The three-year negotiations on an highly controversial UN Cybercrime Treaty have come to an end. On 8 August 2019, the intergovernmental ad hoc committee set up by the UN General Assembly (Resolution 74/247) to make a comprehensive global convention to counter the usage of information and communication technologies for criminal purposes, yet unanimously adopted the draft negotiated agreement. The regulation initially enforced by Russia – with the later decisive support of any Western countries, including the US – strikes freedom of speech and fundamental human rights. akin rules are already utilized in any countries to punish journalists and political opposition.
The Treaty aims to substantially amend global criminal law and to strengthen the cross-border powers of law enforcement in the field of supervision, access to and making available of user data.
The Ad Hoc Committee held its first negotiating session on 28 February 2022 with the intention of finalising the Treaty text by early 2024. From the very beginning of negotiations, there have been discrepancies regarding the wide scope of the regulation in the proposed agreement.
The Treaty deals with topics specified as cybercrime legislation, global cooperation, access by law enforcement authorities to possible digital evidence, including cross-border, human rights and procedural safeguards.
Warnings from NGOs
The Electronic Frontier Foundation (EFF) warns that this treaty will extend transnational government oversight without adequate protection against abuse of power. It stresses that while cybercrime, or malicious hacking of computer networks, systems and data, threatens the rights and means of human life, the UN Treaty on Cybercrime, which awaits admission, can alternatively facilitate government repression.
The Treaty could make an unprecedented tool for cross-border cooperation in a wide scope of crimes without adequate safeguards against abuse of power. The organisation pointed out that Russia is the driving force behind this treaty, and that the Russian authorities have already importantly tightened their rules by expanding control of online infrastructure, online content and privacy of communication.
Use of the right to restrict freedom of expression
Human Rights Watch has documented that many governments have introduced cybercrime laws that go far beyond dealing with malicious attacks on computer systems, hitting first and foremost freedom of speech, resulting in the punishment of journalists and opposition.
For example, in June 2020 the Philippine court sentenced Maria Ressa, a journalist, Nobel Prize laureate and the founder of the Rappler news service, for "cyber defamation" under the Cybercrime Prevention Act. The Filipino government uses regulation against journalists, columnists, government critics and average social media users.
Similar laws in Tunisia were utilized to detain, accuse or analyse journalists, lawyers, students and another critics for online and media statements. In Jordan, dozens of people were arrested in pro-Palestinian protests or defending them.
Definition of cybercrime and extension of the scope of crime
The proposed UN regulation defines cybercrime as covering all crimes committed utilizing information and communication technology systems. Negotiators were besides prepared to agree to add a protocol to the Treaty to deal with "additional criminal offences where appropriate". This may let national governments to apply their regulations to all net activities, criminalising many of them, citing the Treaty and possibly its protocol to justify enforcement of repressive rules.
Concerns about global cooperation and abuse
Governments, in accordance with the proposed legislation, would be obliged to monitor people and transmit their data to abroad law enforcement authorities on request if the requesting government claims that individual has committed a ‘serious crime’, defined as a crime threatened with a punishment of at least 4 years imprisonment in a given country.
The EEF organisation fears that the treaty will be utilized by the mediate East and Africa countries to prosecute LGBT people, but the fact is that regulation can be arbitraryly utilized by the ruling authorities against the opposition. It all depends on who's in power at the moment.
The danger is that the treaty could force another governments to cooperate in the pursuit of fresh crimes, limiting freedom of expression and access to information. The record, which raises peculiar concerns, concerns the situation where people would be subject to the laws of individual countries, alternatively than utilizing key standards for the protection of human rights, specified as the principles of necessity and legality, and the request to notify people if they were supervised so that they could argue it.
The draft treaty introduces an optional request for an independent court to examine and authorise any requests for supervision. The paper allows discretion in refusing to supply assistance to another countries if there are compelling grounds to believe that an application has been made to prosecute or punish a individual on grounds of sex, race, language, religion, nationality, ethnicity or political views.
History of Treaty work
Work on the treaty began in 2017, erstwhile in October the Russian Federation presented to the UN General Assembly a draft United Nations Convention on Cooperation in the Fight against Cybercrime. In November 2019, a resolution, sponsored by Russia and another states, was issued to establish an global convention to combat cybercrime. It was opposed by the United States, the European Union and another countries.
