UN Cybercrime Treaty Talks End Without Consensus on Scope And Deep Divides About Surveillance Powers

By Karen Gullo

As the latest negotiating session on the proposed UN Cybercrime Treaty wrapped up in New York earlier this month, one thing was clear: with time running out to finalize the text, little progress and consensus was reached on crucial points, such as the treaty’s overall scope of application and the reach of its criminal procedure mandates and international cooperation measures.

Instead, a plethora of proposed word changes was added, further complicated by additional amendments published in informal reports well after the two-week session ended September 2. We saw many of the same highly dangerous criminal offenses and surveillance measures that had not made it into the zero draft reintroduced back into the text. The original zero draft, as well as the last set of amendments discussed in behind-closed doors negotiations, turned into a sea of redlines.

It became apparent that many nations, including Russia, Eritrea, Burundi, Sierra Leone, Zimbabwe, Ghana, Korea, and others, were vying to expand the proposed treaty’s surveillance scope to cover practically any offense imaginable where a computer was involved, both at home and abroad.

“We believe a future convention ought to cover the largest possible range of offenses that could be committed using information and communication technologies (ICTs),” said Burkina Faso’s delegate.

According to the domestic surveillance chapter, evidence gathering could be marshaled against any act deemed criminal as defined by that nation’s own laws. When shifting to international cooperation, the initial drafts and several succeeding amendments indicate that the standard for such surveillance cooperation could be offenses with penalties ranging from three or more years in prison (earlier text limited it to four years), among other alternatives. This proposed treaty could serve as a global license to suppress dissenters, minorities, activists, journalists, and more.

Canada warned delegates about the potential consequences. In a statement (at minute 01:01) that garnered rare applause from the floor, it laid out in stark terms that the relentless push to expand the proposed treaty’s scope has turned it into a general criminal Mutual Legal Assistance treaty which leaves it completely in the hands of any state to decide what conduct is a “crime”or “a serious crime”and opens up a menu of measures to crack down on these crimes.

This represents the potential, and indeed inevitability, for Orwellian reach and control by those states who will choose to abuse this instrument…”

Criticizing a leader, innocently dancing on social media, being born a certain way, or simply saying a single word, all far exceed the definition of serious crime in some States. These acts will all come under the scope of this UN treaty in the current draft.

…this is a UN Convention, and as such our responsibility is much bigger than ourselves, it is to the people in those places where there are no protections and where this treaty will be an unprecedented multilateral tool to extend the reach and collaboration of repression and persecution.

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What’s more, Canada said, the UN would be going against its own practices if the cybercrime treaty allows Member States to choose whatever crimes they wish to be covered and targeted under the convention.

We can find no other UN criminal justice treaty, or any other  treaty under the UN for that matter, that leaves it completely in the hands and whims of Member States to define the breadth and type of subject matter that comes under the scope in the instrument, in perpetuity.

New Zealand, Switzerland, Norway, Uruguay, and Costa Rica, along with Human Rights Watch, Article 19, EFF, Privacy International, Global Partners Digital, and other civil society groups and companies like Microsoft, also sounded alarms, as we have for years, about the inherent human rights risks posed by the broad scope of the Convention. EFF continued to advocate for a narrow scope of the treaty and its chapters, adding robust data protection and human rights safeguards throughout the proposed Convention, and removing Article 28.4, which empowers competent authorities to compel individuals with knowledge of specific computer or device functionalities to provide essential information for conducting searches.

The scope of the proposed Cybercrime Treaty will have a profound impact on human rights. The question of whether the Convention should apply broadly or be limited in its application affects everything, from criminal procedures (such as domestic surveillance) to international cooperation (like cross-border spying or assistance).

Simply put, if Country B chooses to act as ‘big brother’ for Country A, it could tap into an activist’s live chats or trace their exact whereabouts, all based on the loose privacy standards and arbitrary criminal definitions set by Country B’s laws. The absence of a mandate in the proposed Treaty for the same act to be a crime in both countries only magnifies the risks.

And the proposed 3 or 4-year sentence threshold to invoke the international cooperation powers does little to instill confidence. Many laws criminalizing speech could comfortably fit this mold, paving the way for wide-ranging surveillance misuse.

Sierra Leone told Member States during the New York negotiating session:

“Imagine a scenario where a particular national residing in another country continues to use the influence of social media to spread propaganda and hateful messages and incite violence that leads to fatal clashes with security forces,” Sierra Leone said. ”These crimes have the potential to interfere with the sovereignty of nations and their peace and stability when individuals become incited by opponents to cause mayhem in another state using ICTs.”

