Who decides? Speech and privacy risks in the draft second additional protocol to the budapest convention

• Author: Courtney Christensen
• Position: J.D. 2021. Special thanks to Professors Stewart and Regan for their continued assistance and support in the drafting of this Note
• Pages: 1031-1056

NOTES

WHO DECIDES? SPEECH AND PRIVACY RISKS IN

THE DRAFT SECOND ADDITIONAL PROTOCOL TO

THE BUDAPEST CONVENTION

COURTNEY CHRISTENSEN*

J.D. 2021. Special thanks to Professors Stewart and Regan for their continued assistance and

support in the drafting of this Note. All mistakes herein are my own. This Note was drafted in

2021, before recent developments including the adoption of the Second Additional Protocol to

the Budapest Convention by the Committee of Ministers of the Council of Europe. The text of

the Protocol should be opened for signatures in May 2022. See Second Additional Protocol to the

Cybercrime Convention adopted by the Committee of Ministers of the Council of Europe, COUNCIL OF EUR.

(Nov. 17, 2021), https://www.coe.int/en/web/cybercrime/-/second-additional-protocol-to-the-

cybercrime-convention-adopted-by-the-committee-of-ministers-of-the-council-of-europe. V

C 2021,

Courtney Christensen.

ABSTRACT

Currently, in order to solve crimes that occur domestically but for which evi-

dence is in a foreign country, law enforcement authorities of one country out-

reach to the evidence-storing country through procedures set in Mutual Legal

Assistance (MLA) treaties. The MLA process is most frequently used to access

electronic data gathered by internet service providers located in another country.

However, current MLA processes are slow and often ineffective; therefore, a second

optional protocol is being proposed to the Budapest Convention, which currently

dictates MLA procedures, to streamline the process. This Note argues that the

United States should reject this proposed protocol as the changes, which would

allow law enforcement to make direct demands on internet service providers

and minimize the information presented about crimes to those providers, would

threaten speech and privacy laws and ideals of the United States.

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032

II. COMPLIANCE WITH EVERY REQUEST . . . . . . . . . . . . . . . . . . . . . . 1037

A. Threat of a Chilling Effect on Speech. . . . . . . . . . . . . . . . . . 1037

1. Explanation of the Chilling Effect . . . . . . . . . . . . . 1037

2. Likelihood of a Resulting Chilling Effect . . . . . . . 1039

3. Consequences of the Chilling Effect . . . . . . . . . . . 1041

B. Privacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1042

III. COMPLYING WITH REQUESTS ON A CASE-BY-CASE BASIS. . . . . . . . . . . 1045

A. Speech. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045

B. Privacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1049

*

1031

1. Lack of Legal Standards. . . . . . . . . . . . . . . . . . . . . 1049

2. Lack of Accountability . . . . . . . . . . . . . . . . . . . . . . 1051

3. Economic Interests Create a Conf‌lict of Interest. . 1052

IV. RECOMMENDATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1053

V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1055

I. INTRODUCTION

Imagine that an individual in Germany posts a message online

insisting that the Holocaust never occurred. The online post

receives large public attention, including the attention of local

law enforcement. In Germany, posting publicly about Holocaust

denial is a crime punishable by up to f‌ive years in prison,

1

Strafgesetzbuch [StGB] [Penal Code] § 130(3) (Ger.), https://www.gesetze-im-internet.de/

englisch_stgb/englisch_stgb.html; Dylan Fotiadis, Undeniably Diff‌icult: Extradition and Genocide

Denial Laws, 17 WASH. U. GLOB. STUD. L. REV. 677, 686 (2018).

and

German authorities want to prosecute the author of the post.

However, the investigation stalls because the individual posted

the message anonymously. Nonetheless, the German authorities

know they can likely discover this individual’s identity by tracking

the individual’s IP address. Finding the IP address presents a

further issue, however, as the internet service provider that has

access to the individual’s IP address is located in the United States.

Therefore, the German law enforcement off‌icers now need to

collect electronic evidence stored in the United States through a

process that will allow the evidence to be admissible in German

courts—how will this be done?

Mutual Legal Assistance (MLA) treaties were designed to solve this

very problem. MLA treaties allow foreign governments to access evi-

dence of crimes stored in another country through an admissible and,

hopefully, expedient process.

2

CYBERCRIME CONVENTION COMM., COUNCIL OF EUR., CRIMINAL JUSTICE ACCESS TO DATA IN

THE CLOUD: CHALLENGES 15 (May 2015), https://rm.coe.int/1680304b59 [hereinafter Criminal

Justice Access: Challenges].

To utilize the current MLA system, the

investigating law enforcement agency in one country f‌iles a request for

the evidence through a specialized domestic “central authority” in the

country in which the sought-after evidence is stored; in the United

States, the “central authority” is the Department of Justice’s Off‌ice

of International Affairs.

3

CYBERCRIME CONVENTION COMM., COUNCIL OF EUR., T-CY ASSESSMENT REPORT: THE MUTUAL

LEGAL ASSISTANCE PROVISIONS OF THE BUDAPEST CONVENTION ON CYBERCRIME 99 (Dec. 2014),

https://rm.coe.int/16802e726c [hereinafter Assessment Report]; Christine Galvanga, The

If the Department of Justice approves the

1.

2.

3.

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