CYBERCRIME: The Government will sign an international treaty on cybercrime in the near future, despite the serious concerns held by the Department of Enterprise, Trade and Employment and the Data Protection Agency.
The treaty, which was formally adopted by the European Council of Ministers late last year, substantially increases police powers to monitor electronic communications and seize computer data.
The Republic is one of just three European Union states that have yet to sign the treaty. Luxembourg and Denmark are the other two non-signatories.
A Department of Justice spokesman confirmed to The Irish Times that the Minister for Justice, Mr O'Donoghue, was committed to the treaty. He said the Minister would sign the treaty "in the near future" although no specific date had yet been set.
The Government will begin a process to transpose the treaty into Irish law following its signature to the treaty. This would become law after passage through the Dáil.
Documents obtained under the Freedom of Information Act show some elements of the treaty were strongly opposed by the Department of Enterprise, Trade and Employment and the Data Protection Agency.
The e-business unit within the Department of Enterprise wrote to the Crime Division of the Department of Justice - the body involved in the treaty negotiations - several times between 1999 and November 2001. In correspondence, it argued the treaty could prohibit the development and use of important security technologies, and impact negatively on Irish business and the promotion of e-commerce by enabling the State to demand the preservation of data by service providers.
The unit said it was "very concerned" about proposals made in the treaty that may impose an obligation on service providers to "decrypt encrypted communications". This would deter many business persons from conducting business over the internet, according to the unit.
It also expressed concern over article six of the treaty. This could make the sale or use of certain encryption programmes, which were used for criminal activities, an offence. It could be used as a trade barrier or lead to people being charged for selling, said the unit.
Sources within the Department of Enterprise told The Irish Times this week it would hold discussions with the Department of Justice on the treaty when it began preparing primary legislation to transpose it into Irish law.
Each state's interpretation of the text of the treaty is likely to differ substantially with some giving more emphasis on privacy rights than others. This means the transposition of the legislation will define many of the controversial elements within the treaty.
Meanwhile, the Data Protection Agency has also expressed considerable unease, since September 2000, about articles contained within the treaty. In a letter to the Department, the agency said a number of provisions contained within the draft convention appeared "to err on the side of unacceptable interference with well-established rights to personal privacy".
Production orders contained within the treaty, which compelled telecoms providers to supply data on individuals to the police, would impact on privacy rights.
Likewise, the compulsion to collect or record data appeared "incompatible with general privacy and data protection norms", said the letter.
The agency also noted that the introduction of similar powers contained within the Regulation of Investigatory Powers Bill 2000 (RIP Bill) in Britain led to "significant adverse public comment".
Contacted by The Irish Times this week, data protection commissioner Mr Joe Meade said he favoured anti-cybercrime measures but these must be proportionate. "A balance must be struck between the measures against cybercrime and people's right to privacy," he said.
The cybercrime treaty is the product of four years' work undertaken by Council of Europe experts. It will be supplemented by a protocol making any publication of racist and xenophobic propaganda via computer networks a criminal offence.
Four countries from outside the Council of Europe - Japan, Canada, the US and South Africa - have already signed the treaty. No nation has yet ratified the treaty in State legislatures.
Readers can read the text of the treaty at: http://conventions.coe.int/Treaty/EN/WhatYouWant.asp?NT=185.
