Internet, e-evidences and international cooperation: the challenge of different paradigms

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by Bruno Calabrich, Federal circuit prosecutor (Brazil)


There is a crisis in the world today concerning e-evidences. Law enforcement authorities deeply need to access and analyze various kinds of electronic data for efficient investigations and criminal prosecutions. They need it not specifically for investigating and prosecuting so-called internet crimes: virtually any crime today can be committed via the internet; and even those which aren’t executed using the web, possibly can be elucidated by information stored on one or another node of the internet. The problem is that enforcement authorities not always, nor easily, can access these data[i], as the servers where they are stored are frequently located in a different country. Thus, international cooperation is frequently a barrier to overcome so that the e-evidence can be obtained in a valid and useful way. And, today, the differences around the world in the legal structures available for this task may not be helping a lot.

The most commonly known instruments for obtaining electronic data stored abroad are the MLATs – Mutual Legal Assistance Treaties –, agreements firmed between two countries for cooperating in exchanging information and evidences (not restricted to internet evidences) that will be used by authorities in investigations and formal accusations. The cooperation occurs from authority to authority, according to a bureaucratic procedure specified in each treaty, one requesting (where it’s needed) and the other (where it’s located) providing the data. But, in a fast-changing world, where crime and information are moving even faster, the MLATs are not showing to be the fastest and efficient way.  In Brazil, for instance, the percentage of success in the cooperation with the United States through its MLAT roughly reaches 20% of the cases. Brazil, US and other countries do not seem to be satisfied with that.
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Editorial of February 2019

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 by Felipe Debasa, Phd Rey Juan Carlos University, Madrid


IV Industrial Revolution social challenges. The Law, from discipline to tool? Reflections about the European Union

After World War II comes to a change an historical era. It is about the Present World or Present Time as historians point out[i] , or Anthropocene as geologists name. An era with new challenges and also challenges built on the legacy of the millions of dead of the world wars, totalitarianism, and nationalism.

“It is not a time for words, but a bold and constructive act”. With this phrase, Robert Schuman initiated the press conference that May 9th, 1950, in which he presented the document that would give rise to the current European Union. We Europeans are about to celebrate the 70th anniversary of that date that has allowed us to enjoy many things in peace and freedom.

With the change of the millennium, comes another new period dubbed as a IV Industrial Revolution, Industry 4.0 or Era of Technology. “The traditional world is crumbling, while another is emerging; and while we are in the middle and some of us without knowing what to do”[ii].

In 2016, I directed a summer course at the Menéndez Pelayo International University of Santander[iii] on the Future of Employment that was inaugurated by the Minister of the sector in Spain, in which we began to alert of the social challenges and about the tremendous revolution that came over us. We analysed, among other things, the jobs of the future, the digital transformation of companies, the new forms of teleworking, the role of women in this revolution; and so, we are warning of neologism that was about to appear, probably by regulated sectors without competition. And yes, that moment seems to have arrived.
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MAY be… MAY be not!

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by Pedro Madeira Froufe, Editor

We are a short time away from the European Parliament Election. We are also just over two months until the date of the formal implementation of Brexit. If all were going as desirable and planned, the United Kingdom would cease to be a member of the European Union at eleven o’clock of 29th March – if all were going as intended, as it was thought, after the no vote (to stay in the EU) in the referendum. But it is not! In fact, we don’t even know how the European elections will be disputed: with or without British candidates; how many MEPs to elect.

The political standoff in which the UK and the EU are immersed is the result of a classical democratic practise in its original context and dynamics. A national border-limited state, closed in itself and its people (its nationals), follows the idea that it holds a non-influenced sovereignty. Such un-limitedness would mean that nothing beyond its borders matter. Absolutely nothing could interfere with its presence as under this traditional and sovereign-ist political cosmovision nothing exists unless it is subject to the autonomous exercise of such sovereignty. However, the autonomous political decision of ‘disintegrating’ is, as many others, no longer a strictly encircled affair to be kept inside a territorial frame of political national frontiers. Today world’s dynamics is not national nor even inter-national. It is transnational, if not a-national. And rigorously speaking a decision made in an internal referendum never produces effects confined in such frontiers. The political decision made after the referendum is not a British decision and regards only British citizens – it is now clear in practical terms given the standoff we are all immersed in.
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European Ethical Charter on the use of artificial intelligence in judicial systems and their environment: what are the implications of this measure?

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 by Amanda Espiñeira, Master Student at University of Brasília

Artificial intelligence has become a topic of great interest for the advancement of the information society and automation. Through various themes, from art, gastronomy, the world of games, the various mechanisms that involve AI allow the expansion of human creativity and capabilities, and are very important, especially when it comes to judicial systems. A field that for a long time has remained closed to innovations and digital transformations, today it opens and allows that there is more celerity and transparency to the decisions of the legal world. In other words, AI promises to fill a gap in the area, which still has plastered processes, such as the registry offices, which are almost synonymous with bureaucracy.

