[Senate Hearing 108-721]
[From the U.S. Government Publishing Office]
S. Hrg. 108-721
HEARING ON LAW ENFORCEMENT TREATIES:
TREATY DOC. 107-18, INTER-AMERICAN CONVENTION AGAINST TERRORISM; TREATY
DOC. 108-6, PROTOCOL OF AMENDMENT TO THE INTERNATIONAL CONVENTION ON
THE SIMPLIFICATION AND HARMONIZATION OF CUSTOMS PROCEDURES; TREATY DOC.
108-11, COUNCIL OF EUROPE CONVENTION ON CYBERCRIME; TREATY DOC. 108-16,
U.N. CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME AND PROTOCOLS ON
TRAFFICKING IN PERSONS AND SMUGGLING OF MIGRANTS
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
JUNE 17, 2004
__________
Printed for the use of the Committee on Foreign Relations
Available via the World Wide Web: http://www.access.gpo.gov/congress/
senate
U.S. GOVERNMENT PRINTING OFFICE
97-299 PDF WASHINGTON : 2004
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800
Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001
COMMITTEE ON FOREIGN RELATIONS
RICHARD G. LUGAR, Indiana, Chairman
CHUCK HAGEL, Nebraska JOSEPH R. BIDEN, Jr., Delaware
LINCOLN CHAFEE, Rhode Island PAUL S. SARBANES, Maryland
GEORGE ALLEN, Virginia CHRISTOPHER J. DODD, Connecticut
SAM BROWNBACK, Kansas JOHN F. KERRY, Massachusetts
MICHAEL B. ENZI, Wyoming RUSSELL D. FEINGOLD, Wisconsin
GEORGE V. VOINOVICH, Ohio BARBARA BOXER, California
LAMAR ALEXANDER, Tennessee BILL NELSON, Florida
NORM COLEMAN, Minnesota JOHN D. ROCKEFELLER IV, West
JOHN E. SUNUNU, New Hampshire Virginia
JON S. CORZINE, New Jersey
Kenneth A. Myers, Jr., Staff Director
Antony J. Blinken, Democratic Staff Director
(ii)
?
C O N T E N T S
----------
Page
Allen, Hon. George, U.S. Senator from Virginia, statement
submitted for the record....................................... 37
Lugar, Hon. Richard G., U.S. Senator from Indiana, opening
statement...................................................... 1
Schmitz, Mr. Michael T., Assistant Commissioner for International
Affairs (Acting), Bureau of Customs and Border Protection, U.S.
Department of Homeland Security, Washington, DC................ 21
Prepared statement on Revised Customs Convention............. 23
Responses to additional questions on the Protocol of
Amendment (Treaty Doc. 108-6), from Senator Biden.......... 67
Swartz, Mr. Bruce, Deputy Assistant Attorney General, Criminal
Division, U.S. Department of Justice, Washington, DC........... 12
Prepared statement........................................... 15
Responses to additional questions on the Convention on
Cybercrime (Treaty Doc. 108-11), from Senator Biden........ 52
Responses to additional questions on the U.N. Convention
Against Transnational Organized Crime and Protocols on
Trafficking in Persons and Smuggling of Migrants (Treaty
Doc. 108-16), from Senator Biden........................... 59
Witten, Mr. Samuel M., Deputy Legal Adviser, U.S. Department of
State, Washington, DC.......................................... 3
Prepared statement........................................... 6
Responses to additional questions on the Convention on
Cybercrime (Treaty Doc. 108-11), from Senator Lugar........ 48
Responses to additional questions on the U.N. Convention
Against Transnational Organized Crime and Protocols on
Trafficking in Persons and Smuggling of Migrants (Treaty
Doc. 108-16), from Senator Biden........................... 59
Responses to additional questions on the Convention Against
Terrorism (Treaty Doc. 108-18), from Senator Biden......... 49
Responses to additional questions on the Protocol of
Amendment (Treaty Doc. 108-6), from Senator Biden.......... 67
Additional Statements Submitted for the Record
AeA, statement submitted in support of the International
Convention on the Simplification and Harmonization of Customs
Procedures..................................................... 38
Electronic Privacy Information Center [epic.org], statement
submitted for the record....................................... 39
Microsoft Corporation, letter to Senators Lugar and Biden, in
support of the Convention on Cybercrime, from Scott Charney,
Chief Trustworthy Computing Strategist......................... 41
Revised Kyoto Convention on Customs Modernization Coalition,
statement submitted in support of the International Convention
on the Simplification and Harmonization of Customs Procedures.. 42
(iii)
HEARING ON LAW ENFORCEMENT TREATIES:
TREATY DOC. 107-18, INTER-AMERICAN CONVENTION AGAINST TERRORISM; TREATY
DOC. 108-6, PROTOCOL OF AMENDMENT TO THE INTERNATIONAL CONVENTION ON
THE SIMPLIFICATION AND HARMONIZATION OF CUSTOMS PROCEDURES; TREATY DOC.
108-11, COUNCIL OF EUROPE CONVENTION ON CYBERCRIME; TREATY DOC. 108-16,
U.N. CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME AND PROTOCOLS ON
TRAFFICKING IN PERSONS AND SMUGGLING OF MIGRANTS
----------
THURSDAY, JUNE 17, 2004
U.S. Senate,
Committee on Foreign Relations,
Washington, DC.
The committee met, pursuant to notice, at 9:34 a.m. in SD-
419, Dirksen Senate Office Building, Hon. Richard G. Lugar
(chairman of the committee), presiding.
Present: Senator Lugar.
OPENING STATEMENT OF SENATOR RICHARD G. LUGAR, CHAIRMAN
The Chairman. This hearing of the Senate Foreign Relations
Committee is called to order. The committee meets today to hear
testimony on a series of law enforcement treaties. These are
the Council of Europe Convention on Cybercrime; the Inter-
American Convention Against Terrorism; the Protocol of
Amendment to the International Convention on the Simplification
and Harmonization of Customs Procedures; and the United Nations
Convention Against Transnational Organized Crimeand Protocols
on Trafficking in Persons and Smuggling of Migrants.
In addition, the last treaty is accompanied by two
protocols addressing trafficking in persons and alien
smuggling. All of these agreements are designed to enhance our
ability to join with other countries in fighting crime
internationally.
Within the Congress, the Senate Foreign Relations Committee
is charged with the unique responsibility of reviewing treaties
included by the administration. Our colleagues in the Senate
depend upon us to make timely and judicious recommendations on
treaties. This is a serious responsibility, and I know that all
members of this committee understand the importance of our role
in this process.
In advance of this hearing, the committee has worked hard
with the administration to prepare this set of law enforcement
treaties for committee consideration. Committee staff has
reviewed these treaties carefully. We have held two formal
committee briefings covering the treaties, and the
administration representatives have been available to answer
questions. I appreciate the support and cooperation of the
ranking member, Senator Biden, and his staff during this
procedure.
The Council of Europe Cybercrime Convention is aimed at
improving the capacity of parties to fight computer crime. This
Convention was negotiated under the auspices of the Council of
Europe. The United States participated in these negotiations in
its capacity as an observer to the Council of Europe.
The Convention establishes a number of substantive crimes
that parties agree to prohibit under their domestic law. It
requires parties to adopt improved procedures for investigating
computer crimes, and it provides for international cooperation
in the investigation of those crimes.
The Inter-American Convention Against Terrorism was adopted
by the Organization of American States in the aftermath of the
September 11 terrorist attacks on the United States. It calls
on parties to accede to a number of pre-existing international
conventions addressing various forms of terrorism. It also
obligates parties to track and to prevent the financing of
terrorist activities, and to enhance the effectiveness of law
enforcement efforts aimed at preventing terrorists. These tools
will improve cooperation among countries in this hemisphere to
fight terrorism.
The Customs Harmonization Protocol is the product of a
long-standing, multilateral effort to harmonize national
customs procedures. It incorporates the many developments in
trade and customs processing that have occurred since the
conclusion of the 1973 Convention on Customs Simplification and
Harmonization.
The Protocol complements U.S. initiatives to promote
homeland security. It promotes the use of advanced customs
procedures that will enable officials in the United States and
abroad to identify high-risk cargo that may be headed for the
United States. Wide adherence to the Protocol would also
benefit United States business by creating more predictable,
efficient, and standardized customs procedures worldwide.
The United Nations Convention Against Transnational
Organized Crime and Protocols on Trafficking in Persons and
Smuggling of Migrants and two Protocols, the Protocol to
Prevent, Suppress, and Punish Trafficking in Persons,
Especially Women and Children, and the Protocol Against
Smuggling of Migrants by Land, Sea and Air, are the first
multilateral treaties to address the phenomenon of
transnational organized crime. The Convention requires parties
to criminalize certain conduct, such as participation in an
organized criminal group, money laundering, bribery of public
officials, and obstruction of justice.
The Convention also strives to improve cooperation among
parties on extradition and mutual legal assistance in relation
to these crimes. It would enhance the United States' ability to
render and receive assistance on a global basis in the common
struggle to prevent, investigate, and prosecute transnational
organized crime.
The two Protocols require parties to criminalize
trafficking in persons and the smuggling of migrants. They
provide standardized definitions for a number of trafficking
and smuggling-related offenses which parties undertake to
criminalize. They also contain provisions calling on parties to
make available certain procedures and assistance to victims of
such crimes.
I commend the United States officials who have worked on
these agreements for negotiating documents that command wide
support. Some of these agreements are the product of years of
dedication and patient negotiations. Prompt ratification of
these agreements will help the United States continue to play a
leadership role in international law enforcement and will
advance the security of Americans at home and abroad.
We are pleased to have with us today a panel of
administration witnesses with deep expertise on these treaties.
We'll hear from Mr. Michael Schmitz, Acting Assistant
Commissioner for International Affairs at the Bureau of Customs
and Border Protection; Mr. Bruce Swartz, Deputy Assistant
Attorney General in the Criminal Division of the Department of
Justice; and Mr. Samuel Witten, Deputy Legal Adviser at the
Department of State. We look forward to their insights on these
treaties.
We welcome you to the committee this morning. I'm advised
by staff that the testimony order has been changed. The order
now is Mr. Witten, Mr. Swartz, and Mr. Michael Schmitz. If this
will not interrupt your line of thought unduly, first of all
we'll hear from Mr. Witten.
STATEMENT OF SAMUEL M. WITTEN, DEPUTY LEGAL ADVISER, U.S.
DEPARTMENT OF STATE
Mr. Witten. Thank you very much, Mr. Chairman. Mr.
Chairman, I'm pleased to appear before you today to testify in
support of six multilateral instruments, five relating to
international law enforcement cooperation, and one concerning
customs procedures.
The five specifically law enforcement treaties address the
major criminal concerns of terrorism, cybercrime, transnational
organized crime, and trafficking and smuggling of persons. The
customs protocol seeks to meet the needs of international trade
and customs services and protect international security through
the simplification and harmonization of customs procedures.
The Department of State greatly appreciates this
opportunity to address these international instruments. Mr.
Swartz will provide more information on the direct benefits to
U.S. law enforcement of the law enforcement conventions. Mr.
Schmitz will discuss the importance of the new customs
protocol. I will provide the committee with a general overview
of these instruments and their value to the United States. It
is worth emphasizing that we have worked and succeeded to
ensure that the United States can comply with all of these
instruments without the need for any implementing legislation.
The multilateral law enforcement conventions before you
today reflect that the U.S. has been working together with
other countries, indeed leading efforts at the United Nations
as well as regional organizations like the Council of Europe
and the Organization of American States, to improve our
collective abilities to prevent and punish terrorist crimes,
computer crimes, and organized crimes, such as those involving
the exploitation of persons.
These conventions break new ground legally and provide
essential and practical tools for international cooperation. I
will say just a few words about each one and my prepared
testimony will provide additional details.
The Chairman. Let me just add that the full testimony that
you have prepared will be made a part of this record. If you
summarize, be assured that the full text will be a part of the
record.
Mr. Witten. Thank you, Mr. Chairman. The Inter-American
Convention Against Terrorism was negotiated as a direct
response to the attacks on the United States of September 11,
2001. Within 10 days of the attacks, the foreign ministers of
the OAS member states endorsed the negotiation of a regional
Convention against terrorism, and the resulting Convention was
adopted by the OAS General Assembly and opened for signature on
June 3, 2002.
Thirty-three OAS members states have signed the
Conventions, which entered into force on July 10, 2003, and as
of last week, eight states are party to the Convention,
including Canada, Mexico, Peru, and Venezuela. The Convention
builds upon other multilateral and bilateral instruments
already in force. It incorporates by reference the offenses set
forth in 10 counter-terror instruments listed in article 2 of
the Convention, to which the United States is already a party.
The cooperative measures set forth in the rest of the
Convention will thus be available for a wide range of
terrorism-related offenses, including hijackings, bombings,
attacks on diplomats, and financing of terrorism.
The Council of Europe Convention on Cybercrime is, as you
mentioned, Mr. Chairman, the product of years of study and work
by the experts from a wide range of countries. Although it was
negotiated in a European forum, the United States played a
leading role in its development. The United States has since
worked to ensure that the Convention, the only one of its kind,
is used worldwide as a model by countries seeking to address
the newly emerging area of computer crime.
The Convention was opened for signature and was signed by
the United States on November 23, 2001. As of last week, 38
countries have signed the Convention and six have also ratified
it. It will enter into force on July 1, 2004. The Convention
has three main parts. I'll simply highlight them, and Mr.
Swartz will provide more detail. It provides that any member
state must criminalize certain conduct relating to computer
systems. As one example, article 2 requires parties to
criminalize illegal access into computer systems, including
activities known as hacking.
Second, it requires parties to ensure that certain
investigative procedures are available to enable their domestic
law enforcement authorities to investigate cybercrime offenses
effectively and obtain electronic evidence, such as computer
data, of crime.
And finally, Mr. Chairman, in a manner analogous to other
law enforcement treaties to which the United States is a party,
the Convention requires parties to provide each other broad
international cooperation in investigating computer-related
crime and obtaining electronic evidence in addition to
assisting in the extradition of fugitives sought for crimes
under the Convention.
Next, the U.N. Convention Against Transnational Organized
Crime and Protocols on Trafficking in Persons and Smuggling of
Migrants is the first and only global instrument designed
specifically to combat the dangerous contemporary phenomenon of
criminal groups operating internationally. During the second
half of the 1990s, the U.S. and its G-8 allies, concerned about
the rapid spread of organized crime across borders no longer
frozen by cold war geopolitics, recognized the need for
coordinated international action. As of last week, 147
countries, including the United States, have signed the
Transnational Organized Crime and Protocols on Trafficking in
Persons and Smuggling of Migrants Convention and 78 are already
parties to it.
The Convention has been in force since September 29, 2003.
The Convention focuses on the offenses that are characteristic
of transnational organized crime and on key methods of
international cooperation for combating it. Two of its
protocols on trafficking in persons and alien smuggling are
also before the committee today.
The Convention not only requires parties to ensure that
their national criminal laws meet the criteria set forth in the
Convention with respect to offenses characteristic of
transnational organized crime, but also provides a blueprint of
international cooperation. Many countries, particularly in the
developing world, lack existing bilateral extradition or mutual
legal assistant treaty relationships with one another, but once
they become a party to this Convention, they will be able to
rely on the Convention to fill that legal gap for many serious
crimes.
Finally, with respect to the Transnational Organized Crime
and Protocols on Trafficking in Persons and Smuggling of
Migrants Convention, as I mentioned, there are two Protocols
before the committee. The formal name of the first is the
Protocol to Prevent, Suppress, and Punish Trafficking in
Persons, Especially Women and Children. This was originally
proposed and drafted in its earliest forms by the United States
and has the potential to be a powerful international law
enforcement instrument requiring countries to criminalize
trafficking and providing a broad framework for international
cooperation to prosecute traffickers, prevent trafficking, and
protect trafficking victims.
As of last week, 117 countries, including the United
States, have signed the trafficking protocol, and 61 countries
are already parties to it. The trafficking protocol has been in
force since December 25, 2003.
And the Protocol Against the Smuggling of Migrants by Land,
Sea and Air is designed to prevent and combat the smuggling of
migrants and to promote cooperation among state parties to that
end, while protecting the rights of smuggled migrants. As of
last week, 112 countries, including the United States, have
signed the Migrant Smuggling Protocol, and 55 countries are
parties to it. The Migrant Smuggling Protocol has been in force
since January 28, 2004.
Finally, the State Department urges Senate approval of the
Protocol of Amendment to the International Convention on the
Simplification and Harmonization of Customs Procedures. Mr.
Schmitz will provide additional detail about this instrument. I
would note that the Customs Protocol represents the kind of
modernization and customs harmonization that is becoming
increasingly necessary to U.S. exporters and other traders
alike. It responds to the modernization in business and
administrative methods and to the control of international
trade, without compromising standards of customs control.
Accession to the Protocol will facilitate greater economic
growth, increased foreign investment, and stimulate U.S.
exports. The Protocol amends the original Convention done at
Kyoto on May 18, 1973, and replaces the annex to the 1973
Convention with a general annex and 10 specific annexes, all of
which is considered the, ``Revised Customs Convention.''
By acceding to the Protocol, we would also encourage other
countries to sign on and implement procedures that will make
trade and goods across our borders more predictable, and
therefore, potentially more secure. The Protocol will enter
into force 3 months after 40 contracting parties have consented
to be bound by it. As of last month, 32 countries have
consented to be bound, including some of our largest trading
partners, for example, Australia, Canada, China, Japan, and
most members of the European Union.
With that, Mr. Chairman, I'll conclude my remarks. We
appreciate the committee's decision to consider these important
treaties, and I'll be happy to answer any questions the
committee may have.
[The prepared statement of Mr. Witten follows:]
Prepared Statement of Samuel M. Witten
Mr. Chairman and members of the Committee:
I am pleased to appear before you today to testify in support of
six multilateral instruments, five relating to international law
enforcement cooperation and one concerning customs procedures. The law
enforcement treaties address the major criminal concerns of terrorism,
cybercrime, transnational organized crime, and trafficking and
smuggling of persons. The customs protocol seeks to meet the needs of
international trade and customs services through the simplification and
harmonization of customs procedures. The Department of State greatly
appreciates this opportunity to address these international
instruments.
In recent years, the world community as a whole has had to confront
a rising tide of trans-border crime of many types. The multilateral law
enforcement conventions before you today reflect that the United States
has been working together with other countries--indeed, leading
efforts--at the United Nations as well as at regional organizations
like the Council of Europe and the Organization of American States, to
improve our collective abilities to prevent and punish terrorist
crimes, computer crimes, and organized crimes such as those involving
the exploitation of persons. They break new ground legally, and provide
essential and practical tools for international cooperation.
These law enforcement instruments are innovative in containing
definitions of certain serious crimes--computer crime and trafficking
in persons, for example--on which there never previously had been an
international consensus. Now we not only agree collectively on what
constitutes such crimes, but also commit ourselves to punish them
comparably and to extradite fugitives and otherwise assist in the
investigation and prosecution of persons who commit them.
These instruments also contain breakthroughs in methods for
providing and obtaining assistance to and from other countries. The
investigation of computer crimes, for instance, requires real-time
coordination in tracing electronic communications across borders, and
the Cybercrime Convention commits parties to do just that. The
Transnational Organized Crime and Protocols on Trafficking in Persons
and Smuggling of Migrants Convention similarly details procedures for
mutual legal assistance that will be able to function effectively
without the need to resort solely to cumbersome domestic law processes.
And to ensure that fugitive terrorists in our hemisphere are brought to
justice, the OAS Terrorism Convention eliminates the possibility that
they could hide behind assertions that their crimes are ``political
offenses.''
The customs protocol, meanwhile, represents the kind of
modernization and customs harmonization that is becoming increasingly
necessary to U.S. exporters and other traders alike. It responds to the
modernization in business and administrative methods and to the growth
of international trade, without compromising standards of customs
control. Accession to the protocol would facilitate greater economic
growth, increase foreign investment, and stimulate U.S. exports.
I will address each of the instruments individually.
THE INTER-AMERICAN CONVENTION AGAINST TERRORISM
The Inter-American Convention Against Terrorism was negotiated as a
direct response to the attacks on the United States of September 11,
2001. Within 10 days of the attacks, the foreign ministers of the OAS
member states endorsed the negotiation of a regional convention against
terrorism, and the resulting convention was adopted by the OAS General
Assembly and opened for signature nine months later on June 3, 2002.
Thirty-three OAS member states have signed the Convention, which
entered into force on July 10, 2003. As of last week, eight states are
party to the Convention, including Canada, Mexico, Peru and Venezuela.
The Convention builds upon other multilateral and bilateral
instruments already in force. Following the model of the 1999
International Convention for the Suppression of Financing of Terrorism,
the Convention incorporates by reference the offenses set forth in ten
counter-terrorism instruments listed in Article 2 of the Convention to
which the United States is already a party. The cooperative measures
set forth in the rest of the convention will thus be available for a
wide-range of terrorism-related offenses, including hijackings,
bombings, attacks on diplomats, and the financing of terrorism. My
colleague from the Department of Justice will provide an overview of
these measures in his testimony.
Parties are required under the Convention to ``endeavor to become a
party'' to these ten counter-terrorism instruments. In addition to
facilitating the implementation of the Convention, this obligation also
furthers the United States' interest in securing the broadest possible
adherence to these instruments and advances implementation of United
Nations Security Council Resolution 1373, which calls upon states to
become parties to these instruments ``as soon as possible.''
The Convention provides that a state may declare that the
obligations contained in the Convention shall not apply to the offenses
set forth in any of the listed counter-terrorism instruments if it is
not yet a party to that instrument or if it ceases to be a party. This
procedure provides flexibility for states that are considering becoming
parties to this Convention, without undermining our interests in having
all states ultimately become parties to the other counter-terrorism
instruments. The United States will not need to make such a declaration
since it is already a party to the ten instruments.
Existing Federal authority is sufficient to discharge our
obligations under this Convention, so no implementing legislation is
required. The State Department's report on the Convention recommended
two Understandings, one relating to Article 10 and the other relating
to Article 15. Upon further review, we have determined that the
Understanding relating to Article 10 is unnecessary and we are
therefore no longer recommending its inclusion in the Senate's
resolution of advice and consent.
PROTOCOL OF AMENDMENT TO THE INTERNATIONAL CONVENTION ON THE
SIMPLIFICATION AND HARMONIZATION OF CUSTOMS PROCEDURES
I am also pleased to speak in support of the Protocol of Amendment
to the International Convention on the Simplification and Harmonization
of Customs Procedures. The Protocol amends the original Convention done
at Kyoto on May 18, 1973, which entered into force for the United
States on January 28, 1984, and replaces the Annexes to the 1973
Convention with a General Annex and 10 Specific Annexes, all of which I
will refer to as the ``Revised Customs Convention.''
Over the past two decades, changes in technology and patterns of
international trade have made the original Convention outdated. The
United States took an active role in negotiating these amendments in
order to produce the kind of modernization and customs harmonization
that is becoming increasingly necessary to U.S. exporters and other
traders alike. The revision process also included participation by the
private sector through various groups such as the International Chamber
of Commerce, the International Federation of Customs Brokers
Association and the International Express Couriers Conference. On June
26, 1999, after 4 years of study and deliberation, the members of the
World Customs Organization adopted the Protocol in Brussels, Belgium.
The Revised Customs Convention aims to meet the needs of
international trade and customs services through the simplification and
harmonization of customs procedures. It responds to the modernization
in business and administrative methods and to the growth of
international trade, without compromising standards of customs control.
Accession to the Protocol by the United States would contribute to
important U.S. interests. First, accession would benefit the United
States and U.S. businesses by facilitating greater economic growth,
increasing foreign investment, and stimulating U.S. exports through
more predictable, standard and harmonized customs procedures governing
cross-border trade transactions. These achievements can best be pursued
by the United States as a Party to the Revised Customs Convention.
Second, acceding to the Protocol will enable the United States to
continue its leadership role in the areas of customs and international
trade facilitation. Accession signals to our trading partners that the
U.S. is committed to an international Convention that establishes a
blueprint for modern customs procedures throughout the world.
By acceding to the Protocol, we also encourage other countries to
sign on and implement procedures that will make trade in goods across
our borders more predictable and, therefore, potentially more secure.
Our understanding from U.S. Customs and Border Protection is that the
Revised Customs Convention will not limit the U.S. Government's ability
to institute necessary measures to provide for our own national
security.
U.S. industry has been consulted throughout the negotiation process
and has expressed its very strong interest and support for obtaining
the Senate's consent to accession. Strong supporters include the U.S.
Council for International Business (USCIB) and the American Electronics
Association (AeA), which includes companies such as Hewlett Packard and
Microsoft.
By acceding to the Protocol, the United States would consent to be
bound by the amended 1973 Convention and the new General Annex. At the
same time, or anytime thereafter, Parties have the option of accepting
any of the Specific Annexes (or Chapters thereof), and may enter
reservations with respect to any Recommended Practices contained in the
Specific Annexes. After careful study, we have proposed that the United
States accept most of the Specific Annexes, and enter the reservations
to certain Recommended Practices proposed by U.S. Customs and Border
Protection as set forth in the Report by the Secretary of State,
attached to the President's transmittal of the Protocol. We have made
these recommendations with current U.S. legislation or regulations in
mind. With them, no new implementing legislation would be necessary for
the United States to implement the Revised Customs Convention.
The Protocol and proposed U.S. reservations have been circulated
and cleared through the U.S. Inter-Agency Working Group on the Customs
Cooperation Council, which includes, among others, the Departments of
State, Treasury, Commerce, and Homeland Security and the Office of the
U.S. Trade Representative. U.S. Government agencies are not aware of
any opposition to the Revised Customs Convention.
The Protocol will enter into force three months after 40
contracting parties have consented to be bound by it. As of last month,
32 countries have consented to be bound, including some of our largest
trading partners (Australia, Canada, China, Japan, and most members of
the European Union).
COUNCIL OF EUROPE CONVENTION ON CYBERCRIME
The Committee also has before it the Council of Europe Convention
on Cybercrime, the product of years of study and work by experts from a
wide range of countries. Although it was negotiated in a European
forum, the United States played a leading role in its development.
In 1997, the Council of Europe established a Committee of Experts
on Crime in Cyber-space, with participants from the United States,
Canada, Japan, and South Africa, as well as Council of Europe member
states, to undertake negotiation of the Cybercrime Convention.
Beginning in April 2000, at the urging of the United States, supported
by other countries, the Council of Europe published drafts of the
Convention to allow for review and comment by interested members of the
public. In addition, U.S. Government officials made information about
the Convention available to interested members of the public. The
Convention was opened for signature--and was signed by the United
States--on November 23, 2001. As of last week, 38 countries have signed
the Convention, and six have also ratified it. The Convention will
enter into force on July 1, 2004.
The Convention has three main parts, each of which provides
important law enforcement benefits for the United States. First, it
requires Parties to criminalize certain conduct related to computer
systems. For example, Article 2 requires parties to criminalize
``illegal access'' into computer systems, including activities known as
``hacking.'' By requiring Parties to establish these kinds of
substantive offenses, the Convention will help deny safe havens to
criminals, including terrorists, who can cause damage to U.S. interests
from abroad using computer systems.
Second, it requires Parties to ensure that certain investigative
procedures are available to enable their domestic law enforcement
authorities to investigate cybercrime offenses effectively and obtain
electronic evidence (such as computer data) of crime. In this way, the
Convention will enhance the ability of foreign law enforcement
authorities to investigate crimes effectively and expeditiously,
including those committed by criminals against U.S. individuals, U.S.
government agencies, and other U.S. institutions and interests.
Third, in a manner analogous to other law enforcement treaties to
which the United States is a party, the Convention requires Parties to
provide each other broad international cooperation in investigating
computer-related crime and obtaining electronic evidence, in addition
to assisting the extradition of fugitives sought for crimes identified
under the Convention. It provides mechanisms for U.S. law enforcement
authorities to work cooperatively with their foreign counterparts to
trace the source of a computer attack and, most importantly, to do so
immediately when necessary, 24 hours a day, 7 days a week. The
Convention would therefore enhance the United States' ability to
receive, as well as render, international cooperation in preventing,
investigating, and prosecuting computer-related crime. Because such
international cooperation is vitally important to our efforts to defend
against cyber attacks and generally improve global cybersecurity,
support for the Cybercrime Convention has been identified as a key
initiative in the 2003 National Strategy to Secure Cyberspace.
The Convention would not require implementing legislation for the
United States. As discussed at length in the Secretary of State's
report accompanying the transmittal of the Convention, the
Administration has recommended six reservations and four declarations,
all envisaged by the Convention itself, in connection with this
Convention. To make clear that the United States intends to comply with
the Convention based on existing U.S. federal law, we have also
recommended that the Senate adopt an understanding to that effect.
UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME
The United Nations Convention against Transnational Organized Crime
(``TOC Convention'') is the first and only global instrument designed
specifically to combat the dangerous contemporary phenomenon of
criminal groups operating internationally. During the second half of
the 1990's, the United States and its G-8 allies, concerned about the
rapid spread of organized crime across borders no longer frozen by Cold
War geopolitics, recognized the need for coordinated international
action. The United Nations also embraced the idea, and negotiations on
the Convention took place under UN auspices in 1999 and 2000.
Developing and developed countries from all regions participated
actively, reflecting their awareness of the serious threat
transnational organized crime poses to the effectiveness of their
governments.
As of last week, 147 countries, including the United States, have
signed the TOC Convention, and 78 countries are Parties to it. The
Convention has been in force since September 29, 2003. On June 28, the
Parties to the TOC Convention will meet collectively for the first time
to elaborate procedures for promoting and reviewing its implementation.
