Letter to UN Ad Hoc Committee for a new cybercrime treaty

Human Rights, Article 19, EFF, Open Net, and many other civil society organizations have sent a joint letter to to the Ad Hoc Committee established by the UN to create a new treaty to facilitate investigation of crimes committed using information and communication technologies, demanding compliance with human rights standards.

Through its resolution 74/247, the General Assembly decided to establish an open-ended ad hoc intergovernmental committee of experts, representative of all regions, to elaborate a comprehensive international convention on countering the use of information and communications technologies for criminal purposes, taking into full consideration existing international instruments and efforts at the national, regional and international levels on combating the use of information and communications technologies for criminal purposes, in particular the work and outcomes of the open-ended intergovernmental Expert Group to Conduct a Comprehensive Study on Cybercrime.

Pursuant to General Assembly resolution 74/247, the ad hoc committee convened a three-day organizational session in May 2021, in New York, in order to agree on an outline and modalities for its further activities, to be submitted to the General Assembly at its seventy-fifth session for its consideration and approval. The organizational session was originally scheduled to take place in August 2020 but due to the impact of the COVID-19 pandemic, the General Assembly decided through first its decision 74/567 of 14 August 2020 and then 75/555 of 15 January 2021 to postpone the organizational session of ad hoc committee to 10-12 May 2021.

The ad hoc committee elected the Officers of the Committee and discussed an outline and modalities for its further activities at its organizational session.

On May 26 2021 the General Assembly adopted resolution 75/282, entitled “Countering the use of information and communications technologies for criminal purposes.”

In the same resolution, the General Assembly decided, inter alia, that the Ad Hoc Committee shall convene at least six sessions, of 10 days each, to commence in January 2022, a concluding session in New York, and conclude its work in order to provide a draft convention to the General Assembly at its seventy-eighth session; it further decided that the Committee shall hold the first, third and sixth negotiating sessions in New York and the second, fourth and fifth sessions in Vienna.

The first session of the Ad Hoc Committee will be held in New York from 17 to 28 January 2022.

___________________________________________________________________

December 22, 2021

Permanent Representative Faouzia Boumaiza Mebarki, Chairperson

Ad Hoc Committee to Elaborate a Comprehensive International Convention on Countering the Use of Information and Communication Technologies for Criminal Purposes
United Nations Office on Drugs and Crime (UNODC)
UNODC New York Office
United Nations Headquarters
DC1 Building
Room 613
One United Nations Plaza
New York, NY 10017

Dear Permanent Representative and Chairperson Mebarki:

We, the undersigned organizations, work to protect and advance human rights, online and offline. Efforts to address cybercrime are of concern to us, both because cybercrime poses a threat to human rights and livelihoods, and because cybercrime laws, policies, and initiatives are currently being used to undermine people’s rights. We therefore ask that the process through which the Ad Hoc Committee does its work includes robust civil society participation throughout all stages of the development and drafting of a convention, and that any proposed convention include human rights safeguards applicable to both its substantive and procedural provisions.

Background

The proposal to elaborate a comprehensive “international convention on countering the use of information and communications technologies for criminal purposes” is being put forward at the same time that UN human rights mechanisms are raising alarms about the abuse of cybercrime laws around the world. In his 2019 report, the UN special rapporteur on the rights to freedom of peaceful assembly and of association, Clément Nyaletsossi Voule, observed, “A surge in legislation and policies aimed at combating cybercrime has also opened the door to punishing and surveilling activists and protesters in many countries around the world.” In 2019 and once again this year, the UN General Assembly expressed grave concerns that cybercrime legislation is being misused to target human rights defenders or hinder their work and endanger their safety in a manner contrary to international law. This follows years of reporting from non-governmental organizations on the human rights abuses stemming from overbroad cybercrime laws.

When the convention was first proposed, over 40 leading digital rights and human rights organizations and experts, including many signatories of this letter, urged delegations to vote against the resolution, warning that the proposed convention poses a threat to human rights.

In advance of the first session of the Ad Hoc Committee, we reiterate these concerns. If a UN convention on cybercrime is to proceed, the goal should be to combat the use of information and communications technologies for criminal purposes without endangering the fundamental rights of those it seeks to protect, so people can freely enjoy and exercise their rights, online and offline. Any proposed convention should incorporate clear and robust human rights safeguards. A convention without such safeguards or that dilutes States’ human rights obligations would place individuals at risk and make our digital presence even more insecure, each threatening fundamental human rights.

As the Ad Hoc Committee commences its work drafting the convention in the coming months, it is vitally important to apply a human rights-based approach to ensure that the proposed text is not used as a tool to stifle freedom of expression, infringe on privacy and data protection, or endanger individuals and communities at risk.

The important work of combating cybercrime should be consistent with States’ human rights obligations set forth in the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and other international human rights instruments and standards. In other words, efforts to combat cybercrime should also protect, not undermine, human rights. We remind States that the same rights that individuals have offline should also be protected online.

