Editor’s Note: José Cortina is a member of the Research Triangle Park law firm of Daniels Daniels & Verdonik, P.A.

RESEARCH TRIANGLE PARK, N.C. – The U.S. Senate recently approved an international treaty designed to combat computer crime. The treaty has been touted by Senate leaders as enhancing the U.S. ability to cooperate with foreign governments in fighting terrorism, computer hacking, money laundering and child pornography, among other crimes.

However, a detailed review of the treaty reveals that it is largely symbolic, because U.S. law already includes much of what the treaty requires.

There are certain provisions which in the eyes of some appear to be troubling, and because treaties override statutes, could subject U.S. citizens and residents to invasive investigations and prosecution by the authorities of other countries.

More specifically, the treaty requires that Internet service providers must cooperate with electronic searches and seizures without reimbursement. In addition, the Federal Bureau of Investigation is required to conduct electronic surveillance on behalf of other governments upon their request. Yet still further, U.S. businesses can be served with orders preventing them from routinely deleting logs or other data. In accordance with the requirements of the treaty, the U.S. is now obliged to investigate and monitor, for example, other countries’ internet crimes upon their request, and similarly, other countries are obligated to comply with such U.S requests.

The treaty is entitled “The Council of Europe Convention on Cybercrime” and has been ratified by 42 signatories, which includes four non-Council of Europe nations (U.S., Canada, Japan and South Africa). Since the treaty became effective when ratified by five nations, ratification by the U.S. makes it effective in the U.S.

Potentially, More Surveillance On Americans

It is important to note that the treaty was also supported and lobbied for by the Business Software Alliance which includes as members some of the largest corporations in the information technology and telecommunications industries in the U.S. and the world, even though it could subject U.S. residents to more scrutiny. Stated more simply, the impact of the treaty is potentially more surveillance on Americans who have been accused of violating the laws of other countries, even in the absence of any violation of U.S. law.

Critics have also asserted that the treaty, which was based in part on present European values, attempts to obtain greater control over what individuals do on the internet, and is the goal of European legislators who are enamored with the concept of a global government system. In fact, the Secretary General of the Council of Europe was quoted as saying that: “[t]he Information Society is clearly in need of a global governance mechanism. The Council of Europe, with its unchallenged human rights expertise, political consultation structures, and solid relationship with civil society, must be party to discussions undertaken at every step of the way concerning internet governance and human rights.”

In fact, “human rights” as defined by many in Europe includes the shielding from mere criticism of certain protected minorities such as third-world immigrants and homosexuals. As a result, the treaty also contained an optional provision making such actions a crime. Fortunately, the Senate did not consider or ratify that section of the treaty. The section in question would have required imprisoning anyone guilty of insulting publicly through a computer system specific groups of people. The Department of Justice took the position that such a provision would violate the First Amendment.

Open To Political Abuse?

Even without ratification of that controversial provision, more troubling is that the treaty is open to all nations to ratify. Thus, a country such as China, Russia or more openly hostile enemies of the U.S. could become signatories to the treaty and thereby require U.S. agencies to investigate dissidents, within the U.S., and also including U.S. citizens based in the United States.

Thus, while this treaty has the potential to facilitate enforcement and prevention of cybercrime, in its presently written form it has the potential for significant abuse depending on the politics (as they change over time) of the signatory nations, and one has to question whether it was truly necessary for the U.S. to become a signatory.

On the other hand, a counterargument to the critics is that the treaty facilitates surveillance by U.S. authorities in cases of monitoring, for example, terrorism activities on the internet. By ratifying the treaty, the U.S. can now force law enforcement agencies in other countries to conduct surveillance on the U.S.’s behalf, ostensibly to assist in thwarting terrorism.

Obviously good arguments are being advanced by critics and proponents. Most treaties are controversial, and this one may be more controversial than others. You decide.

A. José Cortina is a registered patent attorney with the law firm of Daniels, Daniels & Verdonik, P.A. He focuses his practice on the intellectual property needs of small to large technology companies, including providing patent, trademark, copyright, counseling, licensing, conflict resolution and transactional services. He is experienced in a broad range of technologies, including electronics, communications, computer hardware and software, biomedical, materials, and selected chemical and chemical engineering technologies.