In a number of countries around the world, communities—and particularly those that are already vulnerable—are threatened by expansive cybercrime and surveillance legislation. One of those countries is Jordan, where a cybercrime law enacted in 2023 has been used against LGBTQ+ people, journalists, human rights defenders, and those criticizing the government.

We’ve criticized this law before, noting how it was issued hastily and without sufficient examination of its legal aspects, social implications, and impact on human rights. It broadly criminalizes online content labeled as “pornographic” or deemed to “expose public morals,” and prohibits the use of Virtual Private Networks (VPNs) and other proxies. Now, EFF has joined thirteen digital rights and free expression organizations in calling once again for Jordan to scrap the controversial cybercrime law.

The open letter, organized by Article 19, calls upon Jordanian authorities to cease use of the cybercrime law to target and punish dissenting voices and stop the crackdown on freedom of expression. The letter also reads: “We also urge the new Parliament to repeal or substantially amend the Cybercrime Law and any other laws that violate the right to freedom of expression and bring them in line with international human rights law.”

Jordan’s law is a troubling example of how overbroad cybercrime legislation can be misused to target marginalized communities and suppress dissent. This is the type of legislation that the U.N. General Assembly has expressed concern about, including in 2019 and 2021, when it warned against cybercrime laws being used to target human rights defenders. These concerns are echoed by years of reports from U.N. human rights experts on how abusive cybercrime laws facilitate human rights abuses.

The U.N. Cybercrime Treaty also poses serious threats to free expression. Far from protecting against cybercrime, this treaty risks becoming a vehicle for repressive cross-border surveillance practices. By allowing broad international cooperation in surveillance for any crime 'serious' under national laws—defined as offenses punishable by at least four years of imprisonment—and without robust mandatory safeguards or detailed operational requirements to ensure “no suppression” of expression, the treaty risks being exploited by government to suppress dissent and target marginalized communities, as seen with Jordan’s overbroad 2023 cybercrime law. The fate of the U.N. Cybercrime Treaty now lies in the hands of member states, who will decide on its adoption later this year.

Note on the update: The text has been revised to reflect the updated timeline for the UN General Assembly’s consideration of the convention, which is now expected at the end of this year. The update also emphasizes that states should reject the convention, with the U.S. leading its allies in voting no. Additionally, a new section outlines the risks associated with broad evidence-sharing, particularly the lack of mandatory, robust safeguards needed to act as checks against the misuse of power. It raises concerns that while states must codify the authorizations into law, the safeguards are optional. We’ve made it clear that human rights must be integrated into the treaty, but unfortunately, the rights section falls short. Please note that our piece in Just Security and this post are based on the latest version of the UNCC.

The final text of the United Nations Convention Against Cybercrime, adopted last Thursday by the United Nations Ad Hoc Committee, is now headed to the UN General Assembly for final approval. The last hours of deliberations were marked by drama as Iran repeatedly, though unsuccessfully, attempted to remove almost all human rights protections that survived in the final text, receiving support from dozens of nations. Although Iran’s efforts were defeated, the resulting text is still nothing to celebrate, as it remains riddled with unresolved human rights issues. 

The Fight Moves to the UN General Assembly

States will likely consider adopting or rejecting the treaty at the UN General Assembly later this year. It is crucial for the U.S. to take the lead in uniting allies to vote against it. This moment offers a key opportunity to push back and build a strong, coordinated opposition.

Over more than three years of advocacy, we consistently fought for clearer definitions, narrower scope, and stronger human rights protections. Since the start of the process, we made it clear that we didn’t believe the treaty was necessary, and, given the significant variation in privacy and human rights standards among member states, we raised concerns that the investigative powers adopted in the treaty may accommodate the most intrusive police surveillance practices across participating countries. Yet, we engaged in the discussions in good faith to attempt to ensure that the treaty would be narrow in scope and include strong, mandatory human rights safeguards.

However, in the end, the e-evidence sharing chapter remains broad in scope, and the rights section unfortunately falls short. Indeed, instead of merely facilitating cooperation on core cybercrime, this convention authorizes open-ended evidence gathering and sharing for any serious crime that a country chooses to punish with a sentence of at least four years or more, without meaningful limitations. While the convention excludes cooperation requests if there are substantial grounds to believe that the request is for the purpose of prosecuting or punishing someone based on their political beliefs or personal characteristics, it sets an extremely high bar for such exclusions and provides no operational safeguards or mechanisms to ensure that acts of transnational repression are refused. Abuse of international cooperation mechanisms (e.g., INTERPOL red notices) has been a persistent feature of the growing problem of transnational repression, and this convention creates a powerful multilateral tool without concrete mechanisms to prevent such abuse.

The convention requires that these surveillance measures are proportionate, but leaves critical safeguards such as judicial authorization, the need for grounds of justifying surveillance, and the need for effective redress as optional despite the intrusive nature of the surveillance powers it adopts. Even more concerning, some states have already indicated that in their view the requirements for these critical safeguards is purely a matter of states' domestic law, many of which already fail to meet international human rights standards and lack meaningful judicial oversight or legal accountability. 

The convention ended up accommodating the most intrusive practices.  For example, blanket, generalized data retention is problematic under human rights law but states that ignore these restrictions, and have such powers under their domestic law, can respond to assistance requests by sharing evidence that was retained through blanket data retention regimes. Similarly, encryption is also protected under international human rights standards but nothing in this convention prevents a state from employing encryption-breaking powers they have under their domestic law when responding to a cross-border request to access data.

The convention authorizes surveillance powers and cross-border cooperation without robust mandatory safeguards, providing a basis in international law. However, this authorization does not mean the treaty is self-executing: Many states may need to enact new laws to implement these powers domestically if they do not already have such powers in their own countries. Our concern is that states may codify these authorizations in national law without the necessary safeguards. While some countries already have general laws for legal assistance and extradition, others may need to adjust existing laws, including the list of countries eligible to request extradition, for example.

The Unsettling Concessions in the Treaty Negotiations

The key function of the Convention, if ratified, will be to create a means of requiring legal assistance between countries that do not already have mutual legal assistance treaties (MLATs) or other cooperation agreements. This would include repressive regimes who may previously have been hindered in their attempts to engage in cross-border surveillance and data sharing, in some cases because their concerning human rights records have excluded them from MLATs. For countries that already have MLATs in place, the new treaty’s cross-border cooperation provisions may provide additional tools for assistance.

A striking pattern throughout the Convention as adopted is the leeway that it gives to states to decide whether or not to require human rights safeguards; almost all of the details of how human rights protections are implemented is left up to national law. For example, the scope and definition of many offenses “may"—or may not—include certain protective elements. In addition, states are not required to decline requests from other states to help investigate acts that are not crimes under their domestic law; they can choose to cooperate with those requests instead. Nor does the treaty obligate states to carefully scrutinize surveillance requests to ensure they are not pretextual attempts at persecution.

This pattern continues. For example, the list of core cybercrimes under the convention—that in the past swept in good faith security research, whistleblowers, and journalistic activities—let states choose whether specific elements must be included before an act will be considered a crime, for example that the offense was done with dishonest intent or that it caused serious harm. Sadly, these elements are optional, not required.

Similarly, provisions on child sexual abuse material (CSAM) allow states to adopt exceptions that would ensure scientific, medical, artistic or educational materials are not wrongfully targeted, and that would exclude consensual, age-appropriate exchanges between minors, in line with international human rights standards. Again, these exceptions are optional, meaning that over-criminalization is not only consistent with the Convention but also qualifies for the Convention's cross-border surveillance and extradition mechanisms.

The broad discretion granted to states under the UN Cybercrime Treaty is a deliberate design intended to secure agreement among countries with varying levels of human rights protections. This flexibility, in certain cases, allows states with strong protections to uphold them, but it also permits those with weaker standards to maintain their lower levels of protection. This pattern was evident in the negotiations, where key human rights safeguards were made optional rather than mandatory, such as in the  list of core cybercrimes and provisions on cross-border surveillance.

These numerous options in the convention are also disappointing because they took the place of what would have been preferred: advancing the protections in their national laws as normative globally, and encouraging or requiring other states to adopt them. 

Exposing States’ Contempt For Rights

Iran’s last-ditch attempts to strip human rights protections from the treaty were a clear indicator of the challenges ahead. In the final debate, Iran proposed deleting provisions that would let states refuse international requests for personal data when there’s a risk of persecution based on political opinions, race, ethnicity, or other factors. Despite its disturbing implications, the proposal received 25 votes in support including from India, Cuba, China, Belarus, Korea, Nicaragua, Nigeria, Russia, and Venezuela.

That was just one of a series of proposals by Iran to remove specific human rights or procedural protections from the treaty at the last minute. Iran also requested a vote on deleting Article 6(2) of the treaty, another human rights clause that explicitly states that nothing in the Convention should be interpreted as allowing the suppression of human rights or fundamental freedoms, as well as Article 24, which establishes the conditions and safeguards—the essential checks and balances—for domestic and cross-border surveillance powers.

Twenty-three countries, including Jordan, India, and Sudan, voted to delete Article 6(2), with 26 abstentions from countries like China, Uganda, and Turkey. This means a total of 49 countries either supported or chose not to oppose the removal of this critical clauses, showing a significant divide in the international community's commitment to protecting fundamental freedoms.  And 11 countries voted to delete Article 24, with 23 abstentions.

These and other Iranian proposals would have removed nearly every reference to human rights from the convention, stripping the treaty of its substantive human rights protections and impacting both domestic legislation and international cooperation, leaving only the preamble and general clause, which states: "State Parties shall ensure that the implementation of their obligations under this Convention is consistent with their obligations under international human rights law.”

Additional Risks of Treaty Abuse

The risk that treaty powers can be abused to persecute people is real and urgent. It is even more concerning that some states have sought to declare (by announcing a future potential “reservation”) that they may intend to not follow Article 6.2 (general human rights clause), Article 24 (conditions and safeguards for domestic and cross border spying assistance), and Article 40(22) on human-rights-based grounds for refusing mutual legal assistance, despite their integral roles in the treaty.

Such reservations should be prohibited. According to the International Law Commission’s "Guide to Practice on Reservations to Treaties," a reservation is impermissible if it is incompatible with the object and purpose of the treaty. Human-rights safeguards, while not robust enough, are essential elements of the treaty, and reservations that undermine these safeguards could be considered incompatible with the treaty’s object and purpose. Furthermore, the Guide states that reservations should not affect essential elements necessary to the general tenor of the treaty, and if they do, such reservations impair the raison d’être of the treaty itself. Therefore, allowing reservations against human rights safeguards may not only undermine the treaty’s integrity but also challenge its legal and moral foundations.

All of the attacks on safeguards in the treaty process raise particular concerns when foreign governments use the treaty powers to demand information from U.S. companies, who should be able to rely on the strong standards embedded in US law. Where norms and safeguards were made optional, we can presume that many states will choose to forego them.

Cramming Even More Crimes Back In?

Throughout the negotiations, several delegations voiced concerns that the scope of the Convention did not cover enough crimes, including many that threaten online content protected by the rights to free expression and peaceful protest. Russia, China, Nigeria, Egypt, Iran, and Pakistan advocated for broader criminalization, including crimes like incitement to violence and desecration of religious values. In contrast, the EU, the U.S., Costa Rica, and others advocated for a treaty that focuses solely on computer-related offenses, like attacks on computer systems, and some cyber-enabled crimes like CSAM and grooming.

Despite significant opposition, Russia, China, and other states successfully advanced the negotiation of a supplementary protocol for additional crimes, even before the core treaty has been ratified and taken effect. This move is particularly troubling as it leaves unresolved the critical issue of consensus on what constitutes core cybercrimes—a ticking time bomb that could lead to further disputes and could retroactively expand application of the Convention's cross-border cooperation regime even further. 

Under the final agreement, it will take 40 ratifications for the treaty to enter into force and 60 before any new protocols can be adopted. While consensus remains the goal, if it cannot be reached, a protocol can still be adopted with a two-thirds majority vote of the countries present.

The treaty negotiations are disappointing, but civil society and human rights defenders can unite to urge states to vote against the convention at the next UN General Assembly, ensuring that these flawed provisions do not undermine human rights globally.

