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The United States recently joined 29 other countries in signing the Convention on Cybercrime, an international treaty aimed at strengthening the signatories’ ability to combat computer crime. It is likely that the Senate will soon ratify this treaty. Such ratification will mean, in turn, the enactment of much legislation aimed at compliance with the treaty’s obligations. Among other things, the treaty mandates the criminalization of a list of computer activities, imposes corporate liability for failure to diligently supervise employees, requires that each signatory provide for the preservation and production of stored computer data, states that each signatory shall have the ability to collect traffic and content data in real time, and sets up a system of mutual assistance among nations for the investigation and monitoring of cybercrime. CRIMINALIZATION OF CERTAIN COMPUTER ACTIVITIES The treaty mandates that each signatory adopt “legislation and other measures as may be necessary to establish as criminal [offenses] under its domestic law,” for the following actions, when these actions are committed intentionally without proper authority: � The access to the whole or any part of a computer system. � The interception, by technical means, of non-public transmissions of computer data to, from, or within a computer system, including electromagnetic emissions from a computer carrying such computer data. � The damaging, deletion, deterioration, alteration, or suppression of computer data. � The serious hindering of the functioning of a computer system by inputting, transmitting, damaging, deleting, deteriorating, altering, or suppressing computer data. � The production, sale, procurement for use, import, distribution or otherwise making available of a device, including a computer program, designed or adapted primarily for the purpose of committing any of the above listed offenses or a computer password, access code, or similar data by which the whole or part of the system can be accessed, with the intent that the device or data be used for committing one of the above listed offenses. � The input, alteration, deletion, or suppression of computer data, resulting in inauthentic data with the intent that it be considered authentic. � The causing of property loss to another by any input, alteration, deletion, or suppression of computer data or any interference with the functioning of a computer system with the fraudulent intent of procuring, without a right, an economic benefit for oneself or for another. CORPORATE LIABILITY The treaty requires signatories to take measures necessary to ensure that a corporate entity can be held liable for lack of supervision of an individual acting under its authority, when such lack of supervision has made possible the commission of a crime under the Convention for the benefit of the corporation. Therefore, signatory nations will be responsible for enacting legislation that may hold corporations liable for the acts of their employees, if the corporations are found to not be sufficiently supervising those employees. In addition, the treaty mandates that each signatory adopt legislation holding entities liable for criminal offenses established by the Convention. Liability extends to the entity only if the offense was committed for its benefit by a person acting alone or as an organ of the entity, who has a leading position within the entity. PRESERVATION AND PRODUCTION OF STORED COMPUTER DATA Signatories are instructed to adopt legislation to enable their domestic authorities to order or obtain the expeditious preservation of computer data, particularly when the data is vulnerable to loss or modification. Where such legislation enables authorities to issue an order to preserve data, the preservation of such data shall be permitted for as long as necessary, up to a maximum of 90 days. Moreover, authorities will be empowered to order a person in its territory to submit specified computer data in his or her possession or control. Service providers offering services in the territory may also be subject to an order to submit subscriber information relating to those services. Signatories are required to adopt legislation to authorize the search and seizure of a computer system, data stored within the system, or a computer-data storage medium in which the data may be stored. Search and seizure measures are to include the ability to seize or similarly secure a computer system, to make and retain a copy of the computer data, and to render inaccessible or remove data from the accessed computer system. REAL TIME COLLECTION Legislation is to be enacted to empower authorities to collect or record traffic and content data in real time. In addition, service providers may be compelled to collect or record data or to assist authorities in the collection or recording of traffic and content data. The treaty does provide that if a signatory is unable to adopt the above methods due to its domestic legal system, it may instead adopt other measures to ensure the real time collection or recording of traffic and content data associated with specified communications in its territory. MUTUAL ASSISTANCE The treaty serves as an agreement among the signatories that they will provide one another “mutual assistance to the widest extent possible for the purpose of investigations or proceedings.” Ronald W. Zdrojeski is a partner, and Lee D. Hoffman and Jeanine Dames are associates, in the Hartford office of LeBoeuf, Lamb, Greene & MacRae .

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