Security researchers’ work discovering and reporting vulnerabilities in software, firmware,  networks, and devices protects people, businesses and governments around the world from malware, theft of  critical data, and other cyberattacks. The internet and the digital ecosystem are safer because of their work.

The UN Cybercrime Treaty, which is in the final stages of drafting in New York this week, risks criminalizing this vitally important work. This is appalling and wrong, and must be fixed.

One hundred and twenty four prominent security researchers and cybersecurity organizations from around the world voiced their concern today about the draft and called on UN delegates to modify flawed language in the text that would hinder researchers’ efforts to enhance global security and prevent the actual criminal activity the treaty is meant to rein in.

Time is running out—the final negotiations over the treaty end Feb. 9. The talks are the culmination of two years of negotiations; EFF and its international partners have raised concerns over the treaty’s flaws since the beginning. If approved as is, the treaty will substantially impact criminal laws around the world and grant new expansive police powers for both domestic and international criminal investigations.

Experts who work globally to find and fix vulnerabilities before real criminals can exploit them said in a statement today that vague language and overbroad provisions in the draft increase the risk that researchers could face prosecution. The draft fails to protect the good faith work of security researchers who may bypass security measures and gain access to computer systems in identifying vulnerabilities, the letter says.

The draft threatens security researchers because it doesn’t specify that access to computer systems with no malicious intent to cause harm, steal, or infect with malware should not be subject to prosecution. If left unchanged, the treaty would be a major blow to cybersecurity around the world.

Specifically, security researchers seek changes to Article 6, which risks criminalizing essential activities, including accessing systems without prior authorization to identify vulnerabilities. The current text also includes the ambiguous term “without right” as a basis for establishing criminal liability for unauthorized access. Clarification of this vague language as well as a  requirement that unauthorized access be done with malicious intent is needed to protect security research.

The signers also called out Article 28(4), which empowers States to force “any individual” with knowledge of computer systems to turn over any information necessary to conduct searches and seizures of computer systems. This dangerous paragraph must be removed and replaced with language specifying that custodians must only comply with lawful orders to the extent of their ability.

There are many other problems with the draft treaty—it lacks human rights safeguards, gives States’ powers to reach across borders to surveil and collect personal information of people in other States, and forces tech companies to collude with law enforcement in alleged cybercrime investigations.

EFF and its international partners have been and are pressing hard for human rights safeguards and other fixes to ensure that the fight against cybercrime does not require sacrificing fundamental rights. We stand with security researchers in demanding amendments to ensure the treaty is not used as a tool to threaten, intimidate, or prosecute them, software engineers, security teams, and developers.

 For the statement:
https://www.eff.org/deeplinks/2024/02/protect-good-faith-security-research-globally-proposed-un-cybercrime-treaty

For more on the treaty:
https://ahc.derechosdigitales.org/en/

UN Member States are meeting in New York this week to conclude negotiations over the final text of the UN Cybercrime Treaty, which—despite warnings from hundreds of civil society organizations across the globe, security researchers, media rights defenders, and the world’s largest tech companies—will, in its present form, endanger human rights and make the cyber ecosystem less secure for everyone.

EFF and its international partners are going into this last session with a unified message: without meaningful changes to limit surveillance powers for electronic evidence gathering across borders and add robust minimum human rights safeguard that apply across borders, the convention should be rejected by state delegations and not advance to the UN General Assembly in February for adoption.

EFF and its partners have for months warned that enforcement of such a treaty would have dire consequences for human rights. On a practical level, it will impede free expression and endanger activists, journalists, dissenters, and everyday people.

Under the draft treaty's current provisions on accessing personal data for criminal investigations across borders, each country is allowed to define what constitutes a "serious crime." Such definitions can be excessively broad and violate international human rights standards. States where it’s a crime to  criticize political leaders (Thailand), upload videos of yourself dancing (Iran), or wave a rainbow flag in support of LGBTQ+ rights (Egypt), can, under this UN-sanctioned treaty, require one country to conduct surveillance to aid another, in accordance with the data disclosure standards of the requesting country. This includes surveilling individuals under investigation for these offenses, with the expectation that technology companies will assist. Such assistance involves turning over personal information, location data, and private communications secretly, without any guardrails, in jurisdictions lacking robust legal protections.