The proposed UN Cybercrime Convention is an extensive surveillance pact that imposes intrusive domestic surveillance measures and mandates states’ cooperation in surveillance and data sharing. It requires states to aid each other in cybercrime investigations and prosecutions, allowing the collection, preservation, and sharing of electronic evidence for any crime deemed serious by a country’s domestic law, with minimal human rights safeguards. This cooperation extends even to countries with poor human rights records.  Negotiations for this treaty began in 2022, initiated by a controversial proposal from the Russian Federation. If adopted, it will rewrite surveillance laws worldwide. Millions of people, including human rights defenders, journalists, security researchers, and those speaking truth to power, will be affected. Without clear, enforceable safeguards, the treaty risks becoming a tool for state abuse and transnational repression rather than protecting human rights. Below are our main concerns. For a comprehensive list, please refer to our redlines and appeal to EU Delegates. 

EFF’s Key Concerns  

The Title of the Draft Convention is Misleading and Problematic: Cybercrime is a real issue but equating it with any crime involving ICTs is conceptually and practically harmful. Recent efforts at the domestic level to broaden its definition have led to the criminalization of legitimate activities, such as online criticism, religious expression, or LGBTQ support. In the proposed treaty, it encourages expansive interpretations that could lead to human rights abuses and transnational repression. Recommendation: Restrict the definition to "core cybercrimes" like technical attacks on computers, devices, data, and communications systems. Exclude human rights-protected activities from the scope of the treaty to prevent misuse and ensure these rights are not unjustly targeted due to equating cybercrime with any crime using ICT. 
 
Expansive Scope and Over-Criminalization Risks: The draft Convention's criminalization chapter dangerously broadens its scope by including crimes like “grooming” and CSAM, not just cybercrimes. Its CSAM definition risks criminalizing consensual conduct between minors. Even worse, a proposed Protocol could add two more Ad Hoc sessions to discuss even more crimes, further expanding its broad scope. Recommendation: Criminalization must be limited to Articles 7 to 11. Narrow the scope of the CSAM article to target only intentional, malicious actions, exclude from criminalization consensual activity between minors, make exemptions for self-generated content by minors mandatory, ensure financing provisions target only those knowingly involved in illegal activities, and exclude the public interest use of such materials, such as evidence in crime investigations, and scientific or artistic materials.  

Overbroad Scope of Evidence Gathering Powers Will Enable Domestic and Cross-Border Spying on Acts of Expression: The open-ended scope of Chapters IV & V risks undermining law enforcement cooperation on actual cybercrime offenses by diluting resources. It lets governments spy on people to gather potential evidence for any crime if they’ve been committed using ICT. It also allows one state to help another in surveillance for any so-called serious crime. These expansions turn the treaty into an extensive surveillance pact. Article 23(2)(c) greenlights invasive measures for minor offenses and protected expressions abusively criminalized in some countries. Article 35(1)(c) means cooperation for serious crimes, defined as offenses punishable by four years or more, which can include acts of expression considered serious offenses in national law. This broad scope risks massive abuse of power. Recommendation: Limit Articles 23(2)(c) and 35(1)(c) to Articles 7 to 11 and delete Article 23(2)(b). Support OHCHR’s recommendation to revise the definition of serious crimes to mean only “those involving death, injury, or other grave harms,” as merely suggesting respect for human rights within such a broad scope is important but insufficient because it lacks enforceable protections against misuse and abuse. Ensure cooperation is limited to situations where there is a reasonable suspicion that legal assistance will produce evidence of a criminal offense.  

Insufficient Human Rights Safeguards: Article 24, which addresses conditions and safeguards and includes the principle of proportionality, fails to explicitly include other crucial principles such as legality, necessity, and non-discrimination. Effective human rights protections require judicial approval before conducting surveillance, transparency about actions taken, and notifying users when their data is accessed unless it jeopardizes the investigation. The new draft omits these safeguards, even worse it defers the few existing safeguards to national laws that can vary greatly and may not always provide the necessary protections. It also lacks safeguards for legally privileged information, fails to prevent compelled self-incrimination, and omits protections for criminal defense attorneys. These gaps raise concerns about the erosion of human rights: the treaty doesn’t raise the bar against invasive surveillance but rather confirms even the lowest protections, potentially undermining existing robust standards.  
 
Highly Intrusive Secret Spying Powers Without Robust Safeguards: The draft allows extensive secret surveillance with weak safeguards, posing significant risks both domestically and internationally. Domestically, it permits real-time interception of traffic data for any crime, while content interception is limited to serious crimes—offenses punishable by four years or more in domestic laws. Service providers are compelled to assist in these surveillance activities, often under perpetual gag orders, preventing notification even when investigations are no longer jeopardized. Internationally, the draft allows one state to assist another in carrying out such surveillance for serious crimes, forcing companies to comply with foreign surveillance requests, also in perpetual secrecy. This lack of transparency and accountability is a recipe for unchecked abuses of power and undermines trust in digital services. Recommendation: Delete Articles 29, 30, 45, 46. 

Compelled Technical Assistance: The draft requires countries to have laws enabling authorities to compel anyone with knowledge of a particular computer system to provide necessary information to facilitate access. This could involve asking a tech expert or engineer to help unlock a device or explain its security features, which may compromise security or reveal confidential information. (ie. an engineer might be arbitrarily required to disclose an unfixed security flaw or provide signed encryption keys that protect data). Recommendation: Delete Article 28(4).  

Lawless Law Enforcement Cooperation Risks Human Rights Erosion: The current wording of Article 47 risks supporting open-ended law enforcement cooperation without detailing the necessary limitations and safeguards required under international human rights law. States should not use this Convention to authorize or require personal data sharing beyond the scope of existing mutual legal assistance treaties, the safeguards established under the MLA, and the MLA vetting mechanism. Removing these safeguards without providing comparable protections and limitations invites misuse of the mutual legal assistance framework for abuse and/or repression. Recommendation: Limit Article 47(1) to Articles 7-11, delete Articles 47(1)(b), (c), and (f), and reference Articles 24 and 36 in Article 47(2). 

Insufficient Protection for Security Researchers and Other Public Interest Work: The draft Convention fails to exempt security research, journalism, and whistleblowing from criminalization, posing significant risks to cybersecurity and press freedom globally. This includes those involved in authorized testing or protection of ICT systems. However, the draft's provisions on illegal access, interception, and interference lack mandatory requirements for criminal intent and harm, threatening to penalize security research efforts. Full list of recommendations available here. 

Risks to LGBTQ and Gender Rights: The broad scope of the convention continues to pose significant risks to LGBTQ+ and gender rights. The domestic and international cooperation chapter could be exploited to target individuals based on their gender or sexual orientation, especially if domestic laws criminalize these expressions as serious crimes. This is particularly concerning given the history of cybercrime laws being misused to persecute marginalized groups. Recommendation: Restrict the scope of evidence gathering to core cybercrimes. Revise the definition of serious crime as per OHCHR’s recommendation. 
 
Want more information? Please contact EFF Policy Director for Global Privacy Katitza Rodriguez at katitza@eff.org. 
 
Download our PDF here.

 

With the final negotiating session to approve the UN Cybercrime Treaty just days away, EFF and 21 international civil society organizations today urgently called on delegates from EU states and the European Commission to push back on the draft convention's many flaws, which include an excessively broad scope that will grant intrusive surveillance powers without robust human rights and data protection safeguards.

The time is now to demand changes in the text to narrow the treaty's scope, limit surveillance powers, and spell out data protection principles. Without these fixes, the draft treaty stands to give governments' abusive practices the veneer of international legitimacy and should be rejected.

Letter below:

Urgent Appeal to Address Critical Flaws in the Latest Draft of the UN Cybercrime Convention

Ahead of the reconvened concluding session of the United Nations (UN) Ad Hoc Committee on Cybercrime (AHC) in New York later this month, we, the undersigned organizations, wish to urgently draw your attention to the persistent critical flaws in the latest draft of the UN cybercrime convention (hereinafter Cybercrime Convention or the Convention).

Despite the recent modifications, we continue to share profound concerns regarding the persistent shortcomings of the present draft and we urge member states to not sign the Convention in its current form.

Key concerns and proposals for remedy:

1. Overly Broad Scope and Legal Uncertainty:

• The draft Convention’s scope remains excessively broad, including cyber-enabled offenses and other content-related crimes. The proposed title of the Convention and the introduction of the new Article 4 – with its open-ended reference to “offenses established in accordance with other United Nations conventions and protocols” – creates significant legal uncertainty and expands the scope to an indefinite list of possible crimes to be determined only in the future. This ambiguity risks criminalizing legitimate online expression, having a chilling effect detrimental to the rule of law. We continue to recommend narrowing the Convention’s scope to clearly defined, already existing cyber-dependent crimes only, to facilitate its coherent application, ensure legal certainty and foreseeability and minimize potential abuse.
• The draft Convention in Article 18 lacks clarity concerning the liability of online platforms for offenses committed by their users. The current draft of the Article lacks the requirement of intentional participation in offenses established in accordance with the Convention, thereby also contradicting Article 19 which does require intent. This poses the risk that online intermediaries could be held liable for information disseminated by their users, even without actual knowledge or awareness of the illegal nature of the content (as set out in the EU Digital Services Act), which will incentivise overly broad content moderation efforts by platforms to the detriment of freedom of expression. Furthermore, the wording is much broader (“for participation”) than the Budapest Convention (“committed for the cooperation’s benefit”) and would merit clarification along the lines of paragraph 125 of the Council of Europe Explanatory Report to the Budapest Convention. 
• The proposal in the revised draft resolution to elaborate a draft protocol supplementary to the Convention represents a further push to expand the scope of offenses, risking the creation of a limitlessly expanding, increasingly punitive framework.
  

2. Insufficient Protection for Good-Faith Actors:

• The draft Convention fails to incorporate language sufficient to protect good-faith actors, such as security researchers (irrespective of whether it concerns the authorized testing or protection of an information and communications technology system), whistleblowers, activists, and journalists, from excessive criminalization. It is crucial that the mens rea element in the provisions relating to cyber-dependent crimes includes references to criminal intent and harm caused.
  

3. Lack of Specific Human Rights Safeguards:

• Article 6 fails to include specific human rights safeguards – as proposed by civil society organizations and the UN High Commissioner for Human Rights – to ensure a common understanding among Member States and to facilitate the application of the treaty without unlawful limitation of human rights or fundamental freedoms. These safeguards should be: 
• applicable to the entire treaty to ensure that cybercrime efforts provide adequate protection for human rights;
• be in accordance with the principles of legality, necessity, and proportionality, non-discrimination, and legitimate purpose;
• incorporate the right to privacy among the human rights specified;
• address the lack of effective gender mainstreaming to ensure the Convention does not undermine human rights on the basis of gender.
  

4. Procedural Measures and Law Enforcement:

• The Convention should limit the scope of procedural measures to the investigation of the criminal offenses set out in the Convention, in line with point 1 above.
  
• In order to facilitate their application and – in light of their intrusiveness – to minimize the potential for abuse, this chapter of the Convention should incorporate the following minimal conditions and safeguards as established under international human rights law. Specifically, the following should be included in Article 24:
• the principles of legality, necessity, proportionality, non-discrimination and legitimate purpose;
• prior independent (judicial) authorization of surveillance measures and monitoring throughout their application;
• adequate notification of the individuals concerned once it no longer jeopardizes investigations;
• and regular reports, including statistical data on the use of such measures.
  

• Articles 28/4, 29, and 30 should be deleted, as they include excessive surveillance measures that open the door for interference with privacy without sufficient safeguards as well as potentially undermining cybersecurity and encryption.
  

5. International Cooperation:

• The Convention should limit the scope of international cooperation solely to the crimes set out in the Convention itself to avoid misuse (as per point 1 above.) Information sharing for law enforcement cooperation should be limited to specific criminal investigations with explicit data protection and human rights safeguards.
  
• Article 40 requires “the widest measure of mutual legal assistance” for offenses established in accordance with the Convention as well as any serious offense under the domestic law of the requesting State. Specifically, where no treaty on mutual legal assistance applies between State Parties, paragraphs 8 to 31 establish extensive rules on obligations for mutual legal assistance with any State Party with generally insufficient human rights safeguards and grounds for refusal. For example, paragraph 22 sets a high bar of ”substantial grounds for believing” for the requested State to refuse assistance.
  
