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On Aug. 9, an ad hoc Un

Confusion & Contradiction in the UN ‘Cybercrime’ Convention

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2024-12-09 23:30:04

Published by The Lawfare Institute in Cooperation With

On Aug. 9, an ad hoc United Nations committee unanimously adopted draft language for a new cybercrime convention (the Draft Convention). The Draft Convention represents an effort by certain repressive, anti-democratic regimes to erect a veneer of legitimacy through international law for efforts to target subversive elements within their own societies. Indeed, while generally referred to as a “cybercrime” convention, the Draft Convention goes far beyond any good-faith effort to address the proliferation of malicious cyber actors—many of which operate in the service of the Draft Convention’s original sponsors. Reflecting the Draft Convention’s lengthy, contentious drafting process, its official name is a hollow dissemblance: “Strengthening International Cooperation for Combating Certain Crimes Committed by Means of Information Communications Technology Systems and for the Sharing of Evidence in Electronic Form of Serious Crimes.” The Draft Convention has generated significant criticism that its overly broad language and lack of meaningful human rights safeguards makes it susceptible to abuse by authoritarian governments. And yet the United States, and the U.S. Department of Justice in particular, has endorsed this document, notwithstanding its many and obvious flaws.

In addition to the Draft Convention’s fundamental danger as a means of laundering authoritarianism across borders, the document almost certainly poses a conundrum for the Justice Department, specifically, and the U.S. diplomatic establishment, generally. The Draft Convention would weaken the United States’s ability to resist requests from authoritarian governments, whether or not made pursuant to a mutual legal assistance treaty (MLAT), and weakens the United States’s ability to dissuade foreign states from assisting in improper, suppressive investigations launched from states such as Russia or Iran. Were the U.S. to sign and later ratify the Draft Convention in its current form, the U.S. and Justice Department in particular would face diplomatic complications of its own making.