privacy interests in the data sought or the place where it is located, the more formal and
time-consuming the investigative and international co-operation procedures become.
Compliance with human rights safeguards may take more time when the request originates
in a different country.
2.6
The Group noted the importance of provisions whereby data could be identified or
'frozen' by the requested state and then released to the requesting state once the
appropriate safeguards had been applied. The Group also noted the expanding use of ‘24/7’
networks whereby investigators in one state could obtain immediate assistance in another to
trace and identify target data, assess its nature and ensure that the appropriate procedures
were followed as efficiently as possible. The Group further noted that under-estimation of
privacy interests could compromise basic human rights protections and the admissibility of
the evidence in one or both of the states involved, while on the other hand, over-estimation
of privacy interests could unnecessarily delay investigations by the use of formal channels
when they were not needed.
2.7
There are many informal networks within the Commonwealth, such as the
Commonwealth Network of Contact Persons. The Commonwealth context, with a shared
legal tradition and a common approach to many matters of administration and agency
procedures, makes those networks especially effective; within them, there is an easy
understanding of requests for help.
Formal instruments for co-operation
2.8
Where more formal procedures are necessary, the requirements for co-operation
may be set out in instruments of different types. These include memoranda of understanding
between specialist agencies; obligations of co-operation derived from common membership
of a regional organisation; instruments such as the Schemes adopted by Law Ministers
which have a force that falls short of a treaty; Model Laws that have been adopted by both
states concerned; and bilateral treaties and multilateral treaties open to states within a
particular region or of potentially global effect.
2.9
In some cases, several modes of proceeding may be available. This is recognised in
the text of the Budapest Convention, article 23 of which sets out general principles relating to
international co-operation:
The Parties shall co-operate with each other, in accordance with the provisions of
this chapter, and through the application of relevant international instruments on
international co-operation in criminal matters, arrangements agreed on the basis of
uniform or reciprocal legislation, and domestic laws, to the widest extent possible for
the purposes of investigations or proceedings concerning criminal offences related to
computer systems and data, or for the collection of evidence in electronic form of a
criminal offence.
Criteria for the selection of instruments
2.10 Although ad hoc arrangements may be very useful, a standing and binding
arrangement that can be invoked as required is a very desirable part of the armoury of a
state engaged in combating cybercrime. It is possible to set out some criteria to be used in
assessing the various instruments that a state may choose to adopt, criteria also relevant to
the Group’s task:
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