The United States will participate in this conference as a signatory
but not yet a Party; the farther along we are on the road to
ratification, the more effective we can be at the Conference of the
Parties in ensuring that the Convention is implemented in ways
consistent with our own anti-crime philosophy and priorities.
The Convention focuses on the offenses that are characteristic of
transnational organized crime and on the key methods of international
cooperation for combating it. It is buttressed by three protocols
concentrating on particularly problematic manifestations of
transnational organized crime, all of which were negotiated
simultaneously with the main Convention. Two of these protocols, on
trafficking in persons and on alien smuggling, are before you today.
Adherence to each of the protocols is optional. States can only join
the Protocols if they also join the main Convention, because the
protocols rely directly upon the cooperation and other mechanisms set
out in the Convention.
One of the Convention's key achievements is to require Parties to
ensure that their national criminal laws meet the criteria set forth in
the Convention with respect to four offenses characteristic of
transnational organized crime--participation in an organized criminal
group, laundering of the proceeds of serious crime, corruption of
domestic public officials, and obstructing justice by intimidating
witnesses and justice and law enforcement officials. Since the relevant
U.S. criminal laws already provide for broad and effective application
in these areas, we can comply with the Convention's criminalization
obligations without need for new legislation. The value of these
Convention provisions for the United States is that they oblige other
countries that have been slower to react legislatively to the threat of
transnational organized crime to adopt new criminal laws in harmony
with ours.
As further described by my Department of Justice colleague, a
second important feature of the Convention is that it provides a
blueprint for international cooperation. Few global criminal law
conventions are so detailed and precise in setting out mechanisms for
extraditing fugitives and assisting foreign criminal investigations and
prosecutions. Many countries, particularly in the developing world,
lack existing bilateral extradition or mutual legal assistance treaty
relationships with one another, but now will be able to rely on this
Convention to fill that legal gap for many serious crimes.
For the United States, the Convention will not create entirely new
extradition relationships, as we will continue to rely on our extensive
web of bilateral treaties for that purpose, but it will broaden some of
our older existing treaties by expanding their scope to include the
offenses described above. By contrast, we will be able to use the
Convention as a basis for new relationships with countries with which
we lack bilateral mutual legal assistance treaties (MLATs), primarily
those in parts of Asia, Africa, and the Middle East. The Convention
fully incorporates all the safeguard provisions the U.S. insists upon
in our bilateral MLATs, and thereby ensures that we may deny requests
that are contrary to our essential interests or are improperly
motivated.
Finally, the Convention is noteworthy for its capacity to adapt to
the many faces of transnational organized crime. It enables and
facilitates international cooperation not only for the specific
offenses it identifies, but also for serious crime generally that is
transnational in nature and involves an organized group. Such groups
operate for financial benefit, of course, but not always exclusively.
Terrorist groups are known to finance their activities through the
commission of offenses such as kidnapping, extortion, and trafficking
in persons or commodities. The TOC Convention thus can open doors for
the United States in securing the help of other countries in
investigating and prosecuting terrorist crimes.
The Administration has proposed several reservations and
understandings to the Convention and its two Protocols. With these
reservations and understandings the Convention and the Protocols will
not require implementing legislation for the United States.
PROTOCOL TO PREVENT, SUPPRESS AND PUNISH TRAFFICKING IN PERSONS,
ESPECIALLY WOMEN AND CHILDREN, SUPPLEMENTING THE UNITED NATIONS
CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME
The Committee is considering two protocols to the Transnational
Organized Crime Convention as well. The Protocol to Prevent, Suppress
and Punish Trafficking in Persons, Especially Women and Children,
originally proposed and drafted by the United States, has the potential
to be a powerful international law enforcement instrument, requiring
countries to criminalize trafficking and providing a broad framework
for international cooperation to prosecute traffickers, prevent
trafficking, and protect trafficking victims. As of last week, 117
countries including the United States, have signed the Trafficking
Protocol, and 61 countries are Parties to it. The Trafficking Protocol
has been in force since December 25, 2003.
As my Justice Department colleague will describe in more detail,
the Trafficking Protocol, the first binding international instrument to
define the term ``trafficking in persons,'' creates obligations to make
certain acts criminal. It also contains provisions designed to protect
the victims of trafficking and addressing prevention, cooperation, and
other measures.
I want to highlight some of the groundbreaking victim protection
provisions in this Protocol, which recognizes that protection of
victims is as important as prosecuting traffickers. In addition to
requiring that victims are offered the possibility of obtaining
compensation, and that Parties facilitate and accept the return of
their nationals and permanent residents who are trafficking victims,
the Protocol calls on Parties to make available to trafficking victims
certain protections and assistance, including protection of their
privacy and physical safety, as well as provisions for their physical,
psychological, and social recovery. Similarly, States Parties are to
consider providing temporary or permanent residency to victims of
trafficking in appropriate cases. In recognition of the fact that legal
systems and available resources will affect how States Parties
implement these particular measures, the Protocol includes language
providing appropriate discretion and flexibility.
The Protocol obligates States Parties to take measures to prevent
and combat trafficking in persons and to protect victims from
revictimization, and to do so in appropriate cooperation with non-
governmental organizations. Among other things, States Parties are
called upon to take measures, including research and mass media
campaigns, to prevent and combat trafficking.
The Protocol also requires States Parties to exchange information,
in accordance with their domestic law, in order to enable them to
better detect traffickers and their routes. This provision does not
affect mutual legal assistance relations, many aspects of which are
instead governed by treaties for that purpose, and by provisions such
as Article 18 of the Convention itself.
Finally, without prejudice to international commitments to the free
movement of people, the Protocol provides for the strengthening of
border controls, as necessary, to prevent and detect trafficking in
persons. States Parties are obliged to take measures, within available
means, to ensure that their travel and identity documents are of such a
quality that they cannot easily be misused and cannot readily be
falsified, altered, replicated or issued.
With the reservations and understandings that have been proposed by
the Administration, the Protocol will not require implementing
legislation for the United States. In this connection, the Trafficking
Victims Protection Act of 2000 (``TVPA'') sets out a comprehensive
framework for protecting victims of trafficking and combating
trafficking in persons domestically and abroad. A Cabinet-level
interagency task force, chaired by the Secretary of State, ensures the
appropriate coordination and implementation of the Administration's
anti-trafficking efforts.
PROTOCOL AGAINST THE SMUGGLING OF MIGRANTS BY LAND, SEA AND AIR,
SUPPLEMENTING THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL
ORGANIZED CRIME
The second protocol supplementing the Transnational Organized Crime
Convention is the Protocol against the Smuggling of Migrants by Land,
Sea and Air. The purposes of this protocol are to prevent and combat
the smuggling of migrants, and to promote cooperation among States
Parties to that end, while protecting the rights of smuggled migrants.
As of last week, 112 countries, including the United States, have
signed the Migrant Smuggling Protocol, and 55 countries are Parties to
it. The Migrant Smuggling Protocol has been in force since January 28,
2004. Subject to the recommended reservations and understandings, the
Protocol would not require implementing legislation for the United
States.
In the Migrant Smuggling Protocol, the Parties designed an
instrument that balances law enforcement provisions with appropriate
protection of the rights of smuggled migrants. Here to, my Justice
Department colleague will address the Protocol's law enforcement
benefits, such as the obligations to make certain acts criminal, while
I will concentrate on the migrant-protection provisions.
First, the Protocol obligates States Parties to accept the return
of smuggled migrants who are its nationals or permanent residents at
the time of return. It is the first binding international instrument to
codify this longstanding general principle of customary international
law. Consistent with their obligations under international law, states
parties must also take appropriate measures to preserve and protect
certain rights of smuggled migrants. Parties are not precluded from
prosecuting a smuggled person for illegal entry or other criminal
violations.
The Protocol recognizes the pervasiveness of migrant smuggling via
the seas, and sets forth procedures for interdicting vessels engaged in
such smuggling. States Parties taking measures against a vessel engaged
in migrant smuggling must ensure the safety and humanitarian handling
of the persons on board and, within available means, that any actions
taken with regard to the vessel are environmentally sound. States
Parties must take care not to endanger the security of the vessel or
its cargo, or prejudice the commercial or legal interests of the flag
State or any other interested State. The Protocol also contains
provisions requiring international cooperation to prevent and suppress
migrant smuggling by sea in accordance with the international law of
the sea.
The Protocol contains several useful cooperation and prevention
provisions. States Parties, consistent with their domestic legal and
administrative systems, are to exchange among themselves certain types
of information for the purpose of achieving the Protocol's objectives,
such as embarkation and destination points, as well as routes, carriers
and means of transportation, known to be or suspected or being used by
an organized criminal group engaged in alien smuggling. States Parties
are also required to have programs to ensure that the public is aware
of the criminal nature of migrant smuggling and the risks it poses to
migrants, as well as to promote development programs to combat the root
socio-economic causes of the smuggling of migrants.
Finally, the Migrant Smuggling Protocol encourages States Parties
to conclude bilateral or regional agreements or arrangements to
implement the Protocol. This was an important Article to the United
States, as we have bilateral migration agreements with a number of
countries.
Mr. Chairman, we very much appreciate the Committee's decision to
consider these important treaties.
I will be happy to answer any questions the Committee may have.
The Chairman. Thank you very much, Mr. Witten, for your
comprehensive testimony. We look forward now to hearing from
you, Mr. Swartz.
STATEMENT OF BRUCE SWARTZ, DEPUTY ASSISTANT ATTORNEY GENERAL,
CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE
Mr. Swartz. Thank you, Mr. Chairman, and thank you for this
opportunity to express the strong support of the Department of
Justice for the Inter-American Convention Against Terrorism,
the Council of Europe's Cybercrime Convention, and the U.N.
Convention Against Transnational Organized Crime and Protocols
on Trafficking in Persons and Smuggling of Migrants, including
its Protocols Against Trafficking in Persons and Migrant
Smuggling.
These Conventions address three of the most dangerous forms
of transnational crime: terrorism, cybercrime, and organized
criminal activity. Each of the Conventions addresses these
problems in a similar and comprehensive fashion with a single
goal. That is to ensure that there are no safe havens, whether
for terrorists, cyber criminals, or members of organized crime
groups.
The Conventions seek to accomplish these goals through two
means. First, by ensuring that each state party has in place
enforcement mechanisms, key enforcement mechanisms that will be
directed against this type of criminal activity. Second, the
Conventions also require that each state party have in place
international operation cooperation mechanisms that will allow
mutual legal assistance in the investigation and prosecution of
these matters.
The United States already has laws that will allow us to
meet each of the requirements that we would undertake under
these Conventions. In turn, these Conventions will advance our
law enforcement interests by ensuring that our law enforcement
partners have the domestic enforcement mechanisms in place, as
well as the international enforcement--excuse me, cooperation
mechanisms in place that will allow us to effectively
investigate and prosecute international crime of these types.
Turning first to the Inter-American Convention Against
Terrorism, this treaty will allow us to effectively move
against not only terrorist organizations with global scope,
such as al-Qaeda, but also against terrorist groups in this
hemisphere, such as the FARC and the AUC, which are matters of
great concern to the United States.
In order to ensure that terrorists do not find safe havens
in this hemisphere, the Convention builds upon the already
existing 10 key U.N. anti-terrorism Conventions, as well as
U.N. Security Council Resolution 1373. It provides important
mechanisms that facilitate extradition and mutual legal
assistance for terrorism offenses and to prevent abuse of the
asylum process by terrorists. For example, article 11 of the
Convention prohibits refusal of extradition or mutual legal
assistance on the grounds that an offense covered by the U.N.
terrorism Conventions would constitute a political offense.
That's an important step forward for many of our older
treaties.
The Convention likewise provides important tools that can
be used by law enforcement to ensure that terrorist funds will
find no safe haven in this hemisphere. The Convention requires
that the offenses set forth in the 10 U.N. terrorism
Conventions be treated as predicate offenses for money
laundering prosecutions and for freezing and confiscation of
crime-related assets.
The Council of Europe's Cybercrime Convention likewise is
designed to deny safe havens to cyber criminals. This is the
first multilateral treaty to address specifically not only the
growing problem of computer crime, but also the important issue
of the preservation of electronic evidence for prosecutions and
investigations internationally.
The Convention first requires parties to criminalize acts
that are directed against computers or computer systems, such
as unauthorized intrusions into computer systems or attacks
using computer viruses or worms. Those kinds of attacks pose
great dangers not only in terms of economic loss, but to the
security of the United States.
Under the Convention, parties must prohibit further the
carrying out of a number of traditional crimes, crimes in the
physical world that are increasingly being committed now by
computers, such as forgery, child pornography, fraud, and
copyright piracy. For criminal liability to attach to each of
these offenses, the conduct in question must be conducted
either intentionally or willfully and without right. These are
important safeguards to protect legitimate computer users and
Internet service providers.
It's also important to note that these types of criminal
offenses already exist under United States law. In contrast,
countries that do not have adequate criminal laws governing
these types of conduct have become havens for cyber criminals.
Thanks to the Convention, that will no longer be the case.
The procedural sections of the Convention are equally
important, given the difficulty of locating and securing
electronic evidence before it is deleted or otherwise
disappears. This is true not only in cases of computer crime
per se, but also in a number of other cases, terrorism cases,
organized crime cases, cases really that cover the entire range
of criminal offenses.
The Convention requires each party to have the power on an
expedited basis to, among other things, preserve and disclose
stored computer data, including traffic data. Now, these powers
and procedures are already provided for under United States law
and have proved invaluable to many investigations. And as is
the case with the substantive offenses, the Convention contains
safeguards on the use of these procedural tools.
Finally, the Convention contains important provisions on
international cooperation. It provides a basis for U.S. law
enforcement to obtain on an expedited basis preservation of
electronic evidence stored in another country relevant to a
U.S. criminal or terrorist investigation and to trace in real
time electronic communications by criminals to their source in
another state.
The U.N. Transnational Organized Crime and Protocols on
Trafficking in Persons and Smuggling of Migrants Convention
likewise is intended to end safe havens for international
organized crime groups. The Convention first requires parties,
as you noted, Mr. Chairman, to establish a number of criminal
offenses and related measures that already exist under United
States law, but that do not yet exist in some countries. These
are gaps that organized criminal groups exploit.
In particular, the Convention requires countries to
criminalize conspiracy to commit a broad range of serious
crimes. It also requires the criminalization of money
laundering, bribery, and obstruction of justice.
And the second area from which important benefits will flow
from the Transnational Organized Crime and Protocols on
Trafficking in Persons and Smuggling of Migrants Convention is
in the area of international cooperation. The Convention's
provisions on international extradition, mutual legal
assistance, and police cooperation provide a legal basis for
other parties to provide broad cooperation, both to the United
States and among one another.
Article 16, for instance, will significantly expand the
reach of older United States extradition treaties that contain
a list approach to offenses by requiring parties who treat any
serious crime committed by an organized crime group as a basis
for extradition. Article 18 contains a mini-MLAT that provides
a basis for mutual legal assistance where other treaty
relationships are not available.
The Trafficking Protocol to the Transnational Organized
Crime and Protocols on Trafficking in Persons and Smuggling of
Migrants Convention also advances important law enforcement
interests of the United States, which are reflected, for
instance, in the Trafficking Victims Protection Act of 2000.
Among the most important elements of the Trafficking Protocol
is that it provides for the first time a definition of
trafficking which will allow for international cooperation on
that basis.
The Migrant Smuggling Protocol likewise benefits the United
States by requiring other countries to criminalize the
smuggling of migrants and the production of fraudulent
documents for the smuggling. With migrant smuggling an ever-
present problem for the United States, these are important
developments that will advance our interests significantly.
Mr. Chairman, in conclusion, I would like to thank you for
your leadership and the committee's leadership on these issues,
and I'd like to express my thanks as well to my colleagues in
the State Department and in the numerous sections in the
Department of Justice that have worked on these Conventions. As
you've pointed out, these Conventions have taken months and
years in some cases of very hard work. We believe that they
significantly advance the safety and security of the United
States and we look forward to answering questions about them
further. Thank you.
[The prepared statement of Mr. Swartz follows:]
Prepared Statement of Bruce Swartz
A. INTRODUCTION
Mr. Chairman and members of the Committee, I am pleased to appear
before you today to present the views of the Department of Justice on
the Inter-American Convention against Terrorism, the Council of Europe
Cybercrime Convention, the UN Convention against Transnational
Organized Crime, and the Protocols to the Transnational Organized Crime
Convention on Trafficking in Persons and Smuggling of Migrants. Each of
these treaties will directly advance the law enforcement interests of
the United States. Moreover, with the respective reservations,
declarations or understandings recommended by the Administration, each
convention can be implemented on the basis of existing U.S. law.
These conventions were negotiated by the Departments of Justice and
State, as well as the Commerce Department in the case of the Council of
Europe Convention on Cybercrime, and the Department of the Treasury in
case of the Convention against Transnational Organized Crime. We join
the Departments of State, Treasury and Commerce today in urging the
Committee to report favorably to the Senate and recommend its advice
and consent to the ratification of these treaties.
The Secretary of State has submitted letters that describe in
detail each of these multilateral instruments. In my testimony today, I
will concentrate on why they provide important benefits for United
States law enforcement.
I am not testifying today with regard to the Protocol of Amendment
to the International Convention on Simplification and Harmonization of
Customs Procedures, and I defer to my colleagues in the Departments of
State and Homeland Security as to that instrument. In this connection,
I would note that, as a general matter, enhancement of customs
procedures is of benefit to the broad law enforcement community.
B. OAS TERRORISM CONVENTION
With respect to the Inter-American Convention against Terrorism, as
indicated in Mr. Witten's testimony, the elaboration of that treaty was
a part of the hemispheric actions taken subsequent to the events of
September 11.
In light of existing terrorism conventions on a wide array of
subjects, the OAS Convention does not seek to elaborate a comprehensive
and new definition of terrorism or punish such conduct as a criminal
offense. The Convention is structured to provide for a range of modern
law enforcement mechanisms that facilitate cooperation in combating the
forms of terrorism already prohibited by 10 key UN counter-terrorism
conventions. Some of these mechanisms are already found in the two most
recent UN counter-terrorism conventions the 1997 International
Convention for the Suppression of Terrorist Bombings and the 1999
International Convention for the Suppression of the Financing of
Terrorism--but not in older UN counter-terrorism conventions. Others
are enhanced versions of law enforcement tools called for by UN
Security Council Resolution 1373.
The tools in this treaty increase the ability of U.S. law
enforcement to obtain cooperation from other States in the hemisphere
in combating terrorist groups. They are therefore important to our
efforts against globally active groups such as Al Qaida, and those in
the hemisphere, such as the Revolutionary Armed Forces of Colombia
(FARC) and the Autodefensas Unidas de Colombia (AUC), whose members
have been charged with a range of offenses against the United States. I
will review its most significant benefits.
First, the Convention provides mechanisms that facilitate
extradition and mutual legal assistance for terrorism offenses. For
example, Article 11 prohibits refusal of extradition or mutual legal
assistance for the conduct set forth in the UN Conventions on the
grounds that the offense is considered political in nature. Modern U.S.
extradition treaties, and some mutual legal assistance treaties, limit
the invocation of the so-called political offense exception as a ground
for refusal of cooperation in terrorism cases, as do the two most
recent UN counter-terrorism conventions. However, older extradition
treaties, and many mutual legal assistance treaties, do not contain
this limitation.
Similarly, Article 10 provides a legal framework for Parties to
temporarily transfer persons who are in custody to another Party so
that they may give testimony or otherwise assist with respect to
terrorism offenses, irrespective of whether or not there is a mutual
legal assistance treaty in place between the States concerned
containing such a provision. The ability to arrange such temporary
transfers may facilitate the taking of testimony in a U.S. terrorism
prosecution, as well as the gathering of other evidence of terrorism,
and is typically contained in mutual legal assistance treaties to which
the United States is party. Here, too, only the two most recent UN
counter-terrorism conventions provide for this mechanism; the OAS
Convention will allow Parties to apply it among themselves with respect
to the range of conduct addressed in the earlier UN counter-terrorism
conventions as well.
Second, the Convention provides important tools that can be used by
law enforcement to halt the flow of funds to terrorist groups. Article
7 requires that Parties establish effective regulatory oversight of
financial institutions for purposes of detecting efforts to finance
terrorism, and provide for Financial Intelligence Units to facilitate
the international exchange of information that has been gathered.
Building on the similar but less specific provisions of the 1999 UN
Terrorism Financing Convention, UN Security Council Resolution 1373,
and the UN Convention on Transnational Organized Crime, the Convention
provides stronger regulatory measures to address financing of terrorism
than any convention to date.
The provisions of Article 5 (on asset confiscation) and Article 6
(on designation of money laundering predicate offenses) also helpfully
go further than prior conventions by requiring that the offenses set
forth in the 10 UN counter-terrorism conventions be designated as
predicate offenses for purposes of prosecuting the laundering of
proceeds of crime, and freezing and confiscating crime-related assets.
Given that in many cases the terrorist acts will not have been
committed in the jurisdiction in which assets are hidden or money
laundering transactions take place, it is particularly important that
these acts be considered predicate offenses wherever committed.
Finally, Articles 12 and 13, based on more general language in
UNSCR 1373, prohibit Parties from granting refugee or asylum status to
persons who there are reasonable or serious grounds to believe
committed one of the offenses covered by the 10 UN conventions. These
articles, which are fully consistent with U.S. law, constitute the
farthest reaching regime to date in an international convention with
respect to immigration measures that must be taken against terrorists,
and they are important mechanisms for preventing members of terrorist
groups from abusing the asylum system to establish footholds in States
in this hemisphere.
C. COUNCIL OF EUROPE CYBERCRIME CONVENTION
Turning next to the Council of Europe Cybercrime Convention, this
is the first and thus far only multilateral treaty to address
specifically the problem of computer-related crime and electronic
evidence gathering. With the growth of the Internet, attacks on
computer networks have caused large economic losses and created great
risks for critical infrastructure systems. In addition, criminals
around the world are using computers to commit or assist a great
variety of traditional crimes, including kidnapping, child pornography,
child sexual exploitation, identity theft, fraud, extortion, and
copyright piracy. Computer networks also provide terrorist
organizations and organized crime groups the means with which to plan,
coordinate, and commit their crimes. This Convention contains
significant law enforcement tools to be applied against all of these
activities.
The Convention focuses on three types of measures that must be
taken to effectively address these types of criminal behavior: First,
establishment of domestic criminal offenses; second, adoption of
procedural tools for investigating crimes effectively in the Internet
age; and third, establishment of strong mechanisms for international
cooperation, since computer-related crimes are often committed via
transmissions routed through numerous countries. With respect to each
of these areas, the Convention provides important safeguards to protect
civil liberties and legitimate commercial interests. I will now briefly
review the key features of the Convention.
The Convention first requires Parties to criminalize ``classic''
computer crime offenses--such as unauthorized intrusions into computer
systems; unauthorized interception and monitoring of computerized
communications; attacks on computers and computer systems, such as
denial of service attacks, or attacks using computer viruses or worms;
and the misuse of devices, such as passwords or access codes, to commit
offenses involving computer systems. Parties must further prohibit the
carrying out of a number of more traditional crimes committed by means
of a computer system, such as forgery, fraud, the production,
advertisement, and distribution of child pornography, and copyright
piracy. For criminal liability to attach for each of these offenses,
the conduct in question must be committed intentionally or willfully,
and ``without right,'' thereby protecting legitimate computer users and
researchers as well as Internet Service Providers engaged in the
provision of legitimate services. The Explanatory Report to the
Convention, which has been submitted to the Senate for its information,
describes in great detail the manner in which these provisions should
be applied, so that these legitimate activities are protected.
These types of criminal offenses already exist under U.S. law;
however, countries that do not have adequate criminal laws governing
these types of conduct have become havens for cybercriminals. The
Convention's requirement that Parties establish these criminal offenses
will therefore serve as a deterrent to the commission of crimes that
threaten U.S. national security and financial interests.
The procedural section of the Convention arose from a recognition
that--with respect to both computer-related and traditional crime--the
speed and efficiency of electronic communications make electronic
evidence of crime difficult to locate and secure. Such evidence may be
in transit, and can be quickly altered, moved or deleted. To ensure
that Parties are able to investigate effectively the offenses
established under the Convention and to collect electronic evidence
regarding other criminal offenses, such as terrorism, organized crime
and violent crimes, the Convention requires each Party to have the
power--on an expedited basis--to preserve and disclose stored computer
data, including traffic data, to compel the production of electronic
evidence by ISPs, to search and seize computers and data, and to
collect traffic data and content in real time. These powers and
procedures are already provided for under U.S. law, and have proved
invaluable to many investigations.
As with the substantive offenses, the Convention contains
safeguards on the use of these procedural tools. For example, the
powers and procedures may be used only in connection with ``specific''
criminal investigations or proceedings; there is no general obligation
on service providers to collect and retain data on a routine basis, and
ISPs are required only to preserve data in specific cases that they
already have gathered for commercial purposes. The Convention also
requires that the procedural powers I have described be subject to
conditions and safeguards under domestic law that protect civil
liberties.
Finally, the Convention contains important provisions on
international cooperation. Modern telecommunications facilitate the
commission of crimes without regard to national borders, making
cooperation between law enforcement in different countries more
important than ever. Recognizing this need, the Convention provides
enhancements to extradition regimes in force among the Parties, and
obliges Parties to afford mutual assistance ``to the widest extent
possible'' as to both the computer-related criminal offenses
established under the Convention, and where electronic evidence needed
for the investigation and prosecution of other serious criminal
conduct.
With respect to extradition, the Convention obliges the Parties to
consider the criminal offenses they establish as extraditable offenses
under their applicable extradition treaties and laws. The Convention
does not, however, require the U.S. to extradite persons in the absence
of a bilateral treaty, and we will continue to apply the relevant terms
and conditions of our bilateral extradition treaties to the offenses
established by the Convention.
Similarly, the Convention augments existing mutual legal assistance
relationships to account for computer-related crime and creates new
relationships where necessary. Mutual legal assistance is generally to
be provided through existing MLATs between the Parties. If the
requesting and requested States do not have an MLAT in place between
them, the Convention--in an analogous manner to the Transnational
Organized Crime Convention--provides certain mechanisms to be applied
between them, including grounds for refusal so that cooperation can be
denied in appropriate cases, such as where execution of a request would
prejudice the sovereignty, security, or other essential interests of
the requested State.
Whether operating through existing MLATs or under the Convention,
Parties are required to have key procedural mechanisms available for
use in international cases. Thus, the Convention provides a basis for
U.S. law enforcement to obtain, on an expedited basis, preservation of
electronic evidence stored in another country relevant to a U.S.
criminal investigation, and to trace in real time electronic
communications by criminals to their source in another State. Another
key innovation by which the Convention helps ensure the rapidly
expedited international cooperation required to combat cybercrime
effectively is the establishment of a 24/7 network of emergency
contacts. Such contacts are to be available at any time, day or night,
and comprised of professionals having both the technical means and the
legal mechanisms to respond to urgent requests for information from
their foreign counterparts.
The adoption of these tools by other countries will give U.S.
investigators a much better chance of obtaining evidence needed to
successfully prosecute criminals who endanger our national security and
economic interests. In the past, if an electronic transmission's trail
led to another country, the chances were slim of successfully tracing
the communication to its source or securing the evidence before
deletion. With the tools provided for under the Convention, however,
the ability of U.S. law enforcement to obtain international cooperation
in identifying major offenders and securing evidence of their crimes so
that they can be brought to justice will be significantly enhanced.
The Administration has recommended that the United States deposit a
number of reservations and declarations designed to ensure that we can
discharge our obligations under the Convention through existing federal
law. These reservations and declarations will enable the U.S. to apply
additional threshold requirements to the offenses of illegal access to
data, misuse of access devices, computer-related forgery, and data
interference; limit application of the offenses of misuse of devices,
child pornography and copyright piracy; and--like the reservations
proposed for the UN Convention on Transnational Organized Crime--limit
application of the jurisdiction article in cases involving crimes
committed on ships or aircraft registered under U.S. law, and clarify
that the U.S. will implement its obligations in a manner consistent
with our federal system of government and existing federal law.
D. UN TRANSNATIONAL ORGANIZED CRIME CONVENTION
With respect to the UN Convention on Transnational Organized Crime
(``TOC''), Mr. Witten's testimony describes its role as a modern
framework for combating organized crime. Prior to the TOC Convention,
there was no meaningful multilateral framework for addressing the
phenomenon of organized crime. The TOC Convention and its protocols
create a broad regime modeled on the most recent and effective of the
multilateral drug trafficking treaties--the 1988 United Nations
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, also known as the 1988 Vienna Narcotics Convention.
From the Transnational Organized Crime Convention, we anticipate
law enforcement benefits flowing from the obligations on States Parties
to establish criminal offenses and related domestic measures, and to
provide international cooperation as to a broad range of organized
criminal activity.
The Convention first requires Parties to establish a number of
criminal offenses and related measures that already exist under U.S.
laws, but that do not yet exist in some countries--a gap that is
exploited by organized crime groups. For example, it is important to an
overall strategy for fighting organized crime that all States have laws
which enable prosecution of leaders, advisors or other persons whose
role in criminal enterprises is indirect and insulated from the actual
commission of the financial and violent crimes that enable the
enterprise to maintain its wealth and power. Accordingly, Article 5
requires countries to criminalize conspiracy or criminal association
with respect to a broad range of serious crimes.
