Two comments from a lawyer's point of view:
"One important thing to keep in mind is that signatures under international treaties are *not* a commitment to do what the treaty says, they are only a declaration of intention to consider for ratification that particular version of the treaty." That's an interesting thesis, but I don't agree 100 %.
Art. 6 of the Cybercrime Convention: I have analysed this provision in my thesis and I agree with the conclusion that the Article of the Convention is in principle acceptable. The implementation into national law has given rise to discussions in other countries. I have followed the German discussion, which revolved arount the same arguments as the discussion on this list.
I will carefully analyse the proposed changes in Swiss law, and I might even submit an opinion in the Vernehmlassungs-procedure.
Regards, Christa
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Von: swinog-bounces@lists.swinog.ch im Auftrag von Norbert Bollow Gesendet: Mi 18.03.2009 12:15 An: Peter Keel Cc: swinog@swinog.ch Betreff: Re: [swinog] Fwd: Re: "Hackerparagraph"
Peter Keel seegras@discordia.ch wrote:
- on the Wed, Mar 18, 2009 at 08:36:35AM +0100, Thomas Dagonnier wrote:
It may be an idea to have a look at the treaty they have to implement : http://conventions.coe.int/Treaty/EN/Treaties/Html/185.htm
Shame on whoever came up with this, and on whoever signed this. You've just grossly violated democratic judical principles.
One important thing to keep in mind is that signatures under international treaties are *not* a commitment to do what the treaty says, they are only a declaration of intention to consider for ratification that particular version of the treaty.
The step through which a country promises to implement what the treaty says is ratification.
In Switzerland, ratfication of a treaty requires decisions of both Nationalrat and Staenderat and then there is the possibility of a referendum.
The reality is that we have quite extensive democratic rights and possibilities to influence what happens. Many officials in the federal administration don't really appreciate these democratic principles, and like to make everyone believe that Switzerland has to do certain things because the text of an international treaty says that we should, even if we haven't yet decided to agree to that international treaty. But we have real power in our hands.
As pointed out by Thomas, if the Swiss legislation mimics exactly what the treaty says in its article 6, the problems that we are concerned about will not occur. So at least that article of the convention is not a true problem. I haven't yet studied the convention in its entirety -- it might contain serious problems in other areas, but if it doesn't, we shouldn't oppose this CoE convention, but just demand that it should be implemented in a way which does not cause problems.
If they don't listen to this demand, there's always the possibility of doing a referendum campaign. Of course that'd be MUCH more work than simply sending in a comment during the present public comments period. Our main benefit from having the democratic possibility of doing a referendum campaign is that because we have this possibility, comments from all kinds of interested parties (like we are now invited to send in during the present public comments period) are going to be taken seriously.
Therefore, I'm pretty sure that the disaster with regard to the legality of security tools is going to be averted if we take appropriate action now. Therefore, please, everyone: Please make sure that your employer or some other organization that you're a member of sends a letter which states clearly that security tools must remain legal to possess and distribute, as long as this is done with a legitimate, non-criminal intention. (I'm writing such a letter, too, on behalf of SIUG, but IMO it's best when many concerned companies and other organizations all send a letter of their own.)
Greetings, Norbert
-- http://siug.ch/ Swiss Internet User Group (SIUG), eine Initiative der /ch/open
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