The final 10-day negotiating session in New York will conclude a series of talks that started in 2022 to create a treaty to prevent and combat core computer-enabled crimes, like distribution of malware, data interception and theft, and money laundering. From the beginning, Member States failed to reach consensus on the treaty’s scope, the inclusion of human rights safeguards, and even the definition of “cybercrime.” The scope of the entire treaty was too broad from the very beginning; Member States eventually drops some of these offenses, limiting the scope of the criminalization section, but not evidence gathering provisions that hands States dangerous surveillance powers. What was supposed to be an international accord to combat core cybercrime morphed into a global surveillance agreement covering any and all crimes conceived by Member States. 

The latest draft, released last November, blatantly disregards our calls to narrow the scope, strengthen human rights safeguards, and tighten loopholes enabling countries to assist each other in spying on people. It also retains a controversial provision allowing states to compel engineers or tech employees to undermine security measures, posing a threat to encryption. Absent from the draft are protections for good-faith cybersecurity researchers and others acting in the public interest.

This is unacceptable. In a Jan. 23 joint statement to delegates participating in this final session, EFF and 110 organizations outlined non-negotiable redlines for the draft that will emerge from this session, which ends Feb. 8. These include:

• Narrowing the scope of the entire Convention to cyber-dependent crimes specifically defined within its text.
• Including provisions to ensure that security researchers, whistleblowers, journalists, and human rights defenders are not prosecuted for their legitimate activities and that other public interest activities are protected. 
• Guaranteeing explicit data protection and human rights standards like legitimate purpose, nondiscrimination, prior judicial authorization, necessity and proportionality apply to the entire Convention.

• Mainstreaming gender across the Convention as a whole and throughout each article in efforts to prevent and combat cybercrime.
  

It’s been a long fight pushing for a treaty that combats cybercrime without undermining basic human rights. Without these improvements, the risks of this treaty far outweigh its potential benefits. States must stand firm and reject the treaty if our redlines can’t be met. We cannot and will not support or recommend a draft that will make everyone less, instead of more, secure.

EFF has joined forces with 110 NGOs today in a joint statement delivered to the United Nations Ad Hoc Committee, clearly outlining civil society non-negotiable redlines for the proposed UN Cybercrime Treaty, and asserting that states should reject the proposed treaty if these essential changes are not implemented. 

The last draft published on November 6, 2023 does not adequately ensure adherence to human rights law and standards. Initially focused on cybercrime, the proposed Treaty has alarmingly evolved into an expansive surveillance tool.

Katitza Rodriguez, EFF Policy Director for Global Privacy, asserts ahead of the upcoming concluding negotiations:

The proposed treaty needs more than just minor adjustments; it requires a more focused, narrowly defined approach to tackle cybercrime. This change is essential to prevent the treaty from becoming a global surveillance pact rather than a tool for effectively combating core cybercrimes. With its wide-reaching scope and invasive surveillance powers, the current version raises serious concerns about cross-border repression and potential police overreach. Above all, human rights must be the treaty's cornerstone, not an afterthought. If states can't unite on these key points, they must outright reject the treaty.

Historically, cybercrime legislation has been exploited to target journalists and security researchers, suppress dissent and whistleblowers, endanger human rights defenders, limit free expression, and justify unnecessary and disproportionate state surveillance measures. We are concerned that the proposed Treaty, as it stands now, will exacerbate these problems. The proposed treaty concluding session will be held at the UN Headquarters in New York from January 29 to February 10th. EFF will be attending in person.

The joint statement specifically calls States to narrow the scope of criminalization provisions to well defined cyber dependent crimes; shield security researchers, whistleblowers, activists, and journalists from being prosecuted for their legitimate activities; explicitly include language on international human rights law, data protection, and gender mainstreaming; limit the scope of the domestic criminal procedural measures and international cooperation to core cybercrimes established in the criminalization chapter; and address concerns that the current draft could weaken cybersecurity and encryption. Additionally, it requires the necessity to establish specific safeguards, such as the principles of prior judicial authorization, necessity, legitimate aim, and proportionality.

