Council of Europe wraps up cyber-crime treaty

Civil liberty campaigners maintained their opposition to a new draft controversial international treaty aimed at combating online crime, saying that the draft published by the Council of Europe on Friday "lacks privacy assurances."

The Draft Convention on Cyber-crime, marked "Version No. 27 Revised," will be submitted to the European Committee on Crime Problems on June 18, and could be adopted by member states before the end of this year.

"There are some nice changes (in this latest draft), but we are not overly impressed. It still is a problematic document. The increase of the powers of law enforcement waters down the protection of human rights," said Gus Hosein, a senior fellow at civil liberty campaign group Privacy International and a lecturer at the London School of Economics.

The 113-page draft treaty sets legal rules and guidelines for actions such as obtaining information from Internet service providers (ISPs), tapping and collecting traffic data and content data, extradition of cyber criminals, and international cooperation amongst authorities. All states that sign the treaty have to change their national laws to reflect the treaty.

An important amendment in Version 27 of the document is Article 15, "Conditions and safeguards." This article binds the signatories to various international treaties, including the 1966 United Nations International Covenant on Civil and Political Rights.

This concession does not go far enough for some, however.

"One article that says privacy will be protected is not enough," said Hosein. "We want clear language in each article stating privacy is important. National governments will pick and choose. They will go to wire-tapping first and get to Article 15 later."

The 43-nation Council of Europe, not affiliated with the European Union, had been working on the treaty since 1997. The US, Canada, Australia and Japan have signed on as associate members of the Council of Europe for the purpose of the treaty.

Hosein said he feels the treaty still contains major flaws, such as the absence of a data protection clause.

"The council thought of putting in a data protection clause, which we would have liked, but it was shot down. Now the police can decide to hold on to data gathered on somebody if it is not needed anymore, " said Hosein.

The lack of a dual criminality provision, where extradition or international cooperation is concerned, can put a burden on US ISPs, he continued.

"US ISPs can be forced to respond to requests on matters that are not illegal in the US, but are elsewhere. Hate speech, for example. An ISP can be forced to hand over information about a customer to German authorities, while in the US the customer is protected by the first amendment (to the US constitution)," said Hosein.

The draft convention will be submitted to the European Committee on Crime Problems at a meeting beginning June 18, and the text will then be submitted to the Committee of Ministers for adoption. Hosein fears it will be "a straight pass."

"It will go straight through, we are pretty disenfranchised in this process. The Council of Europe has gotten everything it wanted so far. We will have to focus on national governments now," said Hosein.

Nobody at the Council of Europe was available for comment.

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