• When State Parties cannot transfer personal data in compliance with their applicable laws, such as the EU data protection framework, the conflicting obligation in Article 40 to afford the requesting State “the widest measure of mutual legal assistance” may unduly incentivize the transfer of the personal data subject to appropriate conditions under Article 36(1)(b), e.g. through derogations for specific situations in Article 38 of the EU Law Enforcement Directive. Article 36(1)(c) of the Convention also encourages State Parties to establish bilateral and multilateral agreements to facilitate the transfer of personal data, which creates a further risk of undermining the level of data protection guaranteed by EU law.
• When personal data is transferred in full compliance with the data protection framework of the requested State, Article 36(2) should be strengthened to include clear, precise, unambiguous and effective standards to protect personal data in the requesting State, and to avoid personal data being further processed and transferred to other States in ways that may violate the fundamental right to privacy and data protection.

Conclusion and Call to Action:

Throughout the negotiation process, we have repeatedly pointed out the risks the treaty in its current form pose to human rights and to global cybersecurity. Despite the latest modifications, the revised draft fails to address our concerns and continues to risk making individuals and institutions less safe and more vulnerable to cybercrime, thereby undermining its very purpose.

Failing to narrow the scope of the whole treaty to cyber-dependent crimes, to protect the work of security researchers, human rights defenders and other legitimate actors, to strengthen the human rights safeguards, to limit surveillance powers, and to spell out the data protection principles will give governments’ abusive practices a veneer of international legitimacy. It will also make digital communications more vulnerable to those cybercrimes that the Convention is meant to address. Ultimately, if the draft Convention cannot be fixed, it should be rejected. 

With the UN AHC’s concluding session about to resume, we call on the delegations of the Member States of the European Union and the European Commission’s delegation to redouble their efforts to address the highlighted gaps and ensure that the proposed Cybercrime Convention is narrowly focused in its material scope and not used to undermine human rights nor cybersecurity. Absent meaningful changes to address the existing shortcomings, we urge the delegations of EU Member States and the EU Commission to reject the draft Convention and not advance it to the UN General Assembly for adoption.

This statement is supported by the following organizations:

Access Now
Alternatif Bilisim
ARTICLE 19: Global Campaign for Free Expression
Centre for Democracy & Technology Europe
Committee to Protect Journalists
Digitalcourage
Digital Rights Ireland
Digitale Gesellschaft
Electronic Frontier Foundation (EFF)
epicenter.works
European Center for Not-for-Profit Law (ECNL) 
European Digital Rights (EDRi)
Global Partners Digital
International Freedom of Expression Exchange (IFEX)
International Press Institute 
IT-Pol Denmark
KICTANet
Media Policy Institute (Kyrgyzstan)
Privacy International
SHARE Foundation
Vrijschrift.org
World Association of News Publishers (WAN-IFRA)
Zavod Državljan D (Citizen D)

This is the third post in a series highlighting flaws in the proposed UN Cybercrime Convention. Check out Part I, our detailed analysis on the criminalization of security research activities, and Part II, an analysis of the human rights safeguards.

As we near the final negotiating session for the proposed UN Cybercrime Treaty, countries are running out of time to make much-needed improvements to the text. From July 29 to August 9, delegates in New York aim to finalize a convention that could drastically reshape global surveillance laws. The current draft favors extensive surveillance, establishes weak privacy safeguards, and defers most protections against surveillance to national laws—creating a dangerous avenue that could be exploited by countries with varying levels of human rights protections.

The risk is clear: without robust privacy and human rights safeguards in the actual treaty text, we will see increased government overreach, unchecked surveillance, and unauthorized access to sensitive data—leaving individuals vulnerable to violations, abuses, and transnational repression. And not just in one country.  Weaker safeguards in some nations can lead to widespread abuses and privacy erosion because countries are obligated to share the “fruits” of surveillance with each other. This will worsen disparities in human rights protections and create a race to the bottom, turning global cooperation into a tool for authoritarian regimes to investigate crimes that aren’t even crimes in the first place.

Countries that believe in the rule of law must stand up and either defeat the convention or dramatically limit its scope, adhering to non-negotiable red lines as outlined by over 100 NGOs. In an uncommon alliance, civil society and industry agreed earlier this year in a joint letter urging governments to withhold support for the treaty in its current form due to its critical flaws.

Background and Current Status of the UN Cybercrime Convention Negotiations

The UN Ad Hoc Committee overseeing the talks and preparation of a final text is expected to consider a revised but still-flawed text in its entirety, along with the interpretative notes, during the first week of the session, with a focus on all provisions not yet agreed ad referendum.[1] However, in keeping with the principle in multilateral negotiations that “nothing is agreed until everything is agreed,” any provisions of the draft that have already been agreed could potentially be reopened. 

The current text reveals significant disagreements among countries on crucial issues like the convention's scope and human rights protection. Of course the text could also get worse. Just when we thought Member States had removed many concerning crimes, they could reappear. The Ad-Hoc Committee Chair’s General Assembly resolution includes two additional sessions to negotiate not more protections, but the inclusion of more crimes. The resolution calls for “a draft protocol supplementary to the Convention, addressing, inter alia, additional criminal offenses.” Nevertheless, some countries still expect the latest draft to be adopted.

In this third post, we highlight the dangers of the currently proposed UN Cybercrime Convention's broad definition of "electronic data" and inadequate privacy and data protection safeguards.Together, these create the conditions for severe human rights abuses, transnational repression, and inconsistencies across countries in human rights protections.

A Closer Look to the Definition of Electronic Data

The proposed UN Cybercrime Convention significantly expands state surveillance powers under the guise of combating cybercrime. Chapter IV grants extensive government authority to monitor and access digital systems and data, categorizing data into communications data: subscriber data, traffic data, and content data. But it also makes use of a catch-all category called "electronic data." Article 2(b) defines electronic data as "any representation of facts, information, or concepts in a form suitable for processing in an information and communications technology system, including a program suitable to cause an information and communications technology system to perform a function."

"Electronic data," is eligible for three surveillance powers: preservation orders (Article 25), production orders (Article 27), and search and seizure (Article 28). Unlike the other traditional categories of traffic data, subscriber data and content data, "electronic data" refers to any data stored, processed, or transmitted electronically, regardless of whether it has been communicated to anyone. This includes documents saved on personal computers or notes stored on digital devices. In essence, this means that private unshared thoughts and information are no longer safe. Authorities can compel the preservation, production, or seizure of any electronic data, potentially turning personal devices into spy vectors regardless of whether the information has been communicated.

This is delicate territory, and it deserves careful thought and real protection—many of us now use our devices to keep our most intimate thoughts and ideas, and many of us also use tools like health and fitness tools in ways that we do not intend to share. This includes data stored on devices, such as face scans and smart home device data, if they remain within the device and are not transmitted. Another example could be photos that someone takes on a device but doesn't share with anyone. This category threatens to turn our most private thoughts and actions over to spying governments, both our own and others. 

And the problem is worse when we consider emerging technologies. The sensors in smart devices, AI, and augmented reality glasses, can collect a wide array of highly sensitive data. These sensors can record involuntary physiological reactions to stimuli, including eye movements, facial expressions, and heart rate variations. For example, eye-tracking technology can reveal what captures a user's attention and for how long, which can be used to infer interests, intentions, and even emotional states. Similarly, voice analysis can provide insights into a person's mood based on tone and pitch, while body-worn sensors might detect subtle physical responses that users themselves are unaware of, such as changes in heart rate or perspiration levels.

These types of data are not typically communicated through traditional communication channels like emails or phone calls (which would be categorized as content or traffic data). Instead, they are collected, stored, and processed locally on the device or within the system, fitting the broad definition of "electronic data" as outlined in the draft convention.

Such data likely has been harder to obtain because it may have not been communicated to or possessed by any communications intermediary or system. So it’s an  example of how the broad term "electronic data" increases the kinds (and sensitivity) of information about us that can be targeted by law enforcement through production orders or by search and seizure powers. These emerging technology uses are their own category, but they are most like "content" in communications surveillance, which usually has high protection. “Electronic data” must have equal protection as “content” of communication, and be subject to ironclad data protection safeguards, which the propose treaty fails to provide, as we will explain below.

The Specific Safeguard Problems

Like other powers in the draft convention, the broad powers related to "electronic data" don't come with specific limits to protect fair trial rights. 

Missing Safeguards

For example, many countries' have various kinds of information that is protected by a legal “privilege” against surveillance: attorney-client privilege, the spousal privilege, the priest-penitent privilege, doctor-patient privileges, and many kinds of protections for confidential business information and trade secrets. Many countries, also give additional protections for journalists and their sources. These categories, and more, provide varying degrees of extra requirements before law enforcement may access them using production orders or search-and-seizure powers, as well as various protections after the fact, such as preventing their use in prosecutions or civil actions. 

Similarly, the convention lacks clear safeguards to prevent authorities from compelling individuals to provide evidence against themselves. These omissions raise significant red flags about the potential for abuse and the erosion of fundamental rights when a treaty text involves so many countries with a high disparity of human rights protections.

The lack of specific protections for criminal defense is especially troubling. In many legal systems, defense teams have certain protections to ensure they can effectively represent their clients, including access to exculpatory evidence and the protection of defense strategies from surveillance. However, the draft convention does not explicitly protect these rights, which both misses the chance to require all countries to provide these minimal protections and potentially further undermines the fairness of criminal proceedings and the ability of suspects to mount an effective defense in countries that either don’t provide those protections or where they are not solid and clear.

Even the State “Safeguards” in Article 24 are Grossly Insufficient

Even where the convention’s text discusses “safeguards,” the convention doesn’t actually protect people. The “safeguard” section, Article 24, fails in several obvious ways: 

Dependence on Domestic Law: Article 24(1) makes safeguards contingent on domestic law, which can vary significantly between countries. This can result in inadequate protections in states where domestic laws do not meet high human rights standards. By deferring safeguards to national law, Article 24 weakens these protections, as national laws may not always provide the necessary safeguards. It also means that the treaty doesn’t raise the bar against invasive surveillance, but rather confirms even the lowest protections.

A safeguard that bends to domestic law isn't a safeguard at all if it leaves the door open for abuses and inconsistencies, undermining the protection it's supposed to offer.

Discretionary Safeguards: Article 24(2) uses vague terms like “as appropriate,” allowing states to interpret and apply safeguards selectively. This means that while the surveillance powers in the convention are mandatory, the safeguards are left to each state’s discretion. Countries decide what is “appropriate” for each surveillance power, leading to inconsistent protections and potential weakening of overall safeguards.

Lack of Mandatory Requirements: Essential protections such as prior judicial authorization, transparency, user notification, and the principle of legality, necessity and non-discrimination are not explicitly mandated. Without these mandatory requirements, there is a higher risk of misuse and abuse of surveillance powers.

No Specific Data Protection Principles: As we noted above, the proposed treaty does not include specific safeguards for highly sensitive data, such as biometric or privileged data. This oversight leaves such information vulnerable to misuse.

Inconsistent Application: The discretionary nature of the safeguards can lead to their inconsistent application, exposing vulnerable populations to potential rights violations. Countries might decide that certain safeguards are unnecessary for specific surveillance methods, which the treaty allows, increasing the risk of abuse.

Finally, Article 23(4) of Chapter IV authorizes the application of Article 24 safeguards to specific powers within the international cooperation chapter (Chapter V). However, significant powers in Chapter V, such as those related to law enforcement cooperation (Article 47) and the 24/7 network (Article 41) do not specifically cite the corresponding Chapter IV powers and so may not be covered by Article 24 safeguards.

Search and Seizure of Stored Electronic Data

The proposed UN Cybercrime Convention significantly expands government surveillance powers, particularly through Article 28, which deals with the search and seizure of electronic data. This provision grants authorities sweeping abilities to search and seize data stored on any computer system, including personal devices, without clear, mandatory privacy and data protection safeguards. This poses a serious threat to privacy and data protection.

Article 28(1) allows authorities to search and seize any “electronic data” in an information and communications technology (ICT) system or data storage medium. It lacks specific restrictions, leaving much to the discretion of national laws. This could lead to significant privacy violations as authorities might access all files and data on a suspect’s personal computer, mobile device, or cloud storage account—all without clear limits on what may be targeted or under what conditions.

