Calls Mount—from Principal UN Human Rights Official, Business, and Tech Groups—To Address Dangerous Flaws in Draft UN Surveillance Treaty

As UN delegates sat down in New York this week to restart negotiations, calls are mounting from all corners—from the United Nations High Commissioner for Human Rights (OHCHR) to Big Tech—to add critical human rights protections to, and fix other major flaws in, the proposed UN surveillance treaty, which as written will jeopardize fundamental rights for people across the globe.

Six influential organizations representing the UN itself, cybersecurity companies, civil society, and internet service providers have in recent days weighed in on the flawed treaty ahead of the two-week negotiating session that began today.

The message is clear and unambiguous: the proposed UN treaty is highly flawed and dangerous and must be fixed.

The groups have raised many points EFF raised over the last two and half years, including whether the treaty is necessary at all, the risks it poses to journalists and security researchers, and an overbroad scope that criminalizes offenses beyond core cybercrimes—crimes against computer systems, data, and networks. We have summarized our concerns here.

Some delegates meeting in New York are showing enthusiasm to approve the draft treaty, despite its numerous flaws. We question whether UN Member States, including the U.S., will take the lead over the next two weeks to push for significant changes in the text. So, we applaud the six organizations cited here for speaking out at this crucial time.

“The concluding session is a pivotal moment for human rights in the digital age,” the OHCHR said in comments on the new draft. Many of its provisions fail to meet international human rights standards, the commissioner said.

“These shortcomings are particularly problematic against the backdrop of an already expansive use of existing cybercrime laws in some jurisdictions to unduly restrict freedom of expression, target dissenting voices and arbitrarily interfere with the privacy and anonymity of communications.”

The OHCHR recommends including in the draft an explicit reference to specific human rights instruments, in particular the International Covenant on Civil and Political Right, narrowing the treaty’s scope, explicitly including language that crimes covered by the treaty must be committed with “criminal intent,” and several other changes.

The proposed treaty should comprehensively integrate human rights throughout the text, OHCHR said. Without that, the convention “could jeopardize the protection of human rights of people world-wide, undermine the functionality of the internet infrastructure, create new security risks and undercut business opportunities and economic well-being.”

EFF has called on delegates to oppose the treaty if it’s not significantly improved, and we are not alone in this stance.

The Global Network Initiative (GNI), a multistakeholder organization that sets standards for responsible business conduct based on human rights, in the liability of online platforms for offenses committed by their users, raising the risk that online intermediaries could be liable when they don’t know or are unaware of such user-generated content.

“This could lead to excessively broad content moderation and removal of legitimate, protected speech by platforms, thereby negatively impacting freedom of expression,” GNI said.

“Countries committed to human rights and the rule of law must unite to demand stronger data protection and human rights safeguards. Without these they should refuse to agree to the draft Convention.”

Human Rights Watch (HRW), a close EFF ally on the convention, called out the draft’s article on offenses related to online child sexual abuse or child sexual exploitation material (CSAM), which could lead to criminal liability for service providers acting as mere conduits. Moreover, it could criminalize or risk criminalizing content and conduct that has evidentiary, scientific, or artistic value, and doesn’t sufficiently decriminalize the consensual conduct of older children in consensual relationships.

This is particularly dangerous for rights organizations that investigate child abuse and collect material depicting children subjected to torture or other abuses, including material that is sexual in nature. The draft text isn’t clear on whether legitimate use of this material is excluded from criminalization, thereby jeopardizing the safety of survivors to report CSAM activity to law enforcement or platforms.

HRW recommends adding language that excludes material manifestly artistic, among other uses, and conduct that is carried out for legitimate purposes related to documentation of human rights abuses or the administration of justice.

The Cybersecurity Tech Accord, which represents over 150 companies, raised concerns in a statement today that aspects of the draft treaty allow cooperation between states to be kept confidential or secret, without mandating any procedural legal protections.

The convention will result in more private user information being shared with more governments around the world, with no transparency or accountability. The statement provides specific examples of national security risks that could result from abuse of the convention’s powers.

The International Chamber of Commerce, a proponent of international trade for businesses in 170 countries, said the current draft would make it difficult for service providers to challenge overbroad data requests or extraterrestrial requests for data from law enforcement, potentially jeopardizing the safety and freedom of tech company employees in places where they could face arrest “as accessories to the crime for which that data is being sought.”

Further, unchecked data collection, especially from traveling employees, government officials, or government contractors, could lead to sensitive information being exposed or misused, increasing risks of security breaches or unauthorized access to critical data, the group said.

The Global Initiative Against Transnational Organized Crime, a network of law enforcement, governance, and development officials, raised concerns in a recent analysis about the draft treaty’s new title, which says the convention is against both cybercrime and, more broadly, crimes committed through the use of an information or communications technology (ICT) system.

“Through this formulation, it not only privileges Russia’s preferred terminology but also effectively redefines cybercrime,” the analysis said. With this title, the UN effectively “redefines computer systems (and the crimes committed using them)­ as ICT—a broader term with a wider remit.”