Critics took aim this week at a controversial international treaty intended to facilitate cross-boarder computer crime probes, arguing that it would oblige the US and other signatories to cooperate with repressive regimes - a charge that the Justice Department denied.
The US is one of 38 nations that have signed onto the Council of Europe's "Convention on Cybercrime," but the US Senate has not yet ratified the measure. In a letter to the Senate last November, President Bush called the pact "the only multilateral treaty to address the problems of computer-related crime and electronic evidence gathering." The treaty, "would remove or minimize legal obstacles to international cooperation that delay or endanger U.S. investigations and prosecutions of computer-related crime," he said.
Drafted under strong US influence, the treaty aims to harmonize computer crime laws around the world by obliging participating countries to outlaw computer intrusion, child pornography, commercial copyright infringement, and online fraud.
Another portion of the treaty requires each country to pass laws that permit the government to search and seize email and computer records, perform Internet surveillance, and to order ISPs to preserve logs in connection with an investigation. A "mutual assistance" provision then obligates the county to use those tools to help out other signatory countries in cross-border investigations: France, for example, could request from the US the traffic logs for an anonymous Hushmail user suspected of violating French law.
Dual criminality. Not
That worries civil libertarians. The treaty is open to any country, with the approval of those that have already ratified it, and some fear that it could put the United States' surveillance capabilities at the disposal of foreign governments with poor human rights records, who may be investigating actions that are not considered crimes elsewhere.
"There is no requirement that the act that is being investigated be a crime both in a nation that is asking for assistance, and the nation that is providing assistance," said the ACLU's Barry Steinhardt, speaking at the Computers Freedom and Privacy Conference in Berkeley, California on Thursday. The US and other countries will be asked to use the electronic snooping powers mandated by the treaty to track political dissidents, he said.
Betty Shave, who heads the Justice Department's international computer crime division, admitted that the treaty mostly lacks so-called "duel criminality" provisions, but she countered that other language in the pact would prevent abuses. One clause in the treaty allows a country to refuse to cooperate in an investigation if its "essential interests" are threatened by the request: Shave says that would allow the US to bow out of a probe targeting free speech or other actions protected by the U.S. Constitution. Moreover, political offenses are specifically excluded from some types of mutual assistance requests available under the treaty.
The treaty is necessary because "crime and terrorism, like everything else, are moving onto the Net and are increasingly difficult to investigate, and a lot of crime is international," said Shave. "Many crimes are deliberately staged through various countries just to make it difficult to investigate."
Privacy International's Gus Hosein argued the international community should have produced model legislation to harmonize computer crime laws, instead of a treaty with mutual obligations. "You create a treaty, suddenly you have all these interests come in."
Thirty-four European nations, plus Canada, Japan, South Africa and the United States have signed onto the treaty, but only five have thus-far ratified it: Albania, Croatia, Estonia, Hungary and Lithuania.
If ratified, no new domestic laws would be have to be passed to bring the US into line with the treaty, according to the Justice Department. Steinhardt was skeptical. "The treaty is already being used as a pretext in some developing nation to pass some pretty draconian laws," he said. "I wouldn't be surprised to see it used in the US that way."
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