Council of Europe’s Actions Belie its Pledges to Involve Civil Society in Development of Cross Border Police Powers Treaty

As the Council of Europe’s flawed cross border surveillance treaty moves through its final phases of approval, time is running out to ensure cross-border investigations occur with robust privacy and human rights safeguards in place. The innocuously named “Second Additional Protocol” to the Council of Europe’s (CoE) Cybercrime Convention seeks to set a new standard for law enforcement investigations—including those seeking access to user data—that cross international boundaries, and would grant a range of new international police powers. 

But the treaty’s drafting process has been deeply flawed, with civil society groups, defense attorneys, and even data protection regulators largely sidelined. We are hoping that CoE’s Parliamentary Committee (PACE), which is next in line to review the draft Protocol, will give us the opportunity to present and take our privacy and human rights concerns seriously as it formulates its opinion and recommendations before the CoE’s final body of approval, the Council of Ministers, decides the Protocol’s fate. According to the Terms of Reference for the preparation of the Draft Protocol, the Council of Ministers may consider inviting parties “other than member States of the Council of Europe to participate in this examination.”

The CoE relies on committees to generate the core draft of treaty texts. In this instance, the CoE’s Cybercrime Committee (T-CY) Plenary negotiated and drafted the

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