Should Senate approve cybercrime treaty?

[Declan McCullagh <declan () well com>]

[Opposition to the cybercrime treaty, which is before the U.S. Senate 
for ratification, has largely come from the usual liberal-leaning (or 
civil libertarian) groups like the ACLU and the Electronic Privacy 
Information Center. Now a prominent conservative group is urging the 
Senate to block it. --Declan]




http://www.politechbot.com/2004/06/28/cybercrime-treaty/

Following is the Free Congress Foundation's commentary.

COMMENTARY: CYBERCRIME TREATY:

DICK LUGAR DOES IT AGAIN

Editor's Note: Defenders of our Constitutional liberties should demand 
that no Senate floor action be taken on the Cybercrime Treaty until a 
truly balanced hearing has been held in the Senate Foreign Relations 
Committee and there have been hearings in the Judiciary and Commerce 
Committee hearings too. We need to speak up now! Otherwise this treaty 
will be fast-tracked to the floor.

It's time conservatives blow the whistle on a compulsive speed demon: 
Senator Richard Lugar.

Senator Lugar, Chairman of the Senate Foreign Relations Committee, was 
anxious to send the Law of the Sea Treaty to the President's desk. 
President Reagan scuttled participation in the treaty in 1982 only to 
have it reemerge during the Clinton era. That attempt died too, but it 
is now back.

Senator Lugar's hearing on the treaty was stacked in favor of its 
proponents. Dr. Peter Leitner, author of Reforming the Law of the Sea 
Treaty, one of its critics, called before the hearing volunteering to 
testify only to be told politely to forget it.

The reason this treaty has not hit the President's desk is because 
concerned conservatives including Senator Jim Inhofe (R-OK), Paul 
Weyrich, and Phyllis Schlafly blew the whistle.

Hearings exploring the ramifications of the LOST were held by the 
Senate's Environment & Public Works, Armed Services, and Select 
Intelligence committees. Probing questioning exposed the treaty's 
troubling provisions such as its extension into airspace. It's a treaty 
that looks good at first blush but its attractiveness wilts under 
intense scrutiny.

Now Senator Lugar is trying to speed another treaty through his committee.

The Senate Foreign Relations Committee held a hearing on June 17 to 
examine the Council of Europe's Convention on Cybercrime and several 
other treaties. "Examine" is not really the proper word. It was a 
cheerleading session in which, similar to LOST, the expert testimony all 
came from treaty proponents representing government agencies including 
the State Department whose personnel are notorious for hawking such 
agreements with no serious regard for American sovereignty.

Senator Lugar argued that "prompt ratification" was indeed needed to 
ensure that the United States would be able to advance "security" and be 
safe from cybercrime. The representatives who testified before the 
committee last Thursday made a great point of mentioning the information 
that we could obtain from other countries, ignoring the obvious downside 
that other countries could manipulate this law to obtain vital 
information from our country.

In Senator Lugar's rush to have the Senate Foreign Relations Committee 
speed the treaties to the Senate floor in the hope that they would then 
be rushed to the desk of President Bush, some very important concerns 
were not voiced in debate.

Here's one. If the United States Senate ratified the treaty, our law 
enforcement agencies would be obliged to assist foreign law enforcement 
in investigating activities that may not constitute a crime in our 
country. There is a clause permitting exemptions for "political 
offenses" which are undefined, but the Bush Administration has failed to 
define what they will be and the fact is that the next administration 
could have a very different definition.

This treaty should be of great concern to pro-family organizations, 
particularly given the interest that Europeans have in prosecuting 
so-called "hate" crimes and the fact that virtually all political 
organizations use the Internet. Is it unreasonable to think that our law 
enforcement officials may be called to monitor the e-mail communications 
between American and European pro-family groups in order to help gather 
evidence for European law officials? After all, because YAHOO USA ad 
made its site available in France -- as it does to many other countries 
too -- it found itself facing prosecution from French authorities 
because one of the sites it offered had Nazi memorabilia for sale.

Obviously, this treaty could one day be used to have United States law 
enforcement tackle legitimate refugee and human rights organizations. Is 
it unthinkable that a government such as Sudan might try to use a 
friendly signatory country, based on trumped up charges, to obtain 
information based on e-mail communications about refugees actively 
opposed to the government's persecution of Christian minorities? It's a 
question that needs serious exploration now, not after we have signed 
the treaty.

Right now, the only countries that have ratified the treaty are Albania, 
Croatia, Estonia, Hungary, Lithuania, and Romania. Currently, their 
governments appear to be stable. But is it inconceivable that a few 
years from now a fascist or communist dictatorship might be at the helm 
of one of these countries, forcing our law enforcement agencies in 
effect to become accomplices in state-directed crimes against their people?

Furthermore, after the initial round of CE countries ratify the 
Cybercrime Treaty, other countries such as China and Saudi Arabia would 
be eligible to join.

Given that European countries have hate crime provisions on their books, 
our participation in this treaty could lead to pro-family groups being 
put under European surveillance, particularly if they communicate with 
sister organizations in Europe via e-mail and phone calls.

Another significant concern is that Article 14 of the Convention on 
Cybercrime would require countries to place law into effect that would 
require disclosure of decryption keys. This requirement runs afoul of 
the Bill of Rights with its provision protecting the right of 
individuals to avoid self-incrimination. Moreover, it is troubling from 
the standpoint of national security because it might assist foreign 
governments in obtaining sensitive information.

The Electronic Privacy Information Center in a statement submitted to 
the Senate Foreign Relations Committee stated the Convention on 
Cybercrime contains "A significant number of provisions [that] grant 
sweeping investigative powers of computer search and seizure and 
government surveillance of voice, e-mail, and data communications in the 
interests of law enforcement agencies, but are not counterbalanced by 
accompanying protections of individual rights or limit on government's 
use of these powers."

At the very least, the Senate Judiciary and Commerce committees should 
hold hearings on this treaty to seriously examine its implications and 
wehther the Council of Europe's approach on cybercrime, as expressed by 
this treaty, is truly best for our country's interest. Senator Lugar 
should ensure that both sides are able to testify before the Foreign 
Relations Committee.

The fact that this treaty is controversial even in Europe should send a 
warning to conservative defenders of our Constitutional liberties and to 
our nation's lawmakers that this treaty should not be Fedexed to 
President Bush's desk.

Senator Lugar has it wrong. The Senate is a deliberative body, charged 
with providing thorough consideration of international agreements such 
as the Law of the Sea Treaty and the Cybercrime Treaty. None other than 
George Washington cautioned against entangling alliances. Unfortunately, 
Senator Lugar seems only all too anxious to have our country become 
tangled up in the fine print. Somebody needs to raise a STOP sign on 
that committee to make sure it does a proper job.

Steve Lilienthal is Director of the Center for Privacy & Technology 
Policy at the Free Congress Foundation.
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