Constitutional Opinions: Cyber Treaty

...The treaty calls for international cooperation to suppress Intemet distribution of child pornography...

...law for actions taken by people in other countries who do serious harm through-or to--American computer networks...

...But where constitutional doctrine is fuzzy or unsettled (as a lot of it is, in areas of such new technology), a treaty may encourage courts to make accommodations...

...First, it raises all the usual problems of high-minded projects of international cooperation...

...The resulting paradox is familiar from debates about the Second Amendment...

...E-commerce may be convenient for people who can't get to shopping malls, but 1 don't see that it's much of an advance on mail-order catalogues...

...The COE lxeaty would set up an elaborate system for extraditing cyber criminals...

...T he cyber-convention also raises questions about procedural protections...

...In fact, the more I learn about the latest proposed treat?, to curb abuses on the Internet, the more I like the abuses...

...or grabbing U.S.-based co-conspirators, without worrying about treaty obligations...

...Bill of Rights...

...Improving technology may make it easier for national authorities to insist that service providers linking local users with the Web install certain "filters" to keep out prohibited material (as China now does...

...Washington attomey David Banisar, noting the extensive U.S...

...Europeans don't seem much concerned about pornography but they a r e much exercised about "hate speech...

...Yet in the name of protecting us from cyber crime, the government could well end up limiting the most effective private means of protection-such as better private eneryption systems...

...The section on "interception" has been left blank for now, but govemrnent agents want powers to monitor private messages...

...What they get is often the intellectual equivalent of junk-food--a quick fix for someone with no time to digest anything substantial...

...In the name of protecting us, gun control advocates want to take away our best means of self-defense...

...So doesn't it make sense to try to control these dangers with an international treaty...

...The question is whether the U.S...

...it may help sickos find child pornography or vulnerable children...

...In fact, nothing in international law prevents countries from enacting prohibitions on certain kinds of Internet traffic within their own borders...

...Gurrent constitutional doctrine holds that ira treaty conflicts with the Constitution, U.S...

...And we shouldn't be bargaining with foreign nations about our own standards...

...That's the third and most serious point...

...But if we are entering into systems of international cooperation for the suppression of Interact messages, will the cooperation stop with child pornography...

...it may allow the spread of libelous accusations, destructive rumors, crackpot alarms...

...And once the government has access to private encryption codes, will it guard such secrets as well as the private owners...

...What Dr...

...How does it operate on the Internet...

...This raises a serious Fifth Amendment issue: Does forcing a person to yield his password violate his Fifth Amendment privilege against selfincrimination...

...Most countries in Europe have laws against speech they regard as dangerous or offensive to minorities...

...The American Spectator _9 July/A~ g us t 2 o o o 59...

...Such cooperation might help us track and punish those in other countries trying to send child porn or dangerous disruptive "viruses" into the U.S...

...I don't see how this is different from broad powers to eavesdrop on phone conversations or secretly read private letters...

...Laura Schlessinger's radio program violates human rights standards for condemning homosexual conduct...

...The more govemment snoops, the more people try to protect themselves with encryption...

...government lacks constitutional authority to suppress various kinds of speech at home, does it really have constitutional authority to suppress their export...

...If the U.S...

...That might seem 58 J~[ y /Augus t 2o o o " The American Spectator unobjectionable, since the U.S...

...For seven years, the Clinton administration has tried to limit encryption by demanding that codes and passwords be available to law enforcement...

...Also, they don't worry much about the U.S...

...But he's got a point...

...Canadian human rights officials have ruled that Dr...

...But a lot of constitutional issues are raised when the U.S...

...the Internet seems to increase the risk that vandals, schemers, or terrorists could shut down computer systems or steal or damage data on a vast scale...

...But many delegates noted that human rights conventions obligate governments to suppress hate speech and that these conventions are supposed to take precedence even over national constitutions...

...The same conventions might be invoked to protest "hate speech" against homosexuals...

...After a lot of discussion, one scholar sighed, "The more I learn about judges, the more I like chemicals...

...These systems are likely to be more effective the less government has to do with them...

...The G8 group of leading industrial nations organized a special committee to make recommendations on the matter more than two years ago...

...But we may have more leverage on delinquents by acting alone, seizing their financial assets in the U.S...

...Second, an international treaty approach tends to distract attention from unilateral American defenses and may compromise or complicate them...

...The Fourth Amendment prohibits government snooping without a search warrant...

...was an exception, because of its First Amendment concerns...

...Where does the treaty leave it...

...The U.N.'s Commission on Human Rights sponsored a special conference to deliberate on ways of controlling broadly and vaguely defined categories of online hate speech, Participants stated--repeatedly-that the U.S...

