[Congressional Record Volume 151, Number 148 (Wednesday, November 9, 2005)]
[Senate]
[Page S12606]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     EXECUTIVE REPORT OF COMMITTEE

  The following executive report of committee was submitted:

       By Mr. LUGAR, from the Committee on Foreign Relations:

[Council of Europe Convention on Cybercrime (Treaty Doc. 108-11) with 6 
          reservations and 5 declarations (Ex. Rept. 109-6).]

Text of the Resolution of Ratification as Reported by the Committee on 
                           Foreign Relations:

       Resolved (two-thirds of the Senators present concurring 
     therein),
       Section 1. Senate Advice and Consent Subject to 
     Reservations and Declarations
       The Senate advises and consents to the ratification of the 
     Council of Europe Convention on Cybercrime (``the 
     Convention''), signed by the United States on November 23, 
     2001 (T. Doc. 108 11), subject to the reservations of section 
     2, and the declarations of section 3.
       Section 2. Reservations
       The advice and consent of the Senate under section 1 is 
     subject to the following reservations, which shall be 
     included in the United States instrument of ratification:
       (1) The United States of America, pursuant to Articles 4 
     and 42, reserves the right to require that the conduct result 
     in serious harm, which shall be determined in accordance with 
     applicable United States federal law.
       (2) The United States of America, pursuant to Articles 6 
     and 42, reserves the right not to apply paragraphs (1)(a)(i) 
     and (1)(b) of Article 6 (``Misuse of devices'') with respect 
     to devices designed or adapted primarily for the purpose of 
     committing the offenses established in Article 4 (``Data 
     interference'') and Article 5 (``System interference'').
       (3) The United States of America, pursuant to Articles 9 
     and 42, reserves the right to apply paragraphs (2)(b) and (c) 
     of Article 9 only to the extent consistent with the 
     Constitution of the United States as interpreted by the 
     United States and as provided for under its federal law, 
     which includes, for example, crimes of distribution of 
     material considered to be obscene under applicable United 
     States standards.
       (4) The United States of America, pursuant to Articles 10 
     and 42, reserves the right to impose other effective remedies 
     in lieu of criminal liability under paragraphs 1 and 2 of 
     Article 10 (``Offenses related to infringement of copyright 
     and related rights'') with respect to infringements of 
     certain rental rights to the extent the criminalization of 
     such infringements is not required pursuant to the 
     obligations the United States has undertaken under the 
     agreements referenced in paragraphs 1 and 2.
       (5) The United States of America, pursuant to Articles 22 
     and 42, reserves the right not to apply in part paragraphs 
     (1)(b), (c) and (d) of Article 22 (``Jurisdiction''). The 
     United States does not provide for plenary jurisdiction over 
     offenses that are committed outside its territory by its 
     citizens or on board ships flying its flag or aircraft 
     registered under its laws. However, United States law does 
     provide for jurisdiction over a number of offenses to be 
     established under the Convention that are committed abroad by 
     United States nationals in circumstances implicating 
     particular federal interests, as well as over a number of 
     such offenses committed on board United States-flagged ships 
     or aircraft registered under United States law. Accordingly, 
     the United States will implement paragraphs (1)(b), (c) and 
     (d) to the extent provided for under its federal law.
       (6) 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.
       Section 3. Declarations
       (1) The advice and consent of the Senate under section 1 is 
     subject to the following declarations, which shall be 
     included in the United States instrument of ratification:
       (a) The United States of America declares, pursuant to 
     Articles 2 and 40, that under United States law, the offense 
     set forth in Article 2 (``Illegal access'') includes an 
     additional requirement of intent to obtain computer data.
       (b) The United States of America declares, pursuant to 
     Articles 6 and 40, that under United States law, the offense 
     set forth in paragraph (1)(b) of Article 6 (``Misuse of 
     devices'') includes a requirement that a minimum number of 
     items be possessed. The minimum number shall be the same as 
     that provided for by applicable United States federal law.
       (c) The United States of America declares, pursuant to 
     Articles 7 and 40, that under United States law, the offense 
     set forth in Article 7 (``Computer-related forgery'') 
     includes a requirement of intent to defraud.
       (d) The United States of America declares, pursuant to 
     Articles 27 and 40, that requests made to the United States 
     of America under paragraph 9(e) of Article 27 (``Procedures 
     pertaining to mutual assistance requests in the absence of 
     applicable international agreements'') are to be addressed to 
     its central authority for mutual assistance.
       (2) The advice and consent of the Senate under section 1 is 
     also subject to the following declaration: The United States 
     of America declares that, in view of its reservation pursuant 
     to Article 41 of the Convention, current United States 
     federal law fulfills the obligations of Chapter II of the 
     Convention for the United States. Accordingly, the United 
     States does not intend to enact new legislation to fulfill 
     its obligations under Chapter II.

                          ____________________