Senate Must Reject Cybercrime Treaty

An internationalist assault on the sovereignty of the United States and the privacy of U.S. citizens is currently awaiting action by the full Senate.

The Council of Europe Convention on Cybercrime is being aggressively pushed by Senate Foreign Relations Chairman Richard Lugar (R.-Ind.), who reported the treaty out from his committee in early November. That should come as little surprise, in that Lugar has also been a leading proponent of the better-known Law of the Sea Treaty (LOST), another key building-block in the structure of world government.

Originally conceived as a tool to facilitate international cooperation in the pursuit of computer hackers and the like, the Cybercrime Treaty evolved during 15 years of negotiations to encompass any criminal offense that involves electronic evidence -- which in the 21st century is essentially limitless.

As written, it could require more surveillance on Americans who have been accused of violating the laws of foreign countries -- even if they haven’t violated U.S. law. Treaty cheerleaders paint menacing pictures of hackers and child pornographers. But in reality the Convention is drafted so broadly that it encompasses virtually every area of law where the possibility exists of computerized evidence. That could affect thousands of innocent people, including not only political dissidents, but also the politically incorrect.

Fortunately, one heroic, albeit currently anonymous, conservative senator has placed a “hold” on this Cybercrime Convention, a procedural maneuver that prevents an immediate, unannounced vote on the floor of the whole Senate. Conservatives concerned with sovereignty and the Bill of Rights need to both become aware and raise others’ awareness of the dangers posed by the Cybercrime Treaty, lest the Senate acquiesce in this subjugation of Americans to European-style “hate speech” laws through an electronic back door.

Lugar’s pro-treaty rhetoric belies the broad, expansionary nature of the treaty. He claimed last year, in opening the sole hearing on the treaty, that "Prompt ratification . . . will help advance the security of Americans." That is simply not the case when one considers that the treaty could allow European or even Chinese Communist agents to electronically spy on innocent Americans.

And make no mistake, greater control over what we do on the Internet is the goal of the Eurocrats so enamored with global government. This is what Council of Europe Deputy Secretary General Maud de Boer-Buquicchio had to say in mid-November at the “World Summit on the Information Society,” hosted by that great human rights champion, Tunis: "The Information Society is clearly in need of a global governance mechanism. The Council of Europe, with its unchallenged human rights expertise, political consultation structures, and solid relationship with civil society, must be party to discussions undertaken at every step of the way concerning internet governance and human rights,” she said.

The European view of “human rights” includes the shielding from mere criticism of certain protected minorities such as abortionists, third-world immigrants, and homosexuals. The London Times reports that the European Commission has announced its first list of mandatory continent-wide criminal laws and will soon seek to add speech-based crimes such as incitement to hatred to the list. (France has in the past fined California’s Yahoo! for an American customer’s auction of a vintage Nazi war medal.) De Boer-Buquicchio and other Eurocrats regard the Cybercrime Treaty as one of those “global governance mechanisms” by which to enforce these views. She even went on to press for greater ratification of the Cybercrime Treaty in the very same speech.

And so it is no wonder that many leading conservatives have called on the Senate to hold serious, open hearings on this treaty. Leaders from American Conservative Union, Eagle Forum, and Free Congress Foundation, among others, wrote to the Senate in June urging real hearings on these important concerns.

But despite these concerns, Lugar has put the treaty on the Senate calendar without conducting serious, probative hearings or investigations, calling only pro forma hearings and inviting only treaty supporters from the Justice and State Departments to testify.

It’s little wonder that the hearings were rigged. An open discussion of the issues at stake could cause many senators to cast a skeptical eye on the treaty, raising as it does many bipartisan concerns similar to those that have stalled expansion of the USA PATRIOT Act in the upper body as of late. Though the treaty is replete with mutual assistance in electronic surveillance, not one of the articles mention privacy.

