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FreeNet Ukraine Coalition сalled MPs to finalize digital rights bills

09.09.2020, 13:46
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The FreeNet Ukraine Coalition claimed that the package of bills aiming to counter the cybercrime and to strengthen the sanctions mechanism submitted in the parliament on September 1st threatens digital rights, and calls on the MPs to finalize this package. This is said in the statement of the coalition, made public on September 8 on the website of the NGO "Digital Security Laboratory".

Thus, on September 1, 2020, the members of the Verkhovna Rada Committee on Law Enforcement, headed by Denys Monastyrsky, submitted a number of bills aimed at improving the effectiveness of combatting the cybercrime and ensuring compliance with the sanctions regime (bills # 4002, # 4003, #4004).

These bills proposed some amendments to the legislation aimed at implementation of the Convention on Cybercrime on urgent preservation of information and introduction of the new concept of "electronic evidence" in Ukrainian legislation. The Bill # 4002 also proposed a mechanism for bringing to justice those who violated the sanctions regime.

"While not denying the expedience of implementing the Convention's approaches into national law, the FreeNet Ukraine Coalition has serious concerns about the potential negative impact on human rights of certain provisions of these bills," the statement said.

In particular, the coalition explained how exactly these provisions could negatively affect human rights:

Bill №4002 "On Amendments to Certain Legislative Acts of Ukraine on Establishing Liability for Violation of the Sanction Regime Acting to Protect National Security and Territorial Integrity of Ukraine" introduces financial and criminal liability for non-compliance with sanctions - up to liquidation of a legal entity and imprisonment. Liability measures can be applied not only to sanctioned entities, but also to other persons who "in any way intentionally contributed to the violation of their application." At the same time, fines of up to UAH 85,000 (around 3 000) will be applied directly by a special authorized body set up by the Cabinet of Ministers to monitor compliance with the sanctions regime.

"Given the questionable legitimacy of certain sanctions, in particular the obligations of telecommunications providers to restrict access to web resources, the introduction of control mechanisms and responsibilities may create threats to their activities, which, in turn, may also adversely affect citizens' access to telecommunications services, "the statement said.

Bill № 4003 "On Amendments to the Criminal Procedure Code of Ukraine and the Code of Administrative Offenses of Ukraine to increase the effectiveness of combating cyberattacks" provides opportunities for law enforcement to access information stored in electronic information systems (eg, information on a smartphone or personal computer ), which are not subject to a search warrant, if the investigator or prosecutor decides that there are sufficient grounds to believe that the information contained therein is relevant to the establishment of the circumstances in the criminal proceedings. 

Such a rule, as the coalition noted, gave unlimited discretion to law enforcement agencies and did not provide any mechanisms to protect a person from violating his right to secrecy of correspondence.

Bill №4003, as the statement said, also imposes on providers a number of responsibilities for storing information in telecommunications systems, including traffic volume sufficient to identify the subscriber and determine the source of traffic and the route of its transmission within 12 months, as well as in the procedure for requirements for temporary storage of information for the purposes of criminal proceedings. 

Access to such information should be provided by order of the prosecutor or investigator and may also be delegated to operational units. Exceptions that require the decision of an investigating judge or court relate to information protected by the Law of Ukraine "On Personal Data Protection" or transmitted and stored under such physical or legal conditions under which participants can count on the protection of information from interference.

The draft law does not establish the peculiarities of the procedure of access to the listed information by the decision of the court or the investigating judge, and the exceptions themselves are formulated too generally, which may complicate their application. In this case, given the secrecy of criminal proceedings, there is a high risk that access to any information about a person's communications may be made without proper guarantees of judicial oversight.

Bill №4004"On Amendments to the Criminal Procedure Code of Ukraine to strenghten the Effectiveness of the Fight against Cybercrime and the Use of Electronic Evidence" complements the provision of Article 39 of the Law of Ukraine "On Telecommunications", which imposes an obligation on telecommunications providers to install at one’s expenses within its television and communication networks some technical means necessary for the implementation by authorized units of operational and investigative measures, covert investigative (search) actions and temporary access to information about the connection, subscriber, provision of telecommunications services, including services, their duration, content, transmission routes, etc., and provide functioning of these technical means, and also within the limits of the powers to promote carrying out operatively-search actions,covert investigative (search) actions and temporary access to information. 

"Such a rule contradicts to the requirements of, inter alia, the EU E-Commerce Directive, which prohibits the intermediaries from having a general obligation to monitor information transmitted through them or to proactively seek facts or circumstances that indicate illegal content or activity," - the statement read.  

Inthis context, the FreeNet Ukraine Coalition called the MPs to finalize the registered bills taking into account Ukraine's international human rights obligations, in particular to harmonize the draft norms with the Convention for the Protection of Human Rights and Fundamental Freedoms. Court of Human Rights, as well as to harmonize the proposed amendments with the requirements of European Union law, in particular on the protection of personal data, harmonization with which is carried out within the Association Agreement between Ukraine and the EU.

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