After UN adoption, controversial cybercrime treaty’s next steps could prove vital – Tim Starks

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A divisive United Nations cybercrime treaty — one that critics say is a huge danger to human rights and that the United States cautiously agreed to advance — is now in the hands of member nations.

The U.N. General Assembly adopted the treaty without a vote last week, leaving ratification to individual states. If the past is any precedent, it could be years before some countries act on it, if they do at all. For it to enter into force, 40 nations must ratify the treaty.

Ratification could be very difficult in the United States in particular, with a two-thirds majority vote in the Senate required as well as the approval of an incoming president who has been wary of international agreements. And the U.S. Mission to the United Nations has already signaled that future support of the treaty will hinge on how signatories implement it regarding human rights and legal protections.

Broadly, the new Convention on Cybercrime is focused on “countering the use of information and communications technologies for criminal purposes,” ranging from human trafficking to money laundering. Its stated goal is to create a legal framework for international cooperation on those crimes, such as for evidence sharing.

Nations will have some degree of leeway on how to implement it — a situation that leaves critics worried but that some see as an opportunity to improve upon the written text.

It took the United States five years to ratify an earlier cybercrime treaty, the Budapest Convention. Six Democratic senators criticized the new treaty in an October letter to the Biden administration.

“There are a lot of member states that have really poor track records on human rights and have national laws that don’t protect privacy, they criminalize free speech, they criminalize gender expression,” Karen Gullo, an analyst at the Electronic Frontier Foundation, told CyberScoop. “This treaty doesn’t do anything to compel them to do anything different in terms of protecting people’s rights. Some countries have been using cybercrime laws to target journalists, dissidents, [and] human rights defenders.

Gullo continued: “We’re advocating that states not ratify it until they are able to address where we think there are flaws, like human rights protections, the scope, which crimes does it apply to. There are opportunities to involve civil society and give careful consideration about how to implement this.”

Christopher Painter, the former cyber coordinator at the State Department and now a member of the board of the Global Forum on Cyber Expertise, said that while many of the criticisms of the treaty are earned, it does offer some benefits. It should help international enforcement efforts and give countries “more uniform, substantive laws and procedures around the world,” he told CyberScoop. Furthermore, the treaty could prompt nations to build up their capacity to conduct investigations, he said.

Russia, which originally proposed the treaty, also saw some of its more onerous ideas mitigated during negotiations, Painter said.

One of the treaty’s most noteworthy provisions is to require cooperation between states on “collecting, obtaining, preserving and sharing of evidence in electronic form of any serious crime.” That’s accompanied by a worrisome definition, wrote David Kaye, law professor at the University of California Irvine and former U.N. special rapporteur on freedom of opinion and expression.

“So what is ‘serious crime?’ The Convention defines the term as ‘conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty,’” he said in a recent TechDirt essay. “That’s it. It is a phrase that refers only to the extent of the penalty.”

Thus, in Russia, since it would be a serious crime to defame the military because it’s punishable by up to 15 years of prison, it would potentially require international cooperation.

Another section of the treaty holds that “States Parties shall ensure that the implementation of their obligations under this Convention is consistent with their obligations under international human rights law,” and “Nothing in this Convention shall be interpreted as permitting suppression of human rights or fundamental freedoms, including the rights related to the freedoms of expression, conscience, opinion, religion or belief, peaceful assembly and association, in accordance and in a manner consistent with applicable international human rights law.”

The United States Mission to the United Nations touted that provision as a significant defense against abuses.

“As a result of U.S. and other member states’ engagement, we were able to enshrine these human rights and anti-discrimination protections in this Convention,” Jonathan Shrier, U.S. deputy representative to the economic and social council, said last month. “Whether under this Convention or otherwise, the United States does not and will not execute requests made for the purpose of enabling human rights abuses, such as those that would impede freedom of expression, and will demand accountability for those who do not uphold this same commitment. In addition, for any Party to this Convention, executing such requests would be clearly inconsistent with the Convention’s terms.”

The United States and Europe will play a role in pressing other nations to implement their vision of the treaty, Painter noted.

Shrier said: “We further call on all states to take necessary steps within their domestic legal systems to ensure the Convention will not be applied in a manner inconsistent with human rights obligations, including those relating to speech, political dissent, and sexual identity.”

UN Secretary-General António Guterres welcomed the adoption of the treaty.
“This treaty is a demonstration of multilateralism succeeding during difficult times and reflects the collective will of Member States to promote international cooperation to prevent and combat cybercrime,” his spokesperson, Stéphanie Tremblay, said in a statement. “The Secretary-General trusts that the new treaty will promote a safe cyberspace and calls on all States to join the Convention and to implement it in cooperation with relevant stakeholders.”

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