Also significant are the Convention's provisions on money
laundering, bribery and obstruction of justice. Article 6 of the TOC
Convention requires the criminalization of money laundering with
respect to a comprehensive range of predicate offenses associated with
organized crime activities and therefore builds upon and expands
earlier commitments with respect to drug trafficking predicate offenses
in the 1988 Vienna Narcotics Convention. Moreover, Article 7, based on
the groundbreaking prior work of the Financial Action Task Force, is
the first provision in an international convention to require the
establishment of a comprehensive regulatory regime for combating money
laundering.
Since organized crime groups often seek to maintain their influence
through corruption, as well as disruption of investigative and
prosecutive efforts against them, Articles 8 and 23 also require
Parties to criminalize both bribery of domestic public officials and a
wide range of activities that obstruct justice.
Finally, from our century-long experience in combating organized
crime in the United States, we know that there are other domestic
measures law enforcement must employ in order to effectively address
organized crime, including a system for protecting witnesses from the
criminal groups that may seek to intimidate or harm them, and means of
penetrating secretive organized crime groups through lawful inducements
for group members to cooperate with law enforcement. Articles 24 and 26
of the Convention provide for States Parties to adopt such measures.
The second area from which important benefits will flow from the
TOC Convention is in the area of international cooperation. Foreign
countries already obtain excellent cooperation from the U.S. in
extradition, mutual legal assistance and police cooperation; however,
the legal framework for obtaining reciprocal benefits is not always
present. The Convention's provisions on international extradition,
mutual legal assistance and police cooperation provide a legal basis
for other Parties to provide similarly broad cooperation, both to the
United States and among one another.
Of particular note are the provisions in Articles 16 and 18.
Article 16 requires that the Parties deem as extraditable offenses
under their applicable treaties the offenses established by the
Convention, as well as any crime that has been committed by an
organized criminal group, and that is punishable by a maximum term of
at least four year's imprisonment under the law of both the requesting
and extraditing States. The practical import of the broad scope of this
Article will be to significantly expand the reach of older U.S.
extradition treaties that contain a ``list'' of extraditable offenses.
Article 18 on mutual legal assistance establishes a similarly broad
obligation to provide mutual legal assistance under the following
terms: Where the State requesting assistance already has a mutual legal
assistance treaty in force with the State from which assistance is
sought, that treaty will continue to govern requirements for obtaining
assistance. However, where there is no such treaty, the Article
contains a ``mini-MLAT,'' meaning that paragraphs 9-29 of the Article
serve, in effect, as a mutual legal assistance treaty governing in
great detail cooperation between the States Parties for offenses
covered by the Convention. Paragraph 21 provides for grounds for
refusal that would enable the U.S. to decline assistance in politically
motivated cases and other appropriate circumstances. Also significant
is that Article 18 requires on a global scale measures that have long
been a standard aspect of U.S. mutual legal assistance practice, but
that are not always applicable in other countries--such as a
prohibition on invoking bank secrecy to bar cooperation. An analogous
article in the 1988 Vienna Narcotics Convention has increased
cooperation obtained by the United States from other countries in
narcotics cases, and we would anticipate a similar increase in
cooperation in organized crime cases pursuant to this provision.
The Administration has submitted to the Senate three proposed
reservations and one understanding and one declaration. With these
reservations, understanding and declaration, existing federal law is
sufficient to enable the United States to discharge the obligations
undertaken in the Convention.
E. PROTOCOL TO PREVENT, SUPPRESS AND PUNISH TRAFFICKING IN PERSONS,
ESPECIALLY WOMEN AND CHILDREN (THE ``TRAFFICKING PROTOCOL'')
The Trafficking Protocol also advances important policy interests
of the United States, which are reflected, for example, in the
Trafficking Victims Protection Act of 2000 and the reauthorization
legislation of 2003. Those laws make clear the importance the United
States places on all countries adopting effective criminal laws against
trafficking in persons, and on international cooperation to combat this
phenomena.
Article I of the Trafficking Protocol (as with the Migrant
Smuggling Protocol also pending--before the Committee) requires Parties
to apply all of the benefits and obligations of the Main Convention to
the offenses established in the protocols. Thus, the extradition,
mutual legal assistance, confiscation of assets, witness protection
obligations and other key parts of the main Convention also apply, for
Parties to the Protocols, to the offenses of trafficking in persons and
smuggling of migrants.
Among the most important elements of the Trafficking Protocol is
that it provides for the first time in an international treaty a
definition of trafficking in persons, and requires all Parties to
criminalize conduct included within the definition of trafficking in
persons. Having a common definition will allow countries to cooperate
more effectively in providing mutual legal assistance, granting
extradition, and providing police-level information and intelligence
sharing.
Article 3, which sets forth the definition, may be divided into
three components: conduct, means and purpose. First, the conduct
covered by ``trafficking in persons'' is the recruitment,
transportation, transfer, harboring or receipt of persons. Second, the
means element can be satisfied by any of the following: the threat or
use of force or other forms of coercion, abduction, fraud, deception,
the abuse of power or of a position of vulnerability, or the giving or
receiving of payments or benefits to achieve the consent of a person
having control over another person (in essence, the buying and selling
of persons). Third, the purpose of exploitation includes, at a minimum,
exploitation of the prostitution of others or other forms of sexual
exploitation, forced labor or services, slavery or practices similar to
slavery, servitude, or the removal of organs. Article 3 further
provides that, once any of the means set forth above has been used, the
consent of the victim to the intended exploitation is irrelevant.
With respect to children, the Article makes it clear that any of
the conduct set forth above, when committed for the purpose of
exploitation, constitutes ``trafficking'' even if none of the means set
forth above are used. Thus, any recruitment or harboring of a child for
prostitution or other sexual exploitation would constitute trafficking.
I would like to point out that the negotiating record sets forth
several statements intended to assist in the interpretation of the
definition of ``trafficking in persons.'' One of those statements makes
clear that the Protocol is without prejudice to how States Parties
address prostitution in their respective domestic laws. Thus the
practices and policy choices related to prostitution of individual
States in the United States are unaffected by this protocol.
Further, both the Trafficking Protocol and the Migrant Smuggling
Protocol establish for the first time in a multilateral instrument the
obligation of States Parties to take back their own citizens and to
facilitate such returns when necessary, for example, by issuing
necessary travel documents. In the Trafficking Protocol, this
obligation is set forth in paragraph 1 of Article 8 (``Repatriation of
victims of trafficking in persons'').
The United States has recommended two Reservations and three
Understandings with respect to the Trafficking Protocol.
F. PROTOCOL AGAINST THE SMUGGLING OF MIGRANTS BY LAND, SEA AND AIR
The Migrant Smuggling Protocol provides all of the benefits I have
already mentioned that flow from the interplay of the Protocols with
the main Convention (such as in facilitating extradition, mutual legal
assistance, and asset confiscation with respect to smuggling offenses),
and from specific provisions common to both Protocols (such as the
obligation to accept the return of citizens).
Of course, most importantly, it also benefits the United States by
requiring other countries to criminalize the smuggling of migrants, and
the production of fraudulent documents that furthers smuggling. With
migrant smuggling an ever-present problem for United States law
enforcement, these obligations will help fill gaps in the current
abilities of many countries to effectively address smuggling crimes
domestically, and open the door to increased international cooperation
in such cases.
Article 6 (``Criminalization'') is the critical article that
contains these obligations. The article requires States Parties to
criminalize three distinct types of conduct: (1) ``smuggling of
migrants'' as that term is defined in Article 3; (2) document fraud
when committed for the purpose of enabling the smuggling of migrants;
and (3) enabling a person to reside illegally in a State by means of
document fraud or any other illegal means.
The Protocol also contains important provisions regarding boarding
and searching vessels suspected of smuggling migrants. We anticipate
that these provisions will help promote interdiction efforts by States
Parties, and they should enhance cooperation in a number of practical
ways, including through the obligation on the vessel's ``flag State''
to expeditiously respond to requests for boarding and search, as well
as through the providing of an express basis in international law for
the search of vessels suspected of engaging in migrant smuggling.
We do suggest one Reservation and two Understanding with respect to
the Migrant Smuggling Protocol to enable us to implement our
obligations through application of our current laws.
We have not sought the same Reservations and Understanding with
respect to jurisdiction and federalism issues as in the Main Convention
and Trafficking Protocol. Since U.S. federal law comprehensively covers
migrant smuggling into U.S. territory, including any such crime
occurring on a ship or aircraft, as well as related document offenses,
in our view such limitations are not required with respect to this
instrument.
G. CONCLUSION
In conclusion, the Department of Justice appreciates the
opportunity to explain the terms of these instruments. Each convention
and protocol will aid our law enforcement efforts, both by enhancing
the ability of many countries to address these very serious forms of
criminality, and by facilitating enhanced international cooperation
with the United States in specific cases. We urge the Senate to give
rapid advice and consent to ratification of these conventions.
Mr. Chairman, that completes my prepared remarks. At this time I
would be pleased to respond to any questions that you or other members
of the Committee may have.
The Chairman. Well, thank you very much, Mr. Swartz. I
would say that we appreciate very much the cooperation of so
many people in the Department of Justice who have worked very
carefully. I will again identify the witnesses. We've heard
from Mr. Witten from the State Department, and now we've heard
from Mr. Swartz in the Justice Department. It's our pleasure to
welcome now Mr. Michael Schmitz of the Bureau of Customs and
Border Protection.
STATEMENT OF MICHAEL T. SCHMITZ, ACTING ASSISTANT COMMISSIONER
FOR INTERNATIONAL AFFAIRS, BUREAU OF CUSTOMS AND BORDER
PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY
Mr. Schmitz. Thank you, Mr. Chairman, and thank you for the
opportunity to testify this morning on the importance of the
United States' accession to the Protocol of Amendment to the
1973 Convention on the Simplification and Harmonization of
Customs Procedures, or what I will refer to as the Revised
Customs Convention.
The Revised Customs Convention presents a blueprint for
modern and efficient customs procedures in the 21st century.
Accession by the United States will present a significant step
forward in the promotion of economic growth, national security,
and customs integrity at both the national and international
level.
The Revised Customs Convention under consideration today
provides a global framework for modern customs procedures that
are transparent, simple, predictable, efficient, and effective.
This Convention is the World Customs Organization's, or WCO's,
acknowledgment of the critical role customs administrations
play in facilitating legitimate international trade while still
affecting national customs controls. The Revised Customs
Convention is a global call for professionalism and integrity
in all customs administrations.
The Revised Convention is also the WCO's response to
heightened security concerns related to the movements of goods
and people across national borders. Accession to the Revised
Customs Convention by the United States would send a clear
message to both the international trade community and
governments around the world that this country stands firmly
behind customs procedures that facilitate the secure movement
of legitimate trade across national borders.
This WCO instrument of the Revised Customs Convention has
involved both the Customs and Border Protection as well as U.S.
industry in leadership roles in all WCO initiatives that
facilitate trade and secure international supply chains. The
U.S. traders and Customs and Border Protection have worked hand
in hand at the WCO to bring this Convention forward.
The original Convention dates from 1973 and the United
States acceded in 1983. But as the 21st century approached, the
huge growth in international trade plus advancements in
information technology meant that the existing Customs
Convention was outgrowing its usefulness. WCO members
recognized the need for a more modern Customs Convention that
would meet the demands and challenges of international trade
and security in the 21st century.
More specifically, WCO members sought to enter the new
century with a modernized Customs Convention that set
standardized procedures that were simple, transparent, and
effective. The non-binding nature, aspects of the original
Customs Convention created a global customs environment that
lacked the transparency, uniformity, and efficiency required to
facilitate the increasing movement of goods across national
borders. WCO members wanted a Customs Convention that contained
standards and procedures that were binding on all parties, but
also had enough flexibility to accommodate inevitable change.
Consequently, in 1994, the WCO undertook a 5-year revision
of the original 1973 Customs Convention. This revision
culminated in 1999 with the unanimous adoption of the Revised
Customs Convention we are here to discuss today.
The Revised Customs Convention is based on the following
principles: standard, simplified customs procedures; continuous
development and improvement of customs control techniques;
maximum use of information technology; and partnership between
customs administrations and the international trade community.
Unlike the original Customs Convention, the Revised Customs
Convention contains a body and general annex whose standards
are binding on all parties. The general annex includes
standards for core customs functions, such as collection of
duties and taxes, risk management, the use of information
technology, pre-arrival processing, transparency of customs
regulations, appeal procedures, and consultation between
customs and the trade community.
In addition to the body and general annex, the Revised
Customs Convention contains 10 specific annexes that address
more specialized customs procedures. These annexes contain
standards and recommended practices on such topics as
warehousing, transit, temporary admission, and drawback. Unlike
the general annex, contracting parties have more flexibility to
select which annexes or portion of annexes they will accede to.
Effective customs control and risk management techniques
embodied in the Revised Customs Convention complement the
border security initiatives already undertaken by Customs and
Border Protection and the Department of Homeland Security. As
an example, the Convention includes a commitment to use and
standardize import information. Advanced electronic data on
inbound cargo and travelers is a prime element of Customs and
Border Protection's effort to push our borders outward and
protect our society from dangerous goods and people before they
reach U.S. soil.
The standardization of information also helps prevent the
movement of dangerous goods or people across borders by
enabling customs authorities to coordinate in real time with
their international counterparts, other government agencies,
and the trade community.
In addition to their economic and security benefits, the
more transparent customs procedures of the Revised Customs
Convention are also a key component of customs anti-corruption
initiatives. By requiring transparency in customs procedures,
the Revised Customs Convention will promote the integrity and
professionalism of customs administrations worldwide and reduce
the susceptibility of American businesses and citizens to
corrupt foreign customs practices.
The United States is already compliant with all provisions
of this Convention that we propose to accept. As permitted by
the Revised Convention, we propose taking reservations to
several provisions because they conflict with our national
legislation or because there is no national legislation that
allows their application.
The Revised Customs Convention will come into force 3
months after 40 parties to the original Customs Convention have
expressed their consent to be bound by it. As of today, 32
countries have adhered to the Revised Customs Convention. As
this number is quickly moving toward 40, it is important that
the United States become a party, because upon entry into
force, the WCO will establish a management committee to oversee
implementation and management of the new Convention. It is
imperative that the United States be an active member of this
management committee from the start so that we can help ensure
that the Convention is implemented in a manner that contributes
to our economic growth and national security.
Many in the international trade community and other
governments are following our deliberations on this Convention.
For American companies, the significance of U.S. accession is
not the impact on customs procedures here in the United States,
but rather the impact on customs procedures abroad and the
predictability it will bring them as they export their
products. Other governments are looking to the United States
for leadership as they decide whether they should accede to the
Revised Customs Convention and be legally bound to apply
customs standards and procedures that are modern, transparent,
simple, and predictable.
In conclusion, the Revised Customs Convention is a
necessary tool for facilitating trade, ensuring economic
growth, and improving the security of the international trade
system. Mr. Chairman, accession to the Revised Customs
Convention by the United States would send a clear message here
at home and abroad that the public and private sector truly can
work together to facilitate trade and that trade and security
are not mutually exclusive.
Mr. Chairman, I thank you again for the opportunity to
testify this morning and am open to any questions that you may
have.
[The prepared statement of Mr. Schmitz follows:]
Prepared Statement of Michael T. Schmitz on Revised Customs Convention
Mr. Chairman and Members of the Committee, thank you for this
opportunity to testify this morning on the importance of United States
accession to the Protocol of Amendment to the 1973 Convention on the
Simplification and Harmonization of Customs Procedures, or what I will
refer to as the Revised Customs Convention.
The Revised Customs Convention presents a blueprint for modern and
efficient customs procedures in the 21st century. Accession by the
United States will present a significant step forward in the promotion
of economic growth, national security and customs integrity at both the
national and international level. The Revised Customs Convention under
consideration today provides a global framework for modern customs
procedures that are transparent, simple, predictable, efficient and
effective. The Revised Customs Convention is the response of customs'
stakeholders, both public and private, to the increased globalization
of the world economy and reduced tariff barriers, particularly at the
end of the last century. This Convention is the World Customs
Organization, or WCO's, acknowledgement of the critical role of customs
administrations in facilitating legitimate international trade while
still effecting national customs controls. The Revised Customs
Convention is also a global call for professionalism and integrity in
all customs administrations. Lastly, but certainly of no less
significance, the Revised Customs Convention is the WCO's response to
heightened security concerns related to the movements of goods and
people across national borders. Accession to the Revised Customs
Convention by the United States would send a clear message to both
businesses and governments that this country stands firmly behind
customs procedures that facilitate, and do not deter, the legitimate
and secure movement of people and goods across borders.
Let me take a moment to share with you some brief background on the
Revised Customs Convention and why U.S. accession to it is under
discussion here today. The Revised Customs Convention is the main
customs facilitation instrument of the World Customs Organization. The
WCO is an independent, inter-governmental body whose mission is to
promote the efficiency and effectiveness of customs administrations.
Headquartered in Brussels, Belgium, it currently has 162 Members,
including the United States, and is the only global body focused
exclusively on customs issues. Both U.S. Customs and Border Protection
and U.S. industry have taken a leadership role in WCO initiatives to
facilitate trade and secure supply chains.
The WCO concluded the original Convention in 1973 in Kyoto, Japan.
This original Convention had 63 Parties, including the United States,
which acceded to it in 1983. Since that time, the Convention has been
the main international framework for customs procedures applied to the
cross-border movement of goods and people.
As the 21st century approached, however, globalization, the growth
of international trade, and advancements in technology since 1974
resulted in a global customs Convention that was outgrowing its
usefulness. WCO Members called for a more modernized Convention that
would meet the demands and challenges of international trade and
security in the 21st Century. More specifically, Members sought to
enter the new century with a modernized Convention that set
standardized procedures that were simple, transparent and effective.
The non-binding nature of aspects of the original Convention created a
global customs environment that lacked the transparency, uniformity and
efficiency required to facilitate the increasing movement of goods and
people across national borders. WCO Members wanted a Convention that
contained standards and procedures that were binding on all Parties,
but that also had enough flexibility to accommodate inevitable change.
Consequently, in 1994, the WCO undertook a five-year extensive
review of the original 1973 Convention. This review culminated in 1999
with the unanimous adoption of the Revised Customs Convention we are
here to discuss today. This review included input not only from customs
administrations, but also from other government agencies, several
international organizations and industry. The United States took a lead
role in this review to ensure provisions that maximized benefits to
U.S. industry and CBP's ability to carry out effective customs
controls. In fact, it was not only CBP that championed this new
Convention. Several American companies also took a keen interest and an
active role. At the international level, private sector stakeholders
such as the International Chamber of Commerce, the International
Federation of Brokers Associations and the International Express
Couriers Conference all contributed to the revision process and have
expressed strong support for the finished product.
The Revised Customs Convention is based on the following
principles:
Standard, simplified procedures
Continuous development and improvement of customs control
techniques
Maximum use of information technology
Partnership between customs administrations and industry
Unlike the original Convention, the Revised Convention contains a
Body and General Annex whose standards are binding on all Parties. This
General Annex includes standards for core customs functions, such as
collection of duties and taxes, risk management, the use of information
technology, pre-arrival processing, transparency of customs
regulations, appeals procedures, and consultation between customs and
industry. Standards must generally be implemented within thirty-six
months of entry into force. For certain Transitional Standards, this
period is extended to sixty months.
In addition to the Body and General Annex, the Revised Customs
Convention contains ten Specific Annexes that address more specialized
Customs procedures. These Annexes contain standards and recommended
practices on such topics as warehousing, transit, temporary admission
and drawback. Unlike with the General Annex, Contracting Parties have
more flexibility to select which Annexes, or portions of annexes, that
they will apply.
The Revised Customs Convention does not only facilitate trade. Its
role in advancing global security is even more significant today than
we ever envisioned in the pre-9/11 world in which we revised the
original Convention. Effective customs controls and risk management
techniques embodied in this Convention complement our homeland security
initiatives. As an example, the Convention includes a commitment to use
and standardize information technology. Advance electronic data on
inbound cargo and travelers is a prime element of CBP's efforts to push
our borders outward and protect our society from dangerous goods and
people before they reach U.S. soil. The standardization of information
also helps to prevent the movement of dangerous goods or people across
borders by enabling customs authorities to coordinate not only with
their international counterparts, but also with other agencies and
industry in a timely manner.
In addition to their economic and security benefits, the more
transparent customs procedures of the Revised Customs Convention are
also a key component in customs anti-corruption initiatives. By
requiring transparency in customs procedures, the Revised Customs
Convention will promote the integrity and professionalism of customs
administrations worldwide and reduce the susceptibility of American
businesses and citizens to corrupt foreign customs practices.
At this point, I would like to stress that the United States is
already compliant with all the provisions of this Convention that we
propose to accept. These provisions represent approximately 90% of all
provisions in the General Annex and ten Specific Annexes. Excluding the
one Specific Annex to Which we would not accede, the United States is
already compliant with approximately 90% of this Convention. As
permitted by the Revised Convention, we propose taking reservations to
the remaining provisions, either because they conflict with our
national legislation or because there is no national legislation that
allows their application. As is stipulated in the Convention, CBP will
review the United States' reservations to this Convention every three
years with a view of determining whether the United States can accept
them or whether changes in legislation should be sought. However, it
should be emphasized that accession to the Protocol of Amendment will
require no change to current national legislation at this time.
The Revised Customs Convention will come into force three months
after 40 Parties to the original Convention have expressed their
consent to be bound by it. As of today, 32 countries have adhered to
this Convention. As this number rapidly grows towards 40, it is even
more critical that the U.S. become a Party. Upon entry into force, the
WCO will establish a Management Committee to oversee implementation and
its management. It is imperative that the United States be an active
member of this Management Committee from the start so that we can help
ensure that the Convention is implemented in a manner that contributes
to our economic growth and national security.
I can assure the Members of this Committee that many businesses and
Governments are following our deliberations here today very closely.
For American companies, the significance of U.S. accession is not
necessarily the impact on customs procedures here in the United States,
but rather the impact on customs procedures abroad and the
predictability it will bring them as they export their products. Other
Governments are looking to the United States for leadership as they
decide whether they should adhere to the Revised Customs Convention and
be legally bound to apply customs standards and procedures that, again,
are modernized, transparent, simple, and predictable.
In conclusion, the Revised Customs Convention is a necessary tool
for facilitating trade, ensuring economic growth, improving the
protection of society and, consequently, for opening more markets for
American businesses, both large and small.
As we move forward in the 21st Century, the need for modernized
customs procedures is critical. These procedures must promote both
trade and security. Mr. Chairman and Members of this Committee, the
Revised Customs Convention provides such a global customs framework.
Accession to this Convention by the United States would send a clear
message here at home and abroad that the public and private sector
truly can work together to facilitate trade and that trade and security
are not mutually exclusive.
Again, thank you for this opportunity to testify before you today.
The Chairman. I thank you very much, Mr. Schmitz. I'm going
to proceed now through each of the four treaties, and then the
protocols accompanying the last one, so that our hearing record
will be as complete as possible in terms of your testimony, and
your responses. For the benefit of both witnesses and all who
are following the hearing, I will begin with a short summary of
what we're talking about one by one.
First of all, the Inter-American Convention Against
Terrorism. This Convention was concluded by the Organization of
American States, as you have pointed out, following the
September 11 terrorist attacks on the United States. The
Convention's provisions are designed to strengthen prohibitions
against acts of terrorism and to promote international
cooperation in investigating and prosecuting such acts. It
contains a list of 10 existing multilateral treaties addressing
terrorism, to which parties of the Convention agree to endeavor
to join if they have not already done so.
The Convention also obligates parties to develop domestic
capacities to track and to disrupt the financing of terrorist
activities and to freeze assets used or intended to be used to
finance terrorist activities. In addition, the Convention
promotes international cooperation on border controls as well
as efforts to investigate and prosecute acts of terrorism.
The Convention further establishes that for offenses
covered by the Convention, a state may not decline a request
for extradition or for mutual legal assistance on the ground
that the offense in question was inspired by political motives.
Several of the signatories to the Convention have yet to
ratify one or more of the underlying international terrorism-
related agreements listed in article 2 of the Convention. There
are 10 such existing multilateral treaties. Has the Convention
provided a catalyst for more widespread ratification by the
signatories? Mr. Swartz or Mr. Witten, do you have a view on
this?
Mr. Witten. Thank you, Mr. Chairman. The Convention is one
of several efforts that are ongoing to get countries that have
not yet signed on to the 10 listed conventions to become party.
Security Council Resolution 1373 addresses this issue. The
United States for several years, even before September 11, has
been diplomatically advocating that countries in this
hemisphere and throughout the world join these Conventions.
I understand that within the OAS system this instrument has
provided a focal point for discussion of the importance of
parties joining. With respect to specific developments in the
last 20 months or 22 months or so since the Convention has been
enforced, I think there has been some progress. For those
countries that have not yet become party, the United States is
doing what we can to urge them, persuade them to become a party
as part of the broader efforts that our country is making.
The Chairman. Thank you. Do either of you have anything
further to add to that? Very well. Let me proceed with a second
question. The administration has recommended an understanding
related to the meaning of the term, ``international
humanitarian law,'' as it appears in paragraph 2 of article 15,
under which the term would have, ``the same substantive meaning
as the law of war.''
What do you understand the ``law of war'' to mean in this
context?
Mr. Witten. Mr. Chairman, I can address this, and if
necessary supplement for the record. This understanding
parallels the understanding that we sought from the Senate in
connection with the Convention on the Suppression of Terrorist
Bombings, because the term, ``international humanitarian law,''
is one that the United States understands to mean the ``law of
war.'' I was involved in those negotiations for the Terrorist
Bombing Convention, and recall that a number of countries
agreed with us, but others were uncertain. So the United States
and perhaps other countries made clear during the negotiation
that this had the meaning of the ``law of war.'' My
understanding is that this would encompass at a minimum the
1949 Geneva Conventions and the protocols to which nations have
become party.
The Chairman. Very well. A third question. Article 11 of
the Convention provides that a request for extradition or
mutual legal assistance may be refused solely because it
concerns a political offense. But article 14 allows a party to
refuse a request when it has substantial grounds for believing
the request has been made for the purpose of punishing a person
on account of that person's political opinion. Is there any
risk article 14 will provide a basis for negating article 11?
Mr. Swartz. Mr. Chairman, we do not believe that that will
be a possibility in the sense that article 14 is designed to
address the issue of political opinions as opposed to actions
taken that would be offenses under the international
Conventions that have been the key U.N. counter-terrorism
Conventions.
The Chairman. So you're drawing a distinction between
opinions and actions?
Mr. Swartz. Yes, Mr. Chairman.
The Chairman. Very well. That concludes the questions I
have on the first of the Conventions. I would just note that
clearly this is a product of negotiation among members of the
Organization of American States. The activities involved there
once again show our support for the OAS, our respect for those
members and their work with us in this hemisphere. That is
obviously an important aspect of this, in addition to the legal
framework that we have been discussing today.
Now, I want to take up the Council of Europe Convention on
Cybercrime. This Convention addresses crimes directed against
or involving the use of computers. It requires parties to
prohibit certain computer-related crimes under their domestic
laws, to develop and be prepared to use certain investigative
methods with respect to computer-related crimes and computer-
stored evidence of other crimes, and to cooperate with other
Convention parties to investigate and prosecute such crimes.
Crimes that the Convention requires parties to prohibit
include unauthorized access to a computer system, unauthorized
interception of data from a computer system, unauthorized
damage or deletion of computer data, unauthorized interference
with the operation of a computer system, computer-related
forgery, and computer-related fraud. All of these offenses are
already prohibited under United States law. Investigative
techniques the Convention requires parties to develop and be
prepared to use include the ability to preserve, search, and
seize stored computer data, the ability to collect in real time
and preserve data being communicated between computers, and the
ability to intercept certain content of the data.
The Convention also adds computer-related crimes covered by
the Convention to those offenses for which extradition may be
sought under extradition treaties in force among parties to the
Convention and obligates parties to provide mutual legal
assistance with respect to such crimes and with respect to
computer-related evidence of other crimes.
Let me ask first of all, what effect would the Convention's
prohibitions have on legitimate activities by U.S. businesses,
such as actions by Internet service providers to monitor
traffic on their own networks, or security testing and
research?
Mr. Swartz. Mr. Chairman, the Convention will have no
effect on such legitimate activity. As you've pointed out, the
Convention will be implemented in the United States under our
existing statutes and has a number of safeguards built in.
Among other things, the activity in question must be done
without right and it must be done intentionally or willfully,
depending on the nature of the crime. Those safeguards, and in
addition the safeguards that are set forth in article 15 with
regard to human rights, ensure that legitimate activity will
not be criminalized by this Convention as indeed it is not
criminalized under existing United States law.
The Chairman. I'm curious because this Convention, of
course, was negotiated by members of the Council of Europe with
the United States in strong observer status. Who may finally
accede to this Convention? Is it likely to be just the European
states and the United States, or is this likely to have a
broader application?
Mr. Witten. During the negotiation, Mr. Chairman, in
addition to members of the Council of Europe, a number of other
states participated actively in observer status. As I
understand it, the United States, Canada, Japan, other major
countries with an interest, participated. The Council of Europe
has a mechanism for countries outside the Council of Europe and
countries that did not participate to join, and at this time
it's hard to predict how widely the Council of Europe
Convention will be joined.
It's our view that just among those that were active
observers and those that are members of the Council of Europe,
if they all join or a substantial number join, that's a huge
advance for the United States with respect to the ability of
countries to cooperate in this area.
