To: Interested Persons
From: Barry Steinhardt, Director, Technology and Liberty Project
Christopher Calabrese, Project Counsel
Date: June 16, 2004
Re: Cyber Crime Treaty
Introduction
The Council of Europe Convention on Cybercrime is a broad agreement that governs a range of criminal activities involving a computer. It mandates all ratifying nations to assist each other in monitoring and detecting all types of computer-related crime. Because of the broad reach of electronic communications in modern society, the treaty effectively becomes a requirement that American law enforcement provide extensive assistance to other nations in investigating a wide variety of crimes.
The treaty does not contain a ""dual criminality"" provision. Such a provision would hold that an action must be a crime in both the nation where the crime was committed and the nation of whom action is requested. Instead the Cybercrime Treaty only requires that the action be a crime in the nation in which it is committed. As a result there is almost no limitation on the requirement stated in Article 25 of the treaty, ""The Parties shall afford one another mutual assistance to the widest extent possible for the purpose of investigations or proceedings concerning criminal offences related to computer systems and data, or for the collection of evidence in electronic form of a criminal offence.""
The practical effect of these legal requirements is that nations that ratify the treaty will be required to assist other ratifying nations ""to the widest extent possible"" in the investigation of any action that is described in criminal terms.
Several countries that have already ratified the treaty or, as Council of Europe members, could ratify the treaty, have human rights records that have been described as poor by the State Department's most recent Country Reports on Human Rights Practices. These governments used their police powers to arrest and harass citizens, suppress free speech and fair elections and discriminate against racial minorities. Some individuals in police custody were tortured or killed. Each of these nations could ratify the Cybercrime Treaty and demand assistance from the United States in investigating and prosecuting individuals.
Below are three examples drawn from the State Department's 2003 Human Rights report of the poor human rights records of members of the Council of Europe who would be able to call on the US for mutual legal assistance.
The Ukraine is a Council of Europe member and signatory to the treaty. This is an excerpt from the State Department Report on its human rights record:
The Government's human rights record remained poor; although there were some improvements in a few areas, serious problems remained. Seriously flawed local and parliamentary by-elections during the year, as well as administrative and other difficulties imposed to limit the organizational efforts and access to media of opposition parties, restricted citizens' right to change their government. There were some deaths in custody. Police and prison officials tortured and beat detainees and prisoners, and at least two detainees died under suspicious circumstances. Police abuse and harassment of racial minorities was a continuing problem. The beating of conscripts in the army by fellow soldiers was common and at times resulted in death. Prison conditions remained harsh and life-threatening, particularly because of prisoners' exposure to diseases such as tuberculosis. The Government rarely punished officials who committed abuses. Arbitrary arrest and detention from what appeared to be political motivation, were problems at times, as was lengthy pretrial detention in very poor conditions; however, the courts continued to release defendants from confinement pending trial. Long delays in trials were a problem and judges continued to readily grant most Procuracy requests for residential search and wiretap warrants.
Authorities interfered with the news media by harassing and intimidating journalists, censoring material, and pressuring them into applying self-censorship. There were some limits on freedom of assembly, and the authorities impeded the efforts of individuals to participate in some demonstrations. Freedom of association was restricted. There were some problems with registration and property disputes; however, the Government took steps to address the concerns of religious communities. There were reported instances of anti-Semitic acts, including desecration of synagogues. There were some limits on freedom of movement. Violence and discrimination against women, including sexual harassment in the workplace, were problems. Violence against children was a problem. Ethnic minorities and Muslims complained of harassment and frequent identity checks.
Azerbaijan is a member of the Council of Europe. It is eligible to sign and ratify the Cybercrime Treaty. This is the State Department summary of its human rights record:
The Government's human rights record remained poor, and it continued to commit numerous serious abuses. The Government continued to restrict citizens' ability to change their government peacefully. Law enforcement officers killed one person at a post-election demonstration on October 16 that turned violent. Police tortured and beat persons in custody, including several opposition members, and used excessive force to extract confessions. In most cases, the Government took no action to punish abusers, although the Government reportedly took disciplinary action against more than 200 police officers. Prison conditions remained harsh and life threatening, and some prisoners died as a result of these conditions. Arbitrary arrest and detention and lengthy pretrial detention continued to be problems. After the election, authorities conducted a wave of politically motivated detentions and arrests of more than 700 election officials, opposition members, and journalists; more than 100 remained in custody at year's end. The Government continued to hold many political prisoners and infringed on citizens' privacy rights.