In December of the same year, the UN General Assembly adopted a resolution establishing the Ad Hoc Committee (AHC) to make the UN Convention "on preventing the usage of information and communication technologies for criminal purposes". Participation in the work of the AHC was open to all associate States, observers from non-member countries (such as the EU and the Council of Europe) and NGOs.
The United Nations Office on Drugs and Crime (UNODC) is coordinating its work on the treaty through the Organized Crime and Illegal Trade Division.
Problems with negotiations and concerns about human rights
In August 2020, AHC postponed its first organizational gathering in fresh York City to 2021 due to "COVID-19 pandemic". In January 2021, Human Rights Watch raised an alarm, informing that the UN associate States were starting the process of adopting a treaty on cybercrime, the main promoters of which are 1 of the most repressive governments in the world.
In May of the same year, the AHC convened an inaugural organisational session during which representatives from more than 160 countries agreed on an outline and mode of negotiation. It was established that at least six negotiating sessions would be held, lasting 10 days each, starting in 2022, in fresh York and Vienna.
The United Kingdom and another countries have complained about the deficiency of consultation on the principles of the Treaty text negotiations and the deficiency of Inclusion in the drafting process. Brazil introduced an amendment on the negotiating rules requiring the Committee to get 2 thirds of the representatives' consent, alternatively than a simple majority preferred by Russia. The amendment was approved by 88 votes in favour, 42 against and 32 abstentions.
In December 2021, before the first negotiation session of the AHC, EFF, Human Rights Watch and more than 100 organizations and researchers from 56 countries called on AHC members to guarantee the protection of human rights in the agreement.
In January 2022, the Committee on the Protection of Journalists (CPJ) warned that the proposed UN Cybercrime Treaty could endanger journalists by giving fresh tools to authorities who want to punish whistleblowers alternatively than secret hacking into networks or systems.
In February 2022 the first authoritative 10-day AHC session in fresh York began. Despite Russian aggression, Western countries, including the US, EU countries, the United Kingdom, Switzerland and the Nordic countries, agreed to negociate a treaty on cybercrime, demanding only narrowing its framework.
In March 2022, the first intersessional consultations were held with human rights organisations and another stakeholders in Vienna. In April 2022, Human Rights Watch, EFF and Privacy global highlighted a change in geopolitical dynamics that led to many countries initially opposed to the Treaty starting to participate actively in the negotiations.
Disputed issues during the negotiation sessions
In May 2022, a second negotiating session was held in Vienna and another 1 took place in June 2022. At that time, there were proposals to introduce rules to combat “the speech of hatred”, “extremism” or “terrorism” that could criminalise freedom of speech.
Jordan proposed that the treaty criminalise "the speech of hatred or actions related to the insulting of religion or states by means of information networks or websites", and Egypt called for a ban on "throwing feuds, rebellion, hatred or racism". Russia, in cooperation with Belarus, Burundi, China, Nicaragua and Tajikistan, has proposed to criminalise a number of content-related crimes, including vaguely defined acts of “extremism”.
The Office of the United Nations advanced Commissioner for Human Rights (OHCHR) stressed that no future cybercrime treaty should include crimes based on online content, as this strikes freedom of expression.
In August 2022, a 3rd negotiating session was held in fresh York City, during which controversy arose over the chapter of the treaty on global cooperation. Representatives of many countries stressed that the Treaty should form the basis for global cooperation in the collection of evidence in any case of the offence under investigation. EU negotiators have supported this.
Brazil and Russia have suggested that cooperation should include common assistance in investigations and prosecution of "civil and administrative" cases and another investigations into unspecified "unlawful acts".
A 3rd consultation took place in November 2022 in Vienna, and a Consolidated Negotiation Paper (CND) was besides published, which is simply a draft text of the proposed provisions of the Convention, created on the basis of proposals from the associate States. The draft consists of 3 chapters: general provisions, applicable criminal provisions to be adopted at national level and procedural measures in criminal matters and law enforcement.
Main concerns about the draft treaty
In December 2022, NGOs sent a letter to the AHC, demanding changes to the treaty so as not to criminalize any statements.
In January 2023, the 4th negotiating session of the Ad Hoc Committee in Vienna was held, attended by representatives of 149 UN associate States. Again, NGOs expressed concern at the "wide and ever-increasing list of proposed crimes to be included in the draft treaty". China has proposed to criminalise "the dissemination of false information".
