Advocacy Group Challenges Cybercrime Initiative

The Global Internet Liberty Campaign (GILC), a coalition of about 30 civil liberties and human rights groups, is petitioning the Council of Europe to revamp a draft treaty on cybercrime based on charges that it is riddled with measures that threaten online privacy and free speech.

The Council, an intergovernmental organization headquartered in Strasbourg, France, issued its proposal as part of its pursuit of “a common criminal policy aimed at the protection of society against cybercrime” by adopting internationally accepted legislative safeguards.

The newly drafted version of the treaty was declassified at the end of September and will reportedly be discussed during a Group of Eight meeting in Berlin next week.

According to the GILC, which counts as members the American Civil Liberties Union (ACLU), the Electronic Privacy Information Center (EPIC), and UK-based Privacy International, the proposal raises many troublesome issues.

“We believe that the draft treaty is contrary to well established norms for the protection of the individual, that it improperly extends the police authority of national governments, that it will undermine the development of network security techniques, and that it will reduce government accountability in future law enforcement conduct,” the group said in a letter submitted Wednesday.

ISPs in the Middle

The GILC contends that articles in the treaty will require Internet service providers (ISPs) to keep records documenting the online activities of their customers.

Specifically, the provisions in question would allow Council nations to employ legislative or other measures during the course of a criminal investigation or proceedings. The proposed mandates, which apply to all nations in the Council, would:

• maintain records of Net traffic information whether or not ISPs contributed to the transmission;
• demand that ISPs collect, record or assist authorities in the harvesting of materials sent via a computer and the collection of traffic data in real-time; and
• oblige ISPs to maintain the confidentiality of information gathered from its customers.

The advocacy group expressed concern that the Council’s proposals threaten both the privacy and human rights of Net users in a manner contrary to current standards for data protection.

“Similar communications transaction information has been used in the past to identify dissidents and persecute minorities,” the letter added.

The GILC also said that the proposal would hold ISPs liable for third party content that flows over their networks.

Search and Seizure

The Council did not elaborate upon any procedural measures authorities must take before searching or seizing stored computer data, but said that the owner or custodian of the computer system in question will be informed of the executed measures “when reasonably practical.”

The GILC would prefer more clearly defined standards that would protect the right to independent judicial review before state searches take place.

“Police agencies and powerful private interests acting outside of the democratic means of accountability have sought to use a closed process to establish rules that will have the effect of binding legislation,” the group added. “We believe this process violates requirements of transparency and is at odds with democratic decisionmaking.”

Criminalizing Copyright Violations

In the U.S., copyright infringement cases such as the ones currently engulfing Napster and MP3.com are being closely followed by many in the online, music and legal communities as an indicator of how aggressive courts will be in enforcing digital property law.

The Council, however, seeks to make any acts of copyright violations criminal when “committed intentionally, on a commercial scale and by means of a computer system,” raising strong objections from the GILC.

“It is hardly a settled matter that criminal penalties are the appropriate remedy for copyright infringement,” the group said. “New criminal penalties should not be established by international convention in an area where national law is so unsettled.”

The groups that are petitioning the Council are hoping the body will delay any possible ratification until these concerns are addressed. In its letter to the organization, it offered the assistance of its experts “to provide a better version of this document, aimed at not only punishing, but also preventing computer crimes.”