(December 11, 2000) Council of Europe Representative Henrik Kaspersen defended the Draft Treaty on Cyber Crime at a panel discussion in Washington DC on December 7.
Henrik Kaspersen, Chairman of Committee of Experts on Crime in Cyber-Space, of the Council of Europe (COE), was a member of a panel discussion held at the Johns Hopkins School of Advanced International Studies. "We do not want to leave privacy apart from the convention," said Kaspersen. "we share an interest in the protection of the rights of the individual."
Kaspersen, an avuncular Dutch professor, is in the United States to try to allay concerns about the COE draft cyber crime treaty.
Two other panelists, James Dempsey and Jeffrey Price, both criticized the Council of Europe Draft Treaty on Cyber Crime for expanding government authority, and reducing individual privacy.
The participants were:
Bruce McConnell opened the discussion by presenting a study that he prepared on the state of cyber crime laws in various nations. The study was based on a survey mailed to 120 nations. 42 provided responses. The report did not utilize the international collections of law libraries.
He found that "only nine of these nations have amended their laws to cover more than half of the kinds of crimes that need to be addressed. While many of the others have initiatives underway, it is clear that a great deal of additional work is needed before organizations and individuals can be confident that cyber criminals will think twice before attacking valued systems and information.
James Dempsey was not impressed with the McConnell study. He pointed out that it found that China's laws prohibited only three of the ten activities that McConnell concluded should be criminalized. Dempsey suggested that China already has too many Internet laws. Dempsey also made a similar point with respect to France, which he criticized for its recent ruling against Yahoo.
Dempsey argued that the COE draft treaty would enable governments to use new technologies to increase their surveillance powers.
"I think the sense of most citizens is that if you look at the broad sweep of this technology, the Internet revolution -- digital communications technologies that have now become so completely interwoven into our lives -- if you look at, why do we have these technologies in the first place? They are to generate, collect, share vast sets of information. And, governments are taking advantage of precisely those technologies for their surveillance purposes, and I believe, that on balance, if you look at this technology objectively, you would have to conclude that the vast sweep of this revolution has benefited governments, and government power -- the ability of governments to collect information."
Jeffrey Pryce focused on details contained in the draft treaty. He stated that the definition of Internet Service Provider (ISP) is overbroad. He condemned the language pertaining to illegal access, which provides that access is illegal unless permitted. He stated that this is just the opposite of the fundamental legal principal that all activity is legal, unless prohibited.
He also criticized the treaty for criminalizing conduct which is already made illegal by existing laws. This, said Pryce, creates an unnecessary duplication of prohibitions.
"There are legitimate concerns about the breadth of this," Pryce concluded.
The panel also took questions from the audience. John Ryan of America Online stated that the draft treaty should not provide for liability of ISPs. Kaspersen responded that "we don't have provider liability in the convention." Pryce then added that ISP liability could arise under the "aiding and abetting" language.
David Banisar, a Senior Fellow at the Electronic Privacy Information Center (EPIC), told Tech Law Journal after the event that there are errors in the McConnell International report, and cited examples regarding the report's summaries of cyber crime laws in China and Malaysia.
Wayne Madsen, a Senior Fellow at EPIC, told Tech Law Journal after the event
that the draft cyber crime treaty is another example of "policy
laundering" by the U.S. Department of Justice. According to Madsen, the DOJ
cannot get some of the provisions contained in the draft treaty through the U.S.
Congress, or even the EU, so it has attempted to persuade the COE to include
them in a treaty proposal.