IGF 2018 WS #144 Lost in the Cloud?Criminal Investigations in a Digital World

Organizer 1: Civil Society, Western European and Others Group (WEOG)
Organizer 2: Civil Society, Western European and Others Group (WEOG)
Organizer 3: Civil Society, Western European and Others Group (WEOG)

This Roundtable intends to offer a multi-stakeholder approach to one extremely important and topical issue concerning our digital world: Law Enforcement Authorities (“LEAs”) access to Data stored in the Cloud across national borders.

Technological developments and the “digitisation” of people's lives present a huge challenge for law enforcement and justice, which, in order to effectively do their job and protect society, must secure the evidence on servers. Beyond “cybercrime”, evidence related to any type of offence will be stored on computer systems that are often located abroad. In order to effectively investigate and secure evidence for legal proceedings, law enforcement agencies must access “evidence in the clouds”. This applies as much in the fight against terrorism and its financing as for a whole series of other crimes such as fraud and financial offences, money laundering, murders, assaults and other violent crimes, human trafficking, drugs trafficking, child pornography and other forms of abuse against children. All different stakeholders (governments, private companies and civil society) agree that it is necessary to ensure the rule of law in cyberspace and find solutions that allow the authorities access to digital evidence. They differ, nevertheless, on how to achieve it and how to resolve the many legal and jurisdictional challenges raised by this problem.

Till recently, the traditional procedure for LEAs access to data stored abroad was to request them from the authorities of the countries where the data are stored under the existing Mutual Legal Assistance Treaties (“MLATs”). However the MLATs have been crtiticised for being time consuming and ineffective. The recent adoption of the “Clarifying Lawful Overseas Use of Data Act” (“CLOUD Act”) in the United States and the presentation of the E-Evidence Proposal by the EU Commission intend to dramatically change the landscape of LEAs access to data stored abroad by giving the possibility to request this data directly from Internet and Cloud Service Providers (“ICSP”) without going through the usual inter-State/MLATs procedures. While these texts have been hailed by some companies and States as “positive steps forwards”, they have also been criticized by the civil society as an attempt to “privatise law enforcement”. What is clear is that both the CLOUD Act and E-Evidence raise important legal and policy questions concerning their implementation and the prospect of conclusion of an important number bilateral data sharing agreements between States, starting with the necessary agreements between the USA and the European Union and/or EU Member States. Central among these questions is the issue of adequate protection of privacy and other fundamental rights or the issue of concluding bilateral agreements based on the principle of reciprocity and respectful of public security and national sovereignty.

The proposed Roundtable will thus come in a very timely manner in order to discuss all these issues and provide guidance for the challenges ahead.

Format: 

Round Table - 90 Min

Interventions: 

The following speakers have confirmed their participation in this Roundtable:

John Frank (Vice President EU Government Affairs Microsoft) (confirmed)
J. Martinon (Magistrate, French Ministry of Justice) (confirmed)
Vanessa Franssen (Professor, Leuven) (confirmed)
Jenifer Daskal (Ass. Professor of Law, American University Washington College of Law) (confirmed)
Ian Walden (Professor, Queen Mary) (confirmed)

For information about how these speakers will be used please consult the other rubrics of this proposal.

Diversity: 

The Roundtable will be very diverse and meet the requirements of the IGF in various ways.

First, the Roundtable will unite representatives of three different stakeholder groups:
1) PRIVATE SECTOR – with the confirmed participation of John Frank, Vice President for EU Government Affairs of Microsoft
2) GOVERNMENT - with the confirmed participation of J. Martinon, Cyber/Data Magistrate in the French Ministry of Justice
3) CIVIL SOCIETY - with the confirmed participation of three among the best US and EU experts on the issues of CLOUD Act and E-Evidence (Jenifer Daskal, American University Washington College of Law, Ian Walden, Queen Mary, and Vanessa Franssen, Leuven).

Second, the Roundtable will meet the IGFs requirements in relation to gender (two of the five speakers and two of the three organisers are women )

Third, the Roundtable will meet the IGFs requirements in relation to policy perspectives and pluralism, the speakers having expressed different views and perspectives on these issues.

Fourth, the Roundtable will be geographically diversified with speakers from two different continents and representing not only the anglosaxon, but also the continental and the francophone traditions of Law.

The issues that will be discussed include the following:

1) Questions of Process and Method
- How to achieve a timely adoption of the E-Evidence legislative proposal ?
- What are the political and legal constraints to the negotiation of Data Sharing Agreements on the basis of CLOUD Act?
- Is it possible to envision the speedy negotiation of a Data Sharing Agreements between the USA and the EU and/or Member States – and how the articulation between the role of the EU and the role of Member States could take place in this field?
- Beyond the USA/EU relations, what are the prospects of negotiation of Data Sharing Agreements with other countries – and what are the challenges in this field?

2) Questions of Content
- How could Data Sharing Agreements take sufficiently into consideration the Immunities and Privilegies granted under the Law of all evolved States (and especially the States where the data are produced or stored or the State of the nationality of the suspect?)
- How could Data Sharing Agreements take sufficiently into consideration the fundamental interests (national security & defense) granted under the Law of all evolved States (and especially the States where the data are produced or stored or the State of the nationality of the suspect?)
- How could Data Sharing Agreements adequately protect the Human Rights (privacy, data protection, freedom of expression, right to judicial redress and other rights) of the persons targeted by the data production orders?
- How could Data Sharing Agreements take sufficiently into consideration the need to avoid conflict of laws in order not to place ICSPs into a difficult legal position?

Discussion Facilitation: 

The Roundtable will have the following format: 60mn will be dedicated to the discussion of the main issues between the speakers on the basis of a set of questions that I will prepare in advance and that will deal in priority with the issues presented above (see under “content”). For its topic I will proceed as Moderator to a small introduction and explanation of the question so that ALL onsite and online participants will be able to understand its importance – and this even if they are not familiarized in advance with the issues involved.
At least 30mn will be dedicated to questions from onsite and online participants.

Online Participation: 

Two online participation strategies will be used:
First, an active presence on Twitter including through the use of a specific hashtag for the Roundtable (for ex. #IGFCloud) which will permit online users to react and ask questions
Two, online attendees will have a separate queue and microphone which will rotate equally with the mics in the room. Prof Karine Bannelier and Mrs Katia Buslimani, who have extensive experience with the organization of international conferences, will serve as Online Moderators

Contact Information

United Nations
Secretariat of the Internet Governance Forum (IGF)

Villa Le Bocage
Palais des Nations,
CH-1211 Geneva 10
Switzerland

igf [at] un [dot] org
+41 (0) 229 173 678