The Chairman. Do any of you, just a matter of curiosity,
have some estimate of, in the event that all of the European
countries acceded to the treaty, plus Japan and Canada and the
United States, what percentage of computers in the world might
be covered by that situation? How much is left out at this
point that would not be cooperative?
Mr. Witten. Mr. Chairman, we'll submit something for the
record \1\ on that.
---------------------------------------------------------------------------
\1\ See responses to additional questions for the record provided
by Mr. Witten on page 48.
---------------------------------------------------------------------------
The Chairman. Very well. Thank you.
Mr. Swartz. Mr. Chairman, if I may add briefly to Mr.
Witten's point, we also see this Convention as a model for
further development should other countries not accede to this,
but as a model for bilateral, other instruments with regard to
cybercrime.
The Chairman. Well, it's an extraordinary advance, as we
all know, leaving aside the criminal aspects. Today we're
discussing the use of computer technology in countries all over
the world for conveying information to parties who may not have
that information. It's extremely important in democracy
building, in the extension of liberty. These are issues outside
of our purview today. But I simply am curious, as I'm certain
you are, about the advent of this technology, how this
information spreads, but also how it can be subverted. Viruses
become inoperative or sometimes, as was suggested, I think by
Mr. Witten, hackers may create commercial and governmental
damage here, but likewise, people who are attempting to
suppress thought throughout the world have their own means of
subverting this situation. This is an extraordinarily
interesting subject that I think will have legs for further
discussion.
Let me ask, would the U.S. accession to the Convention
create any new obligations on U.S. Internet service providers
to collect and maintain data?
Mr. Swartz. Mr. Chairman, it will not. The schema set
forward by the Cybercrime Convention is not one of data
retention. There are no requirements for data retention, but
rather data preservation. That is, in connection with a
specific case, if an Internet service provider already, for
other reasons, is collecting that data, that data can be
preserved in connection with the investigation and prosecution,
but it does not impose obligations to retain data.
The Chairman. What safeguards does the Convention provide
for the civil rights and privacy interests of individuals?
Mr. Swartz. Mr. Chairman, I think it provides both
structural and specific protections in that safeguard. First,
with regard to its overall structure, it is clearly a
Convention that relates to investigation of specific crimes. It
is not a broad-based Convention that deals with things beyond
criminal activity. Beyond that, specific provisions of the
Convention make clear that the activities have to be done
without right, that is, illegitimately. They have to be done
intentionally or willfully to meet the mens rea requirement.
And then beyond that, further protection is provided by article
15, which speaks of human rights having to be protected by the
parties to the Convention.
The Chairman. Mr. Witten.
Mr. Witten. Mr. Chairman, just to add a footnote to Mr.
Swartz's comment. Where legal assistance is provided pursuant
to the legal assistance articles, primarily article 27, which
would apply in cases where there's no other treaty arrangement
in place, there is a specific right that all parties have to
deny assistance in cases where they deem it in their essential
interests, which could include areas where we would view it
inappropriate to provide assistance to another treaty partner.
This is a provision that's analogous to the provision that
appears in our bilateral MLAT provisions and in other
multilateral instruments. Thank you, Mr. Chairman.
The Chairman. Finally, would the substantive crimes created
under the Convention affect the ability of U.S. Government
officials to take actions in relation to computer systems
necessary to investigate crimes or to protect national
security?
Mr. Swartz. Mr. Chairman, there is nothing in the
Convention we believe that would stop the United States from
taking the actions necessary to protect its security. In fact,
we believe this will greatly advance our security by ensuring
that other countries put in place the same types of offenses,
the same types of mechanisms that we have under our laws.
The Chairman. Very well. Let's consider now the U.N.
Convention on Transnational Organized Crime and Protocols on
Trafficking in Persons and Smuggling of Migrants. The United
Nations Convention Against Transnational Organized Crime and
two Protocols, the Protocol to Prevent, Suppress, and Punish
Trafficking in Persons, Especially Women and Children, and the
Protocol Against Smuggling of Migrants by Land, Sea or Air are
the first multilateral treaties to address the phenomenon of
transnational organized crime.
The Convention and Protocol would be effective tools to
assist in the global effort to combat transnational organized
crime in many forms. The instruments require states parties to
criminalize certain conduct, such as participation in an
organized criminal group, money laundering, bribery of public
officials, obstruction of justice, trafficking and smuggling of
persons. The Convention and Protocols strive to improve
cooperation among the states parties on extradition and mutual
legal assistance in relation to these crimes.
The trafficking protocol aims to prevent and combat
trafficking in persons, particularly women and children, to
protect and assist the victims of such trafficking, and to
promote cooperation among states parties in meeting these
objectives. And similarly, the smuggling protocol requires
nations to criminalize the smuggling of migrants. In addition,
the states parties are required to criminalize behavior such as
providing false documents that enable migrants to remain
illegally in a country. The agreements would thus enhance the
United States' ability to render and receive assistance on a
global basis in the common struggle to prevent, investigate,
and prosecute transnational organized crime.
Now, my questions. The first conference of the parties to
the Convention Against Transnational Organized Crime and
Protocols on Trafficking in Persons and Smuggling of Migrants
will take place in less than 2 weeks to establish, among other
things, the procedural mechanism for the Convention and the
Protocols. What do you expect to come from this initial
meeting? And do we anticipate the parties heading in a certain
direction? And then, when is it likely that the next conference
will take place?
Mr. Witten. Thank you, Mr. Chairman. The conference of the
parties will be largely organizational, adopting rules of
procedure, setting the framework. It will be the first of
several. It's hard to say exactly what all the outcomes will
be, but----
The Chairman. Who do we anticipate will be at this
conference?
Mr. Witten. We anticipate that those countries that have
already become a party will attend, because as I mentioned in
my prepared testimony, this Convention and the two Protocols
are already in force. We anticipate that there will be other
countries that have signed, such as the United States.
Obviously we won't be a party unfortunately in time to
participate fully, but the countries that have already become a
party will be in a slightly stronger position than we are to
the extent they will be participating as parties. However, the
United States has been at the center of this exercise for
years, and we anticipate that although we will not be
participating as parties, we will play a major role as
observers and active participants.
Mr. Swartz. Mr. Chairman, if I may add to that as well, as
signatories, it's our understanding we'll be able to
participate in the discussions at the convention of parties,
and since decisionmaking is largely by consensus, we expect
that our views will be heard. As Mr. Witten points out, we have
played a major role in this and believe that we will continue
to play such a role.
The Chairman. We're a signatory and therefore we have a
place at the table. To be a party, that would require the
ratification procedure be completed presumably.
Mr. Swartz. Yes. As a non-party, we cannot vote on matters,
but insofar as consensus and discussion is involved, we can
participate as we understand it.
The Chairman. Well, thinking through the housekeeping in
our own situation, on what date does the conference commence?
Mr. Swartz. I've been informed it's a week from Monday.
The Chairman. A week from Monday. I'm trying to think
through the procedures. After we complete our work today, we
will have to rely upon the committee to have the proper
business meeting to take action as a committee, and then, of
course, the leadership of the Senate will determine the
priority of items that we will discuss on the floor.
But taking the very best of circumstances--that the
committee acts, and that the Senate acts as a whole, by, say, a
week from tomorrow, a week from Friday--presumably we could
then be a party at that conference. Is that correct?
Mr. Witten. Mr. Chairman, any forward movement is helpful
even if we're not a party by the time the conference----
The Chairman. Even this hearing today, I suspect.
Mr. Witten. Even this hearing today. I suspect that the
U.S. delegation will mention the fact that the committee has
taken this Convention up. I understand from my colleague, Liz
Verville, who chaired the delegation for much of the
negotiation, that--and I'll confirm this--but I understand that
even after we deposit our instrument, there's a 30-day clock
before we're formally a party.
The Chairman. I see.
Mr. Witten. That being so, that's why in my comment a
moment ago I indicated that we would not be a party. However,
as I mentioned, the forward movement of having the hearing and
your positive comments will be very helpful with respect to our
position in Vienna.
The Chairman. Well, you may be able to take the record and
even the tape of the proceedings to the meeting for the
edification of other delegates.
Article 18 of the Convention contains a ``mini,'' mutual
legal assistance treaty, and requires states parties to assist
each other in investigating and prosecuting the offenses
covered by the Convention. How will this provision improve our
ability to fight transnational organized crime? The United
States currently has over 45 bilateral mutual legal assistance
treaties. How will the Convention affect these existing
agreements?
Mr. Swartz. Mr. Chairman, I will begin and Mr. Witten will
also add on to this. The provision of the article will not
affect our bilateral mutual legal assistance agreements. Where
we have such treaties, we will proceed under those treaties. It
does provide, however, a very valuable assistance to us with
regard to countries where we do not have mutual legal
assistance arrangements, and sets out, as you say, a mini-MLAT
that will govern and facilitate expedited assistance with
regard to these very important crimes. And I think Mr. Witten
has some examples of countries where that would be the case.
Mr. Witten. Thank you, Mr. Swartz. Yes, we actually have
gone through the list of countries that have already become
party to this to identify new legal assistance treaty
relations, and there is a substantial list, and I will mention
a number of countries that once we become a party will have
article 18 MLAT relations. Costa Rica, Denmark, El Salvador,
Finland, Honduras are all examples of countries that at this
point we don't have a bilateral mutual legal assistance treaty,
but by virtue of article 18 and the treaty relationship under
the framework of this multilateral Convention we will have
bilateral legal assistance treaty relations.
The Chairman. The Convention defines, ``organized criminal
group,'' as a, ``structured group, of three or more persons
existing for a period of time and acting in concert with the
aim of committing one or more serious crimes or offenses
established in accordance with the Convention in order to
obtain directly or indirectly a financial or other material
benefit.'' Explain how this definition might encompass a
terrorist group and assist with our war on terrorism.
Mr. Swartz. Mr. Chairman, most directly this definition
would encompass a terrorist group if it acted in part for
financial or other material benefit. Beyond that, given the
interrelationships we increasingly see between terrorist groups
and organized crime groups and the problem that organized crime
groups present, particularly in the failed state context, we
see this as a chance to address what might be potential
terrorists or terrorist facilitators in an early stage when
they're acting in an organized crime capacity.
But again, it allows us to directly move against terrorist
groups insofar as they fit within this definition, and many
will, and allows us to deal with organized crime groups before
they can become terrorists.
The Chairman. So the early stage idea, I suppose, comes
back to three or more persons. That's not many. Three get
together for a period of time and then act in concert with the
aim of committing one or more serious crimes and so forth. So
this, as you say, is getting to the roots of the situation at
an early point.
What mechanisms will be in place to monitor the domestic
laws of states parties to guarantee their compliance with the
Convention and Protocols? What are the penalties if a state
party fails to adopt laws criminalizing the offenses covered by
the agreements, or to take other measures required under the
agreements?
Mr. Swartz. Mr. Chairman, I can begin generally to say that
the conference of parties we expect to be the initial body that
will oversee implementation and review the conduct of parties
under the Convention. Mr. Witten may add to that.
Mr. Witten. Thank you. Yes, I think that's right. Part of
the role of the conference of the parties--not all multilateral
law enforcement conventions have such ongoing entities as a
conference of the parties that meets even biennially. The goal
here of the conference of the parties is that so many countries
are ratifying that don't have domestic laws that are good
matches with the crimes established in articles 5, 6, 8, and
33, and also the two protocols, that there will be model laws
made available through the conference, there will be technical
assistance that can be requested and offered.
And this body, this ongoing contact--it's a living
instrument, and we have high hopes that this can be a tool
whereby a lot of countries, including developing countries that
don't have very developed systems of criminal law, can use it
as a tool, and the United States through the conference of the
parties and upon request and other contacts that we have will
encourage that.
The Chairman. So a layperson listening to this would
anticipate that the conference will meet periodically, that
delegates will come, including delegates from the United States
to the conference, and that in preparation perhaps for
participation in the conference, we and others would have
monitored the laws or lack of laws in the participating
countries. In other words, systematically, if there were 50
participants, we go down ad seriatim as to how each of these
countries is doing. Have they adopted the right laws, or have
they denied their responsibilities? If each of the participants
in the conference has done his or her homework, why we identify
periodically in a systematic way who is doing what.
Mr. Swartz. Yes, Mr. Chairman. The conference of parties is
called upon to conduct that kind of assessment. And in
addition, in the interim periods, the Convention will serve as
a framework both for our technical assistance efforts, and we
expect for the U.N.'s technical assistance efforts. It will
allow a chance to say to developing countries in particular, as
Mr. Witten has suggested, these are the kind of provisions that
you need to work with to establish to deal with organized
criminal activity.
The Chairman. Now, I have some questions on the Trafficking
and Smuggling Protocol. Articles 6 and 7 of the Trafficking
Protocol focus on the rights of trafficking victims. However,
most of the language is not mandatory and simply requires
states parties to consider taking measures to provide for the
physical and psychological needs of victims, and to permit
victims to remain in their countries. How effective will these
discretionary provisions be in protecting the rights of
trafficking victims?
Mr. Witten. Thank you, Mr. Chairman. These provisions were
the consensus provisions among the negotiators as to what sorts
of protections would be appropriate. I think that in a
Convention of this character there's always a distinction
between obligations and the Convention performing a framework
for facilitating the implementation of particular issues.
For something like these provisions on protection, in terms
of how it would be followed up, I think obviously a part of the
conference of the parties and the ongoing contact with respect
to trafficking, this would be a part of the dialog. But just as
we were talking earlier about the other international
instruments, for the United States, for example, provisions
along the lines of article 6 and article 7 are a part of a
bigger picture. We have our annual trafficking in persons
exercise where we analyze the efforts that other countries are
making to address the problems of trafficking, protect those
victims, and so forth. We have bilateral contacts pursuant to
that and we anticipate that that, as long as this problem
exists, which unfortunately could be quite a long time, we
anticipate that this will be a major diplomatic effort on the
part of the United States and the part of other countries.
Thank you.
The Chairman. Article 18 of the Smuggling Protocol provides
that states parties have an obligation to facilitate and accept
without unreasonable delay the return of a person who is
smuggled, and article 16 imposes additional requirements on
states to preserve and protect the rights of such individuals.
Do these requirements have any implications upon U.S. detention
policy for migrants, such as when, for example, a migrant is
detained as a material witness to testify against smugglers?
Mr. Swartz. Mr. Chairman, we do not believe that it would
affect the United States' ability to detain an individual, as
you say, for a witness in those circumstances, or otherwise
have a negative effect on the United States' ability to deal
with individuals. It is an important advance, we believe, that
does call upon other countries to accept the repatriation of
these individuals and not one that will have consequences that
will be damaging to the United States.
The Chairman. Let me ask now questions about the Protocol
of Amendment to the Convention on Harmonization and
Simplification of Customs Procedures. This Protocol is designed
to update and modernize the existing international Convention
on the Simplification and Modernization of Customs Procedures
by incorporating the developments in trade and customs
processing that have occurred in the 30 years since the
original Convention was concluded.
The Convention calls for parties to continuously modernize
their customs procedures; to apply their customs procedures
predictably, consistently, and transparently; to make available
information on their customs laws, regulations, guidelines, and
practices; to adopt modern techniques, such as risk management,
audit-based controls, and the maximum use of information
technology to cooperate with the customs authorities of other
countries; to implement relevant international standards; and
to provide a transparent system of administrative and judicial
review of customs decisions.
The Protocol also contains a series of detailed changes to
existing customs rules and practices, which parties undertake
to implement. United States customs laws and procedures
currently comply with most of the Protocol's provisions. The
administration has proposed taking reservations to these
provisions that are not consistent with existing law. Such
reservations would obviate the need for any implementing
legislation for the Protocol.
Now, my questions. What economic benefit does the
administration expect this Protocol will have for the United
States economy?
Mr. Schmitz.
Mr. Schmitz. Mr. Chairman, our partners in the
international trade community have for the last 20 years raised
their concerns about the cost of customs, clearing customs in
other countries. In the developed world, European Union, Japan,
procedures are fairly efficient. But of the 162 members of the
World Customs Organization, you would probably only classify 40
of those as developed. And as customs revenue is often the
single biggest source of government finance, the customs can
end up as a bottleneck, customs procedures can end up as a
bottleneck, because it is the one point where you can do
taxation. Along with taxation often comes corruption.
But it is sometimes the delays in getting the goods into
the country, the customs delays can be for days. We're not
talking hours, we're talking days. And that is the economic
benefit that we see to countries having to adopt a standard, a
uniform standard.
And the other part of this is that the individual companies
do not have to learn 140 separate sets of customs procedures to
deal with any country that they wish to trade with.
The Chairman. Well, how many countries are likely to accede
to this new Convention?
Mr. Schmitz. The number that will accede, the European
Union has just deposited their instrument, which is going to
mean that then the individual members, so that will probably
very quickly push it over 40. Like our colleagues here, we are
going to Brussels next week for the annual council meeting of
the World Customs Organization. They too will be interested in
what has occurred here today because the mere fact that we have
had this hearing is very useful in getting other countries to
come forward, because if the United States, Japan, and the
European Union adopt a process, the market forces push others
to do it.
The least developed countries are the slowest to come
along, but those that are moving forward come forward more
quickly, and when they move and they see the increase in their
revenues and the increase in their own trade, it begins to sell
itself.
The Chairman. I'm just curious as a matter of technical
expertise. There are many countries, and you've broadly
categorized them as less developed. Would they have the
mechanical tools to be able to expedite the process? You've
described scenes of days of waiting for goods and materials. If
technical expertise is required, who might under all these
procedures or organizations provide that, so that, in terms of
worldwide trade, there will be more simplification and a
broader unity of outlook on this?
Mr. Schmitz. Mr. Chairman, in my experience, the funding
agencies that generally come forward to help--because you are
absolutely correct, there are countries you say, well, can they
even afford this technology that will make this possible? In
conferences that I have attended in Africa, the World Bank, the
Asian Development Bank, here in the Americas the American
Development Bank, some U.N. organizations have funding for
this. Then you have individual countries. The Japanese are very
large in capacity building in the developing world,
particularly Asia, of course. Within Africa, the South Africans
have taken a leadership role.
But it is a matter of funding that these countries do not
have and they do look to the international organizations to
fund it. There are some places in Africa that have actually
fairly surprisingly modern data management systems, and the
Africans are in certain groupings, certain regional groupings,
are also trying to work out a standardized process where they
could pool their resources to get the technology that they
need, because the number of ports of entry that they have is
small.
But it is an ongoing problem. The World Customs
Organization does seek out donors to help countries afford and
learn how to use this technology.
The Chairman. Well, this is encouraging news. Our committee
is very supportive of AGOA, the African Growth and Opportunity
Act, and it is currently promoting legislation that may keep
that agreement vital and alive. But my curiosity arises. On the
one hand, we are attempting to help other states come into
enterprise, as opposed to aid, and at the same time, that
denotes customs and goods and services going across borders,
and maybe a greater complexity of affairs. So, while the one
hand is trying to help one process, we want to make certain
that the other hand complements that, so that this is a
holistic view of things.
Let me ask, what impact will the Protocol have on our
homeland security interests? I mentioned that in the opening
statement, and so have you in your testimony. Since the revised
Convention was adopted in 1999, border security needs have
become a paramount concern of our country and of others. How do
the trade facilitation goals of the revised Convention interact
with U.S. border security requirements? And are these goals and
requirements complementary, or do they hinder each other? To
what extent can effective trade facilitation and border
security be achieved simultaneously under the Convention?
Mr. Schmitz.
Mr. Schmitz. Mr. Chairman, our experience here in the
United States is that appropriate border security can actually
increase trade facilitation because we attempt to risk manage
the threat. And what we did here in the United States, and
certainly this Convention will permit this same kind of
activity throughout the world, but we took our 200-year-old
authority on vessel manifests immediately after the 9/11 attack
and we had always had the right to receive this information. A
vessel manifest, you have to present it to customs before you
could unload your merchandise. We took that and pushed it,
you're going to have to give us this manifest information 24
hours before you lade it overseas.
We then worked with our international business trade
partners here in the United States to make that apply, not
necessarily 24 hours, but different rules for advanced
information to rail, air, and surface traffic. What we see in
this Convention is the push to get this pre-arrival
information. If you have pre-arrival information, you have the
time to risk manage that.
We just concluded a meeting with the European Union here,
who are looking at our container security initiative, and we've
signed a separate agreement with the European Union, and they
came over to visit to take a look at our National Targeting
Center and how we process this information 24/7. And what it
gives us is a chance with this information to screen everything
that is coming. I'm not saying searching. We screen at least
the documents saying what is coming into this country.
Based on criteria that are in the screening systems,
certain things are identified. We do then further work on
those. If we are not satisfied, we then target our effort, our
search effort, on those limited number of shipments, and then
let the regular importer, Chrysler, GM, the people that we
know, we focus on those that we don't. We do have CBP
inspectors currently stationed in 18 ports overseas. This is a
reciprocal agreement. The Japanese and the Canadians have
people in our ports here in the United States, and what we ask
our foreign counterparts to do is, if we have identified a
particular shipment and we think that that particular shipment
should be looked at, we do it first on a non-intrusive,
essentially an x-ray, and if that isn't satisfactory, then what
we ask our foreign counterparts is to search the container
there. They make the same requests of us.
As this pre-arrival information spreads throughout the
world, I think more and more countries are going to say,
listen, we can facilitate our trade. If we only have to focus
on x number of containers that are coming in rather than this
wave that comes at us, we can all be more efficient. But the
United States and the European Union are going to be the
leaders in this also, and it is our responsibility to bring
along the developing countries to the same type of standard.
The Chairman. Let me ask one question about modifications
to current practice and fiscal impact. How will this change,
this Convention, our customs operations and infrastructure?
What fiscal impact will it have on United States customs? Or
describe new problems, fiscal or otherwise?
Mr. Schmitz. I'm happy to report that there would be no
financial impact and no impact on our current procedures.
The Chairman. That is the best of news. Well, I very much
appreciate the detailed responses of our witnesses. Obviously,
you have been negotiating in these areas for a long time, are
well prepared to respond to these questions. I have wished to
ask them, and to have your responses, for the sake of as
complete a record as possible. These treaties and protocols are
important. We thank you for coming in a timely way to our
conference this morning to this meeting.
We will likewise try to take action in a timely way on our
part, and encourage our colleagues to become familiar with the
issues and the questions and answers that we have had this
morning. Having said that, our hearing is adjourned.
[Whereupon, at 10:56 a.m., the committee adjourned, to
reconvene subject to the call of the Chair.]
----------
Additional Statements Submitted for the Record
Prepared Statement of Senator George Allen
Thank you Mr. Chairman for holding today's hearing on these four
law enforcement treaties.
I would like to take a moment to say a few words about Treaty
Document 108-11, the Council of Europe Convention on Cybercrime. The
Internet is a powerful tool that expands people's educational,
economic, and communicative opportunities across the globe. However, as
the Internet has grown, so too has cybercrime; the tools to conduct
these crimes are widely available throughout the world. The nature of
increasing cyber attacks requires effective computer security
practices, and better law enforcement deterrence to thwart these
attacks.
I recently had the pleasure of meeting with chief executive
officers of companies that are important players in Internet security
and who are members of the Business Software Alliance. These innovators
gave me several reasons why it is important for the Senate to move
promptly to ratify this Convention. I would like to share the
conclusions on cybersecurity of these executives with the committee.
First, the tools to conduct cyber crime are widely available
around the world to any person or group, regardless of their
motivation or location. Internet attacks are easy, low risk,
and hard to trace. And because the methods of attack are so
similar regardless of the attacker, the methods of defending
against cyber attacks are similar as well. Good computer
security practices, improved corporate governance, and better
law enforcement deterrence are essential in deterring these
types of attackers.
Second, cyber criminals are not constrained by national
boundaries. In fact, perpetrators are likely to route attacks
through several countries to decrease the probability of being
caught. That is why our cybersecurity depends on the security
practices of every country, every business, and every citizen
to which we are connected. It is also why we depend on
effective international law enforcement cooperation on a very
wide scale, if we are to find and capture perpetrators. As with
terrorism, there must be no safe havens.
Third, because most of the information infrastructures that
we rely upon, even for many government functions, are in the
private sector, security cannot be achieved by governments
alone. We need a broad partnership between government and
private industry in all of our countries.
Finally, as the number of intruders capable of executing
attacks climbs, we must simultaneously increase our commitment
to combating them.
The Council of Europe Convention on Cybercrime will play an
important role in helping us to become a more secure and productive
nation, because it criminalizes acts such as hacking and the
production, sale, or distribution of hacking tools. It is important to
note that while the treaty helps with successful investigation and
prosecution of cybercriminals, it does not require changes in
technology or business practices. Furthermore, it helps raise awareness
throughout the world that computer viruses, worms, and other attacks
are not clever acts of mischief, but instead serious crimes with
serious penalties.
Cybercrime is a real threat and it is growing by the day. According
to the latest CSI/FBI survey, 56% of respondents reported unauthorized
access to their computer systems in the last 12 months alone. In
addition, data theft has grown more than 650% in the past three years.
Increased cybercriminal activity is also financially costly, as the
average reported loss from unauthorized intrusions was $2.7 million per
incident.
As we can see, the threat of cyber crime is evident and requires
prompt action. I urge the Senate to move swiftly to address these
problems that threaten the well-being of our nation by ratifying the
Council of Europe Convention on Cybercrime.
______
AeA,
601 Pennsylvania Ave., N.W.,
North Building, Suite 600,
Washington, DC, July 8, 2004.
The Honorable Richard G. Lugar,
Senate Foreign Relations Committee,
450 Dirksen Senate Office Building,
Washington, DC 20515
The Honorable Joseph R. Biden, Jr.,
Senate Foreign Relations Committee,
450 Dirksen Senate Office Building,
Washington, DC 20515
Dear Senators:
On behalf of AeA, I would like to thank you for your work in moving
the International Convention on the Simplification and Harmonization of
Customs Procedures, otherwise known as the Revised Kyoto Convention,
closer to Senate consideration. As was indicated in the June 17th
Senate Foreign Relations Committee hearing, this is a noncontroversial
issue that serves to improve customs procedures as well as benefit
national security.
AeA has been a strong advocate of the Revised Kyoto Convention
given the many benefits that ratification of this convention will bring
to the U.S. high tech industry and to national security. We urge the
Senate to take up and approve the Revised Kyoto Convention.
AeA is the nation's largest high-tech trade association,
representing more than 3,000 U.S.-based technology companies.
Membership spans the industry product and service spectrum, from
semiconductors and software to computers, Internet, and
telecommunications systems and services. With 18 regional U.S. offices
and offices in Brussels and Beijing, AeA brings a broad industry and
grassroots perspective to the public policy arena.
Sincerely,
William T. Archey,
President and CEO.
______
Electronic Privacy Information Center
1718 Connecticut Ave. NW, Suite 200
Washington, DC, June 17, 2004
Chairman Richard G. Lugar
Ranking Member Joseph R. Biden, Jr.
Senate Committee on Foreign Relations
United States Senate
Washington, DC 20510
Dear Chairman Lugar and Senator Biden,
We are writing on behalf of the Electronic Privacy Information
Center (EPIC) to urge opposition of ratification of Treaty 108-11, the
Council of Europe's Convention on Cybercrime (``the Cybercrime
Convention''). EPIC is a leading civil liberties organization that has
reported on developments in privacy and human rights around the world
for several years.\1\ We believe for the reasons stated below that it
would be a mistake for the United States to support adoption of this
treaty. We ask that this statement be included in the June 17, 2004
hearing record of the Senate Committee.
---------------------------------------------------------------------------
\1\ See, e.g., Privacy and Human Rights: An International Survey of
Privacy Laws and Developments (EPIC 2003) (A 545 page report on recent
developments in over fifty-five countries around the world), available
online at http://www.privacyinternational.org/survey/phr2003/. See also
EPIC, Cybercrime Convention, available online at http://www.epic.org/
privacy/intl/ccc/html.
---------------------------------------------------------------------------
the convention threatens core united states civil liberties interests
The Convention Lacks Adequate Safeguards For Privacy
We object to the ratification of the Cybercrime Convention because
it threatens core legal protections, in the United States Constitution,
for persons in the United States. The treaty would create invasive
investigative techniques while failing to provide meaningful privacy
and civil liberties safeguards, and specifically lacking judicial
review and probable cause determinations required under the Fourth
Amendment. A significant number of provisions grant sweeping
investigative powers of computer search and seizure and government
surveillance of voice, e-mail, and data communications in the interests
of law enforcement agencies, but are not counterbalanced by
accompanying protections of individual rights or limit on governments'
use of these powers.
Individual Privacy Is Fundamental to Good Security Practices
The Cybercrime Convention sets out a strong commitment to security
measures, while failing to acknowledge the commonly held position that
the protection of individual privacy is in fact fundamental to good
security practices,\2\ and the fact that many of the Convention's
provisions, when put into practice, may actually detract from
security.\3\ For example, Article 14 (Search and Seizure of Stored
Computer Data) requires countries to enact legislation compelling
individuals to disclose their decryption keys in order to allow for law
enforcement access to computer data.\4\ Besides the contradiction
between this requirement and the prevalent right against self-
incrimination, which would otherwise be safeguarded under the United
States Constitution, the disclosure of these keys can drastically
reduce the security of a wide range of computer systems.\5\
---------------------------------------------------------------------------
\2\ Banisar & Gus Hosein, A Draft Commentary on the Council of
Europe Cybercrime Convention, Oct. 2002, available online at .
\3\ Id.
