John Whitehead's Commentary
Big Brother Goes Global
The Internet, like no other technology in history, is truly a global medium. In a way that was only dreamed of ten years ago, communication is now possible from anywhere in the world to anywhere in the world. But criminals have latched onto this global presence, too, creating viruses that wreak havoc on hard drives from Moscow to Malaysia to Minnesota.
With the birth of the global criminal, it was inevitable that there would be a global response. That time has come. A group known as the Council of Europe has drafted an international treaty on cyber-crime, which could go into effect as early as this summer. The Council, made up of 41 nations, has worked on the treaty since 1997, although recent global viruses lent urgency to its proceedings.
The problem is that in its eagerness to lay a snare for the global cyber-criminal, the treaty has trapped basic civil liberties in its net. Reflecting what some observers have called "a law enforcement wish list," the document threatens to short-circuit fundamental civil rights.
First, any international agreement purporting to deal with criminal activity on a global scale is fraught with problems from the beginning. What might be a crime online in some countries may be protected First Amendment speech in the United States. What might be a crime serious enough to warrant online surveillance by law enforcement would likely differ from country to country, depending on the severity with which cultures view certain behavior.
This latter concern was one of the animating forces behind the protests of the Global Internet Liberty Campaign, an international coalition of cyber-liberties and human rights groups from countries as diverse as Russia, the United Kingdom and the United States. The GILC points out that, under the treaty, interception of online communications by law enforcement is only to be used for "serious offences to be determined by domestic law." However, many countries define serious crimes very broadly when police seek to wiretap a suspect.
Of course, the unique global nature of the Internet means that even if the United States chooses not to use surveillance (although efforts like Carnivore, the FBI's online surveillance program, suggest this won't be the case), other countries could interfere with the expression of American citizens online, violating both their First Amendment rights to free speech and their Fourth Amendment rights prohibiting unreasonable searches.
The treaty would also force Internet users to turn over decryption keys to government officials. Long a point of heated debate between the Internet community and law enforcement, decryption keys could give the government personal information it cannot access through lawful means. In some cases, it could even violate an Internet user's right not to self-incriminate, a fundamental due process liberty recognized throughout American history.
In essence, the treaty on cyber-crime, drafted behind closed doors and stuffed with goodies for eager law enforcement officers, threatens to respond to global crime online with a global assault on civil liberties.
It is a maxim of modern life that the less connected police are to the community which they serve, the more likely they are to violate the civil liberties of the citizens. In most cases, the policeman who lives next door is unlikely to search your home without a warrant, to violate your free speech rights or to interfere with your basic freedoms. Why? Because he knows you as a human being, not a faceless member of the mob he's been sent to control.
In America, we know that sending federal law enforcement to do a job often results in serious violations of our basic liberties. Whether it's the legal immigrant boy shot by federal officers while herding sheep or the victims of an overzealous Bureau of Alcohol, Tobacco and Firearms, the further we remove law enforcement from the community, the more we court serious damage to the Bill of Rights.
It almost goes without saying, then, that a global response to crime online will inevitably result in an assault on civil liberties unlike any before. It is virtually impossible for law enforcement officials charged with a global mission to view the ordinary Internet user in Minnesota as a real human being with basic fundamental rights.
The treaty, in actuality, has it backwards. The Council should have first drafted the treaty on basic civil liberties in cyberspace. Once it had the freedoms established, then it could worry about the crimes.
With the birth of the global criminal, it was inevitable that there would be a global response. That time has come. A group known as the Council of Europe has drafted an international treaty on cyber-crime, which could go into effect as early as this summer. The Council, made up of 41 nations, has worked on the treaty since 1997, although recent global viruses lent urgency to its proceedings.
The problem is that in its eagerness to lay a snare for the global cyber-criminal, the treaty has trapped basic civil liberties in its net. Reflecting what some observers have called "a law enforcement wish list," the document threatens to short-circuit fundamental civil rights.
First, any international agreement purporting to deal with criminal activity on a global scale is fraught with problems from the beginning. What might be a crime online in some countries may be protected First Amendment speech in the United States. What might be a crime serious enough to warrant online surveillance by law enforcement would likely differ from country to country, depending on the severity with which cultures view certain behavior.
This latter concern was one of the animating forces behind the protests of the Global Internet Liberty Campaign, an international coalition of cyber-liberties and human rights groups from countries as diverse as Russia, the United Kingdom and the United States. The GILC points out that, under the treaty, interception of online communications by law enforcement is only to be used for "serious offences to be determined by domestic law." However, many countries define serious crimes very broadly when police seek to wiretap a suspect.
Of course, the unique global nature of the Internet means that even if the United States chooses not to use surveillance (although efforts like Carnivore, the FBI's online surveillance program, suggest this won't be the case), other countries could interfere with the expression of American citizens online, violating both their First Amendment rights to free speech and their Fourth Amendment rights prohibiting unreasonable searches.
The treaty would also force Internet users to turn over decryption keys to government officials. Long a point of heated debate between the Internet community and law enforcement, decryption keys could give the government personal information it cannot access through lawful means. In some cases, it could even violate an Internet user's right not to self-incriminate, a fundamental due process liberty recognized throughout American history.
In essence, the treaty on cyber-crime, drafted behind closed doors and stuffed with goodies for eager law enforcement officers, threatens to respond to global crime online with a global assault on civil liberties.
It is a maxim of modern life that the less connected police are to the community which they serve, the more likely they are to violate the civil liberties of the citizens. In most cases, the policeman who lives next door is unlikely to search your home without a warrant, to violate your free speech rights or to interfere with your basic freedoms. Why? Because he knows you as a human being, not a faceless member of the mob he's been sent to control.
In America, we know that sending federal law enforcement to do a job often results in serious violations of our basic liberties. Whether it's the legal immigrant boy shot by federal officers while herding sheep or the victims of an overzealous Bureau of Alcohol, Tobacco and Firearms, the further we remove law enforcement from the community, the more we court serious damage to the Bill of Rights.
It almost goes without saying, then, that a global response to crime online will inevitably result in an assault on civil liberties unlike any before. It is virtually impossible for law enforcement officials charged with a global mission to view the ordinary Internet user in Minnesota as a real human being with basic fundamental rights.
The treaty, in actuality, has it backwards. The Council should have first drafted the treaty on basic civil liberties in cyberspace. Once it had the freedoms established, then it could worry about the crimes.
ABOUT JOHN W. WHITEHEAD
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.
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