Civil Society Calls on Council of Europe to Retain Privacy in Law Enforcement Cross-Border Data Access Initiative

CIPPIC joined the Electronic Frontier Foundation (EFF) and European Digital Rights (EDRi) in spearheading a submission (signed by 10 additional NGOs) which calls on the Council of Europe (CoE) to ensure privacy and other human rights safeguards are not left behind in its rush to develop new mechanisms for law enforcement to access data hosted in other jurisdictions. The submission injects our concerns into rapidly evolving negotiations between Canada, the United States, and several European and other states, for a treaty protocol that would govern cross-border data access amongst signatories.

The submission notes several concerns with the direction the negotiations have taken. Current proposals seek to bypass critical vetting mechanisms embedded in the current regime that screen foreign data access requests for blatant human rights violations. The rationale for removing this vetting mechanism is a presumption that signatory parties share an understanding of human rights protections yet, as the submission documents, no such shared basis exists. For example, Canada and some European states have faced significant liability for their roles in facilitating various United States counter-terror efforts which ultimately resulted in illegal rendition and even torture of various individuals in violation of their own human rights obligations. (p 28) Disagreements between signatories over the appropriate use of automated decision-making in a variety of circumstances has led to additional violations of states' human rights obligations while resulting in serious detrimental impact on those most vulnerable (pp 26). The treaty, as proposed, will also permit law enforcement to bypass core domestic privacy protections simply because data is stored abroad allowing Canadian police, for example, to bypass critical protections for anonymous online activity simply because data is stored abroad. This race to sacrifice human rights protections occurs despite the fact that the current regime for cross-border access (which, admittedly, is not responsive enough to law enforcement's needs) can be dramatically improved with greater training and resource investment.