The Second Additional Protocol to the Convention on Cybercrime: Strengthening international cooperation or endangering fundamental rights?

Abstract

In the last two years the use of ransomwares by cybercriminals has been constantly on the rise. Thus, States have found themselves needing a stronger international legal response to this criminal phenomenon, Germany being the second most affected country in the world by ransomware incidents. However, online service providers often store users’ data on servers that may be in different national jurisdictions. Therefore, faced with the necessity to obtain electronic evidence of cybercrimes, the competent State authorities are often hampered by other States’ territorial and jurisdictional boundaries. To overcome this and other obstacles to a more effective inter-State cooperation, the Council of Europe has recently adopted the Second Additional Protocol to the Convention on Cybercrime. This paper aims to further explore this treaty by analysing the tools that the Protocol provides for strengthening direct cooperation between States Parties and between them and online service providers. Though, due to the intrusion that their application could entail for the online users involved, these legal tools raise certain doubts as to their compatibility with human rights and fundamental freedoms such as privacy, Hence, the ultimate purpose of this paper is to examine whether the Second Protocol succeeds in creating a balanced legal framework that takes due account of the effectiveness of the fight against cybercrime and, at the same time, the effective protection of online users’ fundamental human rights.