\4\ Council of Europe: Convention on Cybercrime, Nov. 23, 2001, 41
I.L.M 282, Art. 14. Article 14, para. 4 provides, inter alia, that
participating countries shall enact legislation that would empower law
enforcement authorities ``to order for the purposes of criminal
investigations or proceedings any person who has knowledge about the
functioning of the computer system or measures applied to protect the
computer data therein to provide all necessary information, as is
reasonable, to enable the undertaking'' of the seizure of such data.
\5\ Banisar, supra note 1, at 32.
---------------------------------------------------------------------------
Vague and Weak Privacy Protections
In response to objections from privacy and human rights groups, the
working group added Article 15 (Conditions and Safeguards), which
provides, inter alia, that each party must ensure that ``the
establishment, implementation, and application of the powers and
procedures provided for in this Section [Procedural Law] are subject to
conditions and safeguards provided for under its domestic law, which
shall provide for the adequate protection of human rights and
liberties.'' \6\ This provision is quite vague, and is not reiterated
with specific and detailed protections within any of the specific
provisions. For example, provisions on expedited preservation of stored
computer data \7\ and expedited preservation and partial disclosure of
traffic data \8\ make no mention of limitations on the use of these
techniques with an eye to protection of privacy and human rights.
Furthermore, the vagueness of this provision (and others) introduces
the risk of enhancement of the flaws and benefits of the Cybercrime
Convention overall, as the Convention is transposed into the laws of
ratifying countries which may have drastically different pre-existing
privacy and human rights protections.\9\
---------------------------------------------------------------------------
\6\ Convention on Cybercrime, supra note 3, at Art. 15.
\7\ Id. at Art. 16.
\8\ Id. at Art. 17.
\9\ Giovanni Buttarelli, Remarks in Washington, D.C., Promoting
Freedom and Democracy: A European Perspective, May 21, 2004, available
online at http://www.epic.org/privacy/intl/buttarelli-052104.html.
---------------------------------------------------------------------------
Insufficient Recognition of International Human Rights Obligations
References to the protection of human rights, including the right
to privacy, are brief at best, especially when compared with myriad
espousals of the importance of serving the interests of law enforcement
agencies.\10\ Examination of the Preamble is extremely illuminating on
this point, with eight clauses related to the interests of law
enforcement, crime-prevention, and national security, and only two
oriented toward protection of privacy and human rights.\11\
---------------------------------------------------------------------------
\10\ Convention on Cybercrime, supra note 3, at Preamble.
\11\ Id.
---------------------------------------------------------------------------
Coupled with the lack of consideration of, and compliance with,
important international conventions on human rights, it becomes clear
that the Cybercrime Convention is much more like a law enforcement
``wish list'' than an international instrument truly respectful of
human rights. The Cybercrime Convention fails to respect fundamental
tenets of human rights espoused in previous international Conventions,
such as the 1948 Universal Declaration of Human Rights \12\ and the
1950 Convention for the Protection of Human Rights and Fundamental
Freedoms.\13\ The Cybercrime Convention also ignores a multitude of
treaties relating to privacy and data protection, including the Council
of Europe's 1981 Convention for the Protection of Individuals with
regard to the Automatic Processing of Personal Data,\14\ and the
European Union's 1995 Data Protection Directive.\15\
---------------------------------------------------------------------------
\12\ Available online at ,
reprinted in Marc Rotenberg, Ed., Privacy Law Sourcebook: United States
Law, International Law and Recent Developments 316-21 (EPIC 2003).
\13\ Available at .
\14\ Convention for the Protection of Individuals with regard to
the Automatic Processing of Personal Data, available online at .
\15\ Directive 95/46/EC of the European Parliament and of the
Council of 24 October 1995, available at http://europa.eu.int/comm./
internal_market/en/media/dataprot/law/index.html.
---------------------------------------------------------------------------
The Cybercrime Convention Lacks a Dual-Criminality Requirement
Article 25 (General Principles Relating to Mutual Assistance)
introduces broad principles of mutual assistance across international
borders, but lacks a ``dual-criminality'' provision, under which an
activity must be considered a crime in both countries before one state
could demand cooperation from another. Thus, the treaty would require
U.S. law enforcement authorities to cooperate with a foreign police
force even when such an agency is investigating an activity that, while
constituting a crime in their territory, is perfectly legal in the U.S.
No government should be put in the position of undertaking an
investigation of a citizen who is acting lawfully, regardless of mutual
assistance provisions and the laws of other countries.\16\
---------------------------------------------------------------------------
\16\ See Greg Taylor, The Council of Europe Cybercrime Convention:
A Civil Liberties Perspective, Electronic Frontiers Australia,
available online at .
---------------------------------------------------------------------------
THE CYBERCRIME CONVENTION WAS DRAFTED IN A SECRETIVE AND UN-DEMOCRATIC
MANNER
The drafting of the treaty has been conducted in a very secretive
and undemocratic manner. The Council of Europe's Committee of Experts
on Crime in Cyberspace (``the Committee'') completed nineteen drafts of
the Convention before the document was released to the public.\17\
Between 1997 and 2000, no draft was released and no public input was
solicited.\18\ The Convention was drafted by persons and groups
primarily concerned with law enforcement, and reflects their concerns
almost exclusively, to the detriment of privacy and civil liberties
interests.\19\ Since the release of Draft 19, the Committee has made
little effort to acknowledge and incorporate concerns and suggestions
of privacy and human rights groups. The Council of Europe set up an e-
mail address only late in the negotiation process (after the release of
Draft 19), to which members of the public could submit comments.
However, few of these suggestions appear to have been translated into
substantive changes to the document.\20\
---------------------------------------------------------------------------
\17\ Id.
\18\ Banisar, supra note 1, at 5.
\19\ Id. at 2.
\20\ Id. at 5.
---------------------------------------------------------------------------
We also note that, as with the process of drafting the Cybercrime
Convention, there is markedly one-sided representation at today's
hearing, as all three witnesses are government officials. For
legislation that so touches on individual rights and freedoms, there
should be a broader range of voices heard on this topic.
most european countries have failed to ratify the cybercrime convention
Despite the ceremonial act of thirty-eight countries in signing the
Convention, only six countries have yet ratified the Cybercrime
Convention.\21\ As of June 16, 2004, only Albania, Croatia, Estonia,
Hungary, Lithuania, and Romania ratified the Cybercrime Convention. The
Cybercrime Convention remains very controversial in Europe, in
particular the provisions relating to the lack of protections for the
use, collection, and distribution of personal data. In Europe, personal
data protection has come to be considered a fundamental right, and
Europe's legislators are committed to safeguarding this right.\22\
Europeans are concerned that while the Cybercrime Convention aims to
achieve a noble end of fighting cyber-crime, the extensive surveillance
tools that are being shaped to achieve this end are threats to a
democratic society.\23\
---------------------------------------------------------------------------
\21\ Council of Europe, Convention on Cybercrime, Status as of 16/
6/2004, at .
\22\ Buttarelli, supra note 8.
\23\ Id.
---------------------------------------------------------------------------
In summary, the Cybercrime Convention threatens core legal rights
established by the United States Constitution. It constructs a sweeping
structure of vast and invasive law enforcement activity without a
corresponding means of oversight and accountability. It speaks in very
specific terms about the new authorities to pursue investigations but
in only generalities with regard to legal rights.
The Cybercrime Convention is the result of a process that excluded
legal experts and human rights advocates. It is a one-sided document
that fails to reflect the broad commitment to the rule of law and the
protection of democratic institutions that has otherwise characterized
the treaties proposed by the Council of Europe.
It is therefore not surprising that the vast majority of the
countries of the Council of Europe have thus far failed to ratify the
Cybercrime Convention. We urge the United States not to support this
deeply flawed proposal.
Sincerely yours,
Marc Rotenberg,
EPIC President.
Cedric Laurant,
EPIC Policy Counsel.
Tara Wheatland,
EPIC IPIOP Law Clerk.
______
Microsoft Corporation,
Law and Corporate Affairs,
1401 Eye Street NW, Suite 500,
Washington, DC, October 7, 2004.
The Honorable Richard G. Lugar,
The Honorable Joseph R. Biden, Jr.,
430 Dirksen Senate Office Building,
Washington, DC 20510.
Dear Chairman Lugar and Ranking Member Biden:
I want to thank each of you for your leadership in holding a
hearing on the Council of Europe Convention on Cybercrime, and also
express Microsoft's strong support for the treaty's ratification.
The information technology and Internet revolution have brought the
United States' and the global economy significant benefits. Continuing
innovation promises even greater benefits for all, but to extend this
growth, we must continue to enhance trust in and the trustworthiness of
the online environment.
At Microsoft, security is a top priority. Through our Trustworthy
Computing Initiative, we are making our technology more secure and
easier to maintain securely. Unfortunately, we will always face online
criminals who search for new ways to harm the public. Some of their
attacks may be mere nuisance, but others may pose real risks to global
security, public safety and economic development.
Many of the most serious of these crimes travel across
international borders, making them much more difficult for law
enforcers to investigate and prosecute. Therefore, Microsoft urges the
Senate to ratify the Council of Europe Convention on Cybercrime, which
was transmitted to the Senate on November 23, 2003. It reduces critical
obstacles that restrict international investigations and prosecutions
of online crime by requiring countries to establish appropriate
criminal offenses and legal tools, and by providing the means for
international cooperation and assistance. The Convention also contains
safeguards for civil liberties and, as I understand, does not require
any change to existing United States law.
The Convention is the first multilateral agreement drafted
specifically to address the problems posed by international online
crime, and its widespread adoption would improve security in the United
States and around the world. The United States has helped lead the
international fight against cyber crime, and I urge the Senate to
continue that leadership by rapidly reviewing and ratifying the
Convention.
Sincerely,
Scott Charney,
Chief Trustworthy Computing Strategist.
______
Revised Kyoto Convention on Customs Modernization Coalition
AeA--Air Courier Conference of America--American Association of
Exporters & Importers--Joint Industry Group--National Association of
Manufacturers--United States Business Alliance for Customs
Modernization--United States Council for International Business
June 25, 2004.
The Honorable Richard G. Lugar,
Senate Foreign Relations Committee,
450 Dirksen Senate Office Building,
Washington, DC.
Dear Mr. Chairman:
As chairman of the Revised Kyoto Convention on Customs
Modernization Coalition, I am writing to express the Coalition's
support for the Revised Kyoto Convention.
We were pleased with the June 17th hearing on this issue as the
Coalition has been working for the passage of the Revised Kyoto since
2000. The Convention will bring numerous benefits to U.S. business
involved in international trade such as:
reduction of inefficient customs procedures and policies
that impede access to markets and unnecessarily increase costs;
facilitation of product market introduction;
more efficient customs procedures overall;
standardization of customs implementation and administrative
procedures worldwide--across participating countries;
reduced cycle time due to more predictability in the customs
entry and release process, which also results in inventory
savings (inventory costs can run as high as $20 million per
day);
greater understanding of compliance requirements resulting
from increased transparency so that industry is better able to
meet ``time-to-market'' objectives;
implementation of special procedures for low-risk importers;
reduced opportunities for extortion of facilitation payments
as a result increased transparency and automation.
The attached documents provide more detail on the benefits of the
Revised Kyoto.
We appreciate all the work you have done on this issue and look
forward to Senate approval.
Sincerely,
William A. Maxwell,
Chairman.
Revised Kyoto Convention on Customs Modernization
BACKGROUND
In today's global trade environment, inefficient customs processes
and procedures pose significant and costly barriers to U.S. trade. U.S.
businesses need more consistency and predictability in the customs
environment in order to trade goods in a timely and cost-effective
manner. The Revised Kyoto Convention on Customs Modernization offers an
opportunity to achieve such consistency and predictability as it is an
international instrument designed to simplify and harmonize customs
procedures and policies worldwide.
The World Customs Organization (WCO) adopted the original Kyoto
Convention in 1974. Due to the changing nature of global trade through
the 1980s and 1990s, the WCO adopted a revised version of the
Convention in June 1999--i.e., the Revised Kyoto Convention on Customs
Modernization. For this Convention to come into effect, 40 of the 61
current subscribers to the 1974 Convention must ratify it. The United
States was one of the original subscribers.
Upon ratification, actions that were voluntary under the 1974
Convention would become obligatory. Customs authorities in acceding
countries would be committed to:
Making information on Customs requirements, laws, rules, and
regulations easily available to everyone;
Providing a transparent system of appeals with respect to
Customs rulings and decisions;
Maximizing the use of automated systems (i.e. improving data
collection, exchange and analysis, etc. through the use of
information technology systems);
Employing risk management techniques to focus on high-risk
shipments in order to use customs resources more effectively.
Using pre-arrival information to facilitate the rapid
clearance of shipments;
Specifying the terms of the relationship between Customs
authorities and ``agents'' (customs brokers, freight
forwarders, carriers and other such agents acting on behalf of
importers and exporters) to clearly define requirements such as
licensing;
Establishing formal consultative relationships between
Customs authorities and importers, exporters and their various
agents (commonly referred to collectively as ``the trade'') to
resolve matters and commonly work towards solutions;
Using electronic fund transfers to more accurately collect
tariffs and fees, reduce fraud and expedite shipments through
the customs clearance process; and
Interfacing with other government agencies responsible for
imports and exports to coordinate requirements for and
clearance of such transactions.
Benefits of Ratification of the Revised Kyoto Convention
ON CUSTOMS MODERNIZATION
Reduction of inefficient customs procedures and policies that
impede access to markets and unnecessarily increase costs
A WCO analysis demonstrates that inefficient global customs
procedures add 7% to the cost of information technology (IT) goods
traded globally. Unpredictable clearance delays often render perishable
or time-sensitive high tech shipments valueless; as a result companies
find themselves forfeiting the goods rather than pay inflated tariffs
or any attendant fines. Such experiences lead companies to abandon
promising export markets.
Facilitation of product market introduction
Many U.S. IT companies source components in multiple countries
where they undergo complex supply chain operations. U.S. IT companies
must get their products to market with speed, predictability and at the
lowest logistics costs to remain competitive. Harmonization and
simplification of customs procedures under the Revised Kyoto will
greatly reduce supply-chain problems and address the time sensitive
nature of products with short life cycles.
More efficient customs procedures overall
The Revised Kyoto Convention will reduce the number of steps that
slow Customs clearance and impede compliance such as: manual instead of
automated clearance procedures and processing of documentation; lack of
automated risk management tools to expedite clearance of lower-risk
shipments; and lack of transparency of customs procedures. Greater
efficiency will also enhance enforcement and security as well as
facilitation missions. Bringing foreign Customs agencies to the Revised
Kyoto standard of efficiency will mean more efficient allies in the
United States' campaign against terrorism, drugs and corruption.
Standardization of customs implementation and administrative
procedures worldwide--across participating countries
The Revised Kyoto calls on all participating countries to conform
to the same set of standards in order to promote the consistency,
predictability and efficiency that are necessary for global trade
today.
Reduced cycle time due to more predictability in the customs
entry and release process, which also results in inventory
savings (inventory costs can run as high as $20 million per
day)
When clearance times vary even within one country it is very costly
to the importer and exporter (e.g. customs clearance could take five
hours for shipments in one week and two days for the same shipments
during the next week). The more predictable the entry and clearance
processes, the more importers and exporters can accurately plan their
supply chain logistics and minimize inventory-carrying costs.
Greater understanding of compliance requirements resulting
from increased transparency so that industry is better able to
meet ``time-to-market'' objectives
Importers and exporters require information about legal
requirements and customs initiatives in order to be compliant and
follow the rules of trade. The Revised Kyoto promotes transparency--the
publication of regulations, rulings, decisions, and other customs
communications in a public manner either in a circular or on the
Internet. Such transparency leads to higher rates of compliance among
importers and exporters, and helps them meet time-to-market objectives.
It will also benefit small and medium sized exporters.
Implementation of special procedures for low-risk importers
The Revised Kyoto Convention includes requirements for the use of
risk management techniques, that is, profiling traders to identify
high-risk importers requiring examination and attention, and
designating low-risk importers in programs that will allow expedited
treatment for entry and clearance procedures. This type of system not
only allows the trader to move goods more expeditiously, but also
allows customs authorities to focus resources on the greatest areas of
risk and threat to the country's borders.
Reduced opportunities for extortion of facilitation payments
as a result increased transparency and automation
Requirements under the Revised Kyoto require customs
administrations to have much better visibility and tracking of duty
payments, refunds and other types of financial transactions. These
requirements build in a system of internal controls to reduce the
possibility of unauthorized diversion of funds and to support a more
accurate and ``audit-proof'' customs accounting system.
Revised Kyoto Convention on Customs Modernization
QUESTIONS AND ANSWERS
What is the Revised Kyoto Convention?
The Revised Kyoto Convention is an amendment to the Kyoto
Convention, formally known as the ``International Convention on the
Simplification and Harmonization of Customs Procedures''. It is an
international instrument maintained by the World Customs Organization
(WCO) offering countries a comprehensive, coherent solution for the
simplification and harmonization of their customs procedures.
What is the World Customs Organization?
Established in 1952 as the Customs Co-operation Council, the WCO is
an independent intergovernmental body whose mission is to enhance the
effectiveness and efficiency of customs administrations. With 161
Member Governments, it is the only intergovernmental worldwide
organization competent on customs matters.
What is the bottom line impact of adopting the Revised Kyoto
Convention?
The WCO estimates that archaic customs procedures and practices add
5 to 7% to the cost of items that flow in international trade.
Adherence to the Revised Kyoto would significantly reduce if not
eliminate this wasteful surcharge.
Does the Revised Kyoto help U.S. security?
The Revised Kyoto promotes the use of risk management procedures
and pre-arrival information for screening and other purposes, enabling
customs administrations to identify and target higher risk transactions
more effectively. Customs administrations also must commit to the
employment of automated systems, which are inherently more reliable and
secure.
Why was the original Kyoto Convention created?
One of the main aims of the WCO, since its inception, has been to
secure the highest degree of harmony and uniformity in the customs
systems of its member countries. Despite the volume and importance of
the work done in different fields, however, until now there was no
international instrument offering countries a comprehensive, coherent
solution for the simplification and harmonization of their customs
procedures.
When was the original Convention created and implemented?
The Kyoto Convention was established in Kyoto, Japan, on May 18,
1973 and entered into force on September 25, 1974.
When was the Revised Kyoto Convention created and implemented?
The Revised Kyoto was unanimously adopted in June 1999 by the 114
Customs administrations that attend the WCO's 94th Session.
How does the Revised Kyoto come into force?
There are 63 ``Contracting Parties'' to the original Kyoto
Convention. Forty of the Contracting Parties, must ratify the Revised
Kyoto in order for it to enter into force and replace the original
Kyoto Convention.
Three months after 40 Contracting Parties have acceded to the
Revised Kyoto, the remaining 23 Contracting Parties do not
automatically accede. They have two options:
1. deposit their instrument of ratification
2. accede
The non-original Contracting Parties will then be able to accede to
the Revised Kyoto as specified in Article 8 of the Revised Kyoto. Prior
to this, the non-original Contracting Parties can only accede to the
original Kyoto Convention.
How many of the 63 Contracting Parties have ratified the Revised Kyoto?
As of May 2004, 32 countries have ratified the Revised Kyoto. They
include: Algeria, Australia, Austria, Belgium, Bulgaria, China, Canada,
Czech Republic, Denmark, European Community, Finland, Germany, Greece,
Hungary, Ireland, Italy, Japan, Korea, Latvia, Lesotho, Lithuania,
Morocco, Netherlands, New Zealand, Slovakia, Slovenia, Spain, Sweden,
Uganda, United Kingdom, South Africa and Zimbabwe.
Who are the 63 original Contracting Parties?
The 63 original Contracting Parities include: Algeria, Australia,
Austria, Belgium, Botswana, Bulgaria, Burundi, Cameroon, Canada, China,
Congo (Democratic Republic of), Cote d'Ivoire, Croatia, Cuba, Cyprus,
Czech Republic, Denmark, European Community, Finland, France, Gambia,
Germany, Greece, Hungary, India, Ireland, Israel, Italy, Japan, Kenya,
Korea (Republic of), Latvia, Lesotho, Lithuania, Luxemburg, Malawi,
Malaysia, Morocco, Netherlands, New Zealand, Nigeria, Norway, Pakistan,
Poland, Portugal, Rwanda, Saudi Arabia, Senegal, Slovak Republic,
Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Turkey,
Uganda, United Kingdom, United States, Vietnam, Yugoslavia, Zambia, and
Zimbabwe.
How do countries implement the Revised Kyoto Convention?
Contacting Parties are obligated to bring the Standards,
Transitional Standards and Recommended Practices that they have
accepted into force nationally. Standards must be implemented within 36
months of ratification, while transitional standards have a 60-month
implementation period. Contracting Parties' national legislation must
include at least the basic rules from the General Annex, with detailed
regulations for their implementation. Such regulations are not
necessarily restricted to Customs legislation and may include official
notification, charters, or ministerial decrees or similar instruments.
National legislation should include the conditions under which the
Customs procedures will be accomplished. Customs administrations are
obliged to ensure that their regulations are transparent, predictable,
consistent and reliable.
Why was the original Kyoto Convention revised?
Since its implementation in 1974 the growth in international cargo,
developments in information technology and a highly competitive
international business environment have created conflict with
traditional customs methods and procedures. As a result, the WCO
revised and updated the Kyoto Convention to ensure that it meets the
current demands of international trade.
What revisions were made to the original Kyoto Convention?
The revision preserves many of the elements of the original Kyoto
Convention, together with new elements to meet current conditions, and
it is restructured to improve the harmonization of practices. The
primary revisions follow:
The core customs policies and procedures have been
reorganized so that they are now found in a General Annex.
Implementation of the standards set out in the General Annex is
mandatory for countries that accede. (In the original Kyoto
text countries could accede to provisions on an a la carte
basis.)
New core concepts such as the obligations to automate data
systems, to cooperate with trade, and to implement risk
management techniques have been incorporated.
A mechanism is provided to maintain and update the Kyoto
Convention (Management Committee to review and update the
Convention at regular intervals).
Detailed guidelines and best practices to assist countries
in understanding how to implement the Kyoto Convention are
provided in the Guidelines to the Convention.
Does U.S. implementation of the Revised Kyoto Convention require any
changes in U.S. law?
The United States has chosen to opt out of provisions that would
require changes in U.S. law. U.S. Customs officials have indicated that
changes might be considered sometime in the future for certain valid
reasons. For instance, if rules of origin were no longer relevant then
the United States would need to revise its laws to reflect this change.
Will implementation of the Revised Kyoto Convention allow customs
administrations to maintain controls while focusing on trade
facilitation?
The standards in the Revised Kyoto promote harmonized common
procedures that enable Customs to be more efficient in carrying out
enforcement and revenue functions, and are vital to improved trade
facilitation. Enforcement, compliance, and security functions are
inseparable from trade facilitation in modern customs procedures, which
are needed to address high volumes and rapid movement of goods.
Implementing the Revised Kyoto will therefore enable more countries to
have effective security and enforcement practices, while bringing
improvements in trade facilitation.
Does the Revised Kyoto Convention benefit all modes of transport?
The principles for efficient and simple clearance procedures in the
Revised Kyoto apply equally to all goods and all means of transport
that move goods into or out of a customs territory. The formalities for
all carriers on entering or leaving a customs territory are also
uniform.
Is the Revised Kyoto Convention adapted to the needs of developing
countries?
Encouraging national economic growth is one of the key objectives
for developing countries. Simplifying the procedures to move goods
across borders will reduce administrative barriers, thereby encouraging
more international trade and investment, which spur economic growth.
Simplified procedures also help small and medium-sized enterprises to
become involved in international trade. A number of developing
countries played an active role during the revision of the Revised
Kyoto. This has ensured that the revised provisions address their
particular concerns.
Does the Revised Kyoto Convention help governments to deal with the new
challenges of electronic commerce?
Recognizing the changes in today's business practices and the role
of electronic commerce, the Revised Kyoto requires customs
administrations to apply information technology to support customs
operations, wherever it is cost-effective and efficient for both
Customs and the trade. It provides administrations with detailed
guidelines on how to apply and implement information technology for the
clearance of goods, carriers and persons, thus assisting Customs
administrations to deal with the demands generated by electronic
commerce.
Is it realistic to anticipate that all WCO Members will accept the
Revised Kyoto Convention?
WCO member countries invested four years in updating and
modernizing this important instrument. By unanimously adopting the
Revised Convention in June 1999, the then 151 WCO members signaled
their approval of these new principles and rules for simplified and
harmonized customs procedures, and their willingness to work towards
full implementation.
Is it reasonable to expect Customs administrations to commit to
implementing all of the 600 Standards and Recommendations and
Practices contained in the Revised Kyoto?
The Body of the Convention (relating to the procedures for its
adoption and administration) and the General Annex are binding on
Contracting Parties and form the minimum requirement of the contract.
This is essential to ensure the harmonization of procedures in all
countries that become contracting parties. However, the Specific
Annexes of recommended practices, dealing with specialized topics such
as transit or free zones are optional. In addition, the General Annex
differentiates between standards and transitional standards; the latter
have longer implementation periods. It is clear that many countries
will require training and assistance to implement the Revised Kyoto.
Does acceding to the Revised Kyoto Convention gives a Customs
administration less autonomy?
The Revised Convention imposes obligations but provides flexibility
and different time limits for implementation. The General Annex is the
base, while the Specific Annexes can be added at the pace desired by a
Customs administration. There are features such as Transitional
Standards and Guidelines to aid governments to meet the obligations
undertaken, and a Management Committee to give all Contracting Parties
a voice in the further development and administration of the agreement.
Does the Revised Kyoto Convention apply to all geographic regions?
The core principles of the Revised Kyoto have been developed for
universal standardization and harmonization of customs procedures. They
apply in the territory of each Contracting Party that accedes to it
regardless of its geographical location.
Can a single General Annex really cover every aspect of trade
facilitation as well as targeted control procedures in order to
permit smoother legitimate trade?
Implementation of the General Annex would be a great step toward
simplified common customs procedures worldwide for the key elements
covered in the General Annex. Together with Specific Annexes the
Revised Kyoto provides a blueprint for worldwide procedures that would
address most facilitation issues. It would not address them all; for
example, there would still be issues regarding the amount and
uniformity of data requirements, which are being addressed in another
project, the WCO Customs Data Model (formerly the G-7 data initiative).
How will the Revised Kyoto Convention be enforced?
The Revised Kyoto does not have a formal enforcement mechanism.
However, signatories are expected to meet their obligations.
Contracting Parties should settle any disputes between them by
negotiation. Any disputes not settled by negotiation are referred to
the Management Committee, which was created under the Revised Kyoto.
The Committee, which is made up of representatives from the Contracting
Parties, would consider the dispute and make recommendation to settle
it. Contracting Parties may agree in advance that the recommendation of
the Management Committee will be binding.
----------
Responses to Additional Questions Submitted for the Record
Responses of Samuel M. Witten to Additional Questions for the Record
Submitted by Senator Richard G. Lugar
QUESTIONS ON THE CONVENTION ON CYBERCRIME (TREATY DOC. 108-11)
Question 1. The Secretary of State's September 11, 2003 letter of
submittal for the Convention indicates that the administration
considers some of the Convention's provisions to be self-executing.
Please indicate which articles or provisions of the Convention the
administration considers to be self-executing.
Answer. As noted in the transmittal letter, most of the provisions
of the Convention are not self-executing but rather require Parties to
enact legislation to implement them. For the United States, no new
implementing legislation is required, because existing U.S. Federal law
is sufficient to satisfy the Convention's requirements.
The administration considers the provisions of Articles 24-25 and
Articles 27-33 of the Convention to be self-executing. These
provisions--on extradition and mutual legal assistance--can be directly
invoked by the government. They do not create any private rights of
action. Nor do the mutual legal assistance provisions give individuals
or other private entities any right to obtain, suppress, or exclude
evidence, or to impede the execution of a request.
Question 2. Article 27(4)(b) of the Convention indicates that a
party to the Convention may refuse to provide mutual legal assistance
in response to a request made under the Convention if ``it considers
that the execution of the request is likely to prejudice its
sovereignty, security, ordre public or other essential interests.''
What does the administration understand the scope of this provision to
be? Would it, or would other provisions of the Convention, permit the
United States to decline to provide assistance to countries with
respect to whose judicial processes or due process standards the United
States has concerns? Would it, or would other provisions of the
Convention, permit the United States to decline to comply with a
request on the ground that the conduct being investigated by the
requesting state is Constitutionally protected in the United States?
Answer. This type of provision is common to the over 40 Mutual
Legal Assistance Treaties to which the United States has become a party
in recent decades. We view such provisions, which give the party
receiving a request the right to deny assistance in particular,
designated circumstances, as important to preserving our essential
interests and legal principles. The Department of Justice will
carefully review each request to determine the potential for abuse, and
will make a determination whether to deny or condition assistance. The
administration considers this provision to authorize the denial of
assistance where providing the assistance would impinge on United
States Constitutional protections, such as free speech, and intends to
deny assistance in such situations.
Question 3. What steps does the administration plan to take to
review incoming requests for mutual legal assistance under the
Convention to ensure their consistency with the Convention?
Answer. The Department of Justice, Criminal Division, Office of
International Affairs (OIA) will be responsible for scrutinizing
incoming mutual legal assistance requests arising under the Convention
to ensure compliance with applicable legal requirements. OIA has
executed thousands of requests under the many bilateral and
multilateral treaties providing for such law enforcement cooperation,
and has been careful not to provide assistance in inappropriate cases.
The Department of Justice, Criminal Division, Computer Crime and
Intellectual Property Section will undertake similar review of requests
for assistance that come in through the 24/7 network contemplated in
Article 35 of the Convention rather than as formal requests for mutual
legal assistance. The administration views this review process as
providing an important operational safeguard to ensure compliance with
the Convention's terms and the U.S. policies described in the answer to
the prior question.
