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It has surfaced in the media that efforts are underway once again to complete drafting towards ensuring adoption of a Cybercrime Treaty by the United Nations. It is expected that such a Treaty will be adopted by the UN General Assembly later this year. The Treaty is expected to be adopted by a UN Ad Hoc Committee in the second half of August and it will then move to the General Assembly for final approval.
Analyst T. Deen has indicated that the drafting and adoption of such a Treaty is being seen by human rights activists and civil society organisations (CSOs) as a potential tool for government repression.
D. Brown, Deputy Director for Technology, Rights, and Investigations at Human Rights Watch (HRW), has observed that governments would then need to sign and ratify the Treaty, which means going through national processes. In this context she has observed, "We anticipate that as countries move to ratify the treaty it will face considerable scrutiny and pushback from legislators and the public because of the threat it poses to human rights. Negotiations are also expected to start on a Protocol to accompany the treaty to address additional crimes and further expand the treaty's reach. We urge governments to reject a Cybercrime Treaty that undermines rights." She has also pointed out that the Treaty would expand government surveillance and create an unprecedented tool for cross-border cooperation between governments on a wide range of crimes, without adequate safeguards to protect people from abuses of power.
It is understood that on the other hand, the relevant Officials in the UN consider that the evolving serious geo-political situation as well as some other factors like drug smuggling and illegal immigration efforts have led to the growing dangers of cybercrime.
This evolving scenario appears to have persuaded some UN Member States to undertake the task of drafting a legally-binding international Treaty to counter the threat.
It has also been exposed that efforts in this direction have been on for nearly five years, but negotiations are still ongoing, with parties unable to reach an acceptable consensus. The latest meeting of the Committee members involved in this regard took place in February but did not conclude with an agreed draft. Countries were unable to agree on wording that would balance human rights safeguards with security concerns.
One of the nongovernmental organisations taking part in the negotiations has been Access Now, which defends and extends the digital rights of people and communities at risk around the world. While the February session was still taking place at UN Headquarters, Raman Jit Singh Chima, the Senior International Counsel and Asia Pacific Policy Director for Access Now, shared his views with Conor Lennon from UN News, to explain his Organisation's concerns. He observed that "this Treaty needs to address -- core cybercrime-, namely those crimes that are possible only through a computer, that are sometimes called "cyber dependent" crimes, such as hacking into computer systems, and undermining the security of networks".
In this regard, it was also pointed out that such activities should be criminalised by States, with clear provisions in place enabling governments across the world to cooperate with each other. Interestingly, he also remarked that- "if you make the scope of the Treaty too broad, it could include political crimes. For example, if someone makes a comment about a head of government, or a head of state, that might end up being penalized under the cybercrime law." However, it was also underlined that "when it comes to law enforcement agencies cooperating on this Treaty, we will need to put strong human rights standards in place, because that provides trust and confidence in the process". He also warned that "if you have a broad Treaty with no safeguards, every request for cooperation could end up being challenged, not only by human rights advocates and impacted communities, but by governments themselves".
Meanwhile, a joint statement by CSOs has drawn attention to some critical inadequacies in the current draft of the Treaty, which threatens freedom of expression, privacy, and other human rights. It has been observed that the draft Convention contains broad criminal provisions that are weak -- and in some places nonexistent - pertaining to human rights safeguards, and provides for excessive cross-border information sharing and cooperation requirements, which could facilitate intrusive surveillance of human rights defenders, journalists and security researchers. Consequently, the CSOs feel that the draft Convention's overbreadth also threatens to undermine its own objectives by diluting efforts to address actual cybercrime while failing to safeguard legitimate security research, leaving people less secure online. In this context they have also remarked that "national and regional cybercrime laws are regrettably far too often misused to unjustly target journalists and security researchers, suppress dissent and whistleblowers, endanger human rights defenders, limit free expression, and justify unnecessary and disproportionate state surveillance measures".