The Government continued to restrict some freedom of speech and of the press, and police used excessive force and continued to harass journalists during the year. Government officials sued journalists for defamation. The Government restricted freedom of assembly and forcibly dispersed several demonstrations held without a permit, and law enforcement officers beat protestors at several demonstrations during the year. The Government continued to restrict freedom of association by refusing to register some political parties and harassing domestic human rights activists and nongovernmental organizations (NGOs). There were some restrictions and abuses of religious freedom, and lower-level and local government officials continued to harass some "nontraditional" religious groups. Violence against women, societal discrimination against women and certain ethnic minorities, and limitations of some worker rights remained problems. Trafficking in persons was a problem.
Romania
Romania is another member of the Council. Because it has already ratified the treaty, it has the right to demand immediate assistance from any other ratifying nation. While Romania has a generally positive human rights record, its problems are not insignificant. The State Department summary is as follows:
The Government generally respected the human rights of its citizens; however, there were problems in some areas. Police officers sometimes beat detainees and reportedly harassed and used excessive force against Roma. While some progress was made in reforming the police, cases of inhuman and degrading treatment continued to be reported. Investigations of police abuses generally were lengthy and inconclusive and rarely resulted in prosecution or punishment. ?At times, authorities violated the prohibition against arbitrary arrest and detention.
Government action and inaction at times restricted freedom of speech and of the press. During the year, there was a pattern of intimidation, harassment, and violence against journalists who wrote critical reports on government activities or government and ruling party officials. Religious groups not officially recognized by the Government complained of discriminatory treatment by authorities. Societal harassment of religious minorities, violence and discrimination against women, and restitution of property confiscated during the Communist regime remained problems.
These three examples merely scratch the surface. The Council of Europe is made up of 45 nations. Countries like Russia, Turkey, Albania, and Bosnia and Herzegovina continue to struggle with human rights. They have used their authority to trample individual rights in a number of circumstances. If the United States ratifies the treaty, it will have a responsibility to assist these regimes in persecuting any individual who uses a computer. In practice this means that the FBI could be required under this treaty to order AOL or Earthlink to spy on a Ukrainian political dissenter or a Romanian union organizer.
Political Offenses
The treaty does allow the cooperating nation to refuse to investigate any crime that is a ""political offense."" However, this exemption does little to mitigate the dangers that the U.S. will become a tool of politically motivated action by another nation.
""Political offense"" is not defined in the treaty and the line between political and criminal activity is blurry. For example in Romania libel against a public official carries a criminal penalty of 3 to 36 months. The penal code also contains penalties for spreading false information aimed at attacking national security. According to the State Department's Country Reports, these laws are part of a pattern of media coercion that includes violence against journalists critical of the government and intimidation against private media outlets. Other signatories to the treaty, including the Ukraine and Bulgaria, have used a number of legal mechanisms including criminal libel and defamation laws to suppress dissent and press freedom. Criminal libel laws have their basis in the civil code adopted by many nations (in contrast to our common law tradition). Only the use, not the existence, of these laws is politically motivated.
Alternately some offenses may not be politically motivated but are clearly abhorrent to American ideals. Albania also has a legal restriction against inciting religious hatred. In October 2003, police arrested Kastriot Myftaraj, author of the book "Albanian National Islamism," on these charges. The book contained the author's opinions on Islam and how the religion has impacted Albanian life. According to the prosecutor's office, several statements in the book demeaned Islam. The United States should never be in a position of suppressing an individual's right to free speech or expression.
There is no mechanism in place to determine when the political offense exception could be raised. Under the treaty, U.S. assistance could be authorized in many cases solely by law enforcement without any judicial approval or oversight. There is no mechanism or legal process in the treaty to solve this problem.
Finally the political exemption does not apply to all powers under the treaty. For instance it was not included in the section requiring real-time data monitoring. Nor is their any requirement that an individual ever be informed that they were the subject of government scrutiny, leaving citizens with no effective way to challenge determinations under the treaty.
Conclusion
Ratification of the Council of Europe's Convention on Cybercrime will put the United States in the morally repugnant position of supporting the actions of politically corrupt and evil regimes. There is no limit placed on countries to provide mutual assistance; nor is the treaty limited to Council of Europe members. Eventually countries with even more checkered histories of civil rights abuses, such as China, could become members. The broad scope of the Cybercrime Treaty and the vast number of potential signatories threatens core liberties and will obligate the United States to use extraordinary powers to do the dirty work of other nations.