Question 4. Article 15 of the Convention states that ``Each party
shall ensure that the establishment, implementation and application of
the powers and procedures provided for in this Section are subject to
conditions and safeguards provided for under its domestic law, which
shall provide for the adequate protection of human rights. . . .'' What
provisions of U.S. law regarding protection of human rights does the
administration understand to apply in connection with the Convention
pursuant to Article 15?
Answer. The U.S. Constitution and a number of provisions of U.S.
law establish conditions and safeguards that protect individual rights
with respect to the powers and procedures provided for in Section 2 of
the Convention. For example, U.S. implementation of these investigative
measures is fully subject to the Constitution; particularly relevant in
this context are the individual rights and limits on government action
established by the Fourth and Fifth Amendments. Similar protections can
be found in various Federal statutes, including the Federal Rules of
Criminal Procedure and Title 18 of the U.S. Code (in particular,
Chapters 119, 121, and 206 as amended by the Electronic Communications
Privacy Act), which require, among other things, judicial supervision
of requests for interception or disclosure of electronic communications
and other safeguards set out in Article 15 of the Convention and its
Explanatory Report.
Question 5. Under what circumstances will private parties in the
United States asked to provide information to respond to requests made
under the Convention be entitled under U.S. law to reimbursement for
costs they incur in complying with such requests?
Answer. We are aware that a number of Internet service providers
have sought confirmation that, should the United States become party to
the Convention, the United States will continue its current practice of
reimbursing them for costs they incur in the course of the execution of
foreign mutual legal assistance requests. The Convention has no effect
on U.S. law governing reimbursement of such costs, and it is not the
intention of the administration to change its reimbursement policy as a
result of the entry into force of this Convention.
Question 6. If all member countries of the Council of Europe, plus
the United States, Japan, and Canada become parties to the Convention,
what percentage of the world's computers would be within jurisdictions
that are parties to the Convention?
Answer. If all Council of Europe members plus the United States,
Japan, and Canada became parties to the Convention, computers in many
highly-networked countries would be covered. Those countries would
include the United Kingdom, France, Germany, Italy, the Netherlands,
Finland, Norway, and Sweden. Although the administration cannot
independently vouch for the accuracy of the following figures, 2002
statistics published by the International Telecommunication Union
suggest that approximately 70% of the world's computers would be
covered in that scenario. The relevant statistics are as follows:
Computers in Use (in 1000s)
United States--190,000
Canada--15,300
Japan--48,700
Europe--167,430
Total--421,430
Worldwide Total--588,775
See http://www.itu.int/ITU-D/ict/statistics/at--glance/
InternetO3.pdf
______
Responses of Samuel M. Witten to Additional Questions for the Record
Submitted by Senator Joseph R. Biden, Jr.
questions on the convention against terrorism (treaty doc. 107-18)
Question 1. To date, only 8 of the 33 signatories have become
parties to the Convention. Why is ratification proceeding so slowly?
Answer. Although the United States already has the necessary legal
authorities and regulatory structures in place to fully implement the
Convention, some of the other signatories to the Convention will
require legislation or make other domestic arrangements in order to be
in a position to implement the Convention. This can be expected to take
time, as action by a number of different governmental ministries may be
required before these countries will be in a position to ratify the
convention. In this connection, it should also be noted that the
Convention incorporates by reference the offenses set forth in the ten
multilateral counter-terrorism conventions listed in Article 2 of the
Convention. While the United States is a party to all ten of these
conventions, other OAS member states that are not yet party to one or
more of these conventions will need to determine whether they will
become a party, or instead will make a declaration pursuant to
paragraph 2 of Article 2.
The United States Mission to the Organization of American States
has been working to facilitate the ratification process for signatories
by, among other things, assisting the OAS in conducting workshops to
help countries determine whether implementing legislation is necessary,
and if so, to suggest how to draft such legislation. In addition, the
Inter-American Committee Against Terrorism (``CICTE'') plans to conduct
a workshop for signatory states on implementing the Convention this
year. Prompt ratification of the Convention by the United States will
put us in a stronger position to press the remaining OAS member states
to become party to the Convention.
Question 2. The Inter-American Convention on Mutual Assistance in
Criminal Matters was signed over a decade ago, and, as of June 2004,
less than half of the members of the OAS are parties to it. Given this
slow pace of ratification, why should the committee expect that this
Convention will enjoy broad support among OAS member states?
Answer. The United States itself did not become party to the Inter-
American Convention on Mutual Legal Assistance in Criminal Matters
until May of 2001. From the date the Convention opened for signature in
1994 until the U.S. became party, only three other OAS member states
had become party to it. However, in the three years since the U.S.
became a party, ten other countries have joined (we note that Trinidad
and Tobago became a party on June 8, as did El Salvador on July 16). We
believe our becoming a party has positively influenced the pace of
ratification, and has enabled us to press more vigorously for other
states to join the convention.
With respect to the Inter-American Convention Against Terrorism,
there has been a very strong level of support for the Convention among
OAS member states since its inception. Delegations from member states
negotiated the Convention in less than eight months--a remarkable
achievement for a multilateral convention--and the Convention was
adopted by the OAS and signed by thirty OAS member states on June 3,
2002. During the two years following its opening for signature, eight
countries have become party, a pace that exceeds that of the Mutual
Legal Assistance Convention. In January 2004, the Special Summit of the
Americas called upon all member states that had not yet done so to
ratify the Terrorism Convention and to ``urgently consider signing and
ratifying'' the Inter-American Convention on Mutual Legal Assistance in
Criminal Matters. As with the Mutual Legal Assistance Convention, we
would hope that our becoming party to the Terrorism Convention will
encourage other ratifications, and put us in a better position to press
for similar action by the remaining non-parties.
Question 3. What is the nature of the obligation in Article 3? Does
it commit parties to make best efforts to become a party to the
international instruments listed in Article 2? Or is it something less
than that?
Answer. We understand Article 3 to require a party to the
Convention to take steps toward becoming a party to any international
instrument listed in Article 2 to which it is not yet a party. At the
same time, however, the Article explicitly recognizes that such steps
must be in accordance with the party's constitutional procedures and
would include adopting the necessary measures to implement those
instruments. It is thus somewhat more complex than a ``best efforts''
formulation. This requirement reflects the member states' desire to
advance the implementation of United Nations Security Council
Resolution 1373, which ``calls upon'' states to become parties to these
same instruments ``as soon as possible,'' while preserving the
prerogatives of legislative bodies in the domestic approval/
ratification process. (It should be noted that at the time of the
negotiations, the United States itself had not yet ratified the
International Convention for the Suppression of Terrorist Bombings or
the International Convention for the Suppression of Terrorist
Financing.)
Question 4. Which agency of the United States will be designated as
the ``financial intelligence unit'' under Article 4(1)(c).
Answer. The administration intends to designate the Financial
Crimes Enforcement Network (FinCEN) at the Department of the Treasury
as the financial intelligence unit for the purposes of implementing the
Convention.
Question 5. What are the Federal laws in the United States that
would be utilized to implement Articles 5 and 6? Do these apply, as
required by the Convention, to offenses committed outside U.S.
territory?
Answer. With respect to Article 6, the offenses listed in Article 2
of the Convention are money laundering predicate offenses under 18
U.S.C. 1956(c)(7)(A), which covers terrorism offenses by virtue of 18
U.S.C. 1961(1)(G). In addition, the following offenses listed in
Article 2 of the Convention are predicate offenses under 18 U.S.C.
1956(c)(7)(D): 49 U.S.C. 46502, 46504-46506 (aircraft hijacking and
sabotage), 18 U.S.C. 32 (sabotage), 18 U.S.C. 37 (violence at
airports), 18 U.S.C. 1116 (attacks on internationally protected
persons), 18 U.S.C. 1203 (hostage taking), 18 U.S.C. 831 (protection of
nuclear material), 18 U.S.C. 2280 (violence against maritime
navigation), 18 U.S.C. 2281 (violence against fixed platforms), 18
U.S.C. 2332f (terrorist bombings), 18 U.S.C. 2339A (providing material
support to terrorists), 18 U.S.C. 2339B (providing material support or
resources to a designated foreign terrorist organization), and 18
U.S.C. 2339C (prohibiting the financing of terrorism).
Offenses committed outside the U.S. that are against a foreign
nation and listed in 18 U.S.C. 1956(c)(7)(B) are also money laundering
predicates. Such offenses include all crimes of violence, and murder,
kidnapping, robbery, extortion, and destruction of property by means of
explosive or fire. In addition, 18 U.S.C. 1967(c)(7)(B)(vi) covers
conduct as to which the U.S. is obligated by multilateral treaty to
extradite or submit the case for prosecution if the offender is found
in the United States. The U.S. has such an obligation as to each of the
offenses set forth in the counterterrorism instruments listed in
Article 2 of the Convention.
With respect to Article 5, 18 U.S.C. 981(a)(1) (A), (B), (C),
(G)(ii) and (iii) and (H),. 18 U.S.C. 982, and 18 U.S.C. 1963 provide
for forfeiture of the assets involved in the conduct set forth in
Article 2 of the Convention, since they also apply to the predicate
offenses described above. The legal basis for forfeiture with respect
to conduct committed outside U.S. territory is set forth at 18 U.S.C.
981(a)(1) (A), (B) and (C), which permits the forfeiture of property
involved in offenses listed in 18 U.S.C. 1956(c)(7)(B).
Question 6. Article 7 obligates states parties to cooperate and
exchange information to ``detect and prevent the international movement
of terrorists and trafficking in arms or other materials intended to
support terrorist activities.'' In connection with this obligation, did
the negotiators discuss the Inter-American Convention Against the
Illicit Manufacturing of and Trafficking in Firearms? When does the
executive branch expect that it will be prepared to proceed with Senate
consideration of that Convention?
Answer. Negotiators of the Convention did discuss the Inter-
American Convention Against the Illicit Manufacturing of and
Trafficking in Firearms, and anticipated that the two Conventions could
supplement one another for those States that choose to be parties to
both instruments. The executive branch could proceed with Senate
consideration of the trafficking convention as soon as the Senate takes
it up.
Question 7. Article 10(1)(a) requires informed consent of a
prisoner before transfer to another state party. Paragraph 3 of Article
10 provides a means for bringing charges against a person transferred
if the state party from which the person is transferred consents. When
would such consent from the state party be sought? Is it prior to
obtaining the informed consent of the prisoner for the transfer itself?
Answer. This provision is based on the virtually identical
provisions of Article 13 of the UN Convention for the Suppression of
Terrorist Bombings and Article 16 of the UN Convention on the
Suppression of the Financing of Terrorism. Neither the OAS provision
nor its UN predecessors are intended to be a substitute for
extradition. However, we could anticipate cases in which, prior to
transfer, a prisoner might agree to waive the protection of paragraph
3. There might also be rare cases in which the agreement of the
transferring state was sought and provided subsequently. For example,
should the prisoner's sentence come to a conclusion during the
transfer, he or she might be released and remain in the state of
transfer. In this case, paragraph 3 would require the state of transfer
to seek permission of the transferring state prior to detaining the
person for acts preceding the transfer.
Question 8. How many current bilateral treaties on extradition and
mutual legal assistance between the United States and OAS member states
will be effectively amended by Article 11? That is, which current
treaties have a broader political offense exception than is
contemplated by this article?
Answer. There are sixteen extradition treaties between the U.S. and
other OAS member states that do not provide for such limitations on
invocation of the political offense exception: Brazil, Chile, Colombia,
Ecuador, El Salvador, Guatemala, Guyana, Haiti, Honduras, Jamaica,
Nicaragua, Panama, Dominican Republic, Suriname, Uruguay, and
Venezuela. Four of these countries (El Salvador, Nicaragua, Panama and
Venezuela) are already party to the OAS Terrorism Convention, so our
extradition treaty with those countries would be augmented immediately
upon our becoming a party.
We have mutual legal assistance treaty (MLAT) relationships with 25
OAS Members. Seventeen of these are through bilateral MLATs with the
following countries: Antigua and Barbuda, Argentina, Bahamas, Barbados,
Belize, Brazil, Canada, Dominica, Grenada, Jamaica, Mexico, Panama, St.
Kitts and Nevis, Santa Lucia, St. Vincent and the Grenadines, Trinidad
and Tobago, and Uruguay. (Canada, Grenada, Mexico:, Panama, and
Trinidad and Tobago are also party to the OAS MLAT.) Eight of these
treaty relationships are solely through the OAS MLAT, which the United
States joined in 2001: Chile, Colombia, Ecuador, El Salvador,
Guatemala, Nicaragua, Peru and Venezuela.
Of these twenty-five treaty relationships, the treaty in force with
twenty-two of these countries expressly permits assistance to be denied
on political offense grounds: Antigua and Barbuda, Argentina, Bahamas,
Barbados, Belize, Chile, Colombia, Dominica, Ecuador, El Salvador,
Grenada, Guatemala, Jamaica, Mexico, Nicaragua, Panama, Peru, St. Kitts
and Nevis, Santa Lucia, St. Vincent and the Grenadines, Uruguay, and
Venezuela. Antigua and Barbuda, El Salvador, Mexico, Nicaragua, Panama,
Peru and Venezuela are already Parties to the OAS Terrorism Convention;
accordingly, upon our becoming party to the OAS Terrorism Convention,
the political offense provisions in our MLAT relationships with each of
these countries would be narrowed. As other countries named in this
paragraph eventually become party to the OAS Terrorism Convention,
there will be a similar effect upon our MLAT relationships with them.
Question 9. Is there a difference between the standards in Articles
12 and 13 and the standards on determining refugee status and asylum
under U.S. law? Please elaborate.
Answer. The obligations we would undertake under these two articles
are functionally equivalent, and fully in accordance with existing U.S.
law. The use in Article 13 of ``reasonable grounds to believe'' was not
intended by the drafters to articulate a lesser legal standard than
``serious reasons for considering'' as set forth in Article 12.
Specifically, under U.S. immigration law, only those aliens who meet
the definition of ``refugee'' as set forth in Section 101(a)(42) of the
Immigration and Nationality Act (INA) are eligible for refugee status
and/or asylum. Therefore, the United States' requirements under
Articles 12 and 13 will apply to the same class of persons, i.e. only
those aliens meeting the definition of ``refugee.''
An alien who is otherwise eligible for refugee status, but has been
deemed inadmissible to the United States pursuant to INA section
212(a)(3)(B) (Terrorist Activities), would be denied refugee status and
may not be admitted to the United States. Pursuant to INA section
207(c)(3), the Secretary of Homeland Security may not waive a finding
of inadmissibility under 212(a)(3)(B). Similarly, under INA section
208(b)(2)(A), asylum may not be granted to an alien who is inadmissible
under section 212(a)(3)(B) or removable under section 237(a)(4)(B)
(engaging in terrorist activities). Thus, existing law is sufficient to
fully implement both Articles 12 and 13.
______
Responses of Bruce Swartz to Additional Questions for the Record
Submitted by Senator Joseph R. Biden, Jr.
questions on the convention on cybercrime (treaty doc. 108-11)
Question 1. What is the Executive Branch's view of the
authoritative nature of the Explanatory Report?
Answer. The Explanatory Report provides guidance in interpretation
and application of the Convention's provisions. Although the provisions
of the Explanatory Report are not binding on the Parties, they reflect
the understanding of the Parties, on the basis of which the
Convention's provisions were drafted. The Explanatory Report can
provide a fundamental basis for interpretation of the Convention, and
the Parties and the Council of Europe refer to it in practice.
Question 2. Are there any related exchange of notes, official
communications, or statements of the U.S. negotiating delegation not
submitted to the Senate with regard to the Convention that would
provide additional clarification of the meaning of provisions of the
Convention?
Answer. No. The meaning of provisions of the Convention is governed
in the first instance by the Convention itself. In addition, as
mentioned in the answer to the prior question, the Explanatory Report
may serve as a fundamental basis for interpretation of the Convention.
Additional perspective on the meaning of provisions is provided in the
Department of State's letter of submittal, which sets forth an article-
by-article analysis.
Question 3. The Convention was signed by the United States on
November 23, 2001. Why did it take nearly 2 years until it was
submitted to the Senate?
Answer. An extensive interagency review took place, during which
the detailed package transmitting and explaining the Convention was
prepared. Among other things, the Convention was carefully reviewed by
the Justice Department to ensure that the obligations the United States
would undertake as a Party to the Convention could be met under current
law.
Question 4. To date, 38 states have signed the Convention, but only
six have ratified it. Why have so few states ratified the Convention?
Has any state that signed it indicated that it is reconsidering its
support for the Convention?
Answer. It is not uncommon for states to proceed deliberately in
the ratification of complex multilateral instruments such as the
Convention. Many signatories may engage in the same type of extensive,
interagency review that took place in the United States. In addition,
we believe the United States becoming a Party may positively influence
the pace of ratification, as the United States has the largest number
of computers and the largest amount of computer data of any signatory
state. The United States becoming a Party will also enable us to press
more vigorously for other states to join the Convention. To our
knowledge, no state that has signed the Convention is reconsidering its
support for the Convention.
Question 5a. The Convention is open to accession by any state
provided that there is unanimous consent of the Contracting State.
Have there been any discussions among the members of the
Council or the states that participated in the drafting of the
Convention about inviting other states to accede to the
Convention? If so, have the United States and the other states
discussed criteria for extending such invitations?
Answer. During the negotiations that led to the Convention, the
delegations were aware and contemplated that, at the appropriate time,
states other than those currently eligible to join the Convention would
be invited to accede to the Convention. Indeed, Article 37 of the
Convention, patterned on a model clause included in many Council of
Europe treaties, specifically contemplates accession by other states.
The negotiators modified the model provision, however, to make explicit
that no state could be invited to accede to the Convention without the
unanimous consent of State Parties to the Convention, and not merely
those State Parties that are members of the Council of Europe. The
United States would, therefore, as a Party to the Convention, have a
specific role in the process.
Although the negotiators did not set out any formal criteria for
extending invitations, it was discussed generally that the type of
states receiving invitations would be those that possess the capability
to render assistance as contemplated by the Convention and adhere to a
human rights framework comparable to that of members of the Council of
Europe and other states that participated in the negotiations.
Question 5b. The Convention is open to accession by any state
provided that there is unanimous consent of the Contracting State.
It is anticipated that invitations will be extended to
states outside of Europe? If so, which states are likely to be
considered?
Answer. As described in the prior answer, it was contemplated by
the negotiators, and it is still anticipated, that invitations would be
extended to states outside of Europe. We are unaware of any discussions
of specific states to which invitations might be extended.
Question 5c. The Convention is open to accession by any state
provided that there is unanimous consent of the Contracting State.
Is it anticipated that invitations will be extended to
states that do not provide for ``adequate protection of human
rights and liberties'' as that term is used in Article 15(1)?
Answer. We are not in a position to predict to which states
invitations to accede to the Convention will be extended. The issue of
human rights, however, is one that we anticipate would be considered at
the time of any potential invitation in connection with this, we note
that the Statute of the Council of Europe provides that all members
``must accept the principles of the rule of law and of the enjoyment by
all persons within its jurisdiction of human rights and fundamental,
freedoms.'' Similarly, states can obtain observer status at the Council
of Europe, as the United States has, only if they are willing to accept
the same principles.
Question 6. Do the extradition or mutual legal assistance
provisions of the Convention implicate the President's powers as
Commander-in-Chief under Article II of the Constitution? Please
elaborate.
Answer. The extradition and mutual legal assistance provisions of
the Convention will be administered by the Executive Branch under the
supervision of the President. Legal authority for carrying out these
provisions derives from the clause in Article II of the Constitution
stating that the President ``shall take Care that the Laws be
faithfully executed,'' as well as from applicable statutes. The
Commander in Chief authority of Article II is not necessary for
implementation of these provisions of the Convention, nor is it
affected by them.
Question 7. The United States has mutual legal assistance
relationships in place with many states in Europe. Of the states that
have signed, ratified, or acceded to the Convention to date, which
states do not have a mutual legal assistance relationship with the
United States?
Answer. Of the 6 states that have ratified the Convention to date--
Albania, Croatia, Estonia, Hungary, Lithuania, and Romania--the United
States does not have a mutual legal assistance treaty (MLAT) in force
with two--Albania and Croatia. Of the 28 European states that have
signed but not ratified the Convention to date--Armenia, Austria,
Belgium, Bulgaria, Cyprus, Denmark, Finland, France, Germany, Greece,
Iceland, Ireland, Italy, Latvia, Luxembourg, Malta, Moldova,
Netherlands, Norway, Poland, Portugal, Slovenia, Spain, Sweden,
Switzerland, the former Yugoslav Republic of Macedonia, Ukraine, and
the United Kingdom--the United States does not currently have an MLAT
in force with 14--Armenia, Bulgaria, Denmark, Finland, Germany,
Iceland, Ireland, Malta, Moldova, Norway, Portugal, Slovenia, Sweden,
and the former Yugoslav Republic of Macedonia. In the absence of a
treaty, the U.S. has ongoing law enforcement relationships in the field
of mutual legal assistance in criminal matters with all of the
signatory states and Parties to the Convention. It should be noted that
no states have acceded to the Convention.
Question 8. What steps does the Executive Branch take under
existing MLATs, or intend to take under the Convention, to prioritize
foreign requests made that will place production or other burdens on
private industry?
Answer. If a requesting state has indicated that its request is
urgent, the Justice Department will--as it currently does with respect
to mutual legal assistance and letters rogatory requests--review the
request, if necessary consult with the requesting state, and determine
how urgently the request should be executed. The custodian of the data
sought, in this case generally an Internet Service Provider, will be
asked to provide the data with the appropriate urgency. We are not
aware that current volumes of requests are unduly burdening ISPs, and
do not expect a significant increase in the number of requests as a
result of United States ratification of the Convention. However, should
such a situation arise, the Justice Department is prepared to work with
ISPs to reach acceptable solutions.
Question 9. The New York Times recently reported on an extradition
case in the Eastern District of New York (William Glaberson, ``Bowing
to an Extradition Deal, U.S. Will Forgo Death Penalty,'' June 19,
2004). The news report suggested that, in this particular case, the
United States had initially decided not to honor the terms of an
extradition order from a court in the Dominican Republic that was
conditioned on the defendant not being subject to the death penalty.
This matter has implications for many other extradition cases, now and
in the future. Please describe:
the circumstances of this matter;
U.S. policy on commitments made to treaty partners not to
seek the death penalty when requested by the treaty partner,
including whether the United States has modified that policy in
the last 12 months.
Answer. The article refers to Alejandro De Asa Sanchez, who was
extradited from the Dominican Republic. Our extradition treaty with the
Dominican Republic dates from the 1930s, and it contains no provision
addressing the death penalty. Moreover, in this case, as in similar
cases, the Government of the Dominican Republic did not seek and the
United States did not provide an assurance that the death penalty would
not be sought as a condition of Mr. De Asa Sanchez's extradition.
However, in this case, as in others of persons extradited from the
Dominican Republic, the Department of Justice exercised its discretion
not to seek the death penalty in view of our very active and positive
extradition relationship with the Dominican Republic and of our
understanding of the Dominican Republic's concerns that its citizens,
if extradited, not be subject to the death penalty.
When the United States provides an assurance to a treaty partner
that it will not seek the death penalty as a condition of extradition,
it abides by that condition. This has been and continues to be the
position of the United States.
Question 10. What is the scope of the term ``suitable for
processing'' as used in Article 1(b)? Does it encompass any document
that may be transmitted via electronic mail?
Answer. Data ``suitable for processing'' as that term is used in
Article 1(b), is meant to include data that can be directly processed
by a computer system--in other words, data in electronic form or stored
on optical or magnetic media. See Paragraph 25 of the Explanatory
Report. Information in a form that cannot be directly processed, such
as printed text or an image on paper, which requires an intermediary
step such as scanning before it can be processed, is outside the scope
of the definition.
Any document transmitted via electronic mail would come within the
scope of ``data suitable for processing,'' because the electronic mail
attachments and documents in electronic form are processed and
transmitted by email servers and clients as part of the normal
transmission process for electronic mail.
Question 11. Under Article 2 of the Convention, would the
transmission of ``cookies'' or ``spyware'' by a Web site to an
individual computer without the consent of the computer owner
constitute illegal access? Is such transmission currently a violation
of U.S. law?
Answer. ``Cookies'' and ``spyware'' are different, and our answer
accordingly discusses each concept separately.
The transmission and receipt of ``cookies'' (small text records
maintained by a Web browser containing information--e.g., user name,
viewing preferences--that a Web server has requested be stored so that
the Web browser may provide it during a subsequent visit to the Web
site) by themselves would not typically be considered ``illegal access
without right,'' as noted in Paragraph 48 of the Explanatory Report, as
cookies are sent as part of established Web browsing protocols and the
operator of the browser has the ability to reject or delete such
cookies. Paragraph 38 of the Explanatory Report also notes that
``legitimate and common activities inherent in the design of networks,
or legitimate and common operating or commercial practices should not
be criminalised.'' The normal uses of cookies would fit within these
principles, and not be considered illegal access under the Convention.
The transmission and receipt of normal HTTP cookies is not criminalized
under United States law. See generally In re DoubleClick Inc. Privacy
Litigation, 154 F.Supp.2d 497 (S.D.N.Y. 2001) (in civil case involving
Electronic Communications Privacy Act and Computer Fraud and Abuse Act,
court concluded that use of cookies did not violate either act).
The general concept of ``spyware'' encompasses a fairly broad range
of programs installed on computers for various reasons. Indeed, whether
a program is or is not spyware may be a matter for disagreement between
program distributors and users. In general, however, if an entity
causes a program to be installed surreptitiously on a user's computer
system, whether by exploiting a vulnerability in a system or by
deceiving the user, that conduct could be punished by current statutes
that would implement Article 2, 3, 4, or 5 of the Convention, depending
on the precise behavior of the spyware. For example, if the purpose of
the spyware is to record keystrokes and transmissions of the user, it
would be prohibited by statutes implementing Article 3 of the
Convention (in the United States, the relevant statute would be 18
U.S.C. Sec. 2511(1)). If the purpose of the spyware is to copy personal
information from the hard drive of the user and transmit it to the
distributor, it would likely be prohibited by statutes implementing
Article 2 of the Convention (in the United States, the relevant statute
would be 18 U.S.C. Sec. 1030(a)(2)).
Question 12. What provision or provisions of U.S. law implement
Articles 2 through 10, and Articles 16 through 21?
Answer. The following statutes implement the Articles listed.
Particular facts of cases may implicate additional statutes (for
example, a computer fraud committed upon a financial institution may
additionally violate the bank fraud statute, 18 U.S.C. Sec. 1344). The
following list, however, encompasses the core sections implementing the
specified Articles.
Articles 2, 4, & 18 U.S.C. Sec. 1030;
5:
Article 3: 18 U.S.C. Sec. 2511;
Article 6: 18 U.S.C. Sec. 1029, 1030, and 2512;
Articles 7 & 8: 18 U.S.C. Sec. 1030 and 1343;
Article 9: 18 U.S.C. Sec. 2251, et seq.;
Article 10: 17 U.S.C. Sec. 501, et seq., and 18 U.S.C. Sec.
2318, et seq.;
Articles 16 & 17: 18 U.S.C. Sec. 2703;
Article 18: 18 U.S.C. Sec. 2703 and Federal Rules of Criminal
Procedure 6, 17;
Article 19: Constitution of the United States, Amendment IV,
Federal Rule of Criminal Procedure 41, and 18 U.S.C.
Sec. 2703;
Article 20: 18 U.S.C. Sec. 3121, et seq.;
Article 21: 18 U.S.C. Sec. 2510, et seq.
Question 13. The commentary in the Secretary's letter accompanying
the second proposed reservation regarding Article 6 states that
``United States law does not directly criminalize the possession or
distribution of data interference and system interference devices.''
Does U.S. law criminalize the production or sale of data
interference or system interference devices? If so, why is the
proposed reservation drafted so broadly so as to include such
offenses?
Answer. At present, United States law does not directly criminalize
the production or sale of data interference or system interference
devices. Possession or distribution of viruses, distributed denial-of-
service tools, and similar articles is not specifically prohibited
under United States law, although possession or distribution of access
and interception devices with intent to defraud or to intercept is
prohibited (18 U.S.C. Sec. 1029, 2512).
In appropriate cases, a person developing, possessing, or
distributing a virus or denial of service tool could be charged with
either attempting to cause damage or aiding damage to a computer
system, if the government could prove that the possessor intended to or
did cause the item to damage a computer system or systems.
Because no federal statute directly implemented the items covered
by the reservations, the United States sought and obtained a
reservation possibility on this issue, and we have drafted and
submitted to the Senate a proposed reservation that makes clear that
United States law does not directly include those offenses. If the
United States were a Party to the Convention and later criminalized the
possession or distribution of such items, we would have the option to
withdraw the reservation in whole or in part. The presence of the
reservation, however, relieves the United States from any obligation to
so criminalize those acts.
Question 14. Article 25(4) provides that, ``[e]xcept as otherwise
specifically provided for in articles in this chapter, mutual
assistance shall be subject to the conditions provided for by the law
of the requested party or by applicable mutual assistance treaties . .
.'' In the view of the executive branch, what are the specific
exceptions to this proviso that are contained in his chapter?