During the negotiations, most of the discussions on criminalisation focused on content-related crimes. The president of the AHC has decided to keep the negotiations on this secret.
Among the behaviours that were wanted to be criminalized were the definitions of "copyright violations", "encouraging or forcing suicide" and "inciting subversive activities", "terrorism", "extremism" and "drug trafficking".
A 4th intersessional consultation took place in March 2023 involving 61 associate States and observer States. The Head of INTERPOL demanded greater powers and easier access to citizens' data.
In April 2023, the 5th negotiating session was held in Vienna, and in August, a "zero project" of the treaty appeared. Delegates in fresh York began discussions on each proposed article, seeking consensus. Despite the shortening of the list of offences from 30 to 11, a fresh Article 17 was introduced, which forces states to apply the Convention to crimes "established in accordance with another global conventions and protocols", thus extending the catalogue of crimes to another than cyber crimes.
Increasing criticism of the draft treaty
Since then, more and more organisations have objected to the proposed agreement, which undermines freedom of speech and human rights.
In December 2023, a revised zero task was published, which increased the fears of his opponents. In January 2024, 111 organizations sent a letter to the head of ACH before the final negotiation session, pointing to critical contractual gaps.
A sixth negotiating session was held in February 2024, during which negotiators should have reached a consensus on the proposed content of the Treaty. During the session, 124 safety researchers and cybersecurity organizations from around the planet issued a message calling on delegates to change the defective language in a text that would hinder researchers' efforts to increase global safety and prevent the actual criminal activity that the Treaty is intended to restrict.
Waiting for Final Decisions
The session was suspended due to many misunderstandings. The final session is scheduled for 29 July – 9 August in fresh York City.
The fresh draft treaty, dated on 24 May and published on 14 June, contained a fresh title and wording which, according to critics, could fix the worst shortcomings of the treaty: "United Nations Convention against Cybercrime (crimes committed utilizing information and communication technology systems)".
The Treaty, as Russia and Egypt intended, would extend surveillance powers, without solid safeguards and data protection rules, not only in the case of cybercrime, but besides in the case of any crime in which the computer is used.
On 9 August, "Scientific American" announced the unanimous adoption of the UN Treaty by an ad hoc committee which "can lead to invasive digital surveillance", warned human rights experts.
This is the first global treaty on cybercrime of the UN, which "allows countries to grow invasive electronic surveillance in the name of criminal investigations". The treaty not only undermines global human rights regarding freedom of expression and expression, as it contains clauses allowing countries to freely interpret the rules in order to internationally prosecute all alleged crimes committed utilizing a computer, but sanctions what the PCh24.pl portal has long reported, writing about digital enslavement.
Just after the unanimous vote, which was to surprise the negotiators themselves, there was a large circular of applause for members and delegates celebrating the end of the tedious negotiation period.
In the coming weeks, the Treaty will be voted on by 193 associate states of the UN General Assembly. If it is accepted by the majority, it will decision on to the ratification process. It must be signed by national governments.
Human rights experts indicate that the Treaty can be utilized to prosecute all criminalised activities in a given country utilizing information and communication technology (ICT) systems. "This broad definition in practice means that erstwhile governments pass national laws that criminalize a wide scope of behaviour, if they are committed through the ICT system, they can trust on this treaty to justify the enforcement of repressive rights," says Tirana Has of Human Right Watch.
‘Le Monde’ recalls that the Treaty has not removed a controversial provision that ‘the State may, in order to analyse a criminal offence punishable by a punishment of at least 4 years in prison under national law, ask the authorities of another State for any electronic evidence related to the offence and request data from net service providers’.
Representatives of human rights organisations have no uncertainty that the Treaty "will be a disaster for human rights and a dark minute for the UN".
Nick Ashton-Hart, chair of the Cybersecurity Tech Accord delegation, said after the intimation that the committee had not addressed "many serious shortcomings identified by civilian society, the private sector and even the UN's own human rights body". The Convention will be harmful not only to the digital environment but especially to human rights. He urged states not to sign and implement it.
This year's 79th session of the UN General Assembly will begin on 10 September. The draft UN Cybercrime Treaty will be submitted to the General Assembly for consideration.
Source: trouthut.org, eff.org, hrw.org, justsecurity.org, lemonde.fr, scientificamerican.com
Agnieszka Stelmach
