Beefed-Up Global Surveillance?
By Declan McCullagh
2:00 a.m. Feb. 20, 2002 PST
WASHINGTON -- An addition to an international treaty could permit police to cooperate more closely on intercepting and decrypting the communications of suspected terrorists.
The Council of Europe, which includes nearly all European nations, is meeting this week to prepare additions to a controversial " cybercrime " treaty that would cover decoding terrorist messages. The United States, Canada and Japan are non-voting members of the council.
Peter Csonka, the head of the Council of Europe's economic crime division, said when the drafting process for the so-called Second Protocol is complete, the document will address " how to identify, how to filter, and how to trace communications between terrorists. "
Details are scarce, and the Council of Europe has repeatedly refused to elaborate. Csonka would not confirm or deny whether the Second Protocol will advance limits on encryption technology, coordinate code-breaking efforts among member nations, or increase electronic surveillance performed against people linked to terrorism.
This week's closed-door meeting, reportedly taking place at the council's headquarters in Strasbourg, France, includes representatives from the U.S. Justice Department, which was one of the most enthusiastic backers of the original treaty.
Privacy groups and civil libertarians have spent nearly two years criticizing the existing cybercrime treaty, which is now awaiting ratification by the legislatures of member nations. If the council plugs additional surveillance powers into the treaty, opposition seems certain to increase substantially.
In December, the Council of Europe's Committee of Ministers asked the Steering Committee on Crime Problems to draft the " Second Protocol to the Convention on Cybercriminality to cover also terrorist messages and the decoding thereof. " That is scheduled to happen after an antiterrorism working group completes its report by April 30, 2002.
This week's meeting is a preliminary one. After the drafting process begins in earnest later this spring, the steering committee will prepare a detailed proposal in June and send it back to the Council of Ministers by the end of September, according to the Csonka.
The still-secret Second Protocol will be, as the name implies, the second set of additions to the underlying treaty. Currently the Council of Europe is busy working on the First Protocol, which criminalizes " hate speech " and racist remarks and likely will run afoul of the First Amendment to the U.S. Constitution.
Some observers predict the U.S. delegates to the Council of Europe will not sign the First Protocol. But the underlying cybercrime treaty, without the " hate speech " components, is likely to go to the U.S. Senate for a vote.
" There is a group of experts working on the First Protocol. Once this committee produces the First Protocol in June, then the steering committee will consider giving terms of reference for a new committee, " Csonka said. " The second group of experts operate on terms of reference that will be drafted by the European Steering Committee on Crime Problems. "
Bryan Sierra, a spokesman for the U.S. Justice Department, confirmed that his agency's computer crime section sent representatives to this week's meeting on the Second Protocol but steadfastly refused to say what they were doing.
" We're not at liberty to discuss our position or even what's going on, " Sierra said. " We would prefer to talk about these matters with the people we're meeting with instead of with reporters. "
The French activist group Imaginons un Réseau Internet Solidaire obtained a list of participants from a December 2001 meeting relating to the " hate speech " protocol. The three U.S. representatives are: Jason Gull, a trial attorney at the Justice Department; Kenneth Harris, the associate director of the criminal division's Office of International Affairs; and Richard Visek, an attorney in the State Department's law enforcement and intelligence section.
" This shows that the cyber rights community was justified in its opposition to the cybercrime treaty, " David Sobel of the Electronic Privacy Information Center said of the Second Protocol. " It is becoming the vehicle for an ever-expanding list of invasive intergovernmental activities. "
Privacy groups have opposed the underlying treaty, which, according to the Council of Europe, no countries have ratified so far. Among the objections: Encouraging self-incrimination, no clear limits on police eavesdropping powers and unwarranted traffic data collection and storage.
One industry representative who attended a meeting on the cybercrime treaty at the Justice Department earlier this month said it was suprising that the government attendees never mentioned the Second Protocol: " It was interesting because it didn't come up. This was a clear opportunity to have that discussion. "
A foreign affairs officer at the U.S. State Department said the department is monitoring the process, but hasn't taken a position on the Second Protocol. The person referred calls to the Justice Department.
Robert Zarate contributed to this report.
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