[ISN] US defends cybercrime treaty

[InfoSec News]

http://www.theregister.co.uk/2004/04/24/us_defends_cybercrime_treaty/

By Kevin Poulsen, SecurityFocus
Published Saturday 24th April 2004 

Critics took aim this week at a controversial international treaty
intended to facilitate cross-boarder computer crime probes, arguing
that it would oblige the US and other signatories to cooperate with
repressive regimes - a charge that the Justice Department denied.

The US is one of 38 nations that have signed onto the Council of
Europe's "Convention on Cybercrime," but the US Senate has not yet
ratified the measure. In a letter to the Senate last November,
President Bush called the pact "the only multilateral treaty to
address the problems of computer-related crime and electronic evidence
gathering." The treaty, "would remove or minimize legal obstacles to
international cooperation that delay or endanger U.S. investigations
and prosecutions of computer-related crime," he said.

Drafted under strong US influence, the treaty aims to harmonize
computer crime laws around the world by obliging participating
countries to outlaw computer intrusion, child pornography, commercial
copyright infringement, and online fraud.

Another portion of the treaty requires each country to pass laws that
permit the government to search and seize email and computer records,
perform Internet surveillance, and to order ISPs to preserve logs in
connection with an investigation. A "mutual assistance" provision then
obligates the county to use those tools to help out other signatory
countries in cross-border investigations: France, for example, could
request from the US the traffic logs for an anonymous Hushmail user
suspected of violating French law.

Dual criminality. Not

That worries civil libertarians. The treaty is open to any country,
with the approval of those that have already ratified it, and some
fear that it could put the United States' surveillance capabilities at
the disposal of foreign governments with poor human rights records,
who may be investigating actions that are not considered crimes
elsewhere.

"There is no requirement that the act that is being investigated be a
crime both in a nation that is asking for assistance, and the nation
that is providing assistance," said the ACLU's Barry Steinhardt,
speaking at the Computers Freedom and Privacy Conference in Berkeley,
California on Thursday. The US and other countries will be asked to
use the electronic snooping powers mandated by the treaty to track
political dissidents, he said.

Betty Shave, who heads the Justice Department's international computer
crime division, admitted that the treaty mostly lacks so-called "duel
criminality" provisions, but she countered that other language in the
pact would prevent abuses. One clause in the treaty allows a country
to refuse to cooperate in an investigation if its "essential
interests" are threatened by the request: Shave says that would allow
the US to bow out of a probe targeting free speech or other actions
protected by the U.S. Constitution. Moreover, political offenses are
specifically excluded from some types of mutual assistance requests
available under the treaty.

The treaty is necessary because "crime and terrorism, like everything
else, are moving onto the Net and are increasingly difficult to
investigate, and a lot of crime is international," said Shave. "Many
crimes are deliberately staged through various countries just to make
it difficult to investigate."

Privacy International's Gus Hosein argued the international community
should have produced model legislation to harmonize computer crime
laws, instead of a treaty with mutual obligations. "You create a
treaty, suddenly you have all these interests come in."

Thirty-four European nations, plus Canada, Japan, South Africa and the
United States have signed onto the treaty, but only five have thus-far
ratified it: Albania, Croatia, Estonia, Hungary and Lithuania.

If ratified, no new domestic laws would be have to be passed to bring
the US into line with the treaty, according to the Justice Department.  
Steinhardt was skeptical. "The treaty is already being used as a
pretext in some developing nation to pass some pretty draconian laws,"  
he said. "I wouldn't be surprised to see it used in the US that way."