Answer. The specific exceptions referred to in Article 25(4)
(described to some extent in Paragraph 258 of the Explanatory Report to
the Convention) consist of:
1. the requirement of Article 25(2) that each Party must
provide for the types of cooperation that the other articles
require (such as preservation, real time collection of data,
search and seizure, and maintenance of a 24/7 network), even
when these measures are not already included in the Party's
mutual legal assistance laws, treaties or equivalent
arrangements;
2. Article 25(4)'s requirement that cooperation may not be
denied as to the offenses set forth in Articles 2-11 on the
grounds that the requested Party considers it to be a
``fiscal'' offense, notwithstanding anything to the contrary in
a mutual legal assistance law or treaty;
3. the requirement of Articles 27 and 28 that they are to be
applied in lieu of domestic law, where there is no MLAT or
equivalent agreement in force between the requesting and
requested Parties;
4. the stipulation in Article 29(3)-(4) that a Party may not
refuse to comply with a request for preservation on dual
criminality grounds (the possibility of a reservation is
provided for as to this requirement).
Question 15. Please describe the process that the executive branch
intends to follow if the United States receives requests for assistance
under Articles 29 through 33.
Answer. In general, and in accordance with current practice, the
Department of Justice, Criminal Division, Office of International
Affairs (OIA), as Central Authority for mutual legal assistance, will
process incoming mutual legal assistance requests arising under the
Convention to ensure compliance with applicable legal requirements and
will oversee execution of requests by United States Attorneys Offices.
Where particularly rapid action is sought, requests may also be
submitted to the United States through the 24/7 network contemplated in
Article 35 of the Convention. At present, the Department of Justice's
Computer Crime and Intellectual Property Section (CCIPS) acts as the
point-of-contact for the United States in a similar network of 37
countries that was originally established by the G8 in 1997, and it is
contemplated that it would play this role for purposes of Article 35 of
the Convention. In such cases, CCIPS will work in coordination with OIA
in reviewing and executing the request. (Note that Article 32 of the
Convention does not contemplate requests for assistance;)
Question 16a. The provisions on legal assistance permit a state to
refuse assistance if it is ``likely to prejudice its sovereignty,
security, ordre public or other essential interests.''
Under what circumstances would the United States expect to
refuse a request for legal assistance on grounds that it is
likely to prejudice essential interests?
Answer. This type of provision is common to the over forty Mutual
Legal Assistance Treaties to which the United States has become a party
in recent decades. The administration considers this provision to
authorize the denial of assistance where, for example, providing the
assistance would impinge on United States Constitutional protections,
such as free speech, or jeopardize national security for any reason.
The Department of Justice will carefully review each request to
determine the potential for abuse, and will make a determination
whether to deny or condition assistance.
Question 16b. The provisions on legal assistance permit a state to
refuse assistance if it is ``likely to prejudice its sovereignty,
security, ordre public or other essential interests.''
The standard of the provision is ``likely to prejudice'' the
particular interest, not that it is certain to do so. What is
the process for making such a determination?
Answer. As previously stated, similar provisions appear in over
forty bilateral and multilateral treaties providing for mutual legal
assistance in criminal matters, in which the Department of Justice,
Criminal Division, Office of international Affairs (OIA), acts as
Central Authority. OIA will also be responsible for reviewing formal
mutual legal assistance requests arising under the Convention. As now,
the facts and charges on which requests are based will be scrutinized
carefully, and OIA will consult with relevant Department of Justice
components and other agencies, to ensure that assistance is not
provided in inappropriate cases. This standard provides OIA with
discretion to refuse assistance in cases such as those described in
response to the prior question.
Question 16c-1.The provisions on legal assistance permit a state to
refuse assistance if it is ``likely to prejudice its sovereignty,
security, ordre public or other essential interests.''
Similar provisions are found in other bilateral mutual legal
assistance treaties.
1. How often does the United States invoke this sort of
provision as a basis for refusing to provide assistance? Please
provide examples.
Answer. The United States rarely, if ever, has to formally invoke
such a provision as a basis for refusing to provide assistance, but we
have denied assistance or persuaded foreign states not to make formal
requests where, for example, the implementation of the request would
impinge on First Amendment protections. Our experience is that other
countries are often aware of our Constitutional protections and
therefore either consult with us prior to making a request that is
likely to be refused or generally avoid making requests to the United
States that would implicate such protections. In other cases, other
grounds for refusal may be invoked.
Question 16c-2. The provisions on legal assistance permit a state
to refuse assistance if it is ``likely to prejudice its sovereignty,
security, ordre public or other essential interests.''
Similar provisions are found in other bilateral mutual legal
assistance treaties.
2. Would the United States refuse assistance under the
Convention in a case such as Yahoo!, Inc. v. La Ligue Contre le
Racisme et L 'Antisemitisme, 169 F. Supp.2d 1181 (N.D. Cal.
2001)?
Answer. While each case will turn on its own facts, Yahoo is an
example of a case in which the U.S. would refuse assistance.
Question 16d. The provisions on legal assistance permit a state to
refuse assistance if it is ``likely to prejudice its sovereignty,
security, ordre public or other essential interests.''
Some states that have signed the Convention do not fully
respect civil liberties. For example, the State Department's
most recent country reports on human rights indicates that the
government of Moldova interfered with freedom of the press in a
variety of ways: ``the Government sometimes restricted these
rights [of freedom of the press], applying the electoral law,
the Civil Code, and a calumny law . . .'' Given that the
Convention does not require dual criminality for the provision
of legal assistance, how does the executive branch expect to
respond to requests for assistance from nations that do not
respect fundamental rights and which seek to use the Convention
to suppress those rights?
Answer. The Convention need not have a dual criminality requirement
to fully authorize the United States to protect freedom of the press.
As stated above, assistance can be denied on the basis of the
provisions of the Convention, such as the grounds cited in the question
or the political offense provisions of Article 27(4), as well as on
grounds currently available pursuant to applicable treaty or domestic
law. The executive branch, through the Department of Justice, expects
to address requests for assistance on an individual basis. The
Department of Justice will carefully review each request, regardless of
the country from which it comes, to ensure that compliance with it
would not impinge on U.S. fundamental principles and policy, and that
U.S. implementation of foreign requests would not be inconsistent with
relevant Constitutional protections.
Question 17. Article 33(1) states that it shall be governed ``by
the conditions and procedures provided for under domestic law.'' By
contrast, Article 34 states that assistance shall be provided ``to the
extent permitted under their applicable treaties and domestic law.'' Is
there a reason that the language in the two provisions is different? Is
not Article 33 to be governed by any applicable mutual legal assistance
treaty? If not, why not?
Answer. Article 33 imposes a categorical obligation to provide
assistance to other Parties with respect to the real time collection of
traffic data, while Article 34 does not provide a general obligation to
assist another Party with respect to interception of content data.
Each Party must have the power to provide the form of cooperation
set forth in Article 33 to other Parties; however, the drafters
recognized that each country would specify the conditions under which
cooperation would be provided in its ``domestic law.'' The reference to
``domestic law'' may include application of conditions that may be
provided for by treaty; in this regard, see Paragraph 295 of the
Explanatory Report to the Convention.
In contrast, with respect to interception of content of
communications under Article 34, the drafters recognized that
international cooperation of this kind may not be available at all, at
least in some circumstances, under some legal regimes (such as that of
the United States). Accordingly, there is no general obligation to
provide this form of cooperation; rather, assistance is available only
``to the extent'' the treaties and laws of the requested state provide
for it.
Question 18. The amendment processed under Article 44 provides for
proposed amendments to be reviewed by a committee of experts and
approved by the Committee of Ministers, after ``consultation with the
non-member States Parties.'' As a non-member of the Council of Europe,
would the United States have only this consultative role in review and
approval of proposed amendments? Is there an understanding between COE
members and non-members who participated in the elaboration of the
Convention about the nature and scope of this consultation?
Answer. Under Article 44 of the Convention, the United States, if
it became a Party to the Convention, would have two opportunities to
review proposed amendments to the Convention. First, as noted in the
question, States Parties that are not members of the Council of Europe
would be consulted by the Council of Europe Committee of Ministers
before that Committee adopted any amendment. In addition, as provided
in Article 44(5) of the Convention, any amendment adopted by the
Committee of Ministers can come into effect only after all Parties to
the Convention have indicated their acceptance of the amendment.
Therefore, if the United States were a Party to the Convention, no
amendment could be adopted without its consent.
______
Responses of Samuel M. Witten and Bruce Swartz to Additional Questions
for the Record Submitted by Senator Joseph R. Biden, r.
questions applicable generally to the un convention against
transnational organized crime and protocols on trafficking in persons
and smuggling of migrant (treaty doc. 108-16)
Question 1. Are there any related exchange of notes, official
communications, or statements of the U.S. negotiating delegation not
submitted to the Senate with regard to the Convention or the two
protocols that would provide additional clarification of the meaning of
terms of the Convention or the Protocols?
Answer. No. The meaning of terms used in the Convention and
Protocols is governed in the first instance by the definitions provided
in those instruments, as well as by their context in the Convention. In
addition, Interpretive Notes for the official records (travaux
preparatoires) serve as a supplemental means of interpretation of
certain terms in the Convention and Protocols. Additional perspective
on the meaning of terms is provided in the Department of State's letter
of submittal, which sets forth an article-by-article analysis.
Question 2. The Convention and Protocols were signed on December
13, 2000. They were submitted to the Senate on February 23, 2004.
a. What was the cause of the delay in submitting the treaties
to the Senate?
Answer. The interval between United States signature of the
Convention and Protocols and their submission to the Senate for advice
and consent to ratification results from their complexity and the need
for extensive interagency discussion. Each instrument contains, among
other things, detailed criminalization obligations that interact in
complex ways with U.S. Federal and state criminal law. As a result, the
Department of Justice undertook systematic research to ascertain
whether existing criminal laws in the United States were adequate to
satisfy fully Convention and Protocol obligations, and the results of
their inquiry required extensive subsequent consultation with the
Department of State. Since certain of the criminalization obligations
relate to subject-matter which is addressed in state criminal law,
questions of federalism arose in these discussions, and ultimately a
reservation and understanding relating to particular articles of the
main Convention and Trafficking Protocol was prepared.
b. Was there any significant opposition within the executive
branch to submission of the Convention or the Protocols to the
Senate?
Answer. The administration fully supports ratification of the
Convention and the Protocols.
Question 3. What is the view of the executive branch of the
authoritative nature of the Interpretive Notes for the official records
(travaux preparatoires) of the negotiation of the Convention and the
Protocols thereto (UN document A/55/383/Add.1, November 3, 2000)?
Answer. The Interpretive Notes for the official records (travaux
preparatoires) serve to preserve certain points relating to articles of
the instruments that are subsidiary to the text but nonetheless of
potential interpretive importance. In accordance with customary
international law, as reflected in Article 32 of the Vienna Convention
on the Law of Treaties, preparatory work such as that memorialized in
the Interpretive Notes may serve as a supplementary means of
interpretation, if an interpretation of the treaty done in good faith
and in accordance with the ordinary meaning given to the terms of the
treaty results in ambiguity or is manifestly absurd. Thus, the
Interpretive Notes, while not binding as a matter of treaty law, could
be important as a guide to the meaning of terms in the Convention and
Protocols.
Question 4. A third protocol was concluded in connection with the
Organized Crime Convention related to the illicit manufacturing and
trafficking in firearms. What is the position of the executive branch
on whether the United States should become a party to that Protocol? If
the administration supports doing so, when will it be submitted to the
Senate?
Answer. Like many other countries, the United States has focused
first on the Convention and the Trafficking in Persons and Migrant
Smuggling Protocols, which were finished a year before the Firearms
Protocol and were signed by the U.S. and over a hundred other countries
at a high-level signing ceremony. The administration is reviewing the
Firearms Protocol in order to determine whether to propose that the
United States accede to it.
questions on the convention against transnational organized crime
(treaty doc. 108-16)
Question 1. What Federal statutes implement the obligations of
Articles 5, 6, 8 and 23?
Answer. With respect to Article 5 (criminalization of participation
in an organized criminal group), the key federal statute implementing
paragraph (a)(1) is 18 U.S.C. Sec. 371, which establishes criminal
liability for conspiracy to commit any Federal offense. With respect to
paragraph (1)(b), 18 U.S.C. Sec. 2 establishes criminal liability for
aiding and abetting the commission of a Federal offense. See also 18
U.S.C. Sec. 1961 et seq. (RICO).
With respect to Article 6 (criminalization of laundering of
proceeds of crime), the applicable Federal statutes are 18 U.S.C.
Sec. Sec. 1956 and 1957.
With respect to Article 8 (criminalization of corruption),
paragraph 1 is implemented through a variety of Federal statutes,
including 18 U.S.C. Sec. 201 (bribery), 18 U.S.C. Sec. 1341 et seq.
(mail and wire fraud), 18 U.S.C. Sec. 1951 (Hobbs Act), and 18 U.S.C.
Sec. 1961 et seq. (RICO). While paragraph 2 is not mandatory, U.S. law
covers corrupt acts involving foreign or international officials in a
number of circumstances, in particular under the Foreign Corrupt
Practices Act (15 U.S.C. Sec. 78 dd-1, et seq.). Paragraph 3, on
accomplice liability, is implemented by 18 U.S.C. Sec. 2. With respect
to Article 23 (criminalization of obstruction of justice), the
applicable Federal statute implementing paragraph (a) is 18 U.S.C.
Sec. 1512(b).
With respect to paragraph (b), the applicable Federal statute is 18
U.S.C. Sec. 1503.
Question 2. Article 6(1) provides that a State Party shall adopt
laws ``in accordance with fundamental principles of its domestic law.''
Article 6(1)(b) further provides that laws enacted pursuant to that
subparagraph shall be ``subject to the basic concepts of its legal
system.'' What is the difference between these two concepts?
Answer. The terms ``fundamental principles of its domestic law''
and ``basic concepts of its legal system'' are conceptually similar.
However, a structural difference between the two clauses is that
``subject to basic concepts of its legal system'' in Article 6(1)(b)
enables a State Party, without a reservation, to decide not to apply
that paragraph, should it be deemed incompatible with such basic
concepts. By contrast, ``in accordance with fundamental principles of
its domestic law'' in the chapeau of Article 6(1) does not allow a
State Party to exempt itself from obligations in 6(1)(a); instead, it
sets a parameter for implementation of the obligation to criminalize
the laundering of the proceeds of crime.
Question 3. What is the purpose of Article 6(2)(e)?
Answer. For a few States, it is fundamental that a person who
commits the object crime, and thereby obtains proceeds from it, cannot
also be prosecuted for laundering the proceeds of that crime. These
States required Article 6(2)(e) to make clear that their legal approach
was consistent with the Convention.
Question 4. Does the federalism reservation need to apply to
Article 8? Does not every state criminalize bribery of public officials
or solicitation or acceptance of bribes by public officials?
Answer. Article 8(1) covers, in essence, the offer or acceptance by
a public official of ``an undue advantage, for the official himself or
herself or another person or entity.'' In reviewing state bribery
statutes, it appeared to us that the laws of one or more states may not
be in full compliance with the particular way this offense was defined
in the Convention. For example, one or more state bribery laws may not
reach advantages that benefit third parties, or they may not reach all
conceivable non-pecuniary types of benefits. Given such variations in
state law, we determined that the federalism reservation should be
applied to Article 8 as well as the other criminalization provisions of
the Convention.
Question 5. What Federal statutes implement the provisions of
Articles 12 and 13?
Answer. Article 12 (1) through (5) is implemented principally
through 18 U.S.C. Sec. Sec. 981-983. U.S., law, specifically 18 U.S.C.
Sec. Sec. 981 and 982, authorizes the civil and/or criminal forfeiture
of property in the United States that is derived from, or traceable to,
the proceeds of offenses that constitute ``specified unlawful
activities'' under the U.S. money laundering statute or property that
is involved in a money laundering offense. See 18 U.S.C.
Sec. 1956(c)(7)(B). There are also many other Federal statutes
providing for forfeiture of certain types of property relating to the
commission of a crime under specifically defined circumstances.
Paragraph 6 is implemented through compulsory process available
pursuant to the Right to Financial Privacy Act, the Federal Rules of
Criminal Procedure, the Federal Rules of Evidence and general U.S.
jurisprudence. The remaining provisions of Article 12 contain no
specific obligations.
Article 13 (1) through (2) is implemented through 18 U.S.C.
Sec. Sec. 981, 982, 983 and 28 U.S.C. Sec. 2467. To preserve the
availability of assets pending forfeiture, the United States can
restrain assets located in the United States that are subject to
forfeiture under foreign law either by seeking a restraining order from
the court or by registering and enforcing those foreign restraining
orders that have been certified by the Attorney General. The procedure
for obtaining a restraining order is set forth at 18 U.S.C.
Sec. 983(j), which provides for a contested hearing with notice to
persons having an interest in the property. The restraining order may
remain in effect until the conclusion of the foreign proceedings and
the final forfeiture judgment is transmitted for recognition.
Notwithstanding this provision, U.S. prosecutors can obtain an ex parte
order from the court for the initial restraint at the request of a
foreign country against assets of a person arrested or charged in a
foreign country in connection with an offense that would give rise to
the forfeiture of property in the United States pending the arrival of
evidence from the foreign country to support probable cause for
forfeiture under 18 U.S.C. Sec. 981 or under the Controlled Substances
Act. See 18 U.S.C. Sec. 981(b)(4)(A).
Pursuant to 28 U.S.C. Sec. 2467, the United States can now seek the
registration and enforcement of foreign forfeiture judgments rendered
in connection with any violation of foreign law that would constitute a
violation of an offense for which property could be forfeited under
Federal law if the offense were committed in the United States.
Paragraph (3) of Article 13 will be implemented through application
of U.S. Mutual Legal Assistance Treaties, and the self-executing
provisions of Article 18 of the Convention. The remaining provisions of
Article 13 contain no specific obligations.
Question 6. Is there authority under current U.S. law to provide
confiscated funds as envisioned by Article 14(3)(a)?
Answer. Article 14(3)(a) provides that a State Party ``may give
special consideration to'' contributing the value of confiscated
property to the United Nations for purposes of combating organized
crime, but does not go beyond suggesting the possibility of this step.
While there is statutory authority to share the proceeds of successful
forfeiture actions with countries that made possible or substantially
facilitated the forfeiture of assets under United States law (18 U.S.C.
Sec. Sec. 981-982, 21 U.S.C. Sec. 881(e)(1)(E), and 31 U.S.C.
Sec. 9703(h)(1)), there is no statutory authority for the United States
to make such a contribution to the United Nations.
Question 7. Article 16(1) states that the article applies to
``offenses covered by the Convention'' or in cases where an offense
referred to in Article 3(1) (a) or (b) involves an organized criminal
group. By its terms, however, Article 3 requires that any offense be
``transnational in nature'' and ``involve[] an organized criminal
group.'' What, then, is the scope of Article 16? Does it exclude the
transnational element?
Answer. Extradition under the Convention may be sought not only for
the offenses it requires that parties criminalize but also for
``serious crime'' generally, i.e. offenses punishable by at least four
years' imprisonment. At the same time, Article 16 is subject to the
general scope provision of the Convention (Article 3), which requires
that an extraditable offense be transnational in nature and involve an
organized criminal group. Article 16(1) expressly recites the
requirement that an organized criminal group be involved in the offense
in order for it properly to be the subject of an extradition request
under the Convention.
Article 16(1) further provides that the transnationality
requirement is met if ``the person who is the subject of the request
for extradition is located in the territory of the requested State
Party, provided that the offense for which extradition is sought is
punishable under the domestic law of both the requesting State Party
and the requested State Party.'' In other words, the transnationality
element is supplied by the fact of a request from one sovereign state
to another for a fugitive whose alleged offense satisfies the dual
criminality requirement customary in the extradition context.
Question 8. Is Article 16(9) a general provision on detention of a
suspect who is sought for extradition, or is it considered to also
authorize provisional arrest? What provisions of U.S. law are
applicable under this Article?
Answer. For those countries that will utilize the Convention as an
international legal basis for extradition, Article 16 incorporates all
of the essential provisions of an extradition treaty. Among these is a
general authorization in Article 16(9) that a requested State Party
may, in certain circumstances including urgency, and ``subject to the
provisions of its domestic law and its extradition treaties,'' detain a
person whose extradition is sought. This formulation is intended to
enable execution of both a provisional arrest request and a request for
arrest contained in a formal extradition submission. Since the United
States will continue to extradite only pursuant to its bilateral
extradition treaties (as amended by multilateral instruments such as
the Convention), it will not rely on Article 16(9) as an international
legal basis for detention of a fugitive. U.S. law authorizing the
arrest and detention of a fugitive pursuant to a request made under a
bilateral extradition treaty is found at 18 U.S.C. Sec. 3184 et seq.
Question 9. Article 18, paragraph 11 requires informed consent of a
prisoner before transfer to another state party. Paragraph 12 provides
a means for bringing charges against a person transferred if the state
party from which the person is transferred consents. When would such
consent for an additional prosecution from the state party be sought?
Is it prior to obtaining the informed consent of the prisoner for the
transfer itself?
Answer. Article 18, paragraphs 10-12, collectively provide a
framework for transferring a detained person from one State Party to
another in order for the Requested State to obtain information or
evidence from that person. It is not a substitute for extradition.
Substantially similar provisions are included in a number of
multilateral law enforcement conventions, including the Inter-American
Convention Against Terrorism and the UN Conventions for the Suppression
of Terrorist Bombings and Financing of Terrorism. U.S. bilateral mutual
legal assistance treaties also include provisions of this type.
As a rule, the consent of a transferring state party to the
bringing of charges in the state of transfer would be sought prior to
the transfer taking place. There may, however, be rare cases in which
the agreement of the transferring state is sought and provided
subsequently, for example if completion of service of the prisoner's
sentence occurred during the transfer, and he was released and remained
in the state to which he had been transferred.
Consent of the prisoner under Article 18(10) to the bringing of
unrelated charges typically also would be obtained prior to transfer; a
prisoner may, of course, waive this right.
Question 10. Article 18(21)(d) permits a state party to refuse a
request for legal assistance on ground that it would ``be contrary to
the legal system of the requested State party relating to mutual legal
assistance for the request to be granted.'' Please provide examples of
cases where the United States would likely refuse a request for
assistance based on this provision.
Answer. As noted in the article-by-article analysis contained in
the Letter of Submittal, the grounds for refusal permitted by Article
18(21) collectively are broader than those generally included in U.S.
bilateral MLATs. Article 18(21)(d) itself is not found in our bilateral
MLATs. Rather, it is drawn verbatim from the analogous mutual legal
assistance provisions of the 1988 UN Drug Convention (Article
7(15)(d)), to which the United States is a party and which in numerous
respects served as a model multilateral criminal law instrument for the
negotiators of the TOC Convention.
The Interpretive Notes to the TOC Convention state that ``contrary
to the legal system'' is ``not intended to encourage refusal of mutual
assistance for any reason, but is understood as raising the threshold
to more essential principles of domestic law of the requested State.''
While the Interpretive Notes do not further specify what ``more
essential principles'' of domestic law are, the official Commentary on
the 1988 Drug Convention (E/CN.7/590) cites as examples ``where the
offender may be subject to cruel, inhuman or degrading penalties or to
capital punishment, or to trial by special ad hoc tribunals.'' We are
not aware of instances where the United States has utilized this ground
for refusal under the 1988 Drug Convention.
Question 11. Article 30(2)(c) calls on State Parties to make
voluntary contributions to a UN funding mechanism for the purpose of
providing technical assistance to developing countries and countries
with economies in transition. Does the executive branch plan to request
funds from Congress to make such contributions and at what level?
Answer. The executive branch's single greatest priority for the
work of the Crime Prevention and Criminal Justice Program of the United
Nations Office on Drugs and Crime (UNODC) is assisting with the
ratification and implementation of the TOC and its protocols on
trafficking in persons and smuggling of migrants. UNODC initiated a
program devoted to this technical assistance work in 2001, and the
Department of State has contributed a total of $1,475,000 (from FY'01
and FY'02) to support these efforts, along with expertise from within
the Department of Justice. The Department of State's Bureau for
International Narcotics and Law Enforcement Affairs anticipates
providing additional funds to UNODC for this project in the future, out
of its International Narcotics Control and Law Enforcement account, in
amounts to be determined as part of the Bureau's annual process of
earmarking its annual pledges to UNODC. In keeping with longstanding
practice, the Department will inform Congress of all amounts earmarked
for this project.
Question 12a. The Secretary's letter of submittal recommends a
declaration on non-self-execution, except for Articles 16 and 18. It
then states that ``Article 16 and 18 of the Convention contain detailed
provisions on extradition and legal assistance that would be considered
self-executing in the context of normal bilateral extradition practice.
It is therefore appropriate to except those provisions from the general
understanding that the provisions of the Convention are non-self-
executing.''
Is this statement not contradicted, in part, by the
assertion, also made in the Secretary's letter, that the
Convention ``does not provide a substitute international legal
basis for extradition, which will continue to be governed by
U.S. domestic law and applicable bilateral extradition
treaties.''? Similarly, is it not contradicted, in part, by a
statement in the letter that where other MLATs exist between
the parties, ``they shall be utilized, and the Convention does
not affect their provisions.''?
Answer. The statement that the provisions of Articles 16 and 18,
unlike the other provisions of the Convention, are self-executing is
not contradicted by the other quotations cited in the question. With
respect to extradition, Article 16(4) of the Convention allows but does
not require State Parties to consider the Convention the legal basis
for extradition in respect of any offense to which it applies. The
United States would not use the Convention as an independent legal
basis for extradition from the United States in cases where the United
States has no extradition treaty with another State Party seeking
extradition. We will continue our practice of extraditing persons under
the authority of bilateral extradition treaties, and will deem the
offenses under this Convention to be extraditable offenses under such
treaties as are in force between State Parties to the Convention.
With respect to mutual legal assistance, Article 18(7) of the
Convention sets forth the rule that the mutual legal assistance
provisions of the Convention apply where the State Parties in question
do not have a bilateral mutual legal assistance treaty. Where, however,
a bilateral mutual legal assistance treaty is in force between State
Parties, the provisions of that treaty shall apply unless the State
Parties agree otherwise. State Parties therefore may by express
agreement, but are not required to, apply the mutual legal assistance
provisions of the Convention in situations in which a bilateral mutual
legal assistance treaty is in force.
Question 12b. How is Article 18 of the Convention related to
``normal bilateral extradition practice,'' as is set forth in the
chapeau of the question above?
Answer. Article 18 of the Convention is not related to ``normal
bilateral extradition practice,'' but rather to normal bilateral mutual
legal assistance practice. The quoted excerpt of the submittal letter
should have read as follows: ``Article 16 and 18 of the Convention
contain detailed provisions on extradition and legal assistance that
would be considered self-executing in the context of normal bilateral
extradition and mutual legal assistance practice.''
questions applicable to trafficking in persons protocol (treaty doc.
108-16)
Question 1. In Article 3(a), what does the term ``for the purpose
of exploitation'' mean?
Answer. Article 3(a) of the Protocol contains further explanation
of what the negotiators meant by this phrase: ``Exploitation shall
include, at a minimum, the exploitation of the prostitution of others
or other forms of sexual exploitation, forced labour or services,
slavery or practices similar to slavery, servitude or the removal of
organs.''
Question 2. The Secretary's letter of submittal states that the
negotiating record sets forth six statements intended to assist in the
interpretation of the definition of ``trafficking in persons.'' Please
provide these statements.
Answer. The six statements are part of the notes for the offidial
records (travaux preparatoires), which were provided to the Senate
together with the Secretary's letter of submittal. See paragraphs 63-68
on pages 12-13 of the travaux preparatoires. The statements read as
follows:
Article 3: Use of terms
Subparagraph (a)
63. The travaux preparatoires should indicate that the
reference to the abuse of a position of vulnerability is
understood to refer to any situation in which the person
involved has no real and acceptable alternative but to submit
to the abuse involved.
64. The travaux preparatoires should indicate that the
Protocol addresses the exploitation of the prostitution of
others and other forms of sexual exploitation only in the
context of trafficking in persons. The terms ``exploitation of
the prostitution of others'' or ``other forms of sexual
exploitation'' are not defined in the Protocol, which is
therefore without prejudice to how States Parties address
prostitution in their respective domestic laws.
65. The travaux preparatoires should indicate that the
removal of organs from children with the consent of a parent or
guardian for legitimate medical or therapeutic reasons should
not be considered exploitation.
66. The travaux preparatoires should indicate that where
illegal adoption amounts to a practice similar to slavery as
defined in article 1, paragraph (d), of the Supplementary
Convention on the Abolition of Slavery, the Slave Trade, and
Institutions and Practices Similar to Slavery, it will also
fall within the scope of the Protocol.
Subparagraph (b)
67. The travaux preparatoires should indicate that this
subparagraph should not be interpreted as restricting the
application of mutual legal assistance in accordance with
article 18 of the Convention.
68. The travaux preparatoires should indicate that
subparagraph (b) should not be interpreted as imposing any
restriction on the right of accused persons to a full defense
and to the presumption of innocence. They should also indicate
that it should not be interpreted as imposing on the victim the
burden of proof. As in any criminal case, the burden of proof
is on the State or public prosecutor, in accordance with
domestic law. Further, the travaux preparatoires will refer to
article 11, paragraph 6, of the Convention, which preserves
applicable legal defences and other related principles of the
domestic law of States Parties.
Question 3. The Secretary's letter of submittal, in discussing the
term ``other forms of sexual exploitation'' references state laws that
proscribe a variety of forms of sexual abuse. Do these laws have a
trafficking element? If not, how do they meet the obligation to
criminalize trafficking in persons for the purpose of other forms of
sexual exploitation? Please elaborate.
