International cybercrime treaty advances slowly

Early this month, I was the leadoff witness at the Council of Europe Parliamentary Assembly's Legal Affairs and Human Rights Committee hearing on its draft treaty on cybercrime. The United States and other non-European countries have participated in drafting its text, which many other countries are expected to sign. Signers would then bring their national laws into conformance with the treaty. Thus, the council is creating a model law on cybercrime for the world.

Reflecting those high stakes, the Paris hearing was packed with members of the assembly and industry and government representatives from both sides of the Atlantic. Most of the participating nations' law enforcement officials support the treaty as they have drafted it. Content owners, such as the Recording Industry Association of America, also support the treaty as a necessary weapon against the forces that are challenging intellectual property rights.

Important objections remain, however, and at the hearing I cited three:

• The surveillance powers envisioned for law enforcement are not explicitly balanced by comparable protections for the privacy of individuals and the rights of due process. Italy's privacy czar, Stefano Rodoty, further emphasized the need for explicit privacy language in the treaty.
• The requirements placed on Internet and telecommunications companies to assist law enforcement agencies are seen as overly burdensome and costly. We have considerable experience with this problem in the United States. In 1994, Congress enacted the Communications Assistance to Law Enforcement Act. Yet questions about burden and cost delayed implementation of regulations by the Federal Communications Commission until 1999, and they are still under court challenge today. The former head of the Dutch Internet Service Providers Association, Fred Eisner, echoed these concerns.
• The draft treaty is viewed as venturing into areas where existing national and international laws are already adequate, including the treatment of forgery and copyright infringement, creating confusion. Several witnesses reiterated this concern.

The weight of the objections may delay action by the council until next year — a considerable setback in the fight to make cyberspace safer.

But a compromise is emerging that would consolidate the progress made to date and leave the doors open for debatable areas to be resolved over the next year. It would involve clear but limited coverage of principal computer crimes: data interception, unauthorized modification and theft; network-related crimes, including interference and sabotage; and crimes of access, including hacking and virus distribution.

In addition, the treaty should enable cooperation across borders among law enforcement agencies, but in a manner that respects due process and human rights. Such a limited and incremental approach seems to be the most successful way to legislate in cyberspace.

McConnell, former chief of information policy and technology at the Office of Management and Budget, is president of McConnell International LLC (www.mcconnellinternational.com).