The UAE confirmed this week that it has placed 84 detainees on trial, on charges of “establishing another secret organization for the purpose of committing acts of violence and terrorism on state territory.” Suspected to be among those facing trial is award-winning human rights defender Ahmed Mansoor, also known as the “the million dollar dissident,” as he was once the target of exploits that exposed major security flaws in Apple’s iOS operating system—the kind of “zero-day” vulnerabilities that fetch seven figures on the exploit market. Mansoor drew the ire of UAE authorities for criticizing the country’s internet censorship and surveillance apparatus and for calling for a free press and democratic freedoms in the country.

Having previously been arrested in 2011 and sentenced to three years' imprisonment for “insulting officials,'' Ahmed Mansoor was released after eight months due to a presidential pardon influenced by international pressure. Later, Mansoor faced new speech-related charges for using social media to “publish false information that harms national unity.” During this period, authorities held him in an unknown location for over a year, deprived of legal representation, before convicting him again in May 2018 to ten years in prison under the UAE’s draconian cybercrime law. We have long advocated for his release, and are joined in doing so by hundreds of digital and human rights organizations around the world.

At the recent COP28 climate talks, Human Rights Watch and Amnesty International and other activists conducted a protest inside the UN-protected “blue zone” to raise awareness of Mansoor’s plight, as well the cases of both UAE detainee Mohamed El-Siddiq and Egyptian-British activist  Alaa Abd El Fattah. At the same time, it was reported by a dissident group that the UAE was proceeding with the trial against 84 of its detainees.

We reiterate our call for Ahmed Mansoor’s freedom, and take this opportunity to raise further awareness of the oppressive nature of the legislation that was used to imprison him. The UAE’s use of its criminal law to silence those who speak truth to power is another example of how counter-terrorism laws restrict free expression and justify disproportionate state surveillance. This concern is not hypothetical; a 2023 study by the Special Rapporteur on counter-terrorism found widespread and systematic abuse of civil society and civic space through the use of similar laws supposedly designed to counter terrorism. Moreover, and problematically, references 'related to terrorism’ in the treaty preamble are still included in the latest version of a proposed United Nations Cybercrime Treaty, currently being negotiated with more than 190 member states, even though there is no  agreed-upon definition of terrorism in international law. If approved as currently written, the UN Cybercrime Treaty has the potential to substantively reshape international criminal law and bolster cross-border police surveillance powers to access and share users’ data, implicating the human rights of billions of people worldwide, and could enable States to justify repressive measures that overly restrict free expression and peaceful dissent.

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.” 

This is Part II  of a series examining the proposed UN Cybercrime Treaty in the context of LGBTQ+ communities. Part I looks at the draft Convention’s potential implications for LGBTQ+ rights. Part II provides a closer look at how cybercrime laws might specifically impact the LGBTQ+ community and activists in the Middle East and North Africa (MENA) region.

In the digital age, the rights of the LGBTQ+ community in the Middle East and North Africa (MENA) are gravely threatened by expansive cybercrime and surveillance legislation. This reality leads to systemic suppression of LGBTQ+ identities, compelling individuals to censor themselves for fear of severe reprisal. This looming threat becomes even more pronounced in countries like Iran, where same-sex conduct is punishable by death, and Egypt, where merely raising a rainbow flag can lead to being arrested and tortured.

Enter the proposed UN Cybercrime Convention. If ratified in its present state, the convention might not only bolster certain countries' domestic surveillance powers to probe actions that some nations mislabel as crimes, but it could also strengthen and validate international collaboration grounded in these powers. Such a UN endorsement could establish a perilous precedent, authorizing surveillance measures for acts that are in stark contradiction with international human rights law. 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. 

The draft convention, in Article 35, permits each country to define its own crimes under domestic laws when requesting assistance from other nations in cross-border policing and evidence collection. In certain countries, many of these criminal laws might be based on subjective moral judgments that suppress what is considered free expression in other nations, rather than adhering to universally accepted standards.

Indeed, international cooperation is permissible for crimes that carry a penalty of four years of imprisonment or more; there's a concerning move afoot to suggest reducing this threshold to merely three years. This is applicable whether the alleged offense is cyber or not. Such provisions could result in heightened cross-border monitoring and potential repercussions for individuals, leading to torture or even the death penalty in some jurisdictions. 

