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A hodgepodge of interests, including business groups, civil liberties advocates, and hate speech watchdogs, are anxiously following the fate of the Council of Europe’s treaty on cybercrime. The treaty, which sets international standards for computer crimes and facilitates cross-border law enforcement investigations, is expected to be ratified by the council this fall. Countries that sign the council’s cybercrime treaty agree to standardize criminal procedures relating to computer and other digital evidence. The signatories also agree to criminalize typical computer offenses such as intrusion, release of viruses, and e-mail interception, as well as copyright infringement, which is now handled by most countries as a matter of civil law. The treaty’s critics, who are divided into two main factions, complain that the treaty either goes too far or not nearly far enough. One camp, composed of civil liberties groups (such as London-based Privacy International) and U.S. business concerns (such as AT&T Corp. and the U.S. Chamber of Commerce), gripes that the draft gives short shrift to privacy and high compliance cost concerns, especially expenses related to foreign search warrants. Some European businesses, particularly telephone and Internet companies, share that view. The other faction — mostly European interests — says that the treaty doesn’t go far enough to punish or deter hate speech on the Internet. Paris-based lawyer Marc Levy, who successfully sued Yahoo in France for offering online auctions of Nazi artifacts, complains that the treaty “stops short of protecting human dignity.” Levy and others say that the treaty is too focused on corporate wrongs, such as copyright infringement. Council of Europe representatives won’t say why hate speech provisions were not included. But observers say that the hate speech exclusion — and the inclusion of copyright offenses — reflect American influence. They say that the United States, which is the world’s largest exporter of copyrighted works, weighed in behind the scenes, through the U.S. Department of Justice and Federal Bureau of Investigation. Another factor contributing to this view is the fact that hate speech constraints are inconsistent with the First Amendment of the U.S. Constitution. But neither set of critics is likely to change the provisions of the current draft, says Guy de Vel, director of legal affairs for the Council of Europe. “Everything has been so carefully [weighed],” de Vel says, “[that] I don’t really see important parts of it changing.” A team of council-appointed experts is reviewing the treaty’s final language to iron out any unclear terms. Once that’s done, and once the language passes muster with the council’s committee of ministers, the treaty will be ready for signature. According to one American privacy activist, the committee’s approval is a crucial step; although the committee members “won’t be wordsmithing” the document, he says, they could decide to add a major substantive provision, such as a hate speech prohibition. Composed of 43 member nations, the Council of Europe functions as a treaty drafting body. It is not formally related to the 15-member European Union, which is considering passing its own cybercrime treaty. Treaty watchers say that the council will finalize a version that’s very close to the current document. But they warn that if international criticism continues, ratification by the member states or other nations may become politically problematic.

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