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Negotiations have been underway for more than three years: the latest negotiating session was held in April, and a multi-stakeholder consultation has just concluded. A sixth session is scheduled to take place in August, with a draft text expected to be approved by February 2024, to be put to a vote at the UN General Assembly (UNGA) later next year. But civil society sees some big pitfalls ahead.

Controversial beginnings

In December 2019, the UNGA voted to start negotiating a cybercrime treaty. The resolution was sponsored by Russia and co-sponsored by several of the world’s most repressive regimes, which already had national cybercrime laws they use to stifle legitimate dissent under the pretence of combatting a variety of vaguely defined online crimes such as insulting the authorities, spreading ‘fake news’ and extremism.

Tackling cybercrime certainly requires some kind of international cooperation. But this doesn’t necessarily need a new treaty. Experts have pointed out that the real problem may be the lack of enforcement of current international agreements, particularly the 2001 Council of Europe’s Budapest Convention.

When Russia’s resolution was put to a vote, the European Union, many states and human rights organisations urged the UNGA to reject it. But once the resolution passed, they engaged with the process, trying to prevent the worst possible outcome – a treaty lacking human rights safeguards that could be used as a repressive tool.

The December 2019 resolution set up an ad hoc committee (AHC), open to the participation of all UN member states plus observers, including civil society. At its first meeting to set procedural rules in mid-2021, Brazil’s proposal that a two-thirds majority vote be needed for decision-making – when consensus can’t be achieved – was accepted, instead of the simple majority favoured by Russia. A list of stakeholders was approved, including civil society organisations (CSOs), academic institutions and private sector representatives.

Another key procedural decision was made in February 2022: intersessional consultations were to be held between negotiating sessions to solicit input from stakeholders, including human rights CSOs. These consultations have given CSOs the chance to make presentations and participate in discussions with states.

Human rights concerns

Several CSOs are trying to use the space to influence the treaty process, including as part of broader coalitions. Given what’s at stake, in advance of the first negotiating session, around 130 CSOs and experts urged the AHC to embed human rights safeguards in the treaty.

One of the challenges it that, as early as the first negotiating session, it became apparent there wasn’t a clear definition of what constitutes a cybercrime and which cybercrimes should be regulated by the treaty. There’s still no clarity.

The UN identifies two main types of cybercrimes: cyber-dependent crimes such as network intrusion and malware distribution, which can only be committed through the use of information and communications technologies (ICTs), and cyber-enabled crimes, which can be facilitated by ICTs but can be committed without them, such as drug trafficking and the illegal distribution of counterfeit goods.

Throughout the negotiation process there’s been disagreement about whether the treaty should focus on a limited set of cyber-dependent crimes, or address a variety of cyber-enabled crimes. These, human rights groups warn, include various content-related offences that could be invoked to repress freedom of expression.

These concerns have been highlighted by the Office of the UN High Commissioner for Human Rights, which has emphasised that the treaty shouldn’t include offences related to the content of online expression and should clearly and explicitly reference binding international human rights agreements to ensure it’s applied in line with universal human rights principles.

A second major disagreement concerns the scope and conditions for international cooperation. If not clearly defined, cooperation arrangements could result in violations of privacy and data protection provisions. In the absence of the principle of dual criminality – where extradition can only apply to an action that constitutes a crime in both the country making an extradition request and the one receiving it – state authorities could be made to investigate activities that aren’t crimes in their own countries. They could effectively become enforcers of repression.

Civil society has pushed for recognition of a set of principles on the application of human rights to communications surveillance. According to these, dual criminality should prevail, and where laws differ, the one with the higher level of rights protections should be applied. It must be ensured that states don’t use mutual assistance agreements and foreign cooperation requests to circumvent domestic legal restrictions.

An uncertain future

Following the third multistakeholder consultation held in November 2022, the AHC released a negotiating draft. In the fourth negotiating session in January 2023, civil society’s major concerns focused on the long and growing number of criminal offences listed in the draft, many of them content-related.

It’s unclear how the AHC intends to bridge current deep divides to produce the ‘zero draft’ it’s expected to share in the next few weeks. If it complies with the deadline by leaving contentious issues undecided, the next session, scheduled for August, may bring a shift from consensus-building to voting – unless states decide to give themselves some extra time.

As of today, the process could still conclude on time, or with a limited extension, following a forced vote on a harmful treaty that lacks consensus and therefore fails to enter into effect, or does so for a limited number of states. Or it could be repeatedly postponed and fade away. Civil society engaged in the process may well think such a development wouldn’t be so bad: better no agreement than one that gives repressive states stronger tools to stifle dissent.

Inés M. Pousadela is CIVICUS Senior Research Specialist, co-director and writer for CIVICUS Lens and co-author of the State of Civil Society Report.

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