While some countries may believe they can sidestep these pitfalls by not collaborating with countries that have controversial laws, this confidence may be misplaced. The draft treaty 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 MLAT system, there's an increasing likelihood that requests, even from countries with contentious laws, could slip through the checks. This opens the door for nations to inadvertently assist in operations that might contradict global human rights norms. And where countries do share the same subjective values and problematically criminalize the same conduct, this draft treaty seemingly provides a justification for their cooperation.

One of the more recently introduced pieces of legislation that exemplifies these issues is the Cybercrime Law of 2023 in Jordan. Introduced as part of King Abdullah II’s modernization reforms to increase political participation across Jordan, this law was issued hastily and without sufficient examination of its legal aspects, social implications, and impact on human rights. In addition to this new law, the pre-existing cybercrime law in Jordan has already been used against LGBTQ+ people, and this new law expands its capacity to do so. This law, with its overly broad and vaguely defined terms, will severely restrict individual human rights across that country and will become a tool for prosecuting innocent individuals for their online speech. 

Article 13 of the Jordan law expansively criminalizes a wide set of actions tied to online content branded as “pornographic,” from its creation to distribution. The ambiguity in defining what is pornographic could inadvertently suppress content that merely expresses various sexualities, mistakenly deeming them as inappropriate. This goes beyond regulating explicit material; it can suppress genuine expressions of identity. The penalty for such actions entails a period of no less than six months of imprisonment. 

Meanwhile, the nebulous wording in Article 14 of Jordan's laws—terms like “expose public morals,” “debauchery,” and “seduction”—is equally concerning. Such vague language is ripe for misuse, potentially curbing LGBTQ+ content by erroneously associating diverse sexual orientation with immorality. Both articles, in their current form, cast shadows on free expression and are stark reminders that such provisions can lead to over-policing online content that is not harmful at all. During debates on the bill in the Jordanian Parliament, some MPs claimed that the new cybercrime law could be used to criminalize LGBTQ+ individuals and content online. Deputy Leader of the Opposition, Saleh al Armouti, went further and claimed that “Jordan will become a big jail.” 

Additionally, the law imposes restrictions on encryption and anonymity in digital communications, preventing individuals from safeguarding their rights to freedom of expression and privacy. Article 12 of the Cybercrime Law prohibits the use of Virtual Private Networks (VPNs) and other proxies, with at least six months imprisonment or a fine for violations. 

This will force people in Jordan to choose between engaging in free online expression or keeping their personal identity private. More specifically, this will negatively impact LGBTQ+ people and human rights defenders in Jordan who particularly rely on VPNs and anonymity to protect themselves online. The impact of Article 12 is exacerbated by the fact that there is no comprehensive data privacy legislation in Jordan to protect people’s rights during cyber attacks and data breaches.  

This is not the first time Jordan has limited access to information and content online. In December 2022, Jordanian authorities blocked TikTok to prevent the dissemination of live updates and information during the workers’ protests in the country's south, and authorities there previously had blocked Clubhouse as well. 

This crackdown on free speech has particularly impacted journalists, such as the recent arrest of Jordanian journalist Heba Abu Taha for criticizing Jordan’s King over his connections with Israel. Given that online platforms like TikTok and Twitter are essential for activists, organizers, journalists, and everyday people around the world to speak truth to power and fight for social justice, the restrictions placed on free speech by Jordan’s new Cybercrime Law will have a detrimental impact on political activism and community building across Jordan.

People across Jordan have protested the law and the European Union has  expressed concern about how the law could limit freedom of expression online and offline. In August, EFF and 18 other civil society organizations wrote to the King of Jordan, calling for the rejection of the country’s draft cybercrime legislation. With the law now in effect, we urge Jordan to repeal the Cybercrime Law 2023.

Jordan’s Cybercrime Law has been said to be a “true copy” of the United Arab Emirates (UAE) Federal Decree Law No. 34 of 2021 on Combatting Rumors and Cybercrimes. This law replaced its predecessor, which had been used to stifle expression critical of the government or its policies—and was used to sentence human rights defender Ahmed Mansoor to 10 years in prison. 

