Legislation: Cybercrimes Treaty and Dual Criminality Apprehension

Declan McCullough of CNET on the first international cybercrims treaty.

Both McCullough and the ACLU have voiced concerns this week about the Council of Europe's convention on cybercrime. In particular, they are worried that Bush's encouragement to ratify the Council's international treaty on cybercrimes may open the doors to a number of abuses. The issue that is overshadowing all others is that of dual criminality. As the treaty states, "the Convention does not require, as a precondition to assistance, that the offense being investigated also constitute a crime in the state receiving the request (``dual criminality'')."

The ACLU and McCullough take issue with this, feeding fears that the U.S.'s assistance might be used to help Russia or China or other governments crack down on freedom of speech and spy on political dissidents. The ACLU's letter to Rep. Lugar and Rep. Biden states,

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.

I agree... sort of. There's a definite lack of clash between the protesters of the treaty and the wording of the treaty itself. To quote at length from the Nov. 8 report prepared by Lugar:

This lack of a dual criminality requirement is hardly a novelty. In the last two decades, the Senate has approved, and the President has ratified, 43 bilateral mutual legal assistance treaties that do not contain such a requirement for all types of cooperation. This is in the interest of U.S. law enforcement, which aggressively utilizes these treaties to gain evidence abroad and would be hamstrung by a rigid dual criminality provision in all cases. Therefore, the United States will be able to use this Convention to obtain electronic evidence in cases involving money laundering, conspiracy, racketeering, and other offenses under U.S. law that may not have been criminalized in all other countries.
At the same time, the Convention contains sufficient safeguards to ensure that the lack of a ``dual criminality'' requirement will not result in the provision of assistance by the United States in any inappropriate situations. The Convention provides the same high standard of protection of U.S. Constitutional interests that is contained in U.S. bilateral MLATs. Assistance is to be provided in accordance with the provisions of mutual legal assistance treaties between the parties where they exist. Where no such treaties exist between parties, article 27 of the Convention provides a procedural mechanism for cooperation to be applied between them, including the grounds for refusal of such requests (in addition to any grounds provided under the law of the requested party). The grounds for refusal contained in paragraph 4 of article 27 are analogous to those contained in U.S. bilateral MLATs. A requested party may refuse any request concerning a political offense or that is likely to prejudice its sovereignty, security, ordre public or other essential interests. In response to questions from the committee, executive branch officials confirmed that this provision authorizes the United States to deny a request where providing the assistance would impinge on U.S. Constitutional protections, such as free speech, and that the executive branch intends to deny assistance in such situations. In addition, they committed that ``[T]he Department of Justice will carefully review each request, regardless of the country from which it comes, to ensure that compliance with it would not impinge on U.S. fundamental principles and policy, and that U.S. implementation of foreign requests would not be inconsistent with Constitutional protections.''
The committee also wishes to emphasize that the United States will not rely upon authorities created in the USA PATRIOT Act to meet its obligations under the Convention. The Convention was substantially drafted prior to the enactment of the USA PATRIOT Act, and is entirely consistent with United States law as it existed at that time...

...So the report actually covers the concerns of freedom of speech and dual criminality, but again, only sort of. The fact that 43 mutual legal assistance treaties have been ratified does not somehow prove that NOT having dual criminality on this treaty is a good thing (and the little blip about article 27 providing a procedure when MLATs are not present-so what? the procedure provides only political guidance and no legal guidance as to the limitations or scope of the agreement). It's in the hands of the governments.

On one hand, the government's claims make sense: laws are different in varying countries and we may need assistance in legal action. For example the music distribution site www.mp3search.ru may be legal in Russia, but it may not be in the States, and if the United States needs to get names it would be hard pressed to go it alone. A further example would be Americans signing up for pornography sites in other countries where the age laws are different (say 16). On the other hand, McCullough and the ACLU are right to press the issue of limitations: tech companies are known for providing the products that allow countries like China and more recently Indonesia to crack down on freedom of speech. Important values should not be tossed around as a political carrot-allowing governments to decide whether cybercrime assistance merits rejection based on freedom of speech conflicts-they should be enshrined in the treaty. I'll try to explore this conflict more as the treaty develops, and maybe look for some alternatives to the dual criminality solution.