Article 28(2) permits authorities to search additional systems if they believe the sought data is accessible from the initially searched system. While judicial authorization should be a requirement to assess the necessity and proportionality of such searches, Article 24 only mandates “appropriate conditions and safeguards” without explicit judicial authorization. In contrast, U.S. law under the Fourth Amendment requires search warrants to specify the place to be searched and the items to be seized—preventing unreasonable searches and seizures.

Article 28(3) empowers authorities to seize or secure electronic data, including making and retaining copies, maintaining its integrity, and rendering it inaccessible or removing it from the system. For publicly accessible data, this takedown process could infringe on free expression rights and should be explicitly subject to free expression standards to prevent abuse.

Article 28(4) requires countries to have laws that allow authorities to compel anyone who knows how a particular computer or device works to provide necessary information to access it. This could include asking a tech expert or an engineer to help unlock a device or explain its security features. This is concerning because it might force people to help law enforcement in ways that could compromise security or reveal confidential information. For example, an engineer could be required to disclose a security flaw that hasn't been fixed, or to provide encryption keys that protect data, which could then be misused. The way it is written, it could be interpreted to include disproportionate orders that can lead to forcing persons to disclose a vulnerability to the government that hasn’t been fixed. It could also imply forcing people to disclose encryption keys such as signing keys on the basis that these are “the necessary information to enable” some form of surveillance.

Privacy International and EFF strongly recommend Article 28.4 be removed in its entirety. Instead, it has been agreed ad referendum. At least, the drafters must include material in the explanatory memorandum that accompanies the draft Convention to clarify limits to avoid forcing technologists to reveal confidential information or do work on behalf of law enforcement against their will. Once again, it would also be appropriate to have clear legal standards about how law enforcement can be authorized to seize and look through people’s private devices.

In general, production and search and seizure orders might be used to target tech companies' secrets, and require uncompensated labor by technologists and tech companies, not because they are evidence of crime but because they can be used to enhance law enforcement's technical capabilities.

Domestic Expedited Preservation Orders of Electronic Data

Article 25 on preservation orders, already agreed ad referendum, is especially problematic. It’s very broad, and will result in individuals’ data being preserved and available for use in prosecutions far more than needed. It also fails to include necessary safeguards to avoid abuse of power. By allowing law enforcement to demand preservation with no factual justification, it risks spreading familiar deficiencies in U.S. law worldwide.

Article 25 requires each country to create laws or other measures that let authorities quickly preserve specific electronic data, particularly when there are grounds to believe that such data is at risk of being lost or altered.

Article 25(2) ensures that when preservation orders are issued, the person or entity in possession of the data must keep it for up to 90 days, giving authorities enough time to obtain the data through legal channels, while allowing this period to be renewed. There is no specified limit on the number of times the order can be renewed, so it can potentially be reimposed indefinitely.

Preservation orders should be issued only when they’re absolutely necessary, but Article 24 does not mention the principle of necessity and lacks individual notice and explicit grounds requirements and statistical transparency obligations.

The article must limit the number of times preservation orders may be renewed to prevent indefinite data preservation requirements. Each preservation order renewal must require a demonstration of continued necessity and factual grounds justifying continued preservation.

Article 25(3) also compels states to adopt laws that enable gag orders to accompany preservation orders, prohibiting service providers or individuals from informing users that their data was subject to such an order. The duration of such a gag order is left up to domestic legislation.

As with all other gag orders, the confidentiality obligation should be subject to time limits and only be available to the extent that disclosure would demonstrably threaten an investigation or other vital interest. Further, individuals whose data was preserved should be notified when it is safe to do so without jeopardizing an investigation. Independent oversight bodies must oversee the application of preservation orders.

Indeed, academics such as prominent law professor and former U.S. Department of Justice lawyer Orin S. Kerr have criticized similar U.S. data preservation practices under 18 U.S.C. § 2703(f) for allowing law enforcement agencies to compel internet service providers to retain all contents of an individual's online account without their knowledge, any preliminary suspicion, or judicial oversight. This approach, intended as a temporary measure to secure data until further legal authorization is obtained, lacks the foundational legal scrutiny typically required for searches and seizures under the Fourth Amendment, such as probable cause or reasonable suspicion.

The lack of explicit mandatory safeguards raise similar concerns about Article 25 of the proposed UN convention. Kerr argues that these U.S. practices constitute a "seizure" under the Fourth Amendment, indicating that such actions should be justified by probable cause or, at the very least, reasonable suspicion—criteria conspicuously absent in the current draft of the UN convention.

By drawing on Kerr's analysis, we see a clear warning: without robust safeguards— including an explicit grounds requirement, prior judicial authorization, explicit notification to users, and transparency—preservation orders of electronic data proposed under the draft UN Cybercrime Convention risk replicating the problematic practices of the U.S. on a global scale.

Production Orders of Electronic Data

Article 27(a)’s treatment of “electronic data” in production orders, in light of the draft convention’s broad definition of the term, is especially problematic.

This article, which has already been agreed ad referendum, allows production orders to be issued to custodians of electronic data, requiring them to turn over copies of that data. While demanding customer records from a company is a traditional governmental power, this power is dramatically increased in the draft convention.

As we explain above, the extremely broad definition of electronic data, which is often sensitive in nature, raises new and significant privacy and data protection concerns, as it permits authorities to access potentially sensitive information without immediate oversight and prior judicial authorization. The convention needs instead to require prior judicial authorization before such information can be demanded from the companies that hold it. 

This ensures that an impartial authority assesses the necessity and proportionality of the data request before it is executed. Without mandatory data protection safeguards for the processing of personal data, law enforcement agencies might collect and use personal data without adequate restrictions, thereby risking the exposure and misuse of personal information.

The text of the convention fails to include these essential data protection safeguards. To protect human rights, data should be processed lawfully, fairly, and in a transparent manner in relation to the data subject. Data should be collected for specified, explicit, and legitimate purposes and not further processed in a manner that is incompatible with those purposes. 

Data collected should be adequate, relevant, and limited to what is necessary to the purposes for which they are processed. Authorities should request only the data that is essential for the investigation. Production orders should clearly state the purpose for which the data is being requested. Data should be kept in a format that permits identification of data subjects for no longer than is necessary for the purposes for which the data is processed. None of these principles are present in Article 27(a) and they must be. 

International Cooperation and Electronic Data

The draft UN Cybercrime Convention includes significant provisions for international cooperation, extending the reach of domestic surveillance powers across borders, by one state on behalf of another state. Such powers, if not properly safeguarded, pose substantial risks to privacy and data protection. 

• Article 42 (1) (“International cooperation for the purpose of expedited preservation of stored electronic data”) allows one state to ask another to obtain preservation of “electronic data” under the domestic power outlined in Article 25. 
• Article 44 (1) (“Mutual legal assistance in accessing stored electronic data”) allows one state to ask another “to search or similarly access, seize or similarly secure, and disclose electronic data,” presumably using powers similar to those under Article 28, although that article is not referenced in Article 44. This specific provision, which has not yet been agreed ad referendum, enables comprehensive international cooperation in accessing stored electronic data. For instance, if Country A needs to access emails stored in Country B for an ongoing investigation, it can request Country B to search and provide the necessary data.

Countries Must Protect Human Rights or Reject the Draft Treaty

The current draft of the UN Cybercrime Convention is fundamentally flawed. It dangerously expands surveillance powers without robust checks and balances, undermines human rights, and poses significant risks to marginalized communities. The broad and vague definitions of "electronic data," coupled with weak privacy and data protection safeguards, exacerbate these concerns.

Traditional domestic surveillance powers are particularly concerning as they underpin international surveillance cooperation. This means that one country can easily comply with the requests of another, which if not adequately safeguarded, can lead to widespread government overreach and human rights abuses. 

Without stringent data protection principles and robust privacy safeguards, these powers can be misused, threatening human rights defenders, immigrants, refugees, and journalists. We urgently call on all countries committed to the rule of law, social justice, and human rights to unite against this dangerous draft. Whether large or small, developed or developing, every nation has a stake in ensuring that privacy and data protection are not sacrificed. 

Significant amendments must be made to ensure these surveillance powers are exercised responsibly and protect privacy and data protection rights. If these essential changes are not made, countries must reject the proposed convention to prevent it from becoming a tool for human rights violations or transnational repression.

[1] In the context of treaty negotiations, "ad referendum" means that an agreement has been reached by the negotiators, but it is subject to the final approval or ratification by their respective authorities or governments. It signifies that the negotiators have agreed on the text, but the agreement is not yet legally binding until it has been formally accepted by all parties involved.

This is the second post in a series highlighting the problems and flaws in the proposed UN Cybercrime Convention. Check out our detailed analysis on the criminalization of security research activities under the proposed convention.

The United Nations Ad Hoc Committee is just weeks away from finalizing a too-broad Cybercrime Draft Convention. This draft would normalize unchecked domestic surveillance and rampant government overreach, allowing serious human rights abuses around the world.

The latest draft of the convention—originally spearheaded by Russia but since then the subject of two and a half years of negotiations—still authorizes broad surveillance powers without robust safeguards and fails to spell out data protection principles essential to prevent government abuse of power.

As the August 9 finalization date approaches, Member States have a last chance to address the convention’s lack of safeguards: prior judicial authorization, transparency, user notification, independent oversight, and data protection principles such as transparency, minimization, notification to users, and purpose limitation. If left as is, it can and will be wielded as a tool for systemic rights violations.

Countries committed to human rights and the rule of law must unite to demand stronger data protection and human rights safeguards or reject the treaty altogether. These domestic surveillance powers are critical as they underpin international surveillance cooperation.

EFF’s Advocacy for Human Rights Safeguards

EFF has consistently advocated for human rights safeguards to be a baseline for both the criminal procedural measures and international cooperation chapters. The collection and use of digital evidence can implicate human rights, including privacy, free expression, fair trial, and data protection. Strong safeguards are essential to prevent government abuse.

Regrettably, many states already fall short in these regards. In some cases, surveillance laws have been used to justify overly broad practices that disproportionately target individuals or groups based on their political views—particularly ethnic and religious groups. This leads to the suppression of free expression and association, the silencing of dissenting voices, and discriminatory practices. Examples of these abuses include covert surveillance of internet activity without a warrant, using technology to track individuals in public, and monitoring private communications without legal authorization, oversight, or safeguards.

The Special Rapporteur on the rights to freedom of peaceful assembly and of association has already sounded the alarm about the dangers of current surveillance laws, urging states to revise and amend these laws to comply with international human rights norms and standards governing the rights to privacy, free expression, peaceful assembly, and freedom of association. The UN Cybercrime Convention must be radically amended to avoid entrenching and expanding these existing abuses globally. If not amended, it must be rejected outright.

How the Convention Fails to Protect Human Rights in Domestic Surveillance

The idea that checks and balances are essential to avoid abuse of power is a basic “Government 101” concept. Yet throughout the negotiation process, Russia and its allies have sought to chip away at the already-weakened human rights safeguards and conditions outlined in Article 24 of the proposed Convention. 

Article 24 as currently drafted requires that every country that agrees to this convention must ensure that when it creates, uses, or applies the surveillance powers and procedures described in the domestic procedural measures, it does so under its own laws. These laws must protect human rights and comply with international human rights law. The principle of proportionality must be respected, meaning any surveillance measures should be appropriate and not excessive in relation to the legitimate aim pursued.

Why Article 24 Falls Short?

1. The Critical Missing Principles

While incorporation of the principle of proportionality in Article 24(1) is commendable, the article still fails to explicitly mention the principles of legality, necessity, and non-discrimination, which hold equivalent status to proportionality in human rights law relative to surveillance activities. A primer:

• The principle of legality requires that restrictions on human rights including the right to privacy be authorized by laws that are clear, publicized, precise, and predictable, ensuring individuals understand what conduct might lead to restrictions on their human rights.
• The principles of necessity and proportionality ensure that any interference with human rights is demonstrably necessary to achieving a legitimate aim and only include measures that are proportionate to that aim.
• The principle of non-discrimination requires that laws, policies and human rights obligations be applied equally and fairly to all individuals, without any form of discrimination based on race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status, including the application of surveillance measures.

Without including all these principles, the safeguards are incomplete and inadequate, increasing the risk of misuse and abuse of surveillance powers.