...It can't achieve very much just by signing up governments that want to cooperate--any more than the treaty on chemical weapons can suppress chemical weapons when the most likely users of such weapons refuse to sign or don't really intend to comply if they do sign...

...That is saying something, because I'm not a big fan of the Internet...

...But there are ways to evade these controls without great technical sophistiWe shouldn't bargain with other nations about our own standards...

...But this treaty is a bad idea...

...What private eompa W could be so lax with its secrets or its clients' secrets and still stay in business...

...Now I say, the more I learn about international treaties, the more I like the Internet...

...Remember all that missile data passed on to China from the Los Alamos labs...

...courts must side with the Gonstitution...

...But the treaty seems to envision the monitoring of private e-mail as well...

...already has severe prohibitions on child pornography, including criminal sanctions for Internet transmission...

...Cyber-criminals can always shift their operations to new sites in more hospitable territory...

...Europeans tend to favor more control, partly because they distrust the Internet as something that comes from America...

...In facilitating communication, it may help terrorists locate targets or improve weapons...

...The European Union has called for action...

...If the problem is the inter-connectedness of the Internet, a treat?, must enlist every country in the world...

...A number of serious constitutional issues are at stake...

...government should help other countries enforce the controls they want to impose...

...What happens when religious groups take to the Internet to present or discuss their doctrines regarding homosexuality...

...A number of legal scholars have considered the argument and coneluded that it does...

...Authorities in France, Britain, and Sweden have wider concerns and have warned against transmission of improper sites...

...Laura presents as traditional Jewish doctrine, Christians and Muslims often assert in stronger terms...

...In the end, though, trying to protect American computers by hunting down hackers throughout the world is like trying to protect ourselves against terrorism by suppressing terrorist cells throughout the world...

...I wish my own teenage sons would spend less time on the Net and more time watching cable TV, where the old movies have a plot line and a moral theme and the director was not some distracted z3-year-old geek...

...It is a serious argument...

...government has an international obligation to enforce such access...

...We don't need to engage in remote speculation...

...I don't see any problem with the current practice of using chat groups to set up sting operations, where govemment agents catch pedophiles or purveyors of child pornography or other kinds of criminals...

...Frivolousness is not the worst thing about the Internet...

...Instead of immersing themselves in real books, students reach into cyberspace for random facts...

...government involvement in the drafting of this convention, calls the process "policy laundering...

...committees have called for international action...

...There are lots of gray areas in Fourth Amendment case law, but I would not like to see our privacy protections weakened just to satisfy our partners in an international control scheme...

...We can start, as the Bill of Rights does, with the religious freedom and flee speech guarantees of the First Amendment...

...So far, it has retreated in the face of strong protests, but the treaty-which speaks in vague terms about nations legislating "access" for police investigations--now seems to say that the U.S...

...government tries to stop American citizens, operating domestically, from exercising free speech or,religious freedom on the Intern e t - just to satisfy foreign standards...

...But the treaty may be an excuse to impose controls our government wants, but have so far been resisted...

...The argument that "international cooperation" requires this or that is first cousin to the claim that "national security" requires this or that-and here, both arguments are enlisted by government officials warning about cyber-criminals conspiring to destroy our computer networks...

...We can impose criminal sanctions under U.S...

...Though the draft of this treaty remains sketchy and might yet be improved, it seems to envision systems of control that go beyond what we now have in the U.S...

...In late April, the Council of Europe (COE), comprising 41 nations in western and central Europe, released a draft for a "convention on cyber-crime" which it invites the United States and other nations to help perfect and then rat@ In fact, American representatives have already been actively involved in the drafting process...

...And as the Internet speeds messages around the globe, no one government can control it and it seems to threaten traditional notions of sovereignty...

...My younger son put it this way: "When eneryption is outlawed, only outlaws will be encrypted...

...People who post opinions online seem mostly to be rejects from talk-radio call-in shows...

...M any years ago, I attended a conference about judicial efforts to fine-tune federal safety standards...

...In linking so many networks, moreover, JEREMY RABKIN is a professor of government at ComelI University...

...Could be he spends too much time browsing the NRA Website...

...And partly because they just favor more control...

...Instead, we should be emphasizing technical methods for defending computer systems in our own country-- in accord with our own priorities and standards...

...cation-- especially if one has help from others in third countries, who provide disguised links back to the prohibited material...

...Even the research potential of the Net is overrated...

...Germany has strict laws against Nazi or neo-Nazi activities and in 1995 threatened to shut down AOL connections unless the company took steps to prevent offensive Websites from getting through to computers in Germany...

...Many world leaders think so...

...Government agents can certainly monitor Websites open to everyone else...