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This week, the final preparatory consultations of the UN Ad Hoc Committee on the development of a universal convention to combat cybercrime took place in Vienna. Russia has been promoting the idea of developing such a document since 2017, and now at the end of January - beginning of February, states will have to vote to approve its final version. Meanwhile, the draft convention currently on the negotiating table differs in some places from what was previously proposed by Moscow, and the Russian authorities are not confident that they will be able to “correct the imbalances” in the remaining time.
Intersessional consultations of the UN Ad Hoc Committee on the development of a universal convention on combating the use of information and communication technologies (ICT) for criminal purposes took place at the UN site in Vienna. The meeting is important: in two weeks in New York, the countries participating in this process must vote on the final version of the global convention. Ideally, by consensus, but if there is no consensus, then by two-thirds of the vote.
The creation of the Special Committee was initially proposed by Russia, which since 2017 has been promoting at the UN level the initiative to adopt an alternative to the Budapest Convention of the Council of Europe on Computer Crime. This document, which came into force in 2004, is today the most significant intergovernmental mechanism to combat cybercrime: it has been signed and ratified by 68 countries (mostly Western). The Russian authorities consider the Budapest Convention to be an instrument of interference in the internal affairs of other states and violation of their sovereignty. Moscow's efforts are aimed at replacing this document with a UN convention that would be acceptable to all states.
In 2019, Russia achieved the adoption of UN General Assembly resolution 74/247 on the creation of an Ad Hoc Committee to “develop a comprehensive international convention against the use of information and communications technologies for criminal purposes.” Most Western countries initially opposed this: they were aimed not at developing a new document, but at expanding the scope of the Budapest Convention. However, in the end, Western states reconsidered their approach and actively joined the work of the Special Committee. According to the Russian Foreign Ministry, its sessions were attended by subject matter experts from more than 160 countries and 200 non-governmental organizations.
The last (seventh) session should take place on January 29 - February 9. However, judging by the comments of Russian officials, the situation ahead of the vote on the draft convention is complicated. “After six negotiating sessions of the Special Committee, there is every reason to believe that the Westerners have joined the negotiation process, intending to dilute and dilute the new agreement as much as possible,” Mikhail Ulyanov, Russia’s permanent representative to international organizations in Vienna, wrote recently in his Telegram channel.
The diplomat recalled that, according to UN General Assembly resolution 74/247, the task is to develop a “comprehensive convention.”
“Based on this, Russia insists on the criminalization of a wide range of crimes in the information space. Westerners, under various pretexts, are trying to narrow the scope of the agreement as much as possible,” he noted. “In addition, they are promoting dubious “human rights” provisions in the text, the unfair application of which can significantly reduce the effectiveness of the fight against crime in the ICT sector.”
Mikhail Ulyanov called the situation at the negotiations “very difficult”. “The negotiation process is coming to an end. The final session of the Special Committee will take place in New York at the end of January - beginning of February. Time will tell whether it will be possible to correct the imbalances,” the diplomat noted. At the same time, he recalled that crimes in cyberspace “cause colossal damage to the global economy” and expressed hope that “the international community will still be able to agree on effective measures to combat this evil.”
In turn, the special representative of the President of the Russian Federation, Director of the Department of International Information Security of the Russian Foreign Ministry, Artur Lyukmanov, in an interview with RIA Novosti, noted that Russia, in promoting its position, relies “on the support of a wide pool of like-minded people from the countries of Asia, Africa, the Middle East and Latin America”. “We will use the time remaining until the end of the Special Committee’s work to saturate the draft convention with priority settings for us. We will make every effort to reach a comprehensive agreement that meets the aspirations of most of the developing world,” he said.
Let us recall that Russia submitted its first version of an alternative to the Budapest Convention for consideration by the UN back in 2017 (see “Kommersant” dated April 14, 2017). In 2021, Russia presented the second version of the document. The updated 55-page draft of the convention prepared by Russia was based on the principle of “encouraging international cooperation while respecting the sovereignty of individual states.” The document, prepared with the participation of the Prosecutor General's Office, the Ministry of Internal Affairs, the Ministry of Foreign Affairs and other relevant departments, covered 23 types of cybercrimes and described the procedure for interaction between states in matters of extradition of cybercriminals and provision of legal assistance in criminal cases. The Russian authorities hoped that the Russian draft document would become a “framework for discussion” of a future global convention (see Kommersant, July 30, 2021).
Many of the Russian proposals were indeed included in the draft UN convention currently on the negotiating table (it is called “zero”), but not all.