2. Inadequate Specific Safeguards 

Article 24(2) requires countries to include, where “appropriate,” specific safeguards like:

• judicial or independent review, meaning surveillance actions must be reviewed or authorized by a judge or an independent regulator.
• the right to an effective remedy, meaning people must have ways to challenge or seek remedy if their rights are violated.
• justification and limits, meaning there must be clear reasons for using surveillance and limits on how much surveillance can be done and for how long.

Article 24 (2) introduces three problems:

2.1 The Pitfalls of Making Safeguards Dependent on Domestic Law

Although these safeguards are mentioned, making them contingent on domestic law can vastly weaken their effectiveness, as national laws vary significantly and many of them won’t provide adequate protections. 

2.2 The Risk of Ambiguous Terms Allowing Cherry-Picked Safeguards

The use of vague terms like “as appropriate” in describing how safeguards will apply to individual procedural powers allows for varying interpretations, potentially leading to weaker protections for certain types of data in practice. For example, many states provide minimal or no safeguards for accessing subscriber data or traffic data despite the intrusiveness of resulting surveillance practices. These powers have been used to identify anonymous online activity, to locate and track people, and to map people’s contacts. By granting states broad discretion to decide which safeguards to apply to different surveillance powers, the convention fails to ensure the text will be implemented in accordance with human rights law. Without clear mandatory requirements, there is a real risk that essential protections will be inadequately applied or omitted altogether for certain specific powers, leaving vulnerable populations exposed to severe rights violations. Essentially, a country could just decide that some human rights safeguards are superfluous for a particular kind or method of surveillance, and dispense with them, opening the door for serious human rights abuses.

2.3 Critical Safeguards Missing from Article 24(2)

The need for prior judicial authorization, for transparency, and for user notification is critical to any effective and proportionate surveillance power, but not included in Article 24(2).

Prior judicial authorization means that before any surveillance action is taken, it must be approved by a judge. This ensures an independent assessment of the necessity and proportionality of the surveillance measure before it is implemented. Although Article 24 mentions judicial or other independent review, it lacks a requirement for prior judicial authorization. This is a significant omission that increases the risk of abuse and infringement on individuals' rights. Judicial authorization acts as a critical check on the powers of law enforcement and intelligence agencies.

Transparency involves making the existence and extent of surveillance measures known to the public; people must be fully informed of the laws and practices governing surveillance so that they can hold authorities accountable. Article 24 lacks explicit provisions for transparency, so surveillance measures could be conducted in secrecy, undermining public trust and preventing meaningful oversight. Transparency is essential for ensuring that surveillance powers are not misused and that individuals are aware of how their data might be collected and used.

User notification means that individuals who are subjected to surveillance are informed about it, either at the time of the surveillance or afterward when it no longer jeopardizes the investigation. The absence of a user notification requirement in Article 24(2) deprives people of the opportunity to challenge the legality of the surveillance or seek remedies for any violations of their rights. User notification is a key component of protecting individuals’ rights to privacy and due process. It may be delayed, with appropriate justification, but it must still eventually occur and the convention must recognize this.

Independent oversight involves monitoring by an independent body to ensure that surveillance measures comply with the law and respect human rights. This body can investigate abuses, provide accountability, and recommend corrective actions. While Article 24 mentions judicial or independent review, it does not establish a clear mechanism for ongoing independent oversight. Effective oversight requires a dedicated, impartial body with the authority to review surveillance activities continuously, investigate complaints, and enforce compliance. The lack of a robust oversight mechanism weakens the framework for protecting human rights and allows potential abuses to go unchecked.

Conclusion

While it’s somewhat reassuring that Article 24 acknowledges the binding nature of human rights law and its application to surveillance powers, it is utterly unacceptable how vague the article remains about what that actually means in practice. The “as appropriate” clause is a dangerous loophole, letting states implement intrusive powers with minimal limitations and no prior judicial authorization, only to then disingenuously claim this was “appropriate.” This is a blatant invitation for abuse. There’s nothing “appropriate” about this, and the convention must be unequivocally clear about that.

This draft in its current form is an egregious betrayal of human rights and an open door to unchecked surveillance and systemic abuses. Unless these issues are rectified, Member States must recognize the severe flaws and reject this dangerous convention outright. The risks are too great, the protections too weak, and the potential for abuse too high. It’s long past time to stand firm and demand nothing less than a convention that genuinely safeguards human rights.

Check out our detailed analysis on the criminalization of security research activities under the UN Cybercrime Convention. Stay tuned for our next post, where we'll explore other critical areas affected by the convention, including its scope and human rights safeguards.

This is the first post in a series highlighting the problems and flaws in the proposed UN Cybercrime Convention. Check out The UN Cybercrime Draft Convention is a Blank Check for Surveillance Abuses. 

The latest and nearly final version of the proposed UN Cybercrime Convention—dated May 23, 2024 but released today June 14—leaves security researchers’ and investigative journalists’ rights perilously unprotected, despite EFF’s repeated warnings.

The world benefits from people who help us understand how technology works and how it can go wrong. Security researchers, whether independently or within academia or the private sector, perform this important role of safeguarding information technology systems. Relying on the freedom to analyze, test, and discuss IT systems, researchers identify vulnerabilities that can cause major harms if left unchecked. Similarly, investigative journalists and whistleblowers play a crucial role in uncovering and reporting on matters of significant public interest including corruption, misconduct, and systemic vulnerabilities, often at great personal risk.

For decades, EFF has fought for security researchers and journalists, provided legal advice to help them navigate murky criminal laws, and advocated for their right to conduct security research without fear of legal repercussions. We’ve helped researchers when they’ve faced threats for performing or publishing their research, including identifying and disclosing critical vulnerabilities in systems. We’ve seen how vague and overbroad laws on unauthorized access have chilled good-faith security research, threatening those who are trying to keep us safe or report on public interest topics. 

Now, just as some governments have individually finally recognized the importance of protecting security researchers’ work, many of the UN convention’s criminalization provisions threaten to spread antiquated and ambiguous language around the world with no meaningful protections for researchers or journalists. If these and other issues are not addressed, the convention poses a global threat to cybersecurity and press freedom, and UN Member States must reject it.

This post will focus on one critical aspect of coders’ rights under the newest released text: the provisions that jeopardize the work of security researchers and investigative journalists. In subsequent posts, Wwe will delve into other aspects of the convention in later posts.

How the Convention Fails to Protect Security Research and Reporting on Public Interest Matters

What Provisions Are We Discussing?

Articles 7 to 11 of the Criminalization Chapter—covering illegal access, illegal interception, interference with electronic data, interference with ICT systems, and misuse of devices—are core cybercrimes of which security researchers often have been accused of such offenses as a result of their work. (In previous drafts of the convention, these were articles 6-10).

• Illegal Access (Article 7): This article risks criminalizing essential activities in security research, particularly where researchers access systems without prior authorization to identify vulnerabilities.
• Illegal Interception (Article 8): Analysis of network traffic is also a common practice in cybersecurity; this article currently risks criminalizing such analysis and should similarly be narrowed to require malicious criminal intent (mens rea).
• Interference with Data (Article 9) and Interference with Computer Systems (Article 10): These articles may inadvertently criminalize acts of security research, which often involve testing the robustness of systems by simulating attacks that could be described as “interference” even though they don’t cause harm and are performed without criminal malicious intent.

All of these articles fail to include a mandatory element of criminal intent to cause harm, steal, or defraud. A requirement that the activity cause serious harm is also absent from Article 10 and optional in Article 9. These safeguards must be mandatory.

What We Told the UN Drafters of the Convention in Our Letter?

Earlier this year, EFF submitted a detailed letter to the drafters of the UN Cybercrime Convention on behalf of 124 signatories, outlining essential protections for coders. 

Our recommendations included defining unauthorized access to include only those accesses that bypass security measures, and only where such security measures count as effective. The convention’s existing language harks back to cases where people were criminally prosecuted just for editing part of a URL.

We also recommended ensuring that criminalization of actions requires clear malicious or dishonest intent to harm, steal, or infect with malware. And we recommended explicitly exempting good-faith security research and investigative journalism on issues of public interest from criminal liability.

What Has Already Been Approved?

Several provisions of the UN Cybercrime Convention have been approved ad referendum. These include both complete articles and specific paragraphs, indicating varying levels of consensus among the drafters.

Which Articles Has Been Agreed in Full

The following articles have been agreed in full ad referendum, meaning the entire content of these articles has been approved:

• Article 9: Interference with Electronic Data
• Article 10: Interference with ICT Systems
• Article 11: Misuse of Devices 
• Article 28(4): Search and Seizure Assistance Mandate

We are frustrated to see, for example, that Article 11 (misuse of devices) has been accepted without any modification, and so continues to threaten the development and use of cybersecurity tools. Although it criminalizes creating or obtaining these tools only for purposes of violations of other crimes defined in Articles 7-10 (covering illegal access, illegal interception, interference with electronic data, and interference with ICT systems), those other articles lack mandatory criminal intent requirements and a requirement to define “without right” as bypassing an effective security measure. Because those articles do not specifically exempt activities such as security testing, Article 11 may inadvertently criminalize security research and investigative journalism. It may punish even making or using tools for research purposes if the research, such as security testing, is considered to fall under one of the other crimes.

We are also disappointed that Article 28(4) has also been approved ad referendum. This article could disproportionately empower authorities to compel “any individual” with knowledge of computer systems to provide any “necessary information” for conducting searches and seizures of computer systems. As we have written before, this provision can be abused to force security experts, software engineers, tech employees to expose sensitive or proprietary information. It could also encourage authorities to bypass normal channels within companies and coerce individual employees—under threat of criminal prosecution—to provide assistance in subverting technical access controls such as credentials, encryption, and just-in-time approvals without their employers’ knowledge. This dangerous paragraph must be removed in favor of the general duty for custodians of information to comply with data requests to the extent of their abilities.

Which Provisions Has Been Partially Approved?

The broad prohibitions against unauthorized access and interception have already been approved ad referendum, which means:

• Article 7: Illegal Access (first paragraph agreed ad referendum)
• Article 8: Illegal Interception (first paragraph agreed ad referendum)

The first paragraph of each of these articles includes language requiring countries to criminalize accessing systems or data or intercepting “without right.” This means that if someone intentionally gets into a computer or network without authorization, or performs one of the other actions called out in subsequent articles, it should be considered a criminal offense in that country. The additional optional requirements, however, are crucial for protecting the work of security researchers and journalists, and are still on the negotiating table and worth fighting for.  

What Has Not Been Agreed Upon Yet?

There is no agreement yet on Paragraph 2 of Article 7 on Illegal Access and Article 8 on illegal interception, which give countries the option to add specific requirements that can vary from article to article. Such safeguards could provide necessary clarifications to prevent criminalization of legal activities and ensure that laws are not misapplied to stifle research, innovation, and reporting on public interest matters. We made clear throughout this negotiation process that these conditions are a crucially important part of all domestic legislation pursuant to the convention. We’re disappointed to see that states have failed to act on any of our recommendations, including the letter we sent in February.

The final text dated May 23, 2024 of the convention is conspicuously silent on several crucial protections for security researchers:

• There are no explicit exemptions for security researchers or investigative journalists who act in good faith.
• The requirement for malicious intent remains optional rather than mandatory, leaving room for broad and potentially abusive interpretations.
• The text does not specify that bypassing security measures should only be considered unauthorized if those measures are effective, nor make that safeguard mandatory.

How Has Similar Phrasing Caused Problems in the Past?

There is a history of overbroad interpretation under laws such as the United States’ Computer Fraud and Abuse Act, and this remains a significant concern with similarly vague language in other jurisdictions. This can also raise concerns well beyond researchers’ and journalists’ work, as when such legislation is invoked by one company to hinder a competitor’s ability to access online systems or create interoperable technologies. EFF’s paper, “Protecting Security Researchers' Rights in the Americas,” has documented numerous instances in which security researchers faced legal threats for their work:

• MBTA v. Anderson (2008): The Massachusetts Bay Transit Authority (MBTA) used a  cybercrime law to sue three college students who were planning to give a presentation about vulnerabilities in Boston’s subway fare system.
• Canadian security researcher (2018): A 19-year-old Canadian was accused of unauthorized use of a computer service for downloading public records from a government website.
• LinkedIn’s cease and desist letter to hiQ Labs, Inc. (2017): LinkedIn invoked cybercrime law against hiQ Labs for “scraping” — accessing publicly available information on LinkedIn’s website using automated tools. Questions and cases related to this topic have continued to arise, although an appeals court ultimately held that scraping public websites does not violate the CFAA. 
• Canadian security researcher (2014): A security researcher demonstrated a widely known vulnerability that could be used against Canadians filing their taxes. This was acknowledged by the tax authorities and resulted in a delayed tax filing deadline. Although the researcher claimed to have had only positive intentions, he was charged with a cybercrime.
• Argentina’s prosecution of Joaquín Sorianello (2015): Software developer Joaquín Sorianello uncovered a vulnerability in election systems and faced criminal prosecution for demonstrating this vulnerability, even though the government concluded that he did not intend to harm the systems and did not cause any serious damage to them.

