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Eight Reasons the US Should Reject the International Cybercrime Treaty

by ACLU

The International Cybercrime Convention: What Is It?

On November 23, the United States signed an extraordinarily broad new treaty to increase cooperation among law enforcement officials of different nations. Officially, this Cybercrime Convention was drafted by the 43-member Council of Europe, with the U.S., Canada, Japan and other countries participating as "observers." In reality, American law enforcement officials have been among the primary drivers behind the treaty.

The Cybercrime Convention does three major things:

It includes a list of crimes that each member country must have on its books. The treaty requires criminalization of offenses such as hacking, the production, sale or distribution of hacking tools, and child pornography, and an expansion of criminal liability for intellectual property violations (Articles 2-11).

It requires each participating nation to grant new powers of search and seizure to its law enforcement authorities, including the power to force an ISP to preserve a citizen's internet usage records or other data, and the power to monitor a citizen's online activities in real time (Articles 16-22). It requires law enforcement in every participating country to assist police from other participating countries by cooperating with "mutual assistance requests" from police in other participating nations "to the widest extent possible" (Articles 23-35).

The 8 reasons this treaty should be rejected The ACLU believes that this is a bad treaty, and that the U.S. should not sign or ratify it. There are 8 main problems with the agreement:

Reason #1: The treaty lacks privacy and civil liberties protections

The surveillance powers that this treaty would hand to police are not balanced out by meaningful privacy or civil liberties restraints. For example, unlike other international law enforcement agreements (including the Interpol, Europol and Schengen agreements), this treaty includes no provisions to protect citizens' privacy. In fact, the word "privacy" doesn't appear once in any of the convention's articles.1

The treaty also requires ISPs to cooperate with searches and seizures of data without requiring police to reimburse them for the costs of that cooperation.2 Not only is that an unfair burden on the ISPs, but by making searches free for the police, it encourages them to use that power indiscriminately. That undermines one of the most important checks and balances of a democratic system: the control over law enforcement that Congress and other legislatures maintain through their budgetary "power of the purse."

Reason #2: The treaty is far too broad

Like a monster, the treaty has vastly outgrown its original mission of helping coordinate enforcement of cross-border cybercrimes. Now the treaty covers not only computer-related crimes, but any crime where the evidence could be in computerized form.3 As computers become more and more intertwined with modern life, this treaty's problems will apply to a larger and larger proportion of all crimes. Eventually even muggers will all have Internet-ready handheld computers. Foreign police can't require the FBI to search a the home or tap the phone of someone who hasn't violated any U.S. laws; why should they be able to order a search of his computer records? The Convention's broad reach means that despite the treaty's name, all its flaws would soon apply not just to a few specialist hackers, but to the whole fabric of American society.

Reason #3: The treaty lacks a "dual criminality" requirement for U.S. cooperation with foreign police

American law enforcement would be forced under this treaty to cooperate with investigations of behavior that is illegal abroad but perfectly legal in the U.S. That is because the treaty lacks a "dual criminality" provision that would require an activity to be a crime in both countries before one nation could enlist the police in another to help investigate. The result: American law enforcement agencies would be forced to cooperate with foreign authorities in conducting surveillance on American citizens who have committed no crime under U.S. law.

Worse, some of those mutual assistance requests will come from countries that have minimal civil liberties protections. The Convention includes not only Council of Europe members like Ukraine and Bulgaria, but will also over time be opened to China and other non-democratic nations - additions that the United States would have no right to veto. And even Western European countries have much different views on civil liberties than the U.S. For example, hate speech - protected by the First Amendment in the U.S. - is illegal in France and Germany. A French court recently held Yahoo liable for allowing the sale of Nazi memorabilia, for example. Even the U.K. has much different free speech standards than the U.S. (most notably very broad standards for defamation and libel).

