The EFF is warning that the UN Cybercrime Treaty could have implications for billions of people – particularly with privacy and free speech among others.
The Electronic Frontier Foundation (EFF) is warning that the UN (United Nations) Cybercrime Treaty could have negative implications for online freedom of expression and privacy. Canada is one of many countries that are part of these negotiations. According to a timeline published by the EFF, the treaty started being formed clear back in 2017 where Russia sent a draft to the UN. In 2019, a resolution was made by Russia, sponsored by countries like China, Iran, Belarus, Syria, and Venezuela to set up an international convention surrounding this. At the time, the US was opposed to it.
While things were slow with this treaty, apparently, momentum began to pick up in more recent times. Negotiations continued between numerous countries to hammer out a treaty. Today, the EFF is echoing warnings about the treaty, saying that there are implications for billions of people. From the EFF:
The draft treaty has the potential to rewrite criminal laws around the world, possibly adding over 30 criminal offenses and new expansive police powers for both domestic and international criminal investigations.
Given that existing cybercrime laws are, as stated by the U.N.General Assembly, “in some instances misused to target human rights defenders” and “endanger their safety in a manner contrary to international law,” these widened parameters amplify the potential implications for billions of people—particularly stifling free speech, increasing government surveillance, and expanding state investigative techniques.
So, what specifically is of concern? For freedom of expression, the EFF says the following:
Rather than focusing on core cybercrimes like network intrusion and computing system interference, the draft treaty’s emphasis on content-related crimes could likely result in overly broad and easily abused laws that stifle free expression and association rights of people around the world.
For example, the draft U.N.Cybercrime Treaty includes provisions that could make it a crime to humiliate a person and group, or insult a religion using a computer. This potentially makes it a crime to send or post legitimate content protected under international law.
Governments routinely abuse cybercrime laws to criminalize speech, claiming to combat disinformation, “religious, ethnic or sectarian hatred,” “terrorism,” “the distribution of false information,” and many other harms. But in practice, these laws are used to stifle criticism, suppress protests and dissent, and clamp down on free expression and association. This is despite the right to free expression—including the right to insult and offend—being protected under the Universal Declaration of Human Rights (UDHR) and Article 19 of the International Covenant on Civil and Political Rights (ICCPR)—of which the U.N.Member States negotiating the new treaty are parties to.
Canadian’s know all too well how government can misuse misinformation and disinformation as cover to try and silence criticism. During the Bill C-11 debate, multiple government officials were quick to label anyone who criticized the bill as those spreading misinformation and disinformation. This regardless of the legitimacy of the criticisms. In fact, we’ve even seen instances where politicians started demanding “investigations” into anyone criticizing the legislation. This in an apparent attempt to intimidate witnesses who were set to appear before the Canadian Senate to speak about the bill. The accusations, obviously, were groundless and fortunately, the efforts failed.
So, there is, indeed, evidence, that the Canadian government has weaponized terms like “misinformation” to try and silence criticism and dissent. It’s hard to visualize criminalizing misinformation as much more than a weapon the government can use to silence those criticisms.
The EFF notes that there are other areas of concern such as more surveillance power:
On top of government attempts to keep human rights safeguards out of the draft treaty, negotiators have proposed a variety of broad, vague provisions that expand surveillance powers across borders as well as within each country. EFF is calling for the exclusion of provisions that compel governments to adopt domestic laws authorizing very intrusive surveillance powers. Such powers must be narrowly and clearly defined and subject to strong human rights safeguards—neither of which the current treaty language does. We’ve proposed to exclude provisions addressing the interception of content, real-time collection of data, admission of digital evidence, “spontaneous information,” and “special investigative techniques.”
Some of the most wide-ranging surveillance powers mentioned above—real-time collection of traffic data, interception of content, and admission of digital evidence—have been controversial enough among negotiators that they are currently sidelined in “informal consultations.” This step is likely because of a lack of consensus on safeguards and may be because of concerns about rule of law, democracy, and lack of impartiality and independence of the judiciary affecting many prospective treaty signers. We hope these articles stay out of the main treaty unless and until meaningful and comprehensive human rights safeguards are applied to them, and there is an effective compliance mechanism monitoring states’ human rights obligations.
But many other powers are still part of the draft treaty. The general expansion of surveillance powers in the draft includes squishy language that law enforcement could use to argue authorize hacking into our devices without further public debate. That language should be clarified to remove ambiguities about which powers are intended.
This almost sounds like an echo of the French LOPPSI 2 debate from 2009. Indeed, the idea that police should be able to just randomly hack people’s computers is, rightfully, hugely controversial. It drew considerable fire back then and such a thing would draw considerable fire today for many very valid reasons. Hopefully, this debate doesn’t get re-opened because multiple countries have enough problems to deal with let alone throwing this disaster of an idea on top of it all.
There are a host of other concerns raised by the EFF as well. They offer this conclusion:
Cybercrime is not a new phenomenon, and we have already witnessed far too many examples of anti-cybercrime laws being used to prosecute individuals, chill human rights, and bring spurious and disproportionate charges against LGBTQ communities, journalists, activists, and whistleblowers.
While we don’t think the U.N. Cybercrime Treaty is necessary, we’ve been closely scrutinizing the process and providing constructive analysis. We’ve made clear that human rights must be baked into the proposed treaty so that it doesn’t become a tool to stifle freedom of expression, infringe on privacy and data protection, or endanger vulnerable people and communities.
Hopefully, this doesn’t really go beyond the negotiations stages, but it is worrying to see another treaty floating around out there that could undermine digital rights. In Canada, the current government has a habit of throwing in bad digital policy into omnibus budget bills that would otherwise be hugely controversial and passing that into law as quietly as possible. Previously, the Trudeau Liberal government extended copyright in a budget bill that effectively pillaged the public domain of another 20 years. It went from life plus 50 years to life plus 70 years. That was bad enough. The last thing we need is a whole pile of other bad ideas being shoved down our throats with minimal debate as well.
Drew Wilson on Twitter: @icecube85 and Facebook.