And while governments like the US say they’ll deny requests for electronic evidence on human rights grounds, the draft treaty as a whole risks formalizing a system for international cooperation that encourages surveillance and sharing of data, anchored in the laws of the country requesting the assistance, and the privacy standard of the country providing the assistance. To that respect, Human Rights Watch Senior Researcher Deborah Brown, underscoring the gravity of misaligned national laws with international standards, emphasized:

There are many examples of national laws that are inconsistent with international free expression standards and carry 3+ year or 4+ year sentences, as well as examples of such laws being used to prosecute journalists, human rights defenders, free thinkers, and others.

Some States argue that they will exercise their right to refuse assistance on investigations on human rights grounds. But leaving such critical decisions up to the discretion of government authorities is extremely risky. And if the treaty opens the gates to international cooperation for every conceivable offense, those authorities are going to need to become experts in every crime around the world and their potential misuses. This isn’t a focused effort anymore. Rather than honing in on the cybercrimes this convention intended to tackle, there is a risk of diluting  efforts and overwhelming mutual legal assistance channels with a deluge of requests.

But even if some countries choose to adhere to the dual criminality principle, endorsing such a broad scope for the treaty signals a worrying indifference. The proposed Treaty is establishing a legal foundation for international cooperation on acts that, in some jurisdictions, are regarded as expressions of opinion rather than criminal offenses:

“By narrowing the scope of this [international cooperation chapter], we are not only preserving these rights but also preventing the potential misuse of the treaty in jurisdictions where freedoms and human rights may not be as robustly protected,” EFF told delegates earlier this year.

As Canada said,

“…this is a UN Convention, and as such our responsibility is much bigger than ourselves, it is to the people in those places where there are no protections and where this treaty will be an unprecedented multilateral tool to extend the reach and collaboration of repression and persecution.”

Rights respecting nations participating in this proposed UN treaty must recognize the gravity of their commitment. A focus solely on their own nation’s interests is a shortsighted approach when the global ramifications are so profound.

With such divergent views, it’s clear that reaching a consensus will be a meticulous process, and we question whether it’s even possible. The only acceptable path forward might just be including offenses as defined by the convention—anything more might be a compromise too great.

The next step in negotiations will be the release of a new draft, which is expected by the end of November. With so little consensus emerging from the New York negotiating session, it’s likely that further negotiations may be held in the coming months. A completed draft was supposed to be finalized and approved by Member States early next year—that seems unlikely given the lack of agreement. Whenever a draft is approved, it will be appended to a resolution for consideration and adoption by the UN General Assembly next year. Given the stark disagreements in views, it’s increasingly likely the resolution will be put to a vote, demanding a two-third majority for approval.

The question remains whether a broadly-scoped treaty potentially legitimizing draconian surveillance powers for investigations of acts deemed criminal that target vulnerable communities and free expression and containing few human rights protections should be adopted by the UN at all. As outlined by Canada, the UN was founded to reaffirm faith in human rights, equal rights, and the dignity of human persons. It was also formed to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained. “It is inconsistent with our mandate at the UN to have one aspect that contradicts the other, to have a treaty that that speaks on behalf of the UN but with a scope so broad that it obligates, condones and facilitates the domestic and international crackdown on an almost unbounded breadth of conduct,” Canada said.

We applaud this statement and will continue the hard work of ensuring that the fundamental rights of those who will be subject to the treaty are safeguarded.

Source: EFF

Karen Gullo is an award-winning former journalist working as an analyst and senior media relations specialist at EFF, collaborating with the organization’s lawyers, activists, and technologists on strategic communications and messaging to amplify their amazing work defending civil liberties in the digital world. As a writer, editor, and former reporter with over two decades of experience at Bloomberg News and Associated Press in San Francisco, Washington D.C., and New York, Karen helps develop EFF’s responses to media inquiries, and writes press statements and releases and op-eds about EFF’s advocacy of online privacy and free speech, encryption, Fourth Amendment rights, copyright abuse, and much more. As an analyst, Karen writes blog posts and contributes to white papers on subjects ranging from student privacy and mass surveillance to private censorship, the First Amendment, and international surveillance and data protection treaties. She has worked on EFF activism projects holding social media platforms accountable for bad content moderation practices, exposing Amazon Ring’s cozy relationships with  local law enforcement, and pushing for the inclusion of human rights safeguards in the Council of Europe’s revised Budapest Convention. She is also a contributing writer for feminism website SeismicSisters.com. Prior to joining EFF, Karen was a reporter at Bloomberg News from 2002 to 2015, where she broke stories about Google’s legal challenge to FBI national security letters. Before Bloomberg, Karen was a reporter for the Associated Press in New York and Washington, covering politics—including the 2000 presidential election—the Justice Department, campaign finance, federal contracting practices, and much more as a member of an investigative reporting team. Karen is the recipient of national and local journalism awards, including the Jesse H. Neal Award Business Journalism Award and the San Francisco Peninsula Press Club’s excellence in journalism awards. She grew up in Oak Park, Illinois, and resides in San Francisco.

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