Throughout the negotiations over the last two years, civil society groups and other stakeholders have consistently emphasised that the fight against cybercrime must not come at the expense of human rights, gender equality, and the dignity of the people whose lives will be affected by this Convention.
It also needs to be mentioned that in an op-ed piece in Foreign Policy in Focus, Tirana Hassan, Executive Director of Human Rights Watch (HRW), has drawn particular attention to the denotation that the new Treaty, backed by Russia, is aimed to stifle dissent. She has remarked, "it's no secret that Russia is the driver of this treaty. In its moves to control dissent, the Russian government has in recent years diversified laws and regulations that tighten control over Internet infrastructure, online content, and the privacy of communications".
She has also pointed out that Cybercrime-the malicious hacking of computer networks, systems, and data-threatens people's rights and livelihoods, and governments need to work together to do more to address it. She feels that as a result of such possibilities, the Cybercrime Treaty sitting before the United Nations for adoption, could facilitate government repression. By expanding government surveillance to investigate crimes, the treaty could create an unprecedented tool for cross-border cooperation in connection with a wide range of offenses, without adequate safeguards to protect people from abuses of power.
It would be worthwhile to recall that in June 2020, a Philippine Court convicted Maria Ressa, the Nobel prize-winning journalist and founder and executive editor of the news website Rappler, of "cyber libel" under its Cybercrime Prevention Act. Apparently, there have also been other instances in that country of contraventions against critics of government and social media users- who are social activists.
Similarly, it has been mentioned that in Tunisia, authorities have invoked a cybercrime law to detain, charge, or place under investigation journalists, lawyers, students, and other critics for their public statements online or in the media. In Jordan, the authorities have taken action against scores of people who participated in pro-Palestine protests or engaged in online advocacy since October 2023, bringing charges against some of them under a new, widely criticised cybercrimes law. Apparently, many countries in the Middle East-North Africa region have also created cybercrime laws to prosecute online speech.
T. Hassan has on such grounds been critical of the UN efforts to draft a Treaty and has reiterated that it has three main problems: its broad scope, its lack of human-rights safeguards, and the risks it poses to children's rights. In this context, she has critically referred to the fact that- "instead of limiting the treaty to address crimes committed against computer systems, networks, and data-think hacking or ransomware-the treaty's title defines cybercrime to include any crime committed by using Information and Communications Technology systems."
Nevertheless, the negotiators appear to be also poised to agree to the immediate drafting of a protocol to the treaty to address "additional criminal offenses as appropriate." This means that when governments pass domestic laws that criminalise any activity that uses the Internet in any way to plan, commit, or carry out a crime, they can point to this Treaty's title and potentially its Protocol to justify the enforcement of repressive laws.
As indicated above there are different opinions on practically most issues.
Creating cyber security will consequently not be very easy. However, I believe that we need to achieve cyber resilience. It will require cyber diplomacy, and that is possible in Bangladesh.
We need to recall that after the emergence of the pandemic, everyone in South Asia, instead of blaming each other and attributing narrow objectives, needed to respond proportionately to the scope, scale, duration, intensity, complexity, sophistication and impact of every country's cyber activity.
One feels that our Interim government should carefully carry out research. This needs to be undertaken by the Information Technology sector in Bangladesh.
A Committee could be constituted with the direct and indirect participation of the private sector, the different financial institutions and Chambers of Commerce. Bangladesh Association of Software and Information Services (BASIS) could also be brought within this paradigm. Our Ministry of Foreign Affairs can also be part of this process.
If necessary, we could also seek counseling of technical representatives from the European Union, the USA, Australia, Japan and Canada. We need to be careful about this important issue because cyber space can be hacked in pursuit of unfortunate national political interests.
There has to be freedom for expressing and exchanging views and there should be accountability to avoid the creation of discomfiture. In this regard we also need to desist from spreading fake news through online misinformation. Such an effort can have a totally undesirable osmotic effect. It will no longer be a question of freedom of information but will then be misuse of false information.
Muhammad Zamir, a former Ambassador, is an analyst specialised in foreign affairs, right to information and good governance.