In that vein, in August the Senate ratified the Convention on
Cybercrime, drafted by the Council of Europe with considerable input
from the United States. So far, 43 nations have signed on. The
Convention includes many sensible provisions aimed at unifying global
computer-crime laws, and closes loopholes that make it possible for
criminals to escape prosecution by locating their activities offshore.
But civil libertarians, along with leading telecommunications
companies, strongly oppose the treaty. Civil libertarians are
especially concerned about the sweeping authority given to
participating countries to seize information from private parties as
they investigate cybercrimes, even when the activity being investigated
isn't a crime in the country where the data is located. If France is
investigating a sale of Nazi memorabilia on eBay, the U.S. must
cooperate, even though such transactions are not illegal in the U.S.
Telecommunications companies object to provisions that require member
countries to establish and enforce potent data-retention policies for
network traffic, and require any operator of a computer network to
respond to requests for information from any participating country
without compensation of any kind.
These are potentially serious problems, especially given that the
Convention is open to any country that wants to join. But there are
more practical reasons U.S. businesses should be concerned. The
provisions for data retention and production apply to any operator of a
computer network, not just telecoms. Worse, Article 12 attaches
liability to businesses for "lack of supervision or control" of
employees who commit criminal offenses covered by the Convention.
Businesses must worry about employee activities that may be legal here,
but illegal elsewhere, risking administrative, civil, or even criminal
penalties.
These investigative and supervision costs will invariably be
imposed on businesses without any real controls. Worldwide
law-enforcement agencies, in other words, may now avail themselves of
the opportunity to outsource their most expensive problems to you.
