European council moves Net crime treaty forward

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 understandable."

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 investigations.

"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.