Global Policy Forum

By Paul Weinberg *

The growing use of international treaties to bypass the will of national parliaments, by bodies waging the so-called "war on terrorism," increasingly threatens civil liberties and freedom of the media, warn privacy advocates. When U.S. officials — reportedly the Federal Bureau of Investigation (FBI), though the agency denied it Tuesday — last week sought to gain access to computer servers hosting websites of Independent Media Centres (or Indymedia), a worldwide, alternative citizen-based news network, it was in response to a request by the Swiss police under the Mutual Legal Assistance Agreement.

The treaty establishes procedures for countries to collaborate in investigations regarding international terrorism, kidnapping and money laundering. It is less clear if the temporary seizure by the FBI of the two servers at the London, England office of Rackspace, a U.S. Internet operation based in Texas, was conducted under the agreement, since U.S. companies are subject to U.S. law worldwide, says Ian (Gus) Hosein, a visiting fellow at the London School of Economics and a fellow at the organization Privacy International in the United Kingdom. "The challenge then arises: did Rackspace break UK law? Where were UK law enforcement officials in all of this?" Hosein said in an interview from his London office. "And the 64-million-dollar question is: why did all of this 'co-operation' between countries take place when we are still uncertain as to whether any laws were broken in any of these countries?" he asked.

Hosein cites the 2001 Council of Europe Cybercrime Treaty as a prime example of "policy laundering," in which national governments use global treaties to force their parliaments to pass what otherwise might be unpopular measures. All the signatories to the cybercrime treaty — which include Canada, the United States (which has not ratified the agreement) and European Union (EU) countries — are obliged to have their legislatures pass lawful access laws that give police increased power to seize records of email messages by people under criminal investigation, as well as force Internet service providers (ISPs) to store transmission data for a period of time. Canadian officials in the department of justice in Ottawa have justified passage of the first of two pieces of legislation on lawful access (Bill C-13) because of this country's treaty obligations.

But Hosein suggests this is a "disingenuous" argument, since "Canada helped write the Council of Europe treaty. This is the most annoying thing about this." Further, he adds, very little debate has occurred on the merits of lawful access outside of the telecom industry — which is expected to upgrade its equipment to handle increased police interception of Internet communications. "The countries that have ratified the treaties to date never had a conversation within their own countries about lawful access," says Hosein. Among the lobbyists for lawful access has been the Canadian Association of Chiefs of Police (CACP). "With the increased use of technology by the criminal element, a lot more of our work is being done through technology, whether it be Internet or voice over IP or wireless lines," Superintendent Thomas Grue of the Edmonton Police Service, a CACP spokesperson, says.

But Canada's police have not provided any statistical or anecdotal evidence to demonstrate their investigations require unprecedented legal access to Internet communications, says Jason Young, a Toronto privacy consultant and a member of the board of directors of Privaterra, an organization that provides technological education and support for human rights organizations. If the police come knocking on a citizen's door, he or she, under the Canadian Constitution, can seek a court injunction to stop what might be an illegal search. But law enforcement agencies will have an easier time serving an order on a third-party business, like an ISP, to produce the electronic email records of certain people, Young says. A provider will not "be surgical" in what they give the police, he adds, but "is likely to dump the (citizen's) entire account information or whatever they have onto a DVD." Indymedia faces the same problem in fighting efforts to shut down its websites, writes Bill Thompson, a columnist for the online UK magazine, Open Democracy. "If Indymedia can be taken offline so easily, then what of our server, Plato, sitting at our ISP data centre?"

Another example of pan-national access to individuals' information can be found at the International Civil Aviation Organization (ICAO), a Montreal-based United Nations-affiliated body that governs global aviation and travel documents. The ICAO is now involved in setting the standards for new "biometric" passports, which electronically store personal characteristics such as fingerprints, used to identify the holder of the document. Described as a global identification card by the American Civil Liberties Union (ACLU), the new passports are being adopted by member countries, including Canada, the United States and EU nations.

In this way, say privacy experts, the Canadian government has gotten around opposition from its own citizens to national identification cards, viewed by western governments in the post 9/11 world as a major tool for tracking potential terrorists. But the personal information stored electronically on these passports is available in databases that can be shared by authorities in an unknown number of countries, Stephanie Perrin, the principal for Montreal-based Digital Discretion, said in an interview. Organizations like the ACLU and Privacy International, which have concerns regarding how this passport data will be used, have failed to get a hearing or response from the ICAO. "The fundamental problem is that decisions which affect people directly are increasingly being made in international bodies, where public servants, not elected representatives, make decisions on treaties and standards, which will directly implicate the citizens in their countries," says Perrin. Typically, she adds, these international bodies lack any independent oversight governing their conduct. Also, their records are not accessible and they meet in private.

About the Author:Paul Weinberg is a freelance journalist in Toronto.