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.
Von: swinog-bounces(a)lists.swinog.ch im Auftrag von Norbert Bollow
Gesendet: Mi 18.03.2009 12:15
An: Peter Keel
Betreff: Re: [swinog] Fwd: Re: "Hackerparagraph"
Peter Keel <seegras(a)discordia.ch> wrote:
* on the Wed, Mar 18, 2009 at 08:36:35AM +0100, Thomas
It may be an idea to have a look at the treaty
they have to implement
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.)
Swiss Internet User Group (SIUG), eine Initiative der /ch/open
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