These examples highlight the chilling effect that vague legal provisions can have on the cybersecurity community, deterring valuable research and leaving critical vulnerabilities unaddressed.

Conclusion

The latest draft of the UN Cybercrime Convention represents a tremendous failure to protect coders’ rights. By ignoring essential recommendations and keeping problematic language, the convention risks stifling innovation and undermining cybersecurity. Delegates must push for urgent revisions to safeguard coders’ rightsandrights and ensure that the convention fosters, rather than hinders, the development of a secure digital environment. We are running out of time; action is needed now.

Stay tuned for our next post, in which we will explore other critical areas affected by the proposed convention including its scope and human rights safeguards. 

The proposed UN Cybercrime Convention, scheduled for a critical concluding session from 29 July to August 9th, poses a significant threat to global human rights unless major changes are made. Despite two and a half years of intense discussions and seven negotiation sessions, states remain deeply divided on fundamental aspects, leading to a deeply  flawed draft text and a problematic chair’s proposal from February 2024. They can’t even agree what to call the Convention, much less its scope—should it address only core cybercrime, or any crime committed using technology? 

The February 2024 language continues to risk criminalizing protected speech, granting broad surveillance powers without robust safeguards, and raising serious cybersecurity concerns. Despite continuous advocacy from civil society and industry, these key issues remain unaddressed. A new version of the Convention is expected soon, but without addressing these critical flaws, the risks to human rights remain.

Joint NGO Letter and EFF's Redlines

In a joint letter with over 100 NGOs, we state that the Cybercrime Convention must not advance without addressing critical flaws. The letter outlines clear requirements: the Convention must focus solely on cyber-dependent crimes, incorporate comprehensive human rights safeguards, and ensure robust protections for security researchers, whistleblowers, activists, and journalists. Absent these minimum requirements, we call on state delegations to reject the draft Convention and refuse to advance it to the UN General Assembly for adoption.

EFF echoes such requirements, among others:

• First, the Convention must be narrowly focused on cyber-dependent crimes, excluding overly broad content-related crimes that contradict human rights law from the proposed Convention.
• Second, it must include robust protections for security researchers, whistleblowers, activists, and journalists to ensure they are not unjustly criminalized for performing their essential work.
• Third, it must incorporate comprehensive human rights safeguards, including the principles of legality, non-discrimination, legitimate purpose, necessity, proportionality, transparency, effective remedy, and prior judicial authorization applicable throughout the entire Convention.
• Fourth, the scope of procedural measures and international cooperation must be limited to the defined cyber-dependent crimes, with explicit minimum robust safeguards against abuses of surveillance and data sharing, and adequate protection of personal data. 
• Fifth, direct sharing of personal data must be limited to specific criminal investigation, and be subject to robust minimum safeguards mandated in the text itself to prevent misuse, such as the need to comply with the principles of legality, necessity, proportionality, transparency, user notification, and the need for prior judicial authorization.
• Sixth, proactive sharing of personal data must be strictly limited and conditioned on compliance with minimum robust standards and international human rights law.

As is, the Convention will be a tool for states with repressive domestic laws to impose arbitrary and disproportionate restrictions on rights and freedoms. As the negotiations resume, it is crucial to address these issues and ensure the Convention aligns with international human rights standards to prevent disaster.

Many other NGOs and industry representatives have expressed similar concerns about the proposed UN Cybercrime Convention. You can read their detailed opinions here: Human Rights Watch and Article 19, Privacy International, Global Partners Digital, Derechos Digitales, Microsoft, Cybersecurity Tech Accord, and a joint civil society and industry statement.

Origins and Development of the Convention 

The proposed UN Cybercrime Convention's journey began in October 2017 when Russia proposed a draft, aiming to tackle the “use of information and communication technology for criminal purposes.” This effort gained momentum in November 2019 when a UN Resolution, backed by a block of nations that included China, Iran, and Syria, was passed despite strong opposition from the US, EU and others.

By December 2019, the UN General Assembly adopted a Resolution to form an Ad Hoc Committee (AHC) to draft the Convention. The process faced delays due to COVID-19, with the first organizational meeting postponed to 2021. Despite initial resistance, the AHC's inaugural session in May 2021 saw participation from over 160 countries, outlining a plan for multiple negotiating sessions. The AHC mandate specifies that the Convention must “conclude its work in order to provide a draft Convention to the General Assembly at its seventy-eighth session in September 2024.”

EFF has been involved in the UN Cybercrime Convention process from the start, though we've always been skeptical about its necessity due to the significant risks it poses to human rights. Together with a coalition of 130 NGOs, we have consistently raised alarms about the potential misuse of cybercrime laws to target dissent, activists, advocates, security researchers, and journalists. Our concerns, shared with allies, date back way before the first substantive session began in 2022. In 2021, the UN General Assembly expressed grave concerns that cybercrime legislation was being misused to target human rights defenders, hinder their work, and endanger their safety in a manner contrary to international law.  

The UN Special Rapporteur on the rights to freedom of peaceful assembly and association has noted that the increasing number of laws and policies aimed at combating cybercrime have often been used as a means to punish and monitor activists and protesters globally. The Special Rapporteur highlighted that although technology can indeed be used “to promote terrorism, incite violence, and manipulate elections, these concerns are frequently exploited to justify crackdowns on digital civil society.” 

As is, the Convention will be a tool for states with repressive domestic laws to impose arbitrary and disproportionate restrictions on rights and freedoms.

This sentiment has been echoed by the the Office of the High Commissioner for Human Rights in 2022, highlighting that national cybercrime laws are often used to "restrict freedom of expression, target dissenting voices, justify internet shutdowns, interfere with privacy and anonymity of communications, and limit the rights to freedom of association and peaceful assembly." 

Analyzing the Convention’s Expansive Reach and Human Rights Concerns

Article 3: Scope of the Convention

Article 3 outlines the scope of the UN Cybercrime Convention, dividing it into two crucial parts. Article 3(a) limits the scope of application to crimes “established in accordance with the Convention,” covering their prevention, investigation, and prosecution. In contrast, Article 3(b) broadens the reach to include domestic (Article 23) and international cooperation (Article 35), including evidence-gathering for activities deemed serious by national law, expanding the Convention's application to a wide array of any serious offenses regardless of their connection to cybercrime. Understanding this difference is key to grasping the potential impact and reach of the Convention.

EFF has consistently argued that the Convention should be limited to core or cyber-dependent crimes—offenses in which computer systems are the direct objects and instruments, crimes which could not exist without information and communications technology (ICT) systems. By focusing exclusively on these core cybercrimes, the Convention would allow states to concentrate their resources, expertise, and capacity-building on these specific offenses. This approach would also prevent cross-border cooperation on a range of other offenses that are often antithetical to human rights. 

This limitation should apply to the criminalization chapter and the chapter on international cooperation (including spying assistance and data sharing powers), and even to the chapter on  domestic spying powers. Core cybercrimes include unauthorized access to ICT systems, illegal interception, damaging, deleting, deteriorating, altering, or suppressing electronic data, hindering the functioning of ICT systems, and misuse of devices.

Regrettably, the Convention is broader in scope than just core cybercrimes. It addresses cyber-enabled crimes, which are traditional crimes that may in certain instances be facilitated or amplified by the use of technology. These crimes leverage the reach, speed, and anonymity provided by the internet and other digital platforms to enhance their impact, such as ICT-related theft or fraud (Article 12), and solicitation or grooming for sexual offenses against children (Article 14).

It also includes overly broad and vague content-related offenses—crimes that involve the creation, distribution, or possession of material considered illegal or harmful, such as online child sexual abuse material (Article 13), non-consensual dissemination of intimate images (Article 15)—which can lead to the over-criminalization of protected speech.

Regrettably, the Convention is broader in scope than just core cybercrimes.

On the spying front, the proposed convention also allows for extensive data sharing and cross-border assistance to gather evidence for any crime a state deems serious in its national law. The Convention also deals with extradition and lacks clear limitations and minimum human rights safeguards explicitly embedded in the text itself, and thus risks becoming a tool for human rights abuses and transnational repression, undermining cybersecurity and the very principles it aims to protect.

Human Rights Safeguards

The proposed convention has two articles on human rights that could potentially limit its broad scope and intrusive surveillance powers: a general provision under Article 5, which applies to the entire draft convention, and Article 24, which describes the conditions and safeguards for new domestic surveillance powers.  However, both articles are insufficient and inadequate to provide meaningful protections in practice.

Article 5: General Human Rights Provisions 

First, it should mandate compliance with human rights obligations, not merely consistency. This less stringent wording would allow for broader interpretation by States, and potentially looser application, which could lead to inconsistent protection across different jurisdictions as states with weaker human rights records may interpret "consistent with" in a way that minimally satisfies their obligations without fully protecting individuals' rights.

Second, Article 5 fails to explicitly incorporate core tenets of human rights including the principles of legality, necessity, proportionality, and non-discrimination, and generally fails to impose explicit limitations. In practice, this means that many elements of the convention are likely to be implemented in ways that fall short of international human rights standards. Notably, some prospective signatories to this convention have refused to sign and ratify core human rights instruments such as the ICCPR, and in negotiations a number of states have explicitly rejected attempts to incorporate equality rights into Article 5, including the obligation to mainstream a gender perspective and to take into consideration, when implementing this convention, the circumstances of people who face marginalization in society. Uruguay, for example, has proposed that integrating language on gender, vulnerable groups, and rule of law safeguards.

One of the critical components of effective human rights safeguards is the inclusion of prior judicial authorization, transparency and user notification.

Article 24: Conditions and Safeguards for Domestic Surveillance Powers

Article 24 of the proposed UN Cybercrime Convention outlines how states should protect human rights when using domestic surveillance powers.  While Article 24 helpfully incorporates the principle of proportionality—a central human rights principle—it fails to explicitly include the principles of legality, necessity and non-discrimination. The principle of legality requires laws to be clear, publicized, and precise, ensuring individuals understand what is criminalized. The principle of necessity ensures any interference with human rights is proportionate to achieving a legitimate aim. The principle of non-discrimination requires that laws and policies be applied equally and fairly to all individuals, without any form of discrimination based on race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status. Without these principles, the safeguards are incomplete and inadequate, increasing the risk of misuse and abuse of surveillance powers.

One of the critical components of effective human rights safeguards is the inclusion of prior judicial authorization, transparency, user notification, and the right to an effective remedy. The Chair’s Proposal specifies in Article 24(2) that conditions and safeguards should "include, inter alia, judicial or other independent review, the right to an effective remedy, grounds justifying application, and limitation of the scope and duration of such power or procedure." However, making these safeguards contingent on domestic law can weaken their effectiveness, as national laws vary significantly and may not provide adequate protections. Moreover, while both versions of Article 24 incorporate the principle of proportionality, they fail to explicitly include the principles of legality and necessity. The principle of legality requires laws to be clear, publicized, and precise, ensuring individuals understand what is criminalized. The principle of necessity ensures any interference with human rights is proportionate to achieving a legitimate aim. By granting states broad discretion to decide what safeguard to apply in relation to which surveillance power, the convention fails to ensure the text will be implemented in a manner that is in accordance with human rights. 

To address these issues, the Special Rapporteur has already called on states to revise and amend (...)  surveillance (...) and bring them into compliance with international human rights norms and standards governing the right to privacy, the right to free expression, peaceful assembly, and freedom of association. This issue remains unresolved, and the current convention risks perpetuating these existing concerns.

