Aug. 11, 2006 – The US Senate last week ratified a treaty requiring participating countries to share citizensâ€™ personal digital data and aid each othersâ€™ criminal investigations, an arrangement privacy advocates say will amount to increasing surveillance of Internet users and the enforcement of foreign laws in the United States.
Privacy groups are particularly concerned that if nations such as China, which cracks down on online political speech, sign the treaty, they could attempt to compel member states to monitor dissident activity, though US government officials emphasize that the treaty would not supersede constitutional protections.
The Council of Europe Convention on Cybercrime treaty forces participating countries to legalize "certain investigative techniques" to enforce Internet laws against hacking or child-pornography sales. The required laws would allow law enforcement to seize stored computer data and intercept data being transmitted between computers.
Since US law already allows these techniques, the treaty will change little about electronic surveillance in the US, according to a report released by Senator Richard Lugar (Râ€“Indiana), who chairs the Committee on Foreign Relations and supports the treaty.
The treaty, designed to help coordinate criminal investigations that may often cross national borders, will loosen privacy laws in European countries to the level of the US, said Danny Oâ€™Brien, a coordinator with the electronic privacy advocacy group the Electronic Frontier Foundation. Advocates say the US does not have a proper "framework" of privacy protection laws like the European Unionâ€™s data protection directive.
Governments participating in the treaty must also provide â€œmutual assistanceâ€ and share data that can aid in other countriesâ€™ criminal investigations.
"Harmonization is often the excuse to ratchet up the powers of law enforcement," Oâ€™Brien said.
Governments participating in the treaty must also provide "mutual assistance" and share data that can aid in other countriesâ€™ criminal investigations.
"In particular, it will enhance our ability to cooperate with foreign governments in fighting terrorism, computer hacking, money laundering and child pornography, among other crimes," said Lugar in a press statement announcing the ratification. "Given the global nature of the Internet, the only way we can combat these problems effectively is through cooperation with other governments."
In his report, Lugar argues that the treaty restricts the data that can flow from one country to another, since assistance is offered "only to the extent" that local laws allow.
"In the United States, that law is subject to close judicial supervision, and in no case will a foreign authority be able to obtain information on terms that are less restrictive than for US law enforcement," the report read.
But privacy groups say the treatyâ€™s language does not adequately spell out such safeguards.
"There are safeguards for political acts, [but] thatâ€™s a very fairly limited exemption," Oâ€™Brien said. "Thereâ€™s a lot of other acts that one can do on the Internet that arenâ€™t political but are illegal in other countries," he said. For example, the treaty could result in a country like Germany asking the FBI or another police agency to monitor Nazi speech, which is a crime there but legal here, Oâ€™Brien said.
While the treaty is aggressive in punishing individualsâ€™ crimes, the safeguards are too vague to offer protection against crimes committed by governments.
Advocates also caution that safeguards for political offense will not necessarily eliminate international monitoring of dissident acts, a threat that will become more real if countries with more-repressive governments such as China ratify the treaty.
He added that the treaty would lead to a general increase in electronic surveillance because governments will be able to compel Internet service providers to monitor the online activity of a subject of a criminal investigation without the suspectâ€™s knowledge.
The treaty says that countries must ensure their new freedom to collect data is subject to domestic laws that protect human rights and civil liberties, but privacy groups such as the Electronic Privacy Information Center say that language is vague compared to the detailed language giving law enforcement greater powers.
"The problem is that there are crimes that law enforcement commits as wellâ€¦ [Such as] crimes of repression, invasion of privacy," Oâ€™Brien said. While the treaty is aggressive in punishing individualsâ€™ crimes, the safeguards are too vague to offer protection against state crimes, he said.