Judging by the draft text published in November, 11 types of offenses are proposed to be criminalized. In particular, the document does not include provisions on the criminalization of the use of cyber technologies to incite subversion, extremism and terrorism. Western negotiators (including representatives of non-governmental organizations) noted that states do not have a generally accepted interpretation of these terms, and expressed fears that including relevant articles in the convention would allow authoritarian governments to intensify the fight against dissent on the Internet.
The US State Department, in particular, explained that Washington will “seek consensus on the development of a narrowly focused criminal justice instrument that will promote international cooperation in the fight against cybercrime, while respecting human rights and encouraging the participation of stakeholders in this process.”
“There is a conditional division into crimes that are impossible without computers and the Internet (cyber-dependent crime), and previously existing types of crimes that have changed with the advent of cyber technologies (cyber-enabled crime). Western countries are in favor of the fact that the new convention should be limited to the first category, Russia, China and a number of other countries are in favor of broader coverage and inclusion of a larger number of crimes,” an information security expert and author of the Telegram channel “Cyber War” explained to Kommersant. » Oleg Shakirov.
Kommersant's interlocutor sees two ways for further developments. First: countries accept the convention approximately in the form in which it is now, that is, with a too narrow, from Russia’s point of view, scope, while Russian negotiators are trying at the last stage to ensure that amendments that are important for them are included in the document.
“Russia is signaling dissatisfaction with the direction in which the negotiation process has turned, but at the same time, as its initiator, it is least interested in failure,” the expert believes.
He draws attention to the fact that the draft convention contains an article regarding the criminalization of crimes provided for in other treaties. “This means that the global convention can in fact be supplemented by regional agreements to which individual groups of countries will agree. It is significant that in November, at a meeting of the SCO Group of Experts on International Information Security, the possibility of developing, under the auspices of this organization, an agreement on combating the use of ICT for criminal purposes was discussed,” noted Oleg Shakirov.
The second option: the adoption of additional protocols to the convention, which could expand its coverage for wishing countries. Those who disagree will be able to abstain. “So the convention, if adopted, could become the main, but not the only, international agreement on combating cybercrime,” the expert admitted, adding, however, that it is not yet clear “how it will all work.”
Aleksey Lukatsky, Internet security consultant for Positive Technologies, in an interview with Kommersant, noted: “Any fight against crime is based on the fact that we can detect the criminal and prove his guilt, but in world practice this has never happened. adequate mechanisms for more or less accurate attribution of cybercrimes, excluding the highly likely approach.” “This is primarily due to the fact that the Internet is not technically ready to unambiguously determine the authorship of certain actions,” he explained. “This was also affected by various jurisdictional problems, the lack of a clear definition of the list of computer crimes, as well as state and interstate bureaucracy, to which was added total distrust between the key players of the Internet market (Russia, the West, China).” In such conditions, any convention, even if it is adopted, according to the expert, “is doomed to remain nothing more than a document of intent, and not a truly effective instrument.”
Intersessional consultations of the UN Ad Hoc Committee on the development of a universal convention on combating the use of information and communication technologies (ICT) for criminal purposes took place at the UN site in Vienna. The meeting is important: in two weeks in New York, the countries participating in this process must vote on the final version of the global convention. Ideally, by consensus, but if there is no consensus, then by two-thirds of the vote.
The creation of the Special Committee was initially proposed by Russia, which since 2017 has been promoting at the UN level the initiative to adopt an alternative to the Budapest Convention of the Council of Europe on Computer Crime. This document, which came into force in 2004, is today the most significant intergovernmental mechanism to combat cybercrime: it has been signed and ratified by 68 countries (mostly Western). The Russian authorities consider the Budapest Convention to be an instrument of interference in the internal affairs of other states and violation of their sovereignty. Moscow's efforts are aimed at replacing this document with a UN convention that would be acceptable to all states.
In 2019, Russia achieved the adoption of UN General Assembly resolution 74/247 on the creation of an Ad Hoc Committee to “develop a comprehensive international convention against the use of information and communications technologies for criminal purposes.” Most Western countries initially opposed this: they were aimed not at developing a new document, but at expanding the scope of the Budapest Convention. However, in the end, Western states reconsidered their approach and actively joined the work of the Special Committee. According to the Russian Foreign Ministry, its sessions were attended by subject matter experts from more than 160 countries and 200 non-governmental organizations.
