Senate Ratifies Cybercrime Treaty; Critics See Attack on Liberties, Sovereignty

Senate Majority Leader Frist (R-Tenn.) said the treaty balanced “civil liberty and privacy concerns” with sharing “critical electronic evidence” with foreign partners to bring down terrorism, organized crime and child exploitation. Attorney Gen. Alberto Gonzales said the treaty was “in full accord with all U.S. constitutional protections, such as free speech and other civil liberties, and will require no change to U.S. laws.” The treaty is the “first of its kind” to enable govts. to fight “global, information-age crime,” he said.

Industry groups applauded. “National borders are virtually irrelevant to cybercriminals, making global cooperation absolutely critical in the battle against Internet-related crime,” said Paul Kurtz, Cyber Security Industry Assn. exec. dir. ITAA Vp Greg Garcia said the “unimpeded performance” of the IT infrastructure was crucial to economic growth and national security for the Western powers and other countries.

But civil liberties activists painted a gloomy picture. The treaty could require the FBI to unmask anonymous U.S. critics or monitor their online activities -- even if legal in the U.S. -- on behalf of foreign govts., Electronic Frontier Foundation (EFF) Activism Coordinator Danny O'Brien said before ratification last week. Lack of a “dual criminality” requirement is EFF’s most pressing concern, he said. The Senate “undermined the core constitutional rights of Americans” by ratifying the treaty, ACLU Washington Legislative Office Dir. Caroline Fredrickson said. The U.S. might have to help investigate and punish hate speech prohibited by German or French law but legal in the U.S., the group said. “We urge Congress to conduct vigorous oversight as this treaty is enforced,” Legislative Counsel Marv Johnson said.

“Conservative lawmakers” had put holds on the treaty to keep it from going to the Senate floor for an unscheduled vote, O'Brien said. A conservative activist fighting the treaty told us that Sen. Inhofe (R-Okla.) had placed the first hold months ago but was under “intense pressure” from the White House to remove it -- so the activist’s cadre secured a hold from Sen. Craig (R-Ida.) last week in case Inhofe dropped out. Apparently both “caved,” the activist said.

The treaty didn’t need a “dual criminality” requirement to protect constitutional freedoms, Gonzales said in a letter to Inhofe last week. Signing nations are allowed to deny assistance if it’s “likely to prejudice its own sovereignty, security, ordre public or other essential interests,” he said, citing treaty language. The U.S. “has no intention” of submitting to the International Court of Justice any dispute under the treaty. The govt. won’t use national security letters, searches or interceptions authorized under Foreign Intelligence Surveillance Act procedures, or administrative procedures to meet treaty obligations, Gonzales said.

Inhofe and Foreign Relations Chmn. Lugar (R-Ind.) also had a discussion, inserted into the record, about how the treaty wouldn’t undermine U.S. law. Lugar said the U.S. wouldn’t be required to impose new data-retention rules on ISPs to comply, but Inhofe noted a DoJ working group is studying the issue. Similarly, the U.S. wouldn’t have to pass legislation requiring users of digital encryption technologies to turn over encryption keys to the govt. or 3rd party, Lugar answered Inhofe. The back & forth continued on several other issues, with Lugar saying the treaty wouldn’t obligate the U.S. to investigate and turn over alleged hate speech to other govts., prosecute under other nations’s defamation laws, or turn over data on political dissidents in the U.S. Inhofe concluded by saying the “benefits outweigh the risks” as long as the treaty is implemented in line with Lugar’s interpretations.

In the discussion, Judiciary Chmn. Specter (R-Pa.) said his committee would “monitor [DoJ] regularly and thoroughly” with respect to the treaty and civil liberties when providing assistance.

Opponents of the treaty held a briefing a few months ago on the Hill to highlight its civil liberties implications, but “that really seemed to be about it” on the publicity side, Liberty Coalition Policy Dir. James Plummer told us. The hate-speech provision was especially unpopular among conservatives, he said. In his letter, Gonzales noted that hate speech is covered in a separate European protocol that the U.S. refused to sign.

ISPs probably didn’t put up much of a fight against requirements that they assist in surveillance without compensation because “they want to come across as good actors,” O'Brien told us. Corporations that want to protect their intellectual property abroad stood to benefit greatly from the treaty, and “aren’t necessarily the finest defenders of human rights,” he added.

The other 15 countries that have ratified the treaty are “kind of a weird list,” O'Brien said. France and Denmark are the only western European nations to ratify. The others are Albania, Bosnia-Herzegovina, Bulgaria, Croatia, Cyprus, Estonia, Hungary, Lithuania, Norway, Romania, Slovenia, Macedonia, and Ukraine. The treaty was signed by 43 countries. It was “designed and written in a much earlier time,” before 9/11 and the onset of U.S. govt. surveillance programs, he said. Although Europe has weaker speech protections than the U.S., the treaty may prove unpopular in the rest of Europe simply for its surveillance aspects, O'Brien said.

The civil liberties and sovereignty concerns probably didn’t slow consideration of the treaty, Kurtz told us: Signing to ratification in a few years is “more or less light speed” in the Senate. He dismissed the alleged Senate holds as a stalling tactic used “until they can gather a better view of what’s going on.” Concerns probably date back to the negotiating history of the treaty, when provisions contrary to U.S. tradition were on the table, but the Senate and DoJ made clear that none of the provisions will undermine U.S. law, he said.

The treaty covers “all those things that we agree with,” not divisive eavesdropping issues, which are “apples and oranges,” Kurtz said. O'Brien said there’s “definitely wiggle room” -- partially spurred by pressure from groups like EFF and the ACLU -- for the Bush Administration to pick and choose enforcement actions within the treaty.