Proposed UN Cybercrime Treaty Threatens to be an Expansive Global Surveillance Pact

This is Part V in 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 II for a deep dive on Chapter IV dealing with domestic surveillance powers; 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.

In the heart of New York City, a watershed moment for protecting users against unfettered government surveillance is unfolding at the sixth session of negotiations to formulate the UN Cybercrime Convention. Delegates from Member States have convened at UN Headquarters for talks this week and next that will shape the digital and fair trial rights of billions. EFF and our allies will be actively engaged throughout the talks, participating in lobbying efforts and delivering presentations. Despite repeated civil society objections, the zero draft of the Convention is looking less like a cybercrime treaty and more like an expansive global surveillance pact.

Over the next 10 days, more than 145 representatives of Member States of the United Nations will invest 60 hours in deliberations, aiming for consensus on most provisions. Focused parallel meetings, coined “informals,” will tackle the most contentious issues. These meetings are often closed to civil society and other multi-stakeholders, sidestepping important input from human and digital rights defenders about crucial interpretations of the draft treaty text. The outcome of these discussions could potentially shape the most controversial treaty powers and definitions, underscoring the urgency for multi-stakeholder observation. It is critical that states allow external observers to participate in these informals over the next two weeks.

The following articles in the zero draft, released in June, are the focus of our main concerns about Chapter V,  which deals with cross border surveillance and the extent to which Member States must assist each other and collaborate in surveillance on each other's behalf. We will also deal with other articles (24 and 17) in the proposed treaty as they are relevant to the international cooperation on surveillance chapter.

Article 24: Conditions and safeguards should be consistently applied throughout the international cooperation chapter. An earlier draft recognized the importance of conditions and safeguards across both criminal procedural measures and international cooperation chapters.  While Article 24, which requires human rights safeguards such as respect for the principle of proportionality and the need for judicial review, could be bolstered, it's an important provision. But the zero draft curiously restricts the scope of Article 24 to just criminal procedural measures, meaning that international cooperation is not subject to its important conditions and safeguards at all. Article 36, which deals with protection of personal data, imposes some additional restrictions on the processing of personal data, but does not include these central requirements.

This is particularly problematic when States’ existing domestic laws and practices are inconsistent with international human rights law, as is too often the case. Given the sensitivity of international cooperation for surveillance and the looming risks of human rights abuses, this lack of safeguards is perplexing. It's rather ironic: States are bound to uphold Article 24 at home, yet there's hesitancy to ensure the same minimum level of protections in international collaborations. Surely, for full cooperation among Member States, robust minimum safeguards in the cross border spying chapter should be non-negotiable.

Article 2: Definitions matter. States must prioritize clarity in their definitions. The zero draft of the co