[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