The UAE’s new cybercrime law further restricts the already heavily-monitored online space and makes it harder for ordinary citizens, as well as journalists and activists, to share information online. More specifically, Article 22 mandates prison sentences of between three and 15 years for those who use the internet to share “information not authorized for publishing or circulating liable to harm state interests or damage its reputation, stature, or status.” 

In September 2022, Tunisia passed its new cybercrime law in Decree-Law No. 54 on “combating offenses relating to information and communication systems.” The wide-ranging decree has been used to stifle opposition free speech, and mandates a five-year prison sentence and a fine for the dissemination of “false news” or information that harms “public security.” In the year since Decree-Law 54 was enacted, authorities in Tunisia have prosecuted media outlets and individuals for their opposition to government policies or officials. 

The first criminal investigation under Decree-Law 54 saw the arrest of student Ahmed Hamada in October 2022 for operating a Facebook page that reported on clashes between law enforcement and residents of a neighborhood in Tunisia. 

Similar tactics are being used in Egypt, where the 2018 cybercrime law, Law No. 175/2018, contains broad and vague provisions to silence dissent, restrict privacy rights, and target LGBTQ+ individuals. More specifically, Articles 25 and 26 have been used by the authorities to crackdown on content that allegedly violates “family values.” 

Since its enactment, these provisions have also been used to target LGBTQ+ individuals across Egypt, particularly regarding the publication or sending of pornography under Article 8, as well as illegal access to an information network under Article 3. For example, in March 2022 a court in Egypt charged singers Omar Kamal and Hamo Beeka with “violating family values” for dancing and singing in a video uploaded to YouTube. In another example, police have used cybercrime laws to prosecute LGBTQ+ individuals for using dating apps such as Grindr.

And in Saudi Arabia, national authorities have used cybercrime regulations and counterterrorism legislation to prosecute online activism and stifle dissenting opinions. Between 2011 and 2015, at least 39 individuals were jailed under the pretense of counterterrorism for expressing themselves online—for composing a tweet, liking a Facebook post, or writing a blog post. And while Saudi Arabia has no specific law concerning gender identity and sexual orientation, 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.” 

These provisions have been used to prosecute individuals for peaceful actions, particularly since the Arab Spring in 2011. More recently, in August 2022, Salma al-Shehab was sentenced to 34 years in prison with a subsequent 34-year travel ban for her alleged “crime” of sharing content in support of prisoners of conscience and women human rights defenders.

These cybercrime laws demonstrate that if the proposed UN Cybercrime Convention is ratified in its current form with its broad scope, it would authorize domestic surveillance for the investigation of any offenses, as those in Articles 12, 13, and 14 of Jordan's law. Additionally, the convention could authorize international cooperation for investigation of crimes penalized with three or four years of imprisonment, as seen in countries such as the UAE, Tunisia, Egypt, and Saudi Arabia.

As Canada warned (at minute 01:56 ) at the recent negotiation session, these expansive provisions in the Convention permit states to unilaterally define and broaden the scope of criminal conduct, potentially paving the way for abuse and transnational repression. While the Convention may incorporate some procedural safeguards, its far-reaching scope raises profound questions about its compatibility with the key tenets of human rights law and the principles enshrined in the UN Charter. 

The root problem lies not in the severity of penalties, but in the fact that some countries criminalize behaviors and expression that are protected under international human rights law and the UN Charter. This is alarming, given that numerous laws affecting the LGBTQ+ community carry penalties within these ranges, making the potential for misuse of such cooperation profound.

In a nutshell, the proposed UN treaty amplifies the existing threats to the LGBTQ+ community. It endorses a framework where nations can surveil benign activities such as sharing LGBTQ+ content, potentially intensifying the already-precarious situation for this community in many regions.

Online, the lack of legal protection of subscriber data threatens the anonymity of the community, making them vulnerable to identification and subsequent persecution. The mere act of engaging in virtual communities, sharing personal anecdotes, or openly expressing relationships could lead to their 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 intercepted and turned against them. 

To all member states: This is a pivotal moment. This is our opportunity to ensure the digital future is one where rights are championed, not compromised. Pledge to protect the rights of all, especially those communities like the LGBTQ+ that are most vulnerable. The international community must unite in its commitment to ensure that the proposed convention serves as an instrument of protection, not persecution.