Ahead of the next stage of negotiations for the new United Nations Cybercrime Convention in January 2023, ARTICLE 19 warns that the latest draft does not meet international human rights standards on freedom of expression. The draft Convention contains numerous content-based provisions, conflates ‘cybercrime’ with data protection and personal privacy issues, and extends well beyond what most state jurisdictions have implemented domestically, as well as the requirements of any current regional instrument. This draft Convention attempts to reinvent the wheel, in direct conflict with standards that are already well-settled under international law. We urge the Ad Hoc Committee to seriously reconsider its efforts and make sure the draft is comprehensively revised.
From 9 to 20 January 2023, the UN 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) will hold its fourth round of negotiations concerning the scope and content of a new international instrument on cybercrime.
In December 2022, the Secretariat of the Ad Hoc Committee released the draft text of the new Convention – the Consolidated Negotiating Document – which contains a long list of offences and sets out a wide range of investigative measures. ARTICLE 19 analysed this draft in light of international human rights and freedom of expression standards, which the new convention explicitly requires adherence to and claims to prioritise.
First, we are concerned that proposed content-based offences are cyber-enabled rather than cyber-dependent, and would create conflicts with international human rights obligations even without the use of technology or a computer. These include offences of ‘incitement to subversive activities and extremism’, ‘incitement and justification of terrorism’, ‘engagement of or coercion to suicide,’ ‘sexual extortion and non-consensual sharing of intimate images’, or violations of copyright. We question the need to require universal adoption of a wide range of content-based offences, measures and associated procedural obligations that have never even been mandated at a regional level and in many instances fail to meet freedom of expressions standards.
Second, we are concerned that the Negotiating Document is repetitive and provisions re-appear in numerous instances. These call into question the quality control of the inputs into a drafting process that has grave implications for freedom of expression.
Finally, as stated in our previous submissions, we also maintain that the international convention on cybercrime to be unnecessary and ill-advised. We believe the Negotiating Document fits into what the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association identified in 2019 as a growing trend of expansive cybercrime laws being utilised as a pretext to stifling freedom of expression and dissent. If the UN Convention 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.
We therefore call on the Ad Hoc Committee to seriously reconsider the current draft. In particular:
- All content-based offences should be stricken entirely (Clusters 8, 9) and the quantity and scale of offences in the draft in general must be seriously limited.
- Procedural provisions (Articles 47, 48) must be amended to explicitly protect personal data, require judicial review for searches and interception of data, and protect service providers from being forced to become extensions of law enforcement by requiring forced decryption or security ‘backdoors’.
- Repetitive provisions (such as Article 10, and Article 16 or Article 27 and Article 29) should be stricken entirely.
- Last but not least, civil society must be given meaningful participation in a drafting process for this unprecedented criminal treaty.