    [Senate Treaty Document 108-11]
    [From the U.S. Government Publishing Office]

    108th Congress                                              Treaty Doc.
     1st Session                     SENATE                     108-11
    _______________________________________________________________________

                                    [ERRATA] CONVENTION ON CYBERCRIME

                                   __________

                                    MESSAGE

                                      from

                       THE PRESIDENT OF THE UNITED STATES

                                  transmitting

         COUNCIL OF EUROPE CONVENTION ON CYBERCRIME (THE ``CYBERCRIME
      CONVENTION'' OR THE ``CONVENTION''), WHICH WAS SIGNED BY THE UNITED
                          STATES ON NOVEMBER 23, 2001

     November 17, 2003.--Convention was read the first time, and together
      with the accompanying papers, referred to the Committee on Foreign
         Relations and ordered to be printed for the use of the Senate

    principles concerning the division of powers in criminal
    justice matters'' between its central government and its
    constituent entities. The reservation was inserted to make
    clear that the United States could meet its Convention
    obligations through application of existing federal law and
    would not be obligated to criminalize activity that does not
    implicate a foreign, interstate or other federal interest
    meriting the exercise of federal jurisdiction. In the absence
    of the reservation, there would be a narrow category of conduct
    regulated by U.S. State, but not federal, law that the United
    States would be obligated to criminalize under the Convention
    (e.g., an attack on a stand-alone personal computer that does
    not take place through the Internet). Article 41 makes clear
    that this reservation is available only where the federal state
    is still able to meet its international cooperation obligations
    and where application of the reservation would not be so broad
    as to exclude entirely or substantially diminish its
    obligations to criminalize conduct and provide for procedural
    measures. Such a restriction is not an obstacle for the United
    States because the Convention's international cooperation
    provisions are implemented at the federal level and because
    federal substantive criminal law provides for broad overall
    coverage of the illegal conduct addressed by the Convention. In
    invoking the reservation, the U.S. Government would be obliged
    to bring the Convention's provisions to the attention of its
    constituent States and entities, with a ``favourable opinion''
    encouraging them to take appropriate action to give effect to
    such provisions, even though, as a result of the reservation,
    there would be no obligation for them to do so. This step would
    be accomplished through an outreach effort on the part of the
    federal government. Accordingly, I recommend that the following
    reservation be included in the U.S. instrument of ratification:
            The Government of the United States of America,
            pursuant to Articles 41 and 42, reserves the right to
            assume obligations under Chapter II of the Convention
            in a manner consistent with its fundamental principles
            of federalism.
    Furthermore, in connection with this reservation, I recommend
    that the Senate include the following understanding in its
    resolution of advice and consent:
            The United States understands that, in view of its
            reservation pursuant to Article 41, Chapter II of the
            Convention does not warrant the enactment of any
            legislative or other measures; instead, the United
            States will rely on existing federal law to meet its
            obligations under Chapter II of the Convention.
        Article 42 (``Reservations'') enumerates those provisions
    by which a Party can exclude or modify its obligations with
    respect to specified articles at the time it consents to be
    bound by the Convention. Consistent with COE treaty practice,
    the Article provides that no other reservations may be made.
    Article 43 (``Status and withdrawal of reservations'') provides
    a mechanism for Parties to withdraw their reservations as soon
    as circumstances permit. As set forth above, to meet its
    obligations without the need for additional implementing
    legislation, the United States would make permitted
    reservations under Articles 4(2), 6(3), 9(4), 10(3), 22(2), and
    41.
        The procedure for amending the Convention is set forth in
    Article 44 (``Amendments'') and provides that amendments do not
    come into force until they have been accepted by all Parties to
    the Convention. Article 45 (``Settlement of disputes'')
    obligates Parties to