Domestic Spying Powers and Domestic Safeguards

The Convention grants extensive domestic surveillance powers to gather evidence for any crime, accompanied by minimal and insufficient safeguards, many of which do not even apply to its chapter on cross-border surveillance (Chapter V).  Key measures include expedited preservation of electronic data (Article 25), production orders for specific data (Article 27), and real-time collection of traffic and content data (Articles 29 and 30). These provisions enable rapid and comprehensive data access, essential for investigating cybercrimes. One particularly troubling aspect is Article 28(4), which allows authorities to compel individuals with knowledge of ICT systems to provide necessary information for accessing data. We has consistently voiced concerns that this provision could lead to forced assistance without adequate protection for the rights of those compelled. This broad and potentially coercive power risks significant abuse, especially in jurisdictions lacking strong human rights safeguards.

The combination of intrusive domestic surveillance powers paired with insufficient safeguards heightens the risk of misuse, potentially leading to arbitrary and disproportionate restrictions on privacy and other human rights. To illustrate the potential risks of granting states broad discretion in applying safeguards, consider the following examples:

1. Lack of legal protection of subscriber data: This threatens the anonymity of the LGBTQ+ community, making them vulnerable to identification and subsequent persecution. Without strong safeguards and a narrow scope, the mere act of engaging in virtual communities, sharing personal anecdotes, or openly expressing relationships could lead to their subscribers' identities being disclosed, putting them at significant risk. Offline, the implications intensify with amplified hesitancy to participate in public events, showcase LGBTQ+ symbols, or even undertake daily routines that risk revealing their identity. The draft convention's potential to bolster digital surveillance capabilities means that even private communications, like discussions about same-sex relationships or plans for LGBTQ+ gatherings, could be monitored, collected, intercepted and turned against them.
2. Metadata Tracking: A country could classify metadata, such as location data, with less stringent protections compared to content data, leading to extensive tracking of individuals' movements without adequate oversight. 
3. Weak Judicial Oversight: In a country with a weak judicial system, surveillance activities might not require judicial oversight or prior judicial authorization, allowing authorities to conduct intrusive surveillance without proper scrutiny. 
4. Discriminatory Surveillance Practices: Broad discretion could enable discriminatory surveillance practices, disproportionately targeting certain ethnic or religious groups under the pretext of “protecting the children.”
5. International Data Sharing: Without clear limitations, a country could share surveillance data internationally, risking the persecution of political dissidents or human rights activists in countries with poor human rights records.
6. Lack of Transparency: A lack of transparency requirements for surveillance activities could prevent individuals from knowing whether they are being surveilled or challenging unlawful surveillance. 
7. Weak Protections for Digital Communications: Lastly, weak protections for digital communications such as emails and instant messages could allow authorities to intercept and read private communications without robust legal safeguards or oversight. 

For safeguards to be meaningful, the Convention should mandate prior approval by a judge for surveillance activities. As specified in the Necessary and Proportionate Principles, meaningful safeguards should also set strict time limits and establish transparency obligations, such as notifying individuals when their personal data has been accessed. While the Chair’s Proposal includes the right to an effective remedy, individuals cannot effectively exercise this right if they are unaware that their data was accessed, especially in cases where the investigation does not lead to legal proceedings. The authorities should also be required to explain the specific facts that justify surveilling particular individuals and publicly report the frequency of using these powers.

In conclusion, while the Chair’s  Proposal makes some improvements by explicitly including the right to an effective remedy and continuing to recognize the principle of proportionality, its reliance on domestic law for oversight significantly weakens the protection of human rights. The absence of the principles of legality and necessity, combined with the broad discretion given to States, heightens the risk of misuse and abuse of surveillance powers. To truly safeguard human rights, the Convention must mandate strict compliance with international human rights standards and ensure comprehensive and consistent application of safeguards across all states.

The Dangers of Cross-Border Surveillance and Data Sharing

Scope Creep in International Cooperation

One might assume a "cybercrime" convention would focus exclusively on cybercrimes. However, the principles of international cooperation in this convention exemplify significant and dangerous scope creep. And without mandated safeguards in the convention itself for this chapter, this opens the door wide for abuse and transnational repression.

The scope of the international cooperation chapter is still notably wide, and is one primary reason that we've repeatedly said that this convention is truly an all-purpose global surveillance instrument:

• Article 35(1)(b) of the chair's proposal requires states to cooperate in the collection, obtaining, preservation, and sharing of electronic evidence for criminal investigations or proceedings of criminal offenses established in accordance with the Convention. Essentially, this means that states are obliged to assist each other in managing electronic evidence related to Articles 6-16, regardless of their severity;
• Article 35(1)(c) of the chair's proposal significantly broadens the scope of international cooperation by including the collection, obtaining, preservation, and sharing of electronic evidence for any activity deemed serious by national law. The defining criteria for "serious" is a crime that carries a prison term of at least four years, as stated in Article 2(1)(h) of the convention. Importantly, the crime itself is defined by the national law of the state requesting cooperation. The only requirement set by the convention is the severity of the penalty (a prison term of at least four years). Therefore, as long as the national law includes a crime punishable by at least four years of imprisonment, it qualifies for international cooperation under this provision. This is applicable whether the alleged offense is cybercrime or not. This also includes serious offenses established in accordance with “other applicable United Nations conventions and protocols in force at the time of adoption” of the Convention.

 This broad scope could lead to abuses, particularly in countries with weaker human rights protections, where national laws might include offenses that do not align with international human rights standards.

Such a UN endorsement could establish a perilous precedent, authorizing surveillance measures that are in stark contradiction with international human rights law and UN values. Even more concerning, it might tempt certain countries to formulate or increase their restrictive criminal laws, eager to tap into the broader pool of cross-border surveillance cooperation that the proposed convention offers. In certain countries, many of these criminal laws might be based on subjective moral judgments that suppress what is considered protected speech under international human rights standards. 

As such, these provisions could result in heightened cross-border monitoring and potential repercussions for individuals, leading to torture or even the death penalty in countries like Iran. For example, activists urged the UN to relocate Cop27 from Egypt due to concerns over Egypt’s record of LGBTQ+ torture, woman slaughter, civil rights suppression, and limitations on the participation of diverse voices, including protesters and indigenous rights groups.

The Special Rapporteur on the rights to freedom of peaceful assembly and association has observed that states increasingly use technology to silence, surveil, and harass dissidents, political opposition, human rights defenders, activists, and protesters, as well as manipulate public opinion. This includes the use of digital surveillance (...) to suppress civil society activities.

Effectively, whenever countries deem any criminal act to be subject to a prison term of at least four years in their domestic law, they can use the Convention to ask other governments to assist in spying to collect evidence, even if they are speech offenses or otherwise criminalize human rights protected activities. All these illustrate how repressive regimes can exploit the broad scope of the Convention’s international cooperation regime—including cross-border spying assistance, and extradition—to gather evidence and target marginalized communities, posing significant human rights problems.

Even worse, the situation is exacerbated by the fact that cross-border data sharing and surveillance assistance between states are not subject to the safeguards in Article 24. Instead, the safeguards will be those of the requesting country, whatever that standard may be, further amplifying the risk of human rights abuses and transnational repression.

Transnational repression refers to actions by governments that reach beyond their borders to silence dissent among their nationals abroad through tactics like surveillance, harassment, and intimidation. For decades, Human Rights Watch has documented governments reaching outside their borders to silence or deter dissent by committing human rights abuses against their own nationals or former nationals. Governments have targeted human rights defenders, journalists, civil society activists, and political opponents, among others, deemed to be a security threat. Many are asylum seekers or recognized refugees in their place of exile. These governmental actions beyond borders leave individuals unable to find genuine safety for themselves and their families. See table of cases at the end.

According to research by Freedom House, the top five perpetrators of transnational repression are China, Turkey, Tajikistan, Egypt, and Russia. Followed by Turkmenistan, Uzbekistan, Iran, Belarus, and Rwanda, with the 10 nations collectively responsible for 80 percent of documented cases. China alone accounts for 30 percent of these cases.

It is a growing concern that poses significant challenges to international human rights norms and protections. Several other organizations have also been warning that existing international law enforcement cooperation mechanisms are being abused or twisted to allow political repression even beyond forceful data localization mandates that seek to bypass international cooperation rules. 

INTERPOL, for instance, is an intergovernmental organization of 193 countries that facilitates worldwide police cooperation. But Human Rights Watch has documented numerous allegations of how China, Bahrain, Turkey, and other countries have abused INTERPOL’s Red Notice system—a request to law enforcement worldwide to “locate and provisionally arrest a person pending extradition, surrender, or similar legal action”—to locate peaceful critics of government policies ostensibly for minor offenses but really, for political gain. 

While states continue to negotiate over whether some of the conventions’ specific cross-border surveillance powers will be limited in application to a subset of crimes, the overall impact of the convention is concerning. By obligating states to process cooperation requests in relation to any offense deemed serious as defined by national law, the convention’s broad scope threatens to overwhelm the ability of already overburdened legal assistance bodies to ensure they are processing requests in a way that is consistent with their own human rights obligations. It would also operate as an internationally authorized vehicle of cooperation between states where the rule of law has broken down and which have a track record of abusing international cooperation instruments for repression.

While some democratic countries may believe they can sidestep these pitfalls by not collaborating with countries that have controversial laws, this confidence may be misplaced. First, grounds for refusal are optional, not obligatory. The draft convention allows countries to refuse a request if the activity in question is not a crime in its domestic regime (the principle of "dual criminality"). However, given the current strain on the mutual legal assistance treaty (MLAT) system, there's an increasing likelihood that requests, even from countries with contentious laws, could slip through the cracks. This opens the door for nations to inadvertently assist in operations that might contradict global human rights norms. Second, where countries do share the same subjective values and problematically criminalize the same conduct, this draft convention seemingly provides a justification for their cooperation. And even governments that claim to uphold free expression and privacy domestically frequently abandon these principles in international cooperation, especially under the pretext of counterterrorism.

It's now less likely that governments will refuse mutual legal assistance requests on human rights grounds

Third, as we previously discussed with Deborah Brown, with the rise of cloud computing and companies storing data in various countries, including those with poor human rights records like Saudi Arabia, it's now less likely that governments will refuse mutual legal assistance requests on human rights grounds. In the past, most data was stored in only a handful of countries, making it easier to deny disproportionate requests. Today, with data scattered across multiple jurisdictions, enforcing human rights protections becomes more complicated and less consistent.

Article 40: Mutual Legal Assistance (MLA)

Article 40 outlines the principles and procedures for mutual legal assistance (MLA) between states. It mandates that states provide the broadest measure of MLA in investigations, prosecutions, and judicial proceedings related to offenses established "in accordance with the Convention," specifically those outlined in Articles 6 to 16, which cover various cybercrimes. The article sets the framework for cooperation in collecting electronic evidence and ensures that MLA is provided to the fullest extent possible under relevant laws and treaties. There is a bracket in Article 40(1) ["as well as of serious crimes"] indicating the text has received preliminary approval during informal discussions, but the bracket is still under negotiation and has not yet been finalized. The inclusion of "serious crimes" would broaden the scope of mutual legal assistance to include serious crimes beyond those specifically defined in the Convention, pending consensus among the negotiating states. 

Additionally, Article 40(8) of the Convention allows countries to refuse requests for help if: the request doesn’t follow the rules of the Convention; helping would harm the country’s sovereignty, security, or other important interests; the requested action would be illegal under the requested country’s own laws if it were applied to a similar crime within their jurisdiction; or granting the request would go against the requested country’s legal system. However, these grounds of refusal are not enough. The chair has proposed the addition of Article 40.20 (bis), allowing states to refuse mutual legal assistance if the request is believed to be made for political purposes or to prosecute someone based on their political opinions, sex, race, language, religion, nationality, or ethnic origin. However, the high evidentiary threshold may limit the practical effectiveness of this safeguard, making it difficult for states to justify refusals and potentially allowing such requests to proceed. 

Article 40.4: Proactive Information Sharing and Its Risks

Article 40.4 also allows authorities to share information about criminal matters with foreign counterparts proactively, without a formal request. While intended to facilitate international cooperation, this provision poses significant risks to privacy and data protection. Without stringent safeguards, sensitive personal data could be shared too freely, potentially leading to misuse, especially if the receiving country lacks strong data protection laws. Article 40.4 must be amended to ensure that personal data is only shared when absolutely necessary for specific criminal investigations, prosecutions, and judicial proceedings, and with robust data protections rules in place.