Most egregious in Lugar’s ratification report to the full Senate is the voluntary declaration that foreign governments, under the fig leaf of “urgency,” be able to order American law enforcement agencies to enforce their orders without judicial review. So even though these foreign orders may be opposition to the U.S. Constitution, no U.S. judge will be able to enforce the Constitution to prevent it. The treaty also has no “dual criminality” requirement, which means federal law enforcement agencies could be investigating Americans for constitutionally-protected activities which offend European sensibilities.

Even worse, the Cybercrime Treaty is open to all nations to ratify. That means a future leftist President could even allow Communist China to sign on to the treaty and direct U.S. law enforcement to investigate Chinese dissidents, even Americans, based in the United States.

The Convention on Cybercrime would be highly detrimental to American sovereignty and free people everywhere. The Senate should under no circumstances blindly approve such a document.

Just 8 responses - now it's too late:

Trashing privacy
By Bob Barr
August 20, 2006

Thanks to the U.S. Senate's remarkable but well-known lack of backbone, nations such as Albania, Croatia, Uganda and many others now will be able to call up the U.S. Justice Department and find out as much as they would like about anything you do with your computer.

At this point, you probably wonder why you haven't read about this. Frankly, there's not much reason you would have, unless you read some relatively obscure publications that focus mostly on technology issues. Another reason you wouldn't likely have heard of it is, of course, that most major media outlets ignored the issue entirely, largely due to how the Senate essentially trashed your online privacy -- by voice vote the night before heading home for another summer recess.

The issue at hand is the so-called Cybercrime Treaty, drafted by European bureaucrats and championed by the Bush administration. The treaty creates an international law enforcement mechanism for investigators in any signatory country to gain access to private information in another country (such as the United States). In essence, these other nations now can "borrow" law enforcement officers of another nation (again, most likely the U.S.), and use them to investigate any alleged crimes that involved somehow, at some point, using a computer.

For example, a cop in South Africa might be investigating an online poker site that has violated some obscure provisions of South African law. Let's then say you visited that same poker site, played a few hands with a South African national and logged out. Under this new treaty, the South African government can demand that U.S. federal agents visit your Internet Service Provider or ISP, demand from that ISP access about your online activities and turn that information over to the foreign government. Of course, this would all happen without your knowledge.

Similarly, if law enforcement officials in another signatory nation with much stricter gun control laws than ours, decide there's some evidence on a U.S. citizen's computer in this country that they say is related to an anti-firearms prosecution, all they need do is ring up our Justice Department and request the information. It matters not that the offense in the other country triggering the investigation might not be a crime under U.S. law.

Aside from this treaty's overly broad reach, it will do little or nothing to accomplish its stated purpose: fighting true, computer-related crime. The Internet's reality is that it is completely borderless. A criminal investigated in one country can simply pull up stakes and locate his activities to another country that has not signed the Cybercrime Treaty. A credit card fraud ring can simply operate just as well from Cambodia as it from Canada; all it needs is an active connection to the Internet.

Though it won't prevent crime, the Cybercrime Treaty will make your online privacy subject to the whims of "law enforcement" officials in foreign nations. If you think your personal information is safe in the hands of the governments of places like Albania, Croatia and Uganda, think again. The private information they obtain via this treaty is about as likely to be used to commit fraud as to prevent it.

Most senators who voted to ratify the treaty are blissfully unaware of, or unconcerned about these facts. The leadership, at the White House's request, decided to vote on the treaty without any substantive hearings or floor debate. It was approved by voice vote, so no senator had to take a public position on it.

Though the treaty has been passed, there may still be some way to minimize the damage it can wreak on citizens' online privacy. The House, for example, could withhold funds from U.S. agencies to spend on enforcing it.

In the final analysis, it is critical that all Americans who care about computer privacy, and all who may be concerned about the long reach of regimes in other countries to invade their privacy, quickly launch a flanking move to derail this latest power grab by a Republican president and Senate. Otherwise, any tinhorn despot in another country will be able to easily find out what you've ordered on the Internet or to whom you've sent your latest politically motivated e-mail.

Bob Barr is a former Republican member of the U.S. House of Representatives from Georgia and a former U.S. Attorney there.

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