On March 11 of this year, the first session of the United Nations Special Committee on the Development of a Comprehensive International Convention on Countering the Use of Information and Communication Technologies for Criminal Purposes concluded.
The committee’s work should result in a draft convention; however, the agreement currently under discussion during the sixth session of the UN Special Committee, taking place from August 21 to September 1, 2023. It is mired in contradictions due to concerns about the widespread dissemination of cross-border surveillance and the imposition of restrictions on freedom of speech on the Internet. The majority of human rights advocates have taken an uncompromising stance against the proposed United Nations treaty on cybercrime, which they fear could evolve into a global alliance of digital surveillance, jeopardizing data privacy and human rights: something unthinkable in a modern democratic society.
The treaty, initially proposed by Russia and supported by countries such as North Korea, Iran and China, is anticipated to lay the foundation for the legalization of cross-border surveillance and the transformation of online freedom of speech into a criminal act. The project has undergone six rounds of negotiations, which began last Monday at the UN headquarters. Despite extensive and detailed discussions, this UN cybercrime treaty has already been reasonably labeled beyond the territory of the UN headquarters as a justification for global surveillance. It is also noteworthy that firstly, there is a clear lack of consensus among states regarding which areas the convention should regulate.
Most countries insist on applying the convention only to the realm of law enforcement. For example, EU states insist on excluding “national security” matters from regulation, while Brazil opposes data exchange “to maintain international peace and security.” The boundary between cybercrime on one hand, and national security and cyber warfare on the other is becoming increasingly blurred and many crimes against national security are regulated by national criminal law.
Secondly, states widely differ in their positions regarding the crimes that will be covered by the convention. The material scope of the treaty is potentially vast since there are numerous crimes related to the digital space but only some of them are inherently linked to information technologies, meaning that data or computer systems are the objects of the offenses. Most states agree that only this type of crime should fall within the scope of the convention. Conversely, some states insist on including crimes related to content. For instance, Russia and China want to include incitement to terrorism in the convention’s scope, while China and Indonesia want to cover disinformation. Indonesia, Liechtenstein, Mexico, Norway, Russia and the United States are also interested in copyright infringement.
However, of course, in this matter, it is better to adhere to the position of the United Nations High Commissioner for Human Rights, which states that any inclusion of technology: enabled crimes, unlike core cybercrimes, should be limited. This is evident, as otherwise, states would have a legitimate temptation to request access to the data of activists, journalists, politicians, claiming to base such crimes on national law.
Of course, the processes of negotiation and even more so, enactment and implementation, could be protracted, given that the idea of such an agreement was first put forth during a United Nations General Assembly session back in 2019. However, once the treaty comes into force, the powers of competent authorities for accessing and exchanging user data within the framework of criminal investigations will significantly expand. As a result, the privacy of billions of people worldwide will be unceremoniously affected.
The significant rise in cybercrime is attributed not only to criminals increasingly causing damage to critical infrastructure by accessing data and hacking systems but also to the fact that almost any criminal actions now somehow involve the digital environment. Consequently, electronic evidence is needed to investigate most crimes, access to which can be challenging to obtain, especially if the necessary information is stored in another country. Criminals often exploit this gap. To facilitate cooperation, UN member states agreed to develop a Convention on Countering the Use of Information and Communication Technologies for Criminal Purposes.
The goal of the treaty is expected to be a radical solution to the issue of how to collaborate effectively in exchanging information without violating human rights and other international agreements. However, as noted not only by human rights defenders worldwide but also by ordinary users of the global network, human rights, if this UN project is approved, the consequences could be a blow to human rights everywhere.
Raphael Fournier, media expert.
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