Approval of the Budapest Convention

On November 22, 2017, the Argentine Congress passed a law (the “Law”) approving the Convention on Cybercrime of the Council of Europe (ETS No. 185) adopted in Budapest, Hungary on November 23, 2001 (the “Convention”). The enactment of the law by the Argentine President and its publication in the Official Gazette are still pending. For more information regarding the approval process see Budapest Convention on Cybercrime.

The Convention was adopted in 2001 and is the only international treaty on cybercrime and digital evidence. Despite the fact that it was developed within the framework of the Council of Europe, any country may become members. To date it has been ratified by 57 countries, including the United States, the United Kingdom, Japan, Canada and Germany.

The main aim of the Convention is to establish a common criminal policy to protect communities from cybercrime. Convention has provisions which relate to substantive law and specifies several crimes, as well as several sections on procedural law and the collection of digital evidence and matters relating to international cooperation.

In 2008 Argentina passed Cybercrime Law No. 26,338 and amended its Criminal Code to include several cybercrimes, modelling them on those contained in the Convention. Consequently, the novel aspects of the approval of the Law are related to procedural law and international cooperation. Argentina still uses these rules for securing physical evidence for searches in computer systems, which is inefficient from a digital evidence standpoint.

The approval of the Convention means a modernization in the ways of securing digital evidence, which would apply to the investigation of any crime, not just cybercrime, as well as being part of an international cooperative framework denominated the 24/7 network, through which every country establishes a contact point to ensure immediate assistance in cybercrime investigations.

The Convention was approved with certain reservations. Section 2 of the Law establishes reservations in regards to several sections of the Convention which it considers to be incompatible with the Argentine legal system. Specifically, the Law made reservations to:

(i) Section 6.1.b, which would imply imposing an anticipatory penalty since it criminalizes preparatory acts;

(ii) Sections 9.1.d, 9.1.e, 9.2.b and 9.2.c, that criminalize acts related to child pornography in a manner which is incompatible with the Argentine Criminal Code; 

(iii) Section 22.1.d, which includes jurisdiction provisions that are incompatible with regulations on Argentine national jurisdiction; and

(iv) Section 29.4, which is considered contrary to Law No. 24,767 on International Cooperation in Criminal Matters.

In sum, the approval of the Law constitutes progress in the fight against cybercrime and in the securing of digital evidence.