Guidance Note pushes the boundaries of acceptable treaty interpretation on the necessity of the Guidance Note, its position in regard to extraterritorial enforcement jurisdiction and sovereignty, its reticence towards fundamental rights and its refusal to define or clarify the important notion of “subscriber information”. The article argues that unilateralism is not a solution. Instead of soft law plumbing, what is needed is an agreement between sovereign states checked by their constituencies.

KW - cyber jurisdiction

M3 - Article

VL - 32

SP - 327

EP - 336

JO - Computer Law and Security Review

JF - Computer Law and Security Review

SN - 0267-3649

IS - 2

ER -