[Politech] Should Senate approve cybercrime treaty?

From: Declan McCullagh (declan@private)
Date: Mon Jun 28 2004 - 20:38:05 PDT

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    [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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