by Karen Gullo, Activist Post:
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.
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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.
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.
