Convention On Cybercrime - Accession By The USA

Accession By The USA

Its ratification by the United States Senate by unanimous consent in August 2006 was both praised and condemned. The U.S. became the 16th nation to ratify the convention. Forty-three nations have signed the treaty. The Convention entered into force in the USA on January 1, 2007.

"While balancing civil liberty and privacy concerns, this treaty encourages the sharing of critical electronic evidence among foreign countries so that law enforcement can more effectively investigate and combat these crimes," said Senate Majority Leader Bill Frist.

"The Convention includes a list of crimes that each signatory state must transpose into their own law. It requires the criminalization of such activities as hacking (including the production, sale, or distribution of hacking tools) and offenses relating to child pornography, and expands criminal liability for intellectual property violations. It also requires each signatory state to implement certain procedural mechanisms within their laws. For example, law enforcement authorities must be granted the power to compel an Internet Service Provider to monitor a person's activities online in real time. Finally, the Convention requires signatory states to provide international cooperation to the widest extent possible for investigations and proceedings concerning criminal offenses related to computer systems and data, or for the collection of evidence in electronic form of a criminal offense. Law enforcement agencies will have to assist police from other participating countries to cooperate with their mutual assistance requests."

Although a common legal framework would eliminate jurisdictional hurdles to facilitate the law enforcement of borderless cyber crimes, a complete realization of a common legal framework may not be possible. Transposing Convention provisions into domestic law is difficult especially if it requires the incorporation of substantive expansions that run counter to constitutional principles. For instance, the U.S. may not be able to criminalize all the offenses relating to child pornography that are stated in the Convention, specifically the ban on virtual child pornography, because of its First Amendment free speech principles. Under Article 9(2)(c) of the Convention, a ban on child pornography includes any “realistic images representing a minor engaged in sexually explicit conduct.” According to the Convention, the U.S. would have to adopt this ban on virtual child pornography as well, however, the U.S. Supreme Court, in Ashcroft v. Free Speech Coalition, struck down as unconstitutional a provision of the CPPA that prohibited "any visual depiction” that "is, or appears to be, of a minor engaging in sexually explicit conduct." In response to the rejection, the U.S. Congress enacted the PROTECT Act to amend the provision, limiting the ban to any visual depiction “that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct.” 18 U.S.C

The United States will not become a Party to the Additional Protocol to the Convention on Cybercrime.