ARCHIVED: Draft Protocol to the Council of Europe Convention on Cyber-Crime

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February 6, 2002

The Honorable Colin L. Powell
Secretary of State
Department of State
Harry S Truman Building
2201 C Street, N.W.
Washington, D.C., 20520

The Honorable John Ashcroft
Attorney General
Department of Justice
Robert F. Kennedy Building
Tenth Street and Constitution Avenue, N.W.
Washington, D.C., 20530

Dear Secretary Powell and Attorney General Ashcroft:

We are writing on behalf of a broad coalition of U.S. industry associations and civil liberties groups to express our growing concerns about the yet unreleased draft Protocol to the Council of Europe (CoE) Convention on Cyber-Crime, which addresses racist and xenophobic speech. We appreciate the Administration's involvement in monitoring the development of this Protocol, and were particularly pleased that the Department of Justice recently wrote the Council of Europe expressing concerns about the Protocol and its effect upon the First Amendment.

While we abhor both xenophobia and racism, this Protocol raises a number of fundamental procedural and substantive concerns to U.S. industry and public interest groups.

As the Administration stated in its recent letter, the draft Protocol, by broadly prohibiting categories of racist or xenophobic speech, raises serious First Amendment concerns in the U.S. We are equally concerned about other issues as well. For example, the proposed Protocol could threaten Internet service providers with intermediary liability for distributing, transmitting and posting offensive speech on their servers and networks on behalf of subscribers and users. Service providers could face criminal and civil liability or be forced to monitor the Internet for potential offenses under the Protocol.

Even if the U.S. does not sign the Protocol, there is a real threat that other countries could attempt to exert extra-territorial jurisdiction over parties in countries that are not signatories to the Protocol. Recent international litigation, such as the Yahoo! case, has demonstrated that governments with very different legal regimes from our own, but which are also signatories to the CoE Convention, have asserted concurrent jurisdiction over Internet conduct that occurs on computer servers in the U.S. and is lawful in the U.S., simply because the content is accessible in the signatory country.

We also share serious concerns about the process under which this Protocol is being negotiated. We understand that the Protocol is being negotiated on an expedited schedule (only ten drafting days) with little or no opportunity for outside stakeholder participation. As the Administration appreciates from the problems that emerged from the "closed-door" drafting of the Cyber-Crime Convention, a Protocol of this significance needs ample time for consideration and negotiation and must be subject to an open and transparent process involving input from all interested stakeholders. We understand that there is currently no plan to release a draft text of the Protocol until after the February meeting of the drafting committee and the drafting process for the Protocol will expire on April 30.

We urge the Administration to continue to participate in the Protocol process in order to obtain more time for an open dialogue, extensive consultation and careful drafting, and to actively seek support from countries that may share our substantive concerns about the Protocol. In the meantime, we would respectfully suggest that all interests would be served by the early publication of a draft text, an extension of the terms of reference and the opportunity for full and open participation by all affected stakeholders.

Sincerely,

American Civil Liberties Union
American Freedom Center
American Library Association
American Association of Law Libraries
Association of American Publishers
Association of Research Libraries
Center for Democracy and Technology
Computer & Communications Industry Association
Electronic Privacy Information Center
Free Congress Foundation
Information Technology Association of America
Internet Commerce Coalition
NetCoalition
Pacific Research Institute
United States Internet Industry Association
U.S. Chamber of Commerce
Young Conservatives of Texas