Part II: Unpacking the Domestic Surveillance Powers of the UN Cybercrime Convention
As the negotiations for the UN Cybercrime Convention draw closer, it’s crucial to recognize that the decisions made in these meetings carry far-reaching implications beyond the confines of the conference rooms in Vienna and New York. Representatives from over 140 countries with diverse law enforcement practices have come together to discuss issues such as cross-border police powers, access to private data, and judicial oversight. These discussions will shape the rewriting of criminal and surveillance laws around the world, affecting millions of individuals, especially those advocating for human rights and free expression. With such high stakes, it is essential to ensure that the draft convention includes robust human rights protections.
As we discussed in Part I of this analysis, the zero draft of the convention contains both positive and concerning aspects. While some problematic provisions were dropped, ambiguous and overly broad spying powers remain, raising concerns about potential abuses and violations of human rights. In this second part, we will delve deeper into one of the most troubling provisions of the convention: domestic surveillance powers.
The chapter on criminal procedural measures (Chapter IV, Article 23) significantly expands the scope of surveillance powers, going well beyond specified cybercrimes. It allows for the collection of electronic evidence related to any type of crime, regardless of severity or connection to a computer system. This means that governments can use domestic spying powers to investigate a range of crimes, including speech-related offenses, as long as there is digital evidence involved. However, the draft does not clearly specify that these powers should be limited to specific and targeted criminal investigations. This lack of clarity opens the door for potential abuses and the misapplication of surveillance powers.
Furthermore, the draft introduces six new domestic spying powers under the chapter on criminal procedural measures. These powers, such as the expedited preservation of stored data and real-time collection of traffic data, have significant implications for privacy rights. Personal data can reveal detailed private information about individuals, including their contacts, browsing history, location, device details, and patterns of behavior. Access to such personal data must be handled with necessary safeguards, including prior judicial authorization, transparency, notification, remedies, time limits, and oversight. However, the current draft fails to provide robust safeguards to protect against the misuse of personal data.
The draft convention does include two articles on human rights: Article 5, which applies to the entire convention, and Article 24, which describes the conditions and safeguards applied to domestic surveillance powers. However, these articles are not sufficiently robust to protect human rights and prevent law enforcement overreach. Article 24, for example, fails to require prior approval by a judge, set time limits, or provide remedies for wrongful surveillance. It also lacks specificity in terms of justifying the interception of communications and does not require governments to disclose how often these powers are used. Similarly, Article 5, while stating that implementation should be consistent with international human rights law, can be interpreted narrowly to only apply to ratified human rights treaties, leaving room for countries with poor human rights records to exploit this loophole.
Despite opposition to the inclusion of robust safeguards, it is crucial to recognize the significance of integrating human rights into the draft convention. These rights serve as the baseline standards for all individuals to live free from injustice and persecution. The inclusion of these articles is not a surrender of sovereignty but a recognition of the shared responsibility to uphold human dignity. Safeguarding human rights in the context of domestic surveillance powers is essential to prevent abuses, protect privacy, and ensure accountability.
As the negotiations approach their conclusion, it is vital for representatives to consider the profound impact of their decisions. The draft convention has the potential to shape criminal and surveillance laws worldwide, affecting the lives and rights of millions of individuals. By strengthening human rights protections and incorporating robust safeguards, Member States can ensure that the convention promotes privacy, accountability, and the rule of law. The outcome of these negotiations is not only a matter of legal technicalities but a pivotal moment in upholding the universal principles that underpin our shared humanity.