First Draft of UN Cybercrime Convention Drops Troubling Provisions, But Dangerous And Open-Ended Cross Border Surveillance Powers Are Still on the Table

This is Part I of a two-part post about the first draft of the UN Cybercrime Convention. Part I provides background on treaty negotiations and analyzes our first take on the Zero draft and its human rights implications. Part II analyzes the draft’s most problematic provisions. The much-anticipated official first negotiated draft of the proposed UN Cybercrime Convention—shaped by many months of Member States-led negotiations in which EFF has been deeply involved—is now public.

The convention, if approved, will result in the rewriting of criminal laws around the world dealing with law enforcement access to personal data across borders, the use of surveillance technologies by one country to spy on people in another country, and the extent to which countries can force one another to cooperate in, for instance, real-time interception of people's communications. EFF and its international partners have been standing up for users since the convention was first proposed several years ago, calling for robust human rights protections, reviewing proposed convention language, submitting recommendations and opposing concerning provisions, and addressing Member States in person at negotiating sessions this year and last. With the release of this “zero draft,” Member States will start article-by-article negotiations to reach a consensus on a final draft during a two-week marathon session from August 21  through September 1. EFF will be there, continuing our push for robust human rights protections in the treaty. EFF and Privacy International have been poring over the zero draft, and have sent Member States our first set of amendments. But before we delve into the most concerning features of the text, here is a quick recap of how we got here.

A Quick Recap of the UN Cybercrime Convention

From the very start of the negotiations, EFF has opposed the draft convention as a whole, deeming it unnecessary. Despite our reservations, we’ve actively engaged in good faith at every stage of the negotiation process. We want to ensure that the proposed convention is specific and confined in its scope, and does not incorporate content-related offenses or authorize inherently arbitrary, excessive, or open-ended surveillance powers. Furthermore, any surveillance authorities—including those that are transnational—should be subject to appropriate limitations. 

We fervently hope that the proposed convention won’t become an instrument for transnational repression, as has happened with other law enforcement cooperation mechanisms in the past. INTERPOL, for instance, is an intergovernmental organization of 193 countries that facilitates worldwide police cooperation. But Human Rights Watch has documented numerous allegations of how China, Bahrain, and other countries have abused INTERPOL’s Red Notice system, an international “wanted persons” list, to locate peaceful critics of government policies “for minor offenses and most importantly for political gain.” The  UN treaty shouldn’t give governments a legal basis to justify the use of open-ended surveillance powers for ill-defined crimes that could be exploited for political gain, petty crimes, or crimes that are inherently inconsistent with international human rights law—especially when this can lead to horrors such as torture or forced disappearances. We will keep advocating for heightened safeguards to restrict law enforcement’s misuse of surveillance powers. 

The proposed convention should represent a minimum standard rather than a maximum limit—it must serve as a baseline, not an upper threshold. And it should not be used to undermine preexi