However, the importance of the theme and its efficiency, debating ethical aspects in this area is extremely relevant because AI can extract insights, we could never come up using traditional data mining techniques. And is even more important in the context of recent data protection regulation, especially GDPR- General Data Protection Regulation.

Thus, the European Commission for the Efficiency of Justice (CEPEJ) of the Council of Europe has adopted the first European text setting out ethical principles relating to the use of artificial intelligence (AI) in judicial systems, published on December 4, 2018[1].
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Algorithm-driven collusion

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 by Virgílio Pereira, collaborating member of CEDU

It has been said that digital markets are new and different.[i]  Indeed, competition enforcement reforms have already begun their journey, tackling the unorthodox dynamic of digital markets. Examples include the reforms taking place in Germany.[ii] They have entailed, among others, the possibility of setting up a digital agency, responsible for the supervision of digital markets, whose tasks would include dispute resolution in competition issues.[iii] Becoming vigilant and gathering know-how is certainly a valuable starting point.

Recently, the Council adopted the Commission’s proposal intended to empower Member States’ competition authorities to be more effective enforcers.[iv] It includes reinforcing competition authorities’ investigative powers, including their power to collect digital evidence. Discussion on the unorthodoxy of digital markets and challenges arising from them should take place within the context of the implementation of the Directive, or more generally, within the context of the European Competition Network.
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Editorial of January 2019

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 by Alexandre Veronese, Professor at University of Brasília


Article 13 and the vigilance dilemma

The first US battles about filtering

In light of the worldwide ongoing debate surrounding legal regimes over internet, in special the recent controversies on amendments proposals to applicable EU rules, such as Directive 96/9, Directive 2001/29 or Directive 2012/28, but most notably Article 13 of the (soon-to-be) Directive on Copyright in the Digital Single Market, it is of utmost importance to seek some perspective. The topic is relevant as much as complex with a range of aspects to consider. For instance, one of the approaches the EU is giving to the matter involves the use of internet (or digital tools in general) for new cultural purposes following the celebration in 2018 of the European Year of Cultural Heritage. In that regard, I had the opportunity to reflect upon this debate alongside Professor Alessandra Silveira, editor of the Blog of UNIO, and other colleagues in an excellent Portuguese podcast. In this post, I intend to shed some light in the global depth of the matter by analysing the American inaugural experience.

At the beginning of the widespread usage of the Internet, the United States society was immersed in a debate about how to deal with offensive content. In the 1990s, Internet had no boundaries and no firewalls to prevent the incoming waves of pornographic and unusual materials. Quickly, a political movement made a strong statement in order to protect American families from that threat. In 1996, the US Congress passed a bill named Communications Decency Act, also known as the CDA. The Bill was signed into Law by the former President Bill Clinton. The CDA was intended to provide an effective system to take down offensive content. Some of the founders of the Internet launched a campaign against the CDA. The now widely famous Electronic Frontier Foundation was the spearhead of the resistance. Until today, we remember the Declaration of Freedom in the Internet, which was written by John Perry Barlow. The major weapon of the resistance was the First Amendment of the US Constitution. Some lawsuits were filled and in a brief timespan the US Supreme Court took down the CDA for it was ruled as unconstitutional. The Supreme Court maintained the long-aged interpretation that the State must be out of any action to perform any possible kind of censorship (Reno v. ACLU, 1997).
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Indirect taxation on 3D printing – A new challenge for the European Union

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 by Andreia Barbosa, PhD candidate at UMINHO

3D printing (or rapid prototyping) is a form of additive manufacturing technology through which a three-dimensional model (height, depth and width, maxime, embossed) is created by successive layers of material. Think of the production of a computer mouse. The traditional production of this property implies that, in the first instance, the respective components are separately produced and subsequently assembled, giving rise to the mouse. Differently, through 3D printing the mouse for the computer will be printed as a whole, layer by layer – making the assembly process obsolete – and with the possibility of the product being customized, according to the model that has been developed.

