International cybercrime treaty advances slowly
- By Bruce McConnell
- Mar 18, 2001
Early this month, I was the leadoff witness at the Council of Europe Parliamentary
Assembly's Legal Affairs and Human Rights Committee hearing on its draft
treaty on cybercrime. The United States and other non-European countries
have participated in drafting its text, which many other countries are expected
to sign. Signers would then bring their national laws into conformance with
the treaty. Thus, the council is creating a model law on cybercrime for
Reflecting those high stakes, the Paris hearing was packed with members
of the assembly and industry and government representatives from both sides
of the Atlantic. Most of the participating nations' law enforcement officials
support the treaty as they have drafted it. Content owners, such as the
Recording Industry Association of America, also support the treaty as a
necessary weapon against the forces that are challenging intellectual property
Important objections remain, however, and at the hearing I cited three:
- The surveillance powers envisioned for law enforcement are not explicitly
balanced by comparable protections for the privacy of individuals and the
rights of due process. Italy's privacy czar, Stefano Rodoty, further emphasized
the need for explicit privacy language in the treaty.
- The requirements placed on Internet and telecommunications companies to
assist law enforcement agencies are seen as overly burdensome and costly.
We have considerable experience with this problem in the United States.
In 1994, Congress enacted the Communications Assistance to Law Enforcement
Act. Yet questions about burden and cost delayed implementation of regulations
by the Federal Communications Commission until 1999, and they are still
under court challenge today. The former head of the Dutch Internet Service
Providers Association, Fred Eisner, echoed these concerns.
- The draft treaty is viewed as venturing into areas where existing national
and international laws are already adequate, including the treatment of
forgery and copyright infringement, creating confusion. Several witnesses
reiterated this concern.
The weight of the objections may delay action by the council until next
year a considerable setback in the fight to make cyberspace safer.
But a compromise is emerging that would consolidate the progress made
to date and leave the doors open for debatable areas to be resolved over
the next year. It would involve clear but limited coverage of principal
computer crimes: data interception, unauthorized modification and theft;
network-related crimes, including interference and sabotage; and crimes
of access, including hacking and virus distribution.
In addition, the treaty should enable cooperation across borders among
law enforcement agencies, but in a manner that respects due process and
human rights. Such a limited and incremental approach seems to be the most
successful way to legislate in cyberspace.
McConnell, former chief of information policy and technology at the Office
of Management and Budget, is president of McConnell International LLC (www.mcconnellinternational.com).