Article 47: Extensive Data Sharing for Investigative Purposes

Article 47 also presents significant and troubling legal challenges due to its expansive scope and the absence of essential safeguards. This new version continues to authorize extensive cooperation among States Parties, including the sharing of personal and sensitive data for analytical or investigative purposes, but now it has been limited to a set of crimes. However, it fails to incorporate critical protections found in Article 24, such as principles of legality, necessity, proportionality, transparency, prior judicial authorization, and robust data protection measures. This omission is alarming, as it could permit the unregulated exchange of  potentially biometric, traffic, and location data. The provision's lack of specificity and its disconnection from particular criminal investigations or proceedings exacerbate these concerns, potentially enabling large scale data-sharing and the targeting of vulnerable populations, including journalists, activists, and minority groups.

Moreover, the absence of oversight by central authorities and the lack of clear limitations or exclusions for sharing sensitive personal data further amplify the risk of human rights violations. It is imperative that this article be fundamentally revised to include robust human rights protections, ensuring that international cooperation does not come at the expense of civil liberties and data protection.

In conclusion, the breadth of the cross-border regime and the absence of adequate human rights safeguards will facilitate human rights abuses by allowing states to request assistance in national investigations. Disagreements—from the broad scope to the absence of robust minimum human rights safeguards—are deep and substantive, and continue to be on the negotiating table, albeit now in closed-door informal meetings. Yet despite these fundamental issues, negotiators continue to present compromises that sweep these problems under the rug as a manufactured potential consensus. 

The breadth of the cross-border regime and the absence of adequate human rights safeguards will facilitate human rights abuses

The next version of the Convention’s text, expected early June, must address these issues that were left unresolved in the chair’s compromise text published in February 2024. Critical unanswered questions remain. The text continues to reflect the deep divides among states. Minimal progress has been made in limiting the convention's scope of cross border spying assistance and data sharing or strengthening human rights safeguards, even less in ensuring these safeguards apply to the international cooperation chapter. Prioritizing consensus over human rights protections risks disproportionate surveillance abuses and significant erosion of privacy and freedom of expression. EFF and a coalition of NGOs have consistently warned about the dangers of such compromises, cautioning that "there is a real risk that, in an attempt to entice all States to sign a proposed UN cybercrime convention, bad human rights practices will be accommodated, resulting in a race to the bottom.”

Missed Opportunities: The Exclusion of Key Safeguards 

To mitigate the harm of the Convention’s broad scope and limited safeguards, during the January session Canada proposed an amendment to Article 3, to narrow the application of the Convention so it does not apply to acts of repression.

“Nothing in this Convention shall be interpreted as permitting or facilitating repression of expression, conscience, opinion, belief, peaceful assembly or association; or permitting or facilitating discrimination or persecution based on individual characteristics.”

 This proposal would, in principle, render some of the Convention’s more problematic features such as its cross-border cooperation regime inapplicable to acts of repression or discrimination.

The current chair's proposal would permit (but not require) states to refuse cross-border MLA requests that are politically motivated or discriminatory, provided there are substantial grounds for believing this to be the case. However, the requirement for substantial grounds sets a high evidentiary threshold that may limit the practical effectiveness of this safeguard, making it challenging for states to justify refusals and potentially allowing politically motivated or discriminatory requests to proceed.

Similarly, Article 59 (3) of the chair's proposal is intended to safeguard human rights by ensuring that the Convention cannot be used to justify unlawful restrictions on human rights and fundamental freedoms. However, its general language and lack of specific enforcement mechanisms render it weak. The provision relies on the interpretation and goodwill of states, which can vary significantly, particularly in jurisdictions with poor human rights records. 

Neither of these proposals, however, would solve all of the Convention’s ills. Rights-respecting states will be better equipped to refuse requests that conflict with their human rights obligations, but the Convention's broad scope will flood national MLAT units with requests from governments around the world in relation to all serious crimes. 

This will make it far more difficult for these already over-burdened MLAT units to identify human rights abuses when processing foreign requests. Canada’s proposal would also further permit impacted people to challenge government action directly on the basis that it falls outside the scope of the Convention, including action taken on the basis of its substantive criminal provisions and its domestic surveillance powers. However, the Convention includes a number of secrecy provisions and fails to include an individual notice obligation. As a result, individuals rarely will be aware that they are the object of a request and will have limited opportunities to challenge these on the basis that they fall outside the scope of the Convention.

Nonetheless, these proposals would have provided tools to mitigate some of the convention’s more problematic aspects, yet neither is included in the current text.

Broadening Criminalization: Risks of Overreach and Repression in the Convention

Since the start of the process, a number of states have pushed for including a much expanded list of criminal offenses in the convention, simply on the basis these offenses were committed using communications technologies. These include proposals for vaguely defined “terrorism” crimes and offenses that would criminalize “incitement to subversion”.  

The chair’s amendment Article 60bis (Article 17 in previous versions) ensures that offenses established under other applicable United Nations conventions and protocols are also considered criminal offenses under domestic law when committed through the use of information and communications technology systems. The provision is improved over past proposals which would have applied to all present and future conventions, but continues to be a source of concern in that it could require the creation of new offenses based on convention’s obligations that were not designed with ICT networks in mind.

Article 60bis is also an improvement over its predecessor in that it adds subsection (2), which clarifies that Article 60bis “shall not be interpreted as establishing offenses under this Convention.” As a number of the Convention’s provisions are carefully limited to offenses “established in accordance with the Convention,” including the convention’s extradition provision, this could have the impact of limiting those provisions so that they do not apply to Article 60bis offenses. However, as our ally ARTICLE 19 pointed out, subtle differences in language might mean that Article 60bis offenses might be considered as established “in accordance with the Convention” despite not being “established under this Convention”, resulting in a far greater scope of application.

One surprising element of the chair’s compromise was its inclusion of a proposal to extend the mandate of the Ad Hoc Committee to negotiate a future protocol supplementing the Convention immediately upon adoption of the Convention by the General Assembly. This could include another list of crimes for a subset of states, further expanding the Convention's reach and exacerbating the risk of human rights abuses.

Real-World Implications

The proposed UN Cybercrime Convention, with its broad cross-border assistance scope and lack of minimum robust safeguards, poses significant risks to human rights. The potential for misuse and abuse is not theoretical: It is a reality faced by individuals and communities around the world. The proposed convention amplifies the existing threats to the LGBTQ+ community, journalists, activists and minority religious groups among others. It endorses a framework where nations can surveil benign activities such as simply sharing LGBTQ+ content, potentially intensifying the already-precarious situation for this community in many regions.

The following examples illustrate how transnational repression is already being practiced by various governments, highlighting the urgent need for a narrow scope and robust safeguards in the Convention.

Examples of Transnational Repression Documented by Human Rights Watch's Report “We Will Find You” A Global Look at How Governments Repress Nationals Abroad:

Country	Description
China	The Chinese government has been implicated in targeting political dissidents abroad through online harassment and defamation campaigns. These tactics aim to silence criticism and control the narrative internationally.
Turkey	Documented instances of Turkey misusing INTERPOL’s Red Notice system to target political opponents abroad. This misuse extends to other multilateral tools, increasing the risk of transnational repression.
Rwanda	Authorities targeted thousands of activists, journalists, and politicians using NSO Group’s Pegasus spyware. This surveillance extends to those living abroad, creating a pervasive sense of fear and threat among the diaspora.
Saudi Arabia	Government agents infiltrated Twitter to spy on dissidents. Similarly, Saudi authorities have been known to use other platforms to gather information on critics, exacerbating the risks faced by activists both domestically and internationally.
Ethiopia	Surveillance follows political refugees abroad, with Ethiopian authorities using commercial spyware to target family members of dissidents living in the UK, thereby exerting pressure on the individuals in exile.

Examples of Arbitrary, Illegitimate and Disproportionate Laws that Could Trigger Surveillance and International Cooperation

Country	Description
Russia	Following the 2023 Supreme Court decision designating the “international LGBT movement” as extremist, arbitrary prosecutions for activities such as displaying the rainbow flag or wearing rainbow-colored accessories have occurred, with penalties up to four years in prison for repeat offenses. Under Article 35’s provisions, Russia could request other countries to surveil and track LGBTQ+ individuals in real time, treating their expressions of identity as serious crimes.
Egypt	In 2017, during a concert where attendees waved rainbow flags, numerous individuals were arrested, with some sentenced to six years in prison for "debauchery" and "inciting debauchery." Cybercrime Law No. 175/2018 contains broad provisions to silence dissent and target LGBTQ+ individuals. Articles 25 and 26 have been used to prosecute "violations of family values," and other forms of online expression.
Thailand	It is a crime of lèse-majesté to defame, insult, or threaten members of the royal family, carrying a maximum penalty of 15 years in prison. This law has been used to target activists. Thailand could request assistance from its allies to track down and intercept communications of their nationals criticizing the monarch, even while traveling or living abroad.
Jordan	The pre-existing cybercrime law has been used against LGBTQ+ people, and the new Cybercrime Law of 2023 expands its capacity to do so. With overly broad and vaguely defined terms, this law will severely restrict individual human rights and will become a tool for prosecuting innocent individuals for their online speech.
Saudi Arabia	Between 2011 and 2015, at least 39 individuals were jailed under the pretense of counterterrorism for expressing themselves online. Authorities have used the 2007 Anti-Cyber Crime Law to criminalize online content and activity that is considered to impinge on “public order, religious values, public morals, and privacy.”
Tunisia	Decree-Law No. 54 (2022) has been used to prosecute media and individuals for "false news," information that harms “public security,” and opposition to government policies, mandating a five-year prison sentence. The first criminal investigation saw the arrest of student Ahmed Hamada for reporting on law enforcement clashes. In the year since Decree-Law 54 was enacted, authorities in Tunisia have prosecuted media outlets.
United Arab Emirates	Federal Decree Law No. 34 of 2021 replaces an older law used to stifle dissent, such as sentencing human rights defender Ahmed Mansoor to 10 years in prison. Article 22 mandates prison sentences for sharing unauthorized information online, further restricting the already heavily-monitored online space and making it harder for ordinary citizens, as well as journalists and activists, to share information.

The inclusion of these examples underscores the importance of ensuring that the UN Cybercrime Convention incorporates robust human rights safeguards to prevent its misuse as a tool for transnational repression. The international community must prioritize the protection of fundamental rights and freedoms in the drafting and implementation of this Convention. 

A new draft of the controversial United Nations Cybercrime Treaty has only heightened concerns that the treaty will criminalize expression and dissent, create extensive surveillance powers, and facilitate cross-border repression. 

The proposed treaty, originally aimed at combating cybercrime, has morphed into an expansive surveillance treaty, raising the risk of overreach in both national and international investigations. The new draft retains a controversial provision allowing states to compel engineers or employees to undermine security measures, posing a threat to encryption.  

This new draft not only disregards but also deepens our concerns, empowering nations to cast a wider net by accessing data stored by companies abroad, potentially in violation of other nations’ privacy laws. It perilously broadens its scope beyond the cybercrimes specifically defined in the Convention, encompassing a long list of non-cybercrimes. This draft retains the concerning issue of expanding the scope of evidence collection and sharing across borders for any serious crime, including those crimes that blatantly violate human rights law. Furthermore, this new version overreaches in investigating and prosecuting crimes beyond those detailed in the treaty; until now such power was limited to only the crimes defined in article 6-16 of the convention.  

We are deeply troubled by the blatant disregard of our input, which moves the text further away from consensus. This isn't just an oversight; it's a significant step in the wrong direction. 

Initiated in 2022, treaty negotiations have been marked by ongoing disagreements between governments on the treaty’s scope and on what role, if any, human rights should play in its design and implementation. The new draft was released Tuesday, Nov. 28; governments will hold closed-door talks December 19-20 in Vienna, in an attempt to reach consensus on what crimes to include in the treaty, and the draft will be considered at the final negotiating session in New York at the end of January 2024, when it’s supposed to be finalized and adopted.  

Deborah Brown, Human Rights Watch’s acting associate director for technology and human rights, said this latest draft

“is primed to facilitate abuses on a global scale, through extensive cross border powers to investigate virtually any imaginable ‘crime’ – like peaceful dissent or expression of sexual orientation – while undermining the treaty’s purpose of addressing genuine cybercrime. Governments should not rush to conclude this treaty without ensuring that it elevates, rather than sacrifices, our fundamental rights.”