That said, it is easy to conclude that in the case of models for 3D printing there is no corporeality to which we refer, so that, then, there will be no merchandise, which will only assume this quality when it is actually printed. That is to say, the 3D printing model, which is the subject of an international transaction, will not be regarded as a ‘good’ for customs purposes. Consequently, as customs duties constitute charges imposed on goods on the ground that they have crossed a customs line, no customs duties may be levied by the transmission of the model to be printed (which will be carried out electronically).
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Chronos vs. Brexit: why extending Article 50 and delaying Brexit might not be a feasible solution for the EU

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 by Tiago Cabral, Member of CEDU

1. If everything goes according to plan, the United Kingdom (UK) is currently set to leave the European Union (EU) on 29 March 2019 at 11.00 p.m. That is the date enshrined on the European Union (Withdrawal) Act 2018 and the British Government has a deal that, in theory, allows the UK to leave in the planned timeframe. Remarkably, the EU has managed to keep an extremely (and surprising) united front regarding the Brexit negotiations. It is noteworthy that the message from the Chairman of the Austrian People’s Party and current Austrian Prime-Minister Sebastian Kurz perfectly mirrors the one expressed by Jean-Claude Juncker or Donald Tusk.

2. However, in the UK nothing is going according to plan for Prime-Minister Theresa May. After the deal was announced and its contents revealed a number of ministers – both brexiters and remainers – resigned from the cabinet. Seizing the opportunity to press for a harder Brexit, Jacob Rees-Mogg, the current chairman of the “European Research Group” (a group of hard-Brexit leaning MPs) started pushing for a vote on May’s leadership of the conservative party and (in practice) premiership. Said attempted failed to get the backing of enough MPs (for now) but could find new breath if the current deal is rejected by parliament. On that note, the current deal is most likely than not to be indeed rejected. About 100 conservative MPs have already stated on record that they would vote against it, and most of the opposition parties (including the DUP that has been keeping the government afloat) promised to do the same. The vote is set to happen on 11 December.
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Editorial of December 2018

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 by Sergio Maia, Managing Editor

Multiannual financial framework, budgets and elections: is there room for convergence?

Current status of EU politics barely hides that convergence seems more and more dramatic, as the elections next May are rapidly approaching amidst uncertainty, Brexit and national populisms. Despite the signal Emmanuel Macron attempted to send recently by addressing the German Bundestag – the first French president to do so in 18 years – in favour of unity against chaos, there is little doubt that the moment is of euro-tension, somewhat of pre-storm. Italy is (literally) stepping on the European Commission’s budgetary recommendations; Brexit withdrawal agreement conclusion is an incognita on the British side (there is also the preliminary reference on its revocability under appreciation in CJEU); Steve Bannon is trying to fund extremist right-wing candidates for the European Parliament election; Poland is disguising its real commitment to implement CJEU interim measures; new migration rules are not settled, etc.

On top of that, there is an ongoing negotiation for the next multiannual financial framework (MFF) and in parallel proposals for a Eurozone specific budget as of 2021 – which was the underlying pretext for Macron’s speech at the Bundestag. The original idea of the French president was to equip the Eurozone with a separate budget to assist Member States experiencing instabilities in their economies. In other words, it would serve as a sort of debt mutualisation guarantee in critical times. This was only insidiously mentioned in the Meseberg Declaration, but it was mentioned nevertheless. The motivation for this tool was to provide an enhancement of the general balance between European economies so that the different levels of development in the EMU could be compensated for the benefit of Euro (stabilisation, prices) and trade flow in the internal market.
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Brexit and the possibility of “withdrawing the withdrawal”: a hypothetical question?

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 by Alessandra Silveira, Editor

In case C-621/18, Wightman and others, pending judgment by the ECJ, the request for a preliminary ruling concerns the interpretation of Article 50 TEU. It has been made in proceedings where the opposing Scots parties are Andy Wightman and o., on the one hand, and the Secretary of State for Exiting the European Union, on the other, raising the question whether it is possible to revoke the notification of the intention of the United Kingdom of Great Britain and Northern Ireland to withdraw from the European Union. The Court of Session, Inner House, First Division (Scotland), seeks, in essence, to ascertain whether, where a Member State has notified the European Council of its intention to withdraw from the European Union in accordance with Article 50 TEU, EU law permits that Member State to unilaterally revoke its notification before the end of the period of two years referred to in that Article. If so, the referring court is uncertain as to the conditions governing such a revocation and its effects relative to that Member State remaining within the European Union.

The referring court states that, under Section 13 of the EU (Withdrawal) Act 2018, the withdrawal agreement which might be concluded between the United Kingdom and the Union under Article 50(2) TEU, setting out the arrangements for that withdrawal, may be ratified only if that agreement and the framework for the future relationship of the United Kingdom and the European Union has been approved by the Parliament of the United Kingdom. The referring court states that, where the withdrawal agreement is not approved by that Parliament, and if no other proposal is made, the departure of the United Kingdom from the Union will nonetheless take effect as from 29 March 2019. The referring court adds that it is uncertain whether it is possible to revoke the notification unilaterally and to remain within the European Union. That court also states that an answer from the ECJ will clarify the options open to the parliamentarians when they vote on those matters.
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