Basically USA claimed to be using the CoE Convention on Cybercrime in order to have the server raid performed. But that convention requires that USA's government bodies extend the same legal protections to those in other countries as if they were USA citizens within their own jurisdiction (and the other country has to provide the safeguards of their own law too). That is, if the Fourth protects Ulbricht if he was in USA then the same protections must be applied.
This is very sensible. It means that parties can't go off on hunting expeditions and treat the citizens/subjects of other countries in the [convention's] union worse than they treat their own citizens.
Now the testimony I linked to in that prior post at once claimed that the CoE Convention was being used and claimed they weren't certain. To me that strongly suggests the USA government agent(s) was attempting to deceive whilst under oath, perhaps not strictly lying but certainly not being helpfully informative - perhaps they realised after the fact that they'd failed to abide by the convention and so claimed it was maybe "comity" in order to have a get out clause when the issue of safeguards was raised?
> ">In any event, even if the FBI had somehow “hacked” into the SR Server" //
So, such an unauthorised intrusion may not have run afoul of the Fourth, perhaps, but it would either have broken the domestic law or breached obligations under international conventions depending on if they sort permissions from Sweden first or not. [and possibly neither if they established a protocol that bypassed international agreement].
From where I'm viewing it seems USA don't really care about the application of the rule of law neither in USA nor in other countries when it comes to USA government agents.
I think you may be reading too much into the treaty. It isn't clear to me that it demands countries extend all domestic protections (but I have not read it terribly closely). I see where it says the laws they pass to comply with the treaty should provide protections.
Beyond that, I don't think it obligates the US and Iceland to cooperate solely under that framework, what it does is create a situation where if the US comes to Iceland with a proper warrant, Iceland is obligated to comply with that warrant. If the FBI just wants to send the police in Iceland a tip and Iceland does something based on that tip, well, that's that.
>I don't think it obligates the US and Iceland to cooperate solely under that framework //
Yes, agreed. But the statement by the FBI [cf previous Scribd link] claimed they used the Convention to acquire cooperation.
>"Although the Complaint and search warrants in this case refer to the request as a “Mutual Legal
Assistance Treaty request,” this description is not technically correct, as the United States does
not have an MLAT with Iceland. The request was instead an official request to Iceland issued
pursuant to the 2001 Council of Europe Convention on Cybercrime and other relevant law of
Iceland, and as a matter of comity."
That statement is sketchy as anything ("we said it was MLAT but it wasn't"): it absolutely _looks_ like they concocted the rationale allowing the search after the fact and without due process.
I'm not sure if the treaty has anything about bypassing its terms either.
The request was instead an official request to Iceland issued pursuant to the 2001 Council of Europe Convention on Cybercrime and other relevant law of Iceland, and as a matter of comity." isn't sketchy. It's 3 reasons Iceland would cooperate with a request from the US.
I really have no idea if the MLAT error would matter or not, but if the lawyer writing the brief is aware of the mistakes in the previous documents, it'd be way sketchier to not mention it.
The initial claim is they used MLAT. But then the FBI claimed they didn't, because they don't have an MLAT treaty in place - doesn't that seem a little, um, unprofessional at least not to even know the legal status of their own request. When they documented the phone call to the officials in Iceland what did they write down, what did they say was the legal basis for the investigation? It sure looks like they didn't have a basis at that point beyond need for the investigation.
It doesn't look like a mistake beyond the "we got caught in a lie" type of mistake.
For avoidance of doubt I don't personally think that this should invalidate the evidence gained. To me the truth is important. However, the officials involved if proven to be acting without legal rationale and without attention to due process and the rule of law should be heavily punished. Indeed if my reading of the CoE Convention is correct then an official apology would be due to Iceland for breaching the terms of the Convention as well.
When they documented the phone call to the officials in Iceland what did they write down, what did they say was the legal basis for the investigation? It sure looks like they didn't have a basis at that point beyond need for the investigation.
I'm not sure what you are getting at here. I imagine the call went something like:
US: "We think we've found [blah blah blah]. We'd like you to seize the server."
Iceland: "Eh, OK, sounds good."
Then, if the statements that RMP followed Icelandic law are not a fabrication, they would have continued on until the RMP felt they had sufficient information to get their warrant or whatever.
I don't think the Icelandic government or police would have treated the FBI as an adversary.
You don't think Iceland wants to know why, or ensure that the action is lawful? Ordinarily speaking a democratic state doesn't have blanket powers to do as it pleases - the Icelandic authorities are bound by their own and EU laws, and other treaties.
I'm not suggesting they'd treat a request adversarially, I'm suggesting that they'd need to get evidence to apply to a court for a warrant (or whatever the local procedures are) under local laws or they'd need to ensure the operation met the requirements if the request was under CoE Convention say.
Perhaps I have too high an opinion of law enforcement agencies and the idea[l] of rule of law is just a charade?
Iceland are signatories to the ECHR for example which extends property and privacy rights.
It doesn't make sense to assume that the RMP (police in Iceland) failed to follow Icelandic law. Especially when the memorandum you linked says they followed local law and applied for a warrant (or so).
Subsequently, after obtaining the legal process required under Icelandic law to search the server, and after consulting with U.S. authorities concerning the timing of the search, the RMP covertly imaged the server and shared the results with the FBI on or about July 29, 2013.
It's certainly possible that the memo is full of misrepresentations or that the FBI mislead the RMP, but I don't think it is so likely that it should be assumed to be the case.
Even if the US was given the information in violation of Iceland law, which I'm not convinced of, it wouldn't have any bearing on what happens in a US court. My point stands completely.
And if Iceland gave over the info in error, that's their problem, not the US's.
The law they claimed to use to require Iceland to do the search also requires that USA provide the same protections as if the suspect and search had been made in the USA. USA of course can renege on their agreement to abide by the Convention but under rule of law it should have an effect on the US court.
If Iceland did the USA's bidding and in doing so contravened the USA's Convention agreement then it certainly looks like that should be the USA's problem - in practice USA don't seem to care about that sort of thing. The international community shouldn't allow USA to act unlawfully to parties just because they're not on USA soil.
What I'm saying is that it looks like the USA's request required them to provide certain legal protections that they didn't extend. It seems like they were prepared to flout the rule of law in order to apprehend DPR. The ends are right but I don't think they entirely justify the means.
Basically USA claimed to be using the CoE Convention on Cybercrime in order to have the server raid performed. But that convention requires that USA's government bodies extend the same legal protections to those in other countries as if they were USA citizens within their own jurisdiction (and the other country has to provide the safeguards of their own law too). That is, if the Fourth protects Ulbricht if he was in USA then the same protections must be applied.
This is very sensible. It means that parties can't go off on hunting expeditions and treat the citizens/subjects of other countries in the [convention's] union worse than they treat their own citizens.
Now the testimony I linked to in that prior post at once claimed that the CoE Convention was being used and claimed they weren't certain. To me that strongly suggests the USA government agent(s) was attempting to deceive whilst under oath, perhaps not strictly lying but certainly not being helpfully informative - perhaps they realised after the fact that they'd failed to abide by the convention and so claimed it was maybe "comity" in order to have a get out clause when the issue of safeguards was raised?
> ">In any event, even if the FBI had somehow “hacked” into the SR Server" //
So, such an unauthorised intrusion may not have run afoul of the Fourth, perhaps, but it would either have broken the domestic law or breached obligations under international conventions depending on if they sort permissions from Sweden first or not. [and possibly neither if they established a protocol that bypassed international agreement].
From where I'm viewing it seems USA don't really care about the application of the rule of law neither in USA nor in other countries when it comes to USA government agents.