Reason #4: Protection for political activities is too weak

The absence of a dual criminality requirement will inevitably result in the treaty being used to force one nation to cooperate in politically inspired investigations by another. While there are some exceptions in the treaty that allow a signatory to refuse to cooperate because the offense being investigated is "political," these exceptions are far too limited and won't even apply to many of the most significant requests.

For example, an exemption to the mutual assistance requirement for offenses that are "political" in nature was not included in the section requiring real-time data monitoring.4 That means that the FBI could be required under this treaty to order AOL or Earthlink to spy on a Ukrainian political dissenter, a Latin American union organizer, or a U.S. veteran who sold a Nazi helmet over eBay.

In addition, the term "political offenses" is not defined - a huge omission since an offense that is considered political in the U.S. might be a criminal matter in another country. Even worse, U.S. assistance in many cases could be authorized solely by law enforcement without judicial approval or oversight.5; A law enforcement agency could decide on its own that an offense isn't political, and initiate surveillance. And since the treaty doesn't even have a reporting requirement (requiring instances of cooperation with other countries on foreign crimes to be made public), law enforcement decisions on this sensitive issue may never be subject to civilian check or oversight.

Reason #5: The treaty threatens to further unbalance U.S. intellectual property law

The treaty's vague and obscure intellectual property provisions would significantly expand criminal liability for intellectual property violations and further tilt copyright law away from the public interest. It also appears to make copyright violations into extradictable offenses. U.S. intellectual property law contains a delicate balance between the rights of intellectual propertyholders and the rights of the public through the First Amendment and the law of "fair use" of copyrighted materials (which permits copyrighted material to be used for parodies, criticism, and so on). But this treaty declares simply that copyright infringement would be criminalized,6 with no mention of fair use.

Reason #6: The treaty would give police invasive new surveillance powers

The treaty would require the U.S. to authorize the use of devices like Carnivore, the FBI's "Internet-tapping" surveillance system.7 Unlike telephone wiretaps, which are set up by the telephone company on behalf the authorities to listen to one line, Carnivore allows law enforcement agents direct access to ISPs' entire networks for surveillance, with only their unsupervised self-restraint preventing them from inspecting the vast flow of other data in the network. Unfortunately, the history of the FBI and other government agencies on respecting privacy is not good, and Carnivore has been opposed by organizations from across the political spectrum.

The legal authority for Carnivore is still murky. Its use to collect addressing information (the source and destination of Internet traffic) has not been explicitly authorized by Congress. Its use for eavesdropping on actual content has not been authorized even implictly.

By mandating authorization of Carnivore, the Cybercrime Convention would short-circuit the debate over the role of Carnivore in America, and impose a policy that further undercuts U.S. law, including the Constitution's Fourth Amendment with its guarantee against "unreasonable searches and seizures" without probable cause.

Reason #7: The treaty contains an overly broad criminalization of hacking tools

The amorphous ban on tools that were "designed primarily" for hacking criminalizes the tools rather than the behavior at issue; after all, even if lock-picking tools were designed for burglars, they should still be legal for use by a locksmith to help someone locked out of their car at 2:00 in the morning. This provision would put a damper on technical experimentation. And it would apply when the tools were distributed "without right"8 - an undefined, legally mysterious phrase that makes this article ripe for abuse by under-savvy and over-ambitious prosecutors.

Reason #8: The treaty was drafted in a closed and secretive manner

The drafting process was closed, secretive and undemocratic. The drafting committee was dominated by law enforcement, while industry and public-interest groups didn't have a seat at the table. Even after the publication of treaty drafts, the authors made little effort to incorporate the views and concerns of privacy and civil liberties groups. The result is a "wish list" for law enforcement that lacks the balance that other viewpoints would have brought to the treaty - and the balance that the U.S. Constitution requires.

Footnotes

1 There is one platitude about privacy in the preamble.
2 Article 15.3.
3 Article 23.
4 Article 33.
5 Article 27.2.b.
6 Article 10.1.
7 Articles 20 and 21.
8 Article 6.1.

 
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