Answer. With respect to criminalization of trafficking for the
purpose of ``other forms of sexual exploitation,'' Federal law
prohibits interstate travel or transportation of a person, and
enticement or inducement for the purpose of committing any criminal
sexual act. It is thus fully consistent with the offense established in
the Trafficking Protocol. The State laws addressed in the Secretary's
letter of submittal also proscribe a variety of forms of sexual abuse,
as well as attempted commission of such offenses. However, these laws
generally do not have an element of recruitment or transportation. As
explained in the transmittal package, there may therefore be scenarios
in which the act of trafficking a person for purposes of sexual
exploitation would not be punishable under the relevant state criminal
law governing attempted or completed sex abuse. (For example, the act
of recruiting a person for purposes of sexual exploitation may not
constitute a criminal offense under the laws of one or more states.)
Accordingly, we have proposed the federalism reservation to address the
possibility that there may be purely local crimes that would not be
covered by the Federal law, and would also not be covered by state
sexual abuse laws.
Question 4. The Secretary's letter of submittal, in discussing the
obligation to prohibit the trafficking and attempted trafficking in
persons for the removal of organs, discusses 42 U.S.C. 274e and other
applicable Federal statutes on fraud, kidnapping, and other laws,
stating that these ``likely cover[] most instances of such trafficking
that could arise.'' But the letter recognizes that the ``express
obligation under the Protocol is nonetheless broader.'' The proposed
reservation that follows this discussion indicates it is necessary,
however, only to address rare offenses of a ``purely local character.''
Are there not also some gaps in Federal law that are not addressed by
the proposed reservation?
Answer. There is a theoretical possibility that a person could be
viewed as committing an offense under the Protocol, without such
activity satisfying the elements of an attempt or conspiracy under U.S.
Federal or state law. However, after careful examination of relevant
law by the Justice Department, we concluded that the possibility was so
remote and theoretical that a reservation was not needed.
Question 5. The proposed reservation related to federalism appears
to [be] broader than any reservation entered to date by any State Party
to the Protocol. Prior to recommending this reservation, did the
executive branch assess the possible reaction of other States Parties
to this proposed reservation? If so, what was the result of such an
assessment?
Answer. The proposed federalism reservation to the Trafficking in
Persons Protocol is analogous to that also proposed with respect to the
Transnational Organized Crime Convention. It explains the United States
Federal criminal law relating to trafficking in persons, and notes that
this Federal law will be the ``principal legal regime'' for combating
this offense. The proposed reservation also describes the very limited
circumstances in which state criminal law may be applicable, and the
conceivable scenario where there is no applicable Federal or state law.
During the course of negotiations on both the Convention and
Protocols, the U.S. delegation informed other delegations about the
nature of our legal system, in which both Federal and state substantive
criminal law may be relevant in order to implement a criminalization
obligation established in an international instrument. The U.S. system
is virtually unique in this respect, even among Federal states. We
believe that this effort caused many foreign governments to understand
the likelihood that the United States would require federalism
reservations in connection with certain Convention and Protocol
criminalization obligations.
The administration, in preparing the proposed federalism
reservations, considered the likely reaction of other State Parties.
While it is impossible to predict every foreign government's reaction
in advance, we believe that the foundation laid during negotiations, as
well as the somewhat detailed explanation in the text of the
reservations of the nature of U.S. federalism, as well as the
reservations' very limited scope, will assist foreign understanding and
acceptance.
Question 6. What is the nature of the obligation of Article 6(6)?
Will it require the United States to extend the victims compensation
law to U.S. victims of trafficking who are outside the United States?
Answer. Under Article 6(6), States Parties are required to ensure
the possibility that victims obtain compensation for damages suffered.
The United States already has laws in place that are adequate to meet
this requirement. Under 18 U.S.C. Sec. 1593, Federal courts must, in
sentencing defendants convicted of trafficking offenses, order that
defendants pay restitution to the victim that is equal to the full
extent of the victim's losses. In addition, as a general matter, the
U.S. legal system affords victims of crime the possibility of bringing
a civil suit for damages against the perpetrators of the harm. The
entire range of trafficking behaviors is captured under State tort law,
under which a victim may recover damages. Finally, section 4(a)(4) of
the Trafficking Victims Protection Reauthorization Act of 2003 created
a civil action provision that expressly allows trafficking victims to
sue their traffickers in an ``appropriate'' Federal district court.
Under that provision, victims outside the United States could bring
suit if their victimization constituted an offense under U.S. law,
which would require that some part of the offense occurred in the U.S.
Nothing in the Protocol suggests that trafficking cases entirely
unrelated to the U.S. are required to be actionable in the United
States.
Question 7. Article 8(2) requires that return of a victim of
trafficking in persons be done ``with due regard for the safety of that
person and for the status of any legal proceedings related to the fact
that the person is a victim of trafficking.'' How will the executive
branch determine whether it is safe for the victim to their country of
origin?
Answer. U.S. investigating authorities and immigration officials
will consider all the evidence in the case, including information
provided by the victim and any victim advocate involved in the case,
the location of the suspected traffickers (including associates who may
be located elsewhere), and the ability of authorities and non-
governmental organizations in the source country to offer services and
protection to the victim. The U.S. embassies in the source countries
may also be asked to provide relevant information. Of course, the
Trafficking Victims Protect Act, 22 U.S.C. Sec. 7101 et seq., provides
for the possibility of continued presence in the United States for
victims of severe forms of trafficking who can assist in the
investigation and prosecution, or a visa for trafficking victims who
are victims of a severe form of trafficking, who have complied with any
reasonable request for assistance in the investigation (or are younger
than 18), and who would face extreme hardship by returning home.
Question 8. With regard to Article 8(6), are there any such
agreements in force for the United States? Please elaborate.
Answer. The United States has no bilateral or multilateral
agreements or arrangements specific to trafficking victims. The United
States does have more general agreements with, for example, the
Dominican Republic, governing the return of those countries' nationals
apprehended at sea, and may enter similar agreements with other
countries in the future. The U.S. also has nonbinding arrangements on
repatriation, including those with Canada and Mexico, as well as local
arrangements with particular Mexican jurisdictions, which set forth
procedures to be followed in repatriating those countries' citizens.
All of these agreements are consistent with the obligations set forth
in Article 8.
questions applicable to migrant smuggling protocol (treaty doc. 108-16)
Question 1. What Federal statutes will implement the obligations of
Article 6?
Answer. The U.S. will implement its obligations under Article 6
through enforcement of the following statutes:
8 U.S.C. Sec. 1324(a)(1)(A)(i) (knowingly bringing an alien to
other than a designated port of entry); 8 U.S.C. Sec. 1324(a)(2)(B)(ii)
(bringing in any manner an alien without prior official authorization
for commercial advantage or private financial gain); 18 U.S.C.
Sec. 1543 (falsely making passports); 18 U.S.C. Sec. 1546(a) (falsely
making various visas and entry and residence documents); 18 U.S.C.
Sec. 1028(a)(1) (producing false U.S. identity documents in a way that
affects interstate commerce); 18 U.S.C. Sec. 1542 (``securing'' a
passport by false statement); 18 U.S.C. Sec. 1028(a)(4) (possessing a
fraudulent passport with the intent to defraud the U.S.); 18 U.S.C.
Sec. 1546(a) (obtaining false visas and other travel documents); 18
U.S.C. Sec. 1028(a)(4) (possession of an identity document with intent
is to defraud the U.S. government); 18 U.S.C. Sec. 1542 (``furnishes to
another'' a passport secured by fraudulent statement); 18 U.S.C.
Sec. 1544 (``furnishes, disposes of, or delivers a passport to any
person, for use by another than the person for whose use it was
originally issued and designed''); 18 U.S.C. Sec. 1028 (``transfer'' of
a false or fraudulently produced identity document); 8 U.S.C.
Sec. 1324(a)(1)(A)(iii) (concealing, harboring, or shielding from
detection an alien who has come to, entered, or remains in the U.S. in
violation of law); 18 U.S.C. Sec. 2 (general aiding and abetting); and
18 U.S.C. Sec. 371 (conspiracy).
Question 2. The Secretary's letter of submittal, in discussing
Article 6(3) and its requirement to establish as aggravating
circumstances certain conduct, references the Federal Sentencing
Guidelines, the constitutionality of which may have since been called
into question by the Supreme Court in Blakely v. Washington. Does the
executive branch have any views on the degree to which the United
States will be able to comply with the obligation of Article 6(3) after
Blakely?
Answer. It will take some time to determine how the United States
Supreme Court will apply Blakely, which involved State sentencing
guidelines, to the Federal sentencing guidelines. In the meantime,
until this issue is settled, Deputy Attorney General Comey has
instructed Federal prosecutors to include in indictments allegations
that will form the basis of upward departures or upward adjustments, so
that juries will make findings on those specific facts. This process
will enable the courts to utilize those factual findings as a basis for
increased sentences, thereby satisfying the requirements of the Blakely
case. Thus, by submitting relevant facts to a jury, the United States
can meet its obligation under Article 6(3) to punish migrant smuggling
more severely when it includes degrading or inhumane treatment or
endangerment of the migrant's life or safety.
Question 3. The discussion of Article 9 in the Secretary's letter
of submittal indicates that ``existing claims procedures'' under
current law would be used to process and adjudicate any claims for
compensation for any loss or damage. Please describe the authority for
these existing procedures and how those procedures are administered.
Answer. The applicable U.S. law regarding claims against the United
States for actions taken by the U.S. Armed Forces, including the U.S.
Coast Guard, are contained in the Suits in Admiralty Act (46 U.S. Code
App. Sec. Sec. 741 et seq.) and the Public Vessels Act (46 U.S. Code
App. Sec. 781), in which there are waivers of sovereign immunity, as
well as the Military Claims Act (10 U.S.C. Sec. 2733) and the Foreign
Claims Act (10 U.S.C. Sec. 2734). The applicable U.S. Coast Guard
regulations are to be found in 33 CFR Part 25 and the Admiralty Claims
Procedures in 32 CFR Part 752.
For the U.S. Coast Guard (USCG), these procedures are administered
by the USCG's two Maintenance & Logistics Commands. The USCG, as a
matter of policy, promptly pays all meritorious claims for property
damage or personal injury resulting from law enforcement activities
pursuant to which no violations or illegal activity are discovered.
Claimants may initiate a claim by filling out a simple two-page form
and presenting it to the Commanding Officer of any USCG unit, to the
military attache of any United States Embassy or consulate, or to the
Commanding Officer of any unit of the Armed Forces of the United
States. Such forms are available through the USCG and United States
Navy, including units that conduct boardings and searches of suspect
vessels. After administrative investigation and review by the USCG, the
claim, if merited, may be paid. If the parties cannot agree to settle
the claim, the claimant retains the right to seek any available relief
in United States Federal court.
The Secretary of the Navy has authority to settle admiralty claims
for damage caused by vessels or other property of the U.S. Navy and
maritime torts committed by agents or employees of the U.S. Navy. This
authority is subject to the caveat that legal liability must exist and
the case must not be in litigation. The Office of the Judge Advocate
General of the Navy, Admiralty and Maritime Law Division, is
responsible for adjudicating all tort claims within admiralty
jurisdiction involving the operation of United States Navy vessels,
personnel or property. There is no particular form or format necessary
to submit an admiralty claim to the Office of the Judge Advocate
General of the Navy. The claimant must fully explain the facts
underlying the claim and justify the amount claimed by including
relevant documents, charts, diagrams, and photographs, as well as
repair or replacement estimates, surveys, receipts, or invoices.
Question 4. The discussion of Article 11 in the Secretary's letter
of submittal emphasizes the discretionary language of this provision.
How will this article be implemented under U.S. law?
Answer. The text of Article 11 is designed to provide significant
flexibility to States Parties. In this connection, the U.S. already has
in place laws and practices that implement specific measures set forth
in the Article. For example, 8 U.S.C. Sec. Sec. 1224 and 1323 impose
fines on commercial carriers for violations of immigration law, such as
transporting aliens into the U.S. without a valid visa or passport.
With respect to paragraph 5 of this article, 8 U.S.C. Sec. 1182(2)(H)
deems inadmissible those engaged in trafficking in persons; and 8
U.S.C. Sec. 1201(i) authorizes the Secretary of State to revoke visas
and could be used against traffickers.
Question 5. Is not Article 18(1) of the Protocol self-executing?
Answer. No, we would not consider Article 18(1) of the Protocol to
be self-executing. The non-self-executing declaration proposed by the
administration was intended to make clear that Article 18(1) (among
other provisions) does not create enforceable legal rights in U.S.
courts.
______
Responses of Samuel M. Witten and Michael T. Schmitz to Additional
Questions for the Record Submitted by Senator Joseph R. Biden, Jr.
Question 1. During the course of the negotiation of the Protocol
of Amendment, was there any consultation with the Committee on Foreign
Relations? If not, why not?
Answer. During the course of negotiations, there were no
consultations with the Senate Foreign Relations Committee (SFRC). In
retrospect, such consultations would have been appropriate.
Question 2. During the course of the negotiations of the Protocol
of Amendment, were there any consultations with the Senate Committee on
Finance or the House Committee on Ways and Means? If not, why not?
Answer. During the course of negotiations, there were no separate
consultations with Senate Committee on Finance or the House Committee
on Ways and Means.
That said, the former U.S. Customs Service, which was the agency
that took the lead in the negotiations, extended to the Senate Finance
and House Ways and Means Committee members and staffers a standing
invitation to attend and participate in meetings of the U.S. Inter-
Agency Working Group on the Customs Cooperation Council, and notified
members and staffers of such meetings. The former U.S. Customs used
these meetings to provide an opportunity for feedback during the
negotiation process from concerned agencies, including, among others,
the Departments of State, Treasury, Commerce, Transportation,
Agriculture and Labor, the Office of the United States Trade
Representative, the U.S. International Trade Commission and the Office
of Management and Budget.
Question 3. The negotiations on the Protocol of Amendment were
concluded in June 1999. Why did it take until April 2003 for submission
of the Protocol for advice and consent to accession? Was there any
significant opposition within the Executive Branch to submission of the
Protocol to the Senate?
Answer. Review of this Convention within the U.S. Government has
been a very extensive, thorough process to analyze the potential impact
on the United States and consistency with national legislation. In
2000, following the adoption of the Convention by the World Customs
Organization in 1999, the former U.S. Customs Service, then a part of
the Department of the Treasury, initiated an extensive review of the
Revised Convention to identify any inconsistencies between the
provisions of the Revised Convention and U.S. customs procedures and
requirements and national legislation. This review enabled the former
U.S. Customs Service to specify whether any implementing legislation
would be required, and to determine whether the United States would
need to decline to accept certain Specific Annexes or Chapters within
these Annexes, or to enter reservations to Recommended Practices
therein. This process also involved interagency consultations and a
complete review by the Department of the Treasury and an extensive
review by the Department of State and the Department of Justice.
The Administration fully supports accession to the Revised
Convention.
Question 4. If the United States accedes to the Protocol of
Amendment, what will be the legal status of the 1973 Convention for the
United States vis-a-vis parties to the Convention which have not become
parties to the Amended Convention? Will the existence of different
treaty regimes affect U.S. customs policies and practices? If so, how?
Answer. If the United States accedes to the Protocol of Amendment,
it will continue to have treaty relations under the 1973 Convention
with parties to that convention that have not become parties to the
Revised Convention. The fact that the Protocol of Amendment will not
enter into force until 40 parties (of the 63 parties to the 1973
Convention) have expressed their consent to be bound by it should help
minimize any issues arising from this. Thirty-four States have already
consented to be bound by the Revised Customs Convention, two of these
since the June 17, 2004, hearing of the Senate Foreign Relations
Committee. These include some of our largest trading partners (Canada,
China, Japan, Germany and the United Kingdom). Application of the new
procedures with respect to some parties, while maintaining relations
under the 1973 Convention with others, is not expected to create
significant problems, as the procedures are generally compatible.
Question 5. In the view of the executive branch, does the Amended
Convention provide for a private right of action?
Answer. No. The Revised Convention, like the 1973 Convention, is
not intended to create a private right of action in U.S. courts.
Question 6. Article 4(4) of the Amended Convention makes reference
to Guidelines that accompany the Annexes, and states that these
Guidelines are not binding upon parties. What is the purpose of the
Guidelines? To what degree are they consistent with U.S. practice?
Answer. The Guidelines identified in Article 4(4) of the Revised
Convention are designed to provide non-binding guidance for parties to
help with the implementation of the Standards and Recommended Practices
in the Specific Annexes of the Convention. The Guidelines are generally
consistent with U.S. practice. As they are not binding on parties, even
if they were inconsistent with U.S. practice, they would require no
change in U.S. practice.
Question 7. Article 6(8) of the Amended Convention provides the
voting procedure if there is not consensus in the Management Committee.
Is it expected that most decisions will be made by consensus?
Answer. Decisions within the working bodies of the World Customs
Organization are generally made by consensus. Voting only occurs as a
last resort if consensus cannot be reached. It is therefore expected
that most decisions made by the Management Committee under the Revised
Convention will also be made by consensus. Decisionmaking by consensus
generally benefits the United States, which, as the contributor of 25
percent of the WCO budget, has considerable influence within the
organization.
Question 8. Article 12(3) of the Amended Convention requires a
party to examine the possibility of withdrawing any reservations to the
Recommended Practices every three years. Would the executive branch
seek Senate approval for withdrawal of any reservation?
Answer. The ``reservations'' that can be made by parties under
Article 12, to which you refer, are intended to allow States to
identify when their domestic law is inconsistent with a Recommended
Practice and allow States to thereby depart from the uniform practice
otherwise encouraged by the Revised Convention. In accordance with
Article 12(2) a State that does not wish to be bound by a particular
Recommended Practice must notify the depositary and declare the
differences that exist between provisions of its national legislation
and those of the Recommended Practice concerned. If a State's domestic
law changes so that the Recommended Practice can be followed, the so-
called ``reservation'' should be removed in accordance with Article
12(3). As a result, the United States will only withdraw such a
``reservation'' when U.S. law becomes consistent with the Recommended
Practice. We do not consider such notifications to be reservations as
that term is generally understood in international law or U.S. treaty
practice. It would, therefore, not be necessary in this particular case
for the executive branch to return to the Senate for approval when
withdrawing such notifications.
Question 9. Article 13(3) of the Amended Convention states that
each Contracting Party ``shall implement the Recommended Practices'' in
the Specific Annexes or Chapters it has accepted within 36 months. The
Recommended Practices in the Specific Annexes, however, are not stated
in mandatory language, but instead state that a party ``should'' take a
particular course of action or adopt a particular practice.
a. Why are the Recommended Practices stated in this manner?
b. What is the executive branch's view of the nature of the
legal obligation with regard to any Recommended Practice in a
Specific Annex that the United States intends to accept?
Answer. The use of ``should'' in the Specific Annexes is
consistent with the ``recommended'' nature of the Practices. This
reflects the fact that a party may enter a reservation to any
applicable Recommended Practices, and in that sense the Recommended
Practices are optional. However, where a party does not enter a
reservation to an applicable Recommended Practice, that Recommended
Practice is binding and its implementation is obligatory, in accordance
with Article 12(2) and Article 13(3). Although the terminology used in
the Convention is thus somewhat unusual when compared with practice in
other treaties and conventions, read as a whole the structure of the
Convention is consistent with other conventions where parties undertake
obligations absent express statements to the contrary.
Question 10. Please describe current U.S. law and policy on
personal searches of travelers by customs officers. How does it comport
with Specific Annex J, Chapter 1, Standard 10?
Answer. As a result of this question, we have reviewed Specific
Annex J (Special Procedures), Chapter 1 (Travellers), Standard 10 on
personal searches of travelers, and have concluded that absent a
definition of ``personal searches'' in the Body of the Revised
Convention, the General Annex of the Convention or its Specific
Annexes, the consistency between Standard 10 and U.S. law and practice
is subject to question, particularly regarding the level of suspicion
required for minimally intrusive searches, such as pat down searches,
of persons at the border. We note that a similar question arises with
respect to Specific Annex H (Offenses), Chapter 1 (Customs Offenses),
Standard 6, which also pertains to personal searches.
We therefore propose that the United States, upon acceding to the
Revised Convention, exercise its discretion, as provided in Article 8.3
and Article 12.2 of the Convention, not to accept Chapter 1 of Specific
Annex H or Chapter 1 of Specific Annex J. (Note that under Article
12.2, a ratifying/acceding party may not opt out of an individual
Standard alone; in order to opt out of a Standard, one must opt out of
the relevant Specific Annex or Chapter therein.) The Administration
previously recommended to the Senate that the United States opt out of
Chapter 4 of Specific Annex F; Chapter 2 of Specific Annex J; and
Specific Annex K in its entirety. The Administration also recommended
that the United States enter a reservation to a number of Recommended
Practices, as authorized in Article 12.2 of the Convention. Those
recommendations still apply; the only changes to our prior
recommendations for the Senate's Resolution of Advice and Consent are
to opt out of the two additional chapters identified above relating to
personal searches.
The additional opt-outs are recommended for the following reason.
Under U.S. law, Customs officers have broad authority to stop, detain,
search, and examine any ``vehicle, beast, or person.'' 19 U.S.C.
Sec. Sec. 482, 1581-1582. Nonetheless, such authority must be exercised
consistent with the reasonableness requirement of the Fourth Amendment.
United States v. Montoya de Hernandez, 473 U.S. 531 (1985). Under that
standard, Customs officers must have an increased level of
particularized suspicion to conduct more intrusive personal searches.
Id. (detention for internal smuggling requires reasonable suspicion).
Under U.S. law, most courts have held that officers do not require any
objective quantum of suspicion for minimally intrusive searches at the
border, including pat downs. U.S. Customs and Border Protection's
policy is to require officers to have at least one specific objective
basis for conducting a pat down. Standard 10 thus comports both with
U.S. government policy and existing U.S. law insofar as it applies to
intrusive personal searches. The question of whether Standard 10 is
consistent with U.S. law as applied to minimally intrusive searches
such as pat downs and frisks, however, is more complicated. The Supreme
Court has not spoken directly to the issue of the level of suspicion
required for a pat down or frisk at the border. However, the trend in
the courts of appeals has been to require no suspicion for officers to
conduct such searches. See, e.g., Bradley v. United States, 299 F.3d
197 (3d Cir. 2002) (no suspicion required); United States v. Gonzalez-
Rincon, 36 F.3d 859, 864 (9th Cir. 1994) (reasonable suspicion not
required); United States v. Braks, 842 F.2d 509 (1st Cir. 1988)
(stating ``mere'' suspicion is ``no'' suspicion); United States v.
Sandler, 644 F.2d 1163 (5th Cir. 1981) (``mere'' suspicion justifies
routine border search). We believe this is a correct view of the law on
the subject.
Standard 10 provides that ``personal searches of travelers for the
purposes of customs control shall be carried out only in exceptional
cases and when there are reasonable grounds to suspect smuggling or
other offences.'' Standard 10 does not define whether ``personal
searches'' include frisks or pat downs. The (non-binding) Guideline to
Standard 10 provides that ``the types and degrees of personal searches
carried out depend on the reasonableness of the grounds for suspicion.
Intrusive personal searches may be appropriate when there is a high
level of suspicion, whereas a frisk or pat down of person would be
appropriate when there is a lesser level of suspicion.'' Read in
conjunction with this Guideline, one interpretation of Standard 10
would be that the requirement in the Standard for ``reasonable grounds
for suspicion'' applies to pat down searches, which U.S. courts have
held may be conducted with no suspicion. In that sense, Standard 10
(and Standard 6 in Annex H, Chapter 1) may not comport with U.S. law
and therefore opting out of the Standard (and hence the relevant
Chapter) would be appropriate.
Opting out of these two Chapters now does not foreclose the
possibility of accepting these Chapters in the future. Having ratified
or acceded to the Convention, any party may subsequently notify the
depositary that it accepts one or more Specific Annexes or Chapters
therein. If the United States becomes a Party to the Convention, U.S.
Customs and Border Protection will participate in the Management
Committee created pursuant to the Convention's entry into force and
will work to amend those Standards that may be inconsistent with U.S.
law or policy, including Standard 6 in Specific Annex H, Chapter 1, and
Standard 10 in Specific Annex J, Chapter 1.
Question 11. Specific Annex J, Chapter 1, Recommended Practice 17
states that travelers should be permitted to import, free of duty, non-
commercial goods up to an aggregate value of 75 Special Drawing Rights.
a. How does this compare with current U.S. law on such duty-
free import of non-commercial goods by travelers? Has this rate
changed in the last 20 years? If so, how?
b. Does the Recommended Practice mean that the United States
could not reduce its duty-free exemption below 75 SDRs?
Answers:
a. Seventy-five SDRs equates to approximately $110 USD. Duty-free
importation allowances for returning residents are discussed in Part
148 of the CBP Regulations (19 CFR Part 148). Currently, U.S. Customs
and Border Protection's personal exemptions for returning residents are
$800, $1,200, and $600, as explained below.
9804.00.65, HTSUS allows for the duty-free personal
importation of articles acquired abroad valued up to $800 for a
resident returning from any foreign country.
9804.00.70, HTSUS allows for the duty-free personal
importation of articles valued up to $1,200 for a resident
returning from an insular possession.
9804.0.72, HTSUS allows for the duty-free personal
importation of articles valued up to $600 for a resident
returning from a beneficiary developing country.
In 1986, the personal exemption was raised from $300 to $400 and
the exemption for residents returning from insular possessions was
raised from $600 to $800. (See, T.D. 86-118 and P.L. 97-446). In 1997,
the exemption for returnees from the insular possessions was raised to
from $800 to $1,200 (See, T.D. 97-75). The personal exemption was
raised from $400 to $800 in the Trade Act of 2002.
b. Yes. Unless the United States takes a reservation to Specific
Annex J, Chapter 1, Recommended Practice 17, the United States could
not reduce its duty-free exemption below 75 SDRs. However, as the U.S.
duty-free exemption has increased over time to the current duty-free
exemption level of $800, it is highly unlikely that such a reservation
would ever be necessary.
Question 12. Under Specific Annex J, Chapter 1, Standard 20, are
there any items on this list of items (i.e. items to be considered
``personal effects'' of a non-resident) controlled under the U.S.
Munitions List (USML) or the Commerce Control List (CCL)? Specifically,
do the terms ``portable radio receivers'' or ``cellular or mobile
telephones'' include satellite telephones? If any items are on the USML
or CCL, and the traveler wishes to re-export them, are applicable
export controls affected by provisions of the Amended Convention? If
so, how?
Answer. Most commercially-available versions of the items listed
as personal effects under Specific Annex J, Chapter 1, Standard 20 are
not on the U.S. Munitions List (USML) or Commerce Control List (CCL)
and do not require export documentation. However, depending upon their
level of technology, these items may be on the USML or CCL, or these
items may otherwise be subject to export controls based on the country
of destination or the intended end-use or end-user of the items.
Additionally, any modification performed on these items may result in
the item being controlled on either the USML or the CCL.
The terms ``portable radio receivers'' or ``cellular or mobile
telephones'' may include satellite telephones. However, our current
export controls are not affected by any provisions of the Revised
Convention. Our current enforcement scheme requires that certain
personal items that require a license or may be exported pursuant to a
license exception or exemption, such as weapons (rifles, handguns,
shotguns), ammunition for firearms, bullet-proof vests, gas masks, CS
Gas and Tear Gas, and GPS devices, must be exported in compliance with
export formalities, including submission of the electronic Shipper's
Export Declarations (SEDs) via the Automated Export System (AES),
regardless of the fact that they may be characterized as ``personal.''
Our current export scheme also requires that certain items labeled
``personal'' in Standard 20 be exported with formalities, including an
SED and via AES, when those items meet criteria established by other
Federal government agencies. Specific Annex J, Chapter 1, Standard 36
of the Revised Convention allows for the use of temporary exportation
documents for personal effects in exceptional cases. The Revised
Convention allows for our export control scheme to continue without
change.
Question 13. Under Specific Annex J, Chapter 1, Standard 33, does
the term ``necessary formalities'' include export controls and
shipper's export declarations under U.S. law?
Answer. (Please note that this question appears to refer to
Specific Annex J, Standard 34 and not to Specific Annex J, Standard 33.
If this question does in fact refer to Specific Annex J, Standard 34,
the response is as follows.)
Yes. Under Specific Annex J, Chapter 1, Standard 34, the term
``necessary formalities'' does include export controls and Shipper's
Export Declarations (SEDs) under U.S. law. If an item is controlled
pursuant to the International Traffic in Arms Regulations (ITAR) of the
Department of State or the Commerce Control List (CCL) of the Export
Administration Regulations administered by the Department of Commerce,
it typically requires the electronic submission of the Shipper's Export
Declaration via the Automated Export System (AES). Electronic export
information must be submitted through the AES, regardless of value, for
all commodities controlled under the ITAR. Exports of CCL commodities
that require a license for export must be reported through AES
regardless of value. With limited exceptions, a Shipper's Export
Declaration must be filed if the value of the commodities exceed
$2,500.
Question 14. Under Specific Annex J, Chapter 1, Standard 36, are
there any such ``exceptional cases'' where a temporary exportation
document is required under U.S. law? Please elaborate.
Answer. Yes. Under Specific Annex J, Chapter 1, Standard 36, there
may be ``exceptional cases'' where a temporary exportation document is
required under U.S.
law. Merchandise that, by its nature, intended destination, end-use, or
end-user, requires a license or license exception or exemption by a
U.S. government agency for export typically requires the submission of
an electronic Shipper's Export Declaration through the Automated Export
System (AES).