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[FYI] (Fwd) COE Cybercrime treaty moves forward

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Date sent:      	Mon, 20 Nov 2000 23:22:19 -0500
From:           	David Sobel <sobel@epic.org>
Subject:        	COE Cybercrime treaty moves forward
To:             	gilc-plan@gilc.org
Send reply to:  	gilc-plan@gilc.org


European council moves Net crime treaty forward

By Erich Luening

Staff Writer, CNET News.com

November 20, 2000, 3:35 p.m. PT

A European coalition is a step closer to creating the first
international cybercrime treaty after ironing out language to
appease critics who called earlier versions a threat to human

The 41-nation Council of Europe (COE) is expected to post the
latest draft of the treaty on its Web site Tuesday, a
representative for the Strasbourg, France-based council said.
The council has been hastily redrafting the treaty after
Internet lobby groups labeled it as a possible human-rights
threat and as a way for the police authority of national
governments to be improperly extended.

Legal advisers for the council are issuing a new draft of the
treaty that clarifies passages that led to the earlier concerns
and what they see as serious misunderstandings of what the
treaty actually sets out to do, the representative said.

Any treaty that comes out of the council will be proposed to
governments around the world to help standardize international
law related to cybercrime. Although the United States is not a
member of the COE, U.S. representatives have been observing the
process and advising the members along the way.

Since 1997, the council has been working on a treaty to
standardize laws against online pornography, hacking, fraud,
viruses and other Internet criminal activity and has been trying
to develop common methods of securing evidence to track and
prosecute criminals.

According to earlier drafts, each member country will be
responsible for developing legislation and other measures to
ensure that individuals can be held liable for criminal offenses
as outlined in the treaty.

"We have not made any major changes to the substance of the
treaty," said Peter Csonka, the deputy head of the COE's
economic crime division, which is overseeing the drafting
process. "We were surprised about the violence of the comments
and criticism, so we went back and made the next draft more

Meeting in closed sessions last week were representatives of 14
members of the COE, as well as observers from the United States,
Canada, Japan and South Africa.

For years, law enforcement authorities from around the world
have been asking for efforts such as these to give them greater
power to move quickly against a wide range of crimes that take
place on the Web.

But like the controversy in the United States surrounding the
FBI's Carnivore system--which is installed at Internet service
providers and captures "packets" of Internet traffic as they
travel through ISP networks--many criticize the treaty as going
too far and jeopardizing the balance between individual privacy
and the needs of law enforcement.

Security practitioners, educators and others have said the
proposed treaty may inadvertently result in criminalizing
techniques and software commonly used to make their own computer
systems resistant to attacks.

A number of groups criticized articles in the treaty that called
for countries to pass legislation that would empower authorities
and ISPs to collect, record or monitor electronic communications
through the "application of technical means" during criminal

"Specifically, we object to provisions that will require
Internet service providers to retain records regarding the
activities of their customers," the Global Internet Liberty
Campaign wrote in a letter to the COE and posted on its Web
site. "These provisions pose a significant risk to the privacy
and human rights of Internet users and are at odds with
well-established principles of data protection such as the Data
Protection Directive of the European Union."

Similar communications transaction information has been used in
the past to identify dissidents and to persecute minorities, the
Liberty Campaign said.

The controversy surrounding the treaty proposal may delay its
passage and implementation and could risk its eventual approval
in other countries, said John Murphy, a law professor at
Villanova University in Pennsylvania.

"It will be difficult to get a treaty agreed to by all the
negotiators because of the tension between individual rights,
like privacy, and the need for law enforcement to gather
information on crimes, including terrorism," Murphy said. "It
will be even more difficult to get agreement on such issues here
in the United States. I see a lot of barriers out there before I
see this getting full approval by all parties."

However, the COE's Csonka said there is plenty of time to work
out further disagreements and concerns about the treaty and said
he remains confident that it will help shape international law.

His group of legal advisers has one more crack at the draft in
mid-December before it goes to the Assembly of the Council of
Europe for approval in January. It is not expected to be
endorsed by the council before mid-2001, and then it will be
proposed to individual nations.

. David L. Sobel, General Counsel              *   +1 202 483 1140
(tel) Electronic Privacy Information Center        *   +1 202 483 1248
(fax) 1718 Connecticut Ave., N.W. Suite 200        *   sobel@epic.org
Washington, DC 20009   USA                   *   http://www.epic.org .

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