As the drafting process of the new UN Cybercrime Convention progresses to final stages of negotiations, ARTICLE 19 highlights that the current so-called Zero Draft raises a number of human rights concerns. These include a lack of clarity on the scope of offences covered by the Convention, optional or non-existent human rights safeguards, and alarming backdoors for data sharing. ARTICLE 19 hopes our comments are useful to States and the drafters of the Convention in the coming weeks as they continue to debate this new document.
In June 2023, the Ad Hoc Committee to Elaborate a Comprehensive International Convention on Countering the Use of Information and Communications Technologies for Criminal Purposes (the Ad Hoc Committee) released the Draft text of the Convention (the Zero Draft). The Zero Draft is scheduled to be discussed at the sixth session of the Ad Hoc Committee, commencing on 21 August 2023 in New York, where it will be open to additional proposals.
ARTICLE 19 finds that the Zero Draft raises a number of human rights concerns and is unclear or silent on key definitions and issues.
First, despite the enumeration of a finite list of substantive offences in Articles 6 through 16, other language in the Zero Draft remains open-ended and vague, leaving room for additional ‘cyber-enabled’ crimes (alongside ‘cyber-dependent’ crimes) to be included in the Convention’s scope.
Second, there is an alarming lack of human rights and procedural safeguards. Where they are included, they are relegated to domestic law, optional, or to be ‘incorporated,’ rather than explicitly required. The relegation of safeguards to domestic law is especially problematic, as it would give responsibility to jurisdictions that have not ratified core international human rights treaties or regional instruments guaranteeing fundamental due process rights.
Third, the Zero Draft explicitly endorses and encourages the sharing of ‘data’ across jurisdictions without defining the type or scope of data. Neither does it provide meaningful rights to users regarding data that is shared with third parties and international organisations, meaning users have no way of knowing the full extent of the sharing of their data. It follows that users then have no meaningful right of independent review or remedy of violations. Amending these problematic data-sharing provisions becomes even more urgent in light of emerging technologies, potential use of data to create artificial intelligence datasets, and application of this data for large-scale surveillance, repression, and censorship.
Finally, the Zero Draft still contains content-based provisions that criminalise ‘written material’ in attempts to prevent the circulation of child sexual abuse material. Given 176 States are already parties to the Optional Protocol on the Convention on the Rights of the Child, which provides for mutual investigative assistance, ARTICLE 19 reiterates its question about whether a cybercrime treaty is a necessary place to impose additional content-based obligations that could result in the banning of books, political speech, and other written material.
In light of the concerns above, we call on the Ad Hoc Committee to seriously reconsider the Zero Draft in the sixth session of negotiations.
ARTICLE 19 has engaged extensively in the drafting process. For instance, we commented on the original Russian proposal for the new Convention, issued detailed recommendations for the initial drafting process, submitted comments ahead of the fourth round of negotiations, which took place in January 2023, and organised a media briefing ahead of the fifth round, which took place in April 2023.