The Proposed Cybercrime Treaty's Approach to Cross-Border Spying

This is Part III of EFF’s ongoing series about the proposed UN Cybercrime Convention. Read Part I for a quick snapshot of the ins and outs of the zero draft; Part III for a deep dive on Chapter V regarding international cooperation: the historical context, the zero draft's approach, scope of cooperation, and protection of personal data, and Part IV, which deals with the criminalization of security research. The United Nations Headquarters in New York City is poised to become the epicenter of one of the most concerning global debates affecting human rights in the digital age. Starting August 21, delegates from around the world will gather for an intense two-week session to scrutinize the highly controversial “zero draft” of a UN Cybercrime Convention that could compel states to redefine their own criminal and surveillance laws on a global scale. 

Though the first negotiated text of the proposed convention, the “zero draft" is deeply flawed, the principle that “nothing is agreed until everything is agreed” applies here. EFF will be attending the sixth session in New York to participate in those discussions as an observer. 

In previous discussions, we addressed concerns over ambiguous surveillance powers and inadequate safeguards. Now we will delve into the heavily debated chapter on international cooperation. For clarity and depth, our analysis of this chapter will span two posts. This first post covers the historical context of international cooperation mechanisms, the zero draft's approach in Chapter V, the scope of cooperation, and protection of personal data. In the next post, we'll continue our analysis of Chapter V of the zero draft, addressing the broad demands of mutual legal assistance, the pitfalls of unchecked and lawless data-sharing, and the challenges of rapid-response mechanisms and jurisdiction for human rights.

What’s going to happen in New York?

EFF holds observer status in these talks, a notable advancement in transparency compared to other treaty negotiations. This participation affords us significant access to main discussions and numerous opportunities to interact with delegations. Yet, asserting influence remains a challenge. With each country having one vote, achieving consensus among more than 140 countries proves daunting. As observers, we also can voice our concerns weekly in front of all Member States. However, particularly contentious topics are moved to "informals" —sessions exclusive to Member States, excluding us and other multi-stakeholders. Though delegations have the option to consult with us outside these sessions, the real-time exclusion remains a serious concern.

Member States aim for total consensus on the draft convention's text. If they don't reach it, the matter could go to a vote where two-thirds of governments have to reach an agreement for a treaty to be adopted. A consensus would demonstrate broader support for the convention's implementation. It remains uncertain whether a final agreement will be finalized or could be reached by January's end or if discussions will extend beyond that. A timeline of the proposed convention can be found here.

Historical context: A look at international cooperation mechanisms

Historically, Mutual Legal Assistance Treaties (MLATs) have served as the backbone for cross-border criminal investigations. This system allows police who need data stored abroad to obtain the data through the assistance of the nation that hosts the data. As we have repeatedly said, the MLAT system encourages international cooperation.