International Issues: Cybercrime

October 23, 2000

Hon. Anne McLellan
Minister of Justice and Attorney-General of Canada
284 Wellington Street, Justice Building, 3rd Floor
Ottawa, Ontario K1A 0A8

Dear Minister McLellan:

re: Draft Council of Europe Convention on Cyber-Crime

The Information Technology Association of Canada (ITAC) welcomes Canada's participation in international efforts to achieve coordinated solutions to the problem of crime in cyberspace ­ provided that such solutions do not unduly burden electronic commerce or undermine consumer confidence in the security and privacy of online communications.

ITAC members have had an opportunity to review draft 19 of the Council of Europe Convention on Cyber-Crime. Officials from your Department participated with ITAC members in a roundtable discussion of the draft last month, and are aware of the nature of our concerns, as outlined below. I would stress at this time, however, that ITACıs view is that Canada should not sign the Convention unless significant changes are made.

1. While ITAC accepts that new legislation addressing only cyber crime may be necessary in exceptional cases, the practice should be discouraged. ITAC would prefer adaptation or extension of existing laws wherever possible. The introduction of parallel legislation for familiar crimes facilitated by computer use will only complicate legal processes.

2. Portions of the draft convention that involve technology would have benefitted from earlier consultation with our industry. The absence of critical sections (in draft 19, at least) dealing with interception is a major weakness as interception has serious implications for both confidence in industry and individual privacy.

3. ITAC would point out that portions of the draft convention may inadvertently result in criminalizing software and techniques commonly used to make computer systems resistant to attack. Signatory states passing legislation to implement the treaty may endanger the security of their domestic computer systems because computer users may not be able to adequately protect their systems.

4. ITAC views copyright protection as an unnecessary focus of the Convention given the existence of longstanding international forums and treaties to protect copyright.

5. ITAC is concerned with the clear intention that the Convention serve as a group extradition treaty between signatories ­ even those without bilateral extradition treaties for other forms of crime. It seems odd that cyber crime would be treated so differently, especially when the reason why Canada does not have extradition treaties with certain countries is that their justice systems are perceived as insufficiently just. We would not want to see Canadians extradited to such a country just because it had signed the Convention.

6. ITAC would prefer that mutual assistance be allowed only when there is dual criminality ­ so as to preserve the sovereign authority of nations.

7. ITACıs view is that imposing liability on Internet service providers for third-party content is unreasonable since such service providers should not be expected to monitor information that is simply passing through their systems.

I would be pleased to discuss these concerns at your convenience.

Yours truly,

Gaylen Duncan
President and CEO

cc: D. Piragoff, Justice Canada

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