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Don’t Rush to Ratify Cybercrime Treaty

Better to consider thoroughly the implications

The Cybercrime Treaty’s sum is greater than its name. That should prove to be troubling to Americans who care about sovereignty and our constitutional liberties.

The Council of Europe’s Cybercrime Treaty was signed by the United States in 2001 but it has yet to be ratified.

A hearing in the Senate Foreign Relations Committee was held in the summer of 2004. Unfortunately, the only representatives who testified were affiliated with the Departments of State and Justice, both of which favor our participation. No representative of a group in favor of sovereignty or the protection of civil liberties was allowed to voice their concerns.

The Senate Foreign Relations Committee, with only perfunctory consideration, voted to send the treaty to the floor of the Senate for a vote on ratification.

Fortunately, the Senate has yet to take action on this treaty. One Senator has placed a hold on the Cybercrime Treaty in the belief that it deserves more examination and consideration. Hopefully, concerned members of the Senate Judiciary and Commerce committees will use the opportunity to scrutinize this treaty whose fine print is full of twists and turns. HUMAN EVENTS readers should recall that it was only two years ago that the Law of the Sea Treaty (LOST) was set to sail easily to a speedy ratification only to find the seas turn more choppy under intense questioning by senators once more probing, exacting hearings were held.

What is troubling about this treaty is not that it cracks down on cybercrime and cyberporn — two legitimate areas of purview — but it also governs collection of evidence for virtually any crime in which a computer is used. This broad, expansive power holds the potential to undermine the Fourth Amendment.

The DOJ will always be ready to assure skeptics that every thing is fine and that we can trust them never to aid countries in political vendettas against advocates of human rights and the peaceful but politically incorrect. However, will it be the merits of the individual case or the broader context that comes into play if Swedish law enforcement decides to mount a broader assault against someone like Pastor Ake Green, whose only crime was to quote Biblical disapproval of homosexuality?

The Justice Department insists they do not deal with requests that run against the grain of the Bill of Rights.

Without reporting requirements, how will the American public really know what requests have been granted and which have been turned down due because they violated our conception of the Bill of Rights? We won’t in many cases.

Ideally, there should be tough reporting requirements that force the Department of Justice to tell the Judiciary Committee and other relevant committees how it is handling requests for assistance and what specific actions have been taken to ensure that no request violates the nature of our Bill of Rights. Conservatives need to remember the arbitrary nature of some decisions made by Attorney General Janet Reno. It is important to instill checks and balances into the process of administering this treaty.

Under the terms of this treaty, one day China could become a participant. A senior official with the Council of Europe is supposed to have expressed the hope that China would indeed become a party to it at the July 2005 meeting of the International Telecommunications Union.

Under the terms of this treaty, it is entirely conceivable that the Justice Department will be fielding requests to ferret out all kinds of information about dissidents and their groups. Despite the "trust us" assurance that they will not enforce requests that violate the Bill of Rights, it would be very easy for dissidents to run afoul of Chinese laws governing financial crimes.

Ideally, this treaty would be scuttled and a much narrower, less sweeping treaty whose jurisdiction is limited primarily to the description of its title — true cybercrime — would be its replacement. That probably will not occur but Congress can play a positive role by having the Senate Judiciary Committee hold a balanced and comprehensive hearing on this treaty and how Justice plans on administering it and what accountability there will be to the public on how it is enforced before the full Senate votes on it. The Senate Commerce Committee should hold one too. By doing this they can consider operating guidelines that will instill the accountability and oversight of this treaty that would be greatly needed if it is ratified.

The Senate can start a positive precedent now by improving its consideration of treaties. Too often treaties have sailed through the Senate with only perfunctory consideration. The fine print can provide some rude awakenings.

Better to consider thoroughly the implications of this treaty now than to ratify it quickly with little in-depth examination and suffer a rude awakening later.

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Written By

Mr. Lilienthal is a Washington, D.C., resident and a graduate student in library and information science at the Catholic University of America. He previously worked as a policy analyst at the Free Congress Foundation.

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