As if we didn't have enough to worry about with our own government trying to increase its control over the internet, the Senate yesterday ratified a treaty that requires us to enforce the laws of other countries. Referred to as the Cybercrime Treaty, this agreement requires the US to cooperate with other nations in enforcing their laws if they are broken on American internet servers and ISPs. If we're talking about helping track down child porn websites or money laundering operations, no problem. But the treaty includes much broader powers and requires the US government to enforce laws from other nations even if they are not a crime here.
The possible uses of this treaty are frightening and have serious constitutional implications. Take the many European laws banning "hate speech". Holocaust denial, for example, is a crime in Germany and Austria. Under this treaty, those countries could demand that American authorities investigate and arrest anyone expressing that banned idea from an American ISP, and under the treaty we would be required to do so. Or take England's notoriously loose libel laws. Someone could file a libel suit in England and prosecute an American citizen for saying something from their computer in the US that isn't against the law here.
The ACLU wrote an open letter to the Senate chairmen of the committee considering the treaty in June. That letter spelled out some of the troubling possibilities.
One provision of the Cybercrime Treaty demands special mention. The treaty requires all ratifying nations to provide mutual assistance in criminal law enforcement to all other ratifying nations. This provision does not require dual criminality (that the action in question be a crime in both nations) and is not subject to reservation. Before ratifying the Convention, the Senate should carefully consider what it means to agree to provide mutual legal assistance to countries whose substantive laws and procedures do not comport with American understandings of justice.
For example, several Council of Europe signatories to the treaty have human rights records that have been described as poor by the State Department's most recent Country Reports on Human Rights Practices. That is a charitable description. These governments have used their police powers to arrest and harass citizens, suppress free speech and fair elections and discriminate against racial minorities. Some individuals in police custody were tortured or killed. Each of these nations could ratify the Cybercrime Treaty and demand assistance from the United States in prosecuting individuals. While in theory the treaty could not be used to investigate "political offenses" this term is undefined and the exemption only applies to portions of the bill. Worse, the treaty is not limited to Council of Europe members. Eventually countries with even more checkered histories of civil rights abuses, such as China, could become members.
Even countries with relatively good civil rights records could create problems for enforcing their law in the United States. For example, France and Germany have laws prohibiting the advertisement for sale of Nazi memorabilia or even discussing Nazi philosophy, activities that are protected in the United States under the First Amendment. Under the Cybercrime Treaty, these countries could demand assistance from the United States to investigate and prosecute individuals for activities that are constitutionally protected in this country.
The broad scope of the Cybercrime Treaty and the vast number of potential signatories threatens the core liberties of Americans and will obligate the United States to use extraordinary powers to do the dirty work of other nations.
According to the Electronic Frontier Foundation, the Bush administration has been pressuring the Senate to pass the treaty,which was signed 2 1/2 years ago but only recently sent by the administration to the Senate for ratification. We are the first major industrialized nation to ratify the treaty. Ironically, most of the initial opposition to the treaty came from conservatives who were afraid of the internationalist implications. Human Events magazine denounced the treaty as an "internationalist assault on the sovereignty of the United States" and urged the Senate to reject it. I can't find a record of who voted for the treaty at this point. It's not listed on the Senate website that records votes.
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This sounds like it affects that British guy who you wrote about last month. He was detained while passing through America between flights because of something to do with online gambling.
Maybe somebody can use this law to shut up Michelle Malkin.
Luckily, the First Amendment trumps any treaty.
Ed--read the treaty and let me know if you still think it's as bad as you do now. I read it, and it seems to me that the criticisms are overblown--as I read it, it's restricted to the areas of crime in articles 1-11. The language that has raised the ACLU and EFF concerns is in chapter III.
Ed, I second Jim Lippard's suggestion, that you read the treaty and see if you think it says what the ACLU seems to think it says. But I'm also inclined to agree with Chuck's assessment that the First Amendment would trump the treaty and probably cause the negation of any treaty provisions which conflict with it.
Jezus Christ, those people need to cut down on their preambles. And an abstract would do a world of good too...
While I may have missed something in all the diplomatspeech, I don't see anything about prosecuting people on the basis of foreign laws. In fact, the principle that action should be taken only in the event of an offense punishable under the laws of both parties is written explicitly into Art. 24.
People may be forgiven for not realising that, however, since the treaty is a perfect example of why diplomats should not write laws...
- JS
I did read through the treaty before I wrote this. It's certainly possible that I misread it, as it is written in the sort of legalese that requires lots of backtracking to see what sections a given provision refers to. Part of the problem, as I read it, is that while it spells out a specific set of crimes in the early part of the treaty, many of the later provisions are not worded so as to limit themselves to those offenses. For example, article 24, dealing with extradition, makes it specific to those crimes specified:
But article 25, dealing with mutual assistance, does not:
What makes me suspicious is twofold. First, that after nearly 3 years, the administration suddenly starts pushing for this treaty to be ratified right after they start a crackdown on illegal gaming. I think they may be preparing to demand cooperation from other nations on enforcing that law, using this treaty. Second, that they refused to attach a dual criminality provision, which would have eliminated those concerns. If those concerns aren't real, then why refuse to pass such a provision? It's possible that I'm being paranoid, but given this administration's track record in regard to civil liberties, the unusual circumstances and timing, and the ambiguity of some of the provisions, I think there is reasonable grounds for concern.
Oh, certainment, W might interpret it that way... But I think he'll have scant support from our side of the Pond when it comes to establishing precedents that violate the dual criminality principle. That would be a Very Bad Idea for a European country to do, given the - ah - difference of perspective that different European countries have when it comes to things like banking laws and reproductive rights...
Besides, I think you missed § 4 of the same article:
In point of fact, Art. 25 § 5 states that:
thus specifically acknowledging existing practices being in some cases contingent upon dual criminality.
What Comrade Bush might decide to do on your side of the Pond, I can only guess, but from his past record, the existence of a law enabling or prohibiting his planned conduct does not seem to be a major factor in his thinking.
- JS
Or perhaps Bush could just attach a signing statement to it clarifying which parts of the treaty we could ignore.
Ed,
While I'm not delighted with or proud of the operation of UK libel laws I'm not sure why you needed the reference. Isn't the treaty about criminal law/criminal acts? As a civil matter surely libel would fall outside of the treaty.
As I understand it, a libel needs to count as having been published in the UK before the UK courts will consider the matter. Now I'm sure there's quite a few cases where US and other foreign citizens have tried to use english courts to silence press criticism on the basis that one or more copies of a publication were sold in the UK but I can't see how this treaty will alter that particular flaw one way or another. It may be some time before UK judgements get finalised over the jurisdictional location of 'publishing' on the internet but, again, this doesn't seem to be altered by the Treaty.
Here in the Isle of Man we still (theoretically) have a charge of 'criminal libel' but I thought the UK had legislated out that particular element some time ago.
Regards,