ACLU Letter to the Senate Foreign Relations Committee on the Council of Europe Convention on Cybercrime

The Honorable Richard G. Lugar
Chairman, Senate Foreign Relations Committee
306 Hart Senate Office Building
Washington, DC

The Honorable Joseph R. Biden, Jr.
Ranking Member, Senate Foreign Relations Committee
221 Russell Senate Office Building
Washington, DC

Re: Council of Europe Convention on Cybercrime

Dear Chairman Lugar and Ranking Member Biden:

As the Committee considers the Council of Europe Cybercrime Convention, we urge you to hold full hearings with a wide range of witnesses before making your recommendation.

The Cybercrime Treaty is both very complex and very important. It is complex both because it contains provisions requiring its signatories to have specific criminal laws and because its “”mutual legal assistance”” and other procedural provisions involve the use of significant law enforcement powers in a wide variety of circumstances.

It is important because of its potentially broad reach. As communications technology advances it weaves itself into the fabric of our lives. The substantive crimes and procedures contemplated by the treaty would touch each of us. Indeed, while the Convention covers more familiar cybercrimes, such as a crackers unauthorized access to a network, virtually any crime may become a cybercrime. Even a robbery committed by criminals using a wireless email device would be a “”cybercrime”” under the terms of the Treaty.

There is no need to rush your deliberations. Since the treaty was signed more than 2 ½ years ago, no major industrial nation has ratified it. In fact, the Executive Branch took two years before it even submitted the Convention to you. Regardless of one’s ultimate view of the merits of the Convention one thing is clear: the treaty is the result of a process that began more than 8 years ago, it should not be rushed through the Senate without a full and complete evaluation of its merits and drawbacks.

This review should consider the treaty as a whole and consider all the available reservations, not just those endorsed by the Department of State. We especially draw your attention to the reservations available concerning Article 14,20 and 21 which would limit the requirement to engage in real time surveillance of communications to serious offenses and public service providers.

One provision of the Cybercrime Treaty demands special mention. The treaty requires all ratifying nations to provide mutual assistance in criminal law enforcement to all other ratifying nations. This provision does not require dual criminality (that the action in question be a crime in both nations) and is not subject to reservation. Before ratifying the Convention, the Senate should carefully consider what it means to agree to provide mutual legal assistance to countries whose substantive laws and procedures do not comport with American understandings of justice.

For example, several Council of Europe signatories to 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. That is a charitable description. These governments have 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 prosecuting individuals. While in theory the treaty could not be used to investigate “”political offenses”” this term is undefined and the exemption only applies to portions of the bill. Worse, the treaty is not limited to Council of Europe members. Eventually countries with even more checkered histories of civil rights abuses, such as China, could become members.

Even countries with relatively good civil rights records could create problems for enforcing their law in the United States. For example, France and Germany have laws prohibiting the advertisement for sale of Nazi memorabilia or even discussing Nazi philosophy, activities that are protected in the United States under the First Amendment. Under the Cybercrime Treaty, these countries could demand assistance from the United States to investigate and prosecute individuals for activities that are constitutionally protected in this country.

The broad scope of the Cybercrime Treaty and the vast number of potential signatories threatens the core liberties of Americans and will obligate the United States to use extraordinary powers to do the dirty work of other nations. We urge you not to take any action on this important international agreement without a full and thorough deliberative process. We have attached a memo discussing the dangers inherent in the lack of a dual criminality provision.

Please do not hesitate to contact us with any questions or concerns.

Sincerely,

Laura W. Murphy
Director, ACLU Washington Legislative Office

Marvin J. Johnson
Legislative Counsel