Scope of Substantive Criminal Provisions

There is no consensus on how to tackle cybercrime at the global level or a common understanding or definition of what constitutes cybercrime.  From a human rights perspective, it is essential to keep the scope of any convention on cybercrime narrow. Just because a crime might involve technology does not mean it needs to be included in the proposed convention.  For example, expansive cybercrime laws often simply add penalties due to the use of a computer or device in the commission of an existing offense. The laws are especially problematic when they include content-related crimes. Vaguely worded cybercrime laws purporting to combat misinformation and online support for or glorification of terrorism and extremism, can be misused to imprison bloggers or block entire platforms in a given country. As such, they fail to comply with international freedom of expression standards. Such laws put journalists, activists, researchers, LGBTQ communities, and dissenters in danger, and can have a chilling effect on society more broadly.

Even laws that focus more narrowly on cyber-enabled crimes are used to undermine rights. Laws criminalizing unauthorized access to computer networks or systems have been used to target digital security researchers, whistleblowers , activists,  and journalists. Too often, security researchers, who help keep everyone safe, are caught up in vague cybercrime laws and face criminal charges for identifying flaws in security systems. Some States have also interpreted unauthorized access laws so broadly as to effectively criminalize any and all whistleblowing; under these interpretations, any disclosure of information in violation of a corporate or government policy could be treated as “cybercrime.” Any potential convention should explicitly include a malicious intent standard, should not transform corporate or government computer use policies into criminal liability, should provide a clearly articulated and expansive public interest defense, and include clear provisions that allow security researchers to do their work without fear of prosecution.

Human Rights and Procedural Safeguards

Our private and personal information, once locked in a desk drawer, now resides on our digital devices and in the cloud. Police around the world are using an increasingly intrusive set of investigative tools to access digital evidence. Frequently, their investigations cross borders without proper safeguards and bypass the protections in mutual legal assistance treaties. In many contexts, no judicial oversight is involved, and the role of independent data protection regulators is undermined. National laws, including cybercrime legislation, are often inadequate to protect against disproportionate or unnecessary surveillance.

Any potential convention should detail robust procedural and human rights safeguards that govern criminal investigations pursued under such a convention. It should ensure that any interference with the right to privacy complies with the principles of legality, necessity, and proportionality, including by requiring independent judicial authorization of surveillance measures. It should also not forbid States from adopting additional safeguards that limit law enforcement uses of personal data, as such a prohibition would undermine privacy and data protection. Any potential convention should also reaffirm the need for States to adopt and enforce “strong, robust and comprehensive privacy legislation, including on data privacy, that complies with international human rights law in terms of safeguards, oversight and remedies to effectively protect the right to privacy.”

There is a real risk that, in an attempt to entice all States to sign a proposed UN cybercrime convention, bad human rights practices will be accommodated, resulting in a race to the bottom. Therefore, it is essential that any potential convention explicitly reinforces procedural safeguards to protect human rights and resists shortcuts around mutual assistance agreements.

Meaningful Participation

Going forward, we ask the Ad Hoc Committee to actively include civil society organizations in consultations—including those dealing with digital security and groups assisting vulnerable communities and individuals—which did not happen when this process began in 2019 or in the time since.

Accordingly, we request that the Committee:

• Accredit interested technological and academic experts and nongovernmental groups, including those with relevant expertise in human rights but that do not have consultative status with the Economic and Social Council of the UN, in a timely and transparent manner, and allow participating groups to register multiple representatives to accommodate the remote participation across different time zones.
• Ensure that modalities for participation recognize the diversity of non-governmental stakeholders, giving each stakeholder group adequate speaking time, since civil society, the private sector, and academia can have divergent views and interests.
• Ensure effective participation by accredited participants, including the opportunity to receive timely access to documents, provide interpretation services, speak at the Committee’s sessions (in-person and remotely), and submit written opinions and recommendations.
• Maintain an up-to-date, dedicated webpage with relevant information, such as practical information (details on accreditation, time/location, and remote participation), organizational documents (i.e., agendas, discussions documents, etc.), statements and other interventions by States and other stakeholders, background documents, working documents and draft outputs, and meeting reports.

Countering cybercrime should not come at the expense of the fundamental rights and dignity of those whose lives this proposed Convention will touch. States should ensure that any proposed cybercrime convention is in line with their human rights obligations, and they should oppose any proposed convention that is inconsistent with those obligations.

We would be highly appreciative if you could kindly circulate the present letter to the Ad Hoc Committee Members and publish it on the website of the Ad Hoc Committee.

Signatories,
Access Now – International

ARTICLE 19 – International

Asociación por los Derechos Civiles (ADC) – Argentina

Association for Progressive Communications (APC) – International

Data Privacy Brazil Research Association – Brazil

Derechos Digitales – America Latina

Državljan D / Citizen D – Slovenia

Electronic Frontier Foundation (EFF) – International

European Center For Not-For-Profit Law (ECNL) Stichting – Europe

Fundación Karisma – Colombia

Hiperderecho – Perú

Human Rights Watch – International

El Instituto Panameño de Derecho y Nuevas Tecnologías (IPANDETEC) – Panamá

IT-Pol – Denmark

Open Net Association – Korea

Panoptykon Foundation (Poland)

Privacy International – International

Red en Defensa de los Derechos Digitales (R3D) – México

SAFEnet – Southeast Asia

Tecnología, Investigación y Comunidad (TEDIC) Paraguay