The last (seventh) session should take place on January 29 - February 9. However, judging by the comments of Russian officials, the situation ahead of the vote on the draft convention is complicated. “After six negotiating sessions of the Special Committee, there is every reason to believe that the Westerners have joined the negotiation process, intending to dilute and dilute the new agreement as much as possible,” Mikhail Ulyanov, Russia’s permanent representative to international organizations in Vienna, wrote recently in his Telegram channel.
The diplomat recalled that, according to UN General Assembly resolution 74/247, the task is to develop a “comprehensive convention.”
“Based on this, Russia insists on the criminalization of a wide range of crimes in the information space. Westerners, under various pretexts, are trying to narrow the scope of the agreement as much as possible,” he noted. “In addition, they are promoting dubious “human rights” provisions in the text, the unfair application of which can significantly reduce the effectiveness of the fight against crime in the ICT sector.”
Mikhail Ulyanov called the situation at the negotiations “very difficult”. “The negotiation process is coming to an end. The final session of the Special Committee will take place in New York at the end of January - beginning of February. Time will tell whether it will be possible to correct the imbalances,” the diplomat noted. At the same time, he recalled that crimes in cyberspace “cause colossal damage to the global economy” and expressed hope that “the international community will still be able to agree on effective measures to combat this evil.”
In turn, the special representative of the President of the Russian Federation, Director of the Department of International Information Security of the Russian Foreign Ministry, Artur Lyukmanov, in an interview with RIA Novosti, noted that Russia, in promoting its position, relies “on the support of a wide pool of like-minded people from the countries of Asia, Africa, the Middle East and Latin America”. “We will use the time remaining until the end of the Special Committee’s work to saturate the draft convention with priority settings for us. We will make every effort to reach a comprehensive agreement that meets the aspirations of most of the developing world,” he said.
Let us recall that Russia submitted its first version of an alternative to the Budapest Convention for consideration by the UN back in 2017 (see “Kommersant” dated April 14, 2017). In 2021, Russia presented the second version of the document. The updated 55-page draft of the convention prepared by Russia was based on the principle of “encouraging international cooperation while respecting the sovereignty of individual states.” The document, prepared with the participation of the Prosecutor General's Office, the Ministry of Internal Affairs, the Ministry of Foreign Affairs and other relevant departments, covered 23 types of cybercrimes and described the procedure for interaction between states in matters of extradition of cybercriminals and provision of legal assistance in criminal cases. The Russian authorities hoped that the Russian draft document would become a “framework for discussion” of a future global convention (see Kommersant, July 30, 2021).
Many of the Russian proposals were indeed included in the draft UN convention currently on the negotiating table (it is called “zero”), but not all.
Judging by the draft text published in November, 11 types of offenses are proposed to be criminalized. In particular, the document does not include provisions on the criminalization of the use of cyber technologies to incite subversion, extremism and terrorism. Western negotiators (including representatives of non-governmental organizations) noted that states do not have a generally accepted interpretation of these terms, and expressed fears that including relevant articles in the convention would allow authoritarian governments to intensify the fight against dissent on the Internet.
The US State Department, in particular, explained that Washington will “seek consensus on the development of a narrowly focused criminal justice instrument that will promote international cooperation in the fight against cybercrime, while respecting human rights and encouraging the participation of stakeholders in this process.”
“There is a conditional division into crimes that are impossible without computers and the Internet (cyber-dependent crime), and previously existing types of crimes that have changed with the advent of cyber technologies (cyber-enabled crime). Western countries are in favor of the fact that the new convention should be limited to the first category, Russia, China and a number of other countries are in favor of broader coverage and inclusion of a larger number of crimes,” an information security expert and author of the Telegram channel “Cyber War” explained to Kommersant. » Oleg Shakirov.
Kommersant's interlocutor sees two ways for further developments. First: countries accept the convention approximately in the form in which it is now, that is, with a too narrow, from Russia’s point of view, scope, while Russian negotiators are trying at the last stage to ensure that amendments that are important for them are included in the document.
“Russia is signaling dissatisfaction with the direction in which the negotiation process has turned, but at the same time, as its initiator, it is least interested in failure,” the expert believes.
He draws attention to the fact that the draft convention contains an article regarding the criminalization of crimes provided for in other treaties. “This means that the global convention can in fact be supplemented by regional agreements to which individual groups of countries will agree. It is significant that in November, at a meeting of the SCO Group of Experts on International Information Security, the possibility of developing, under the auspices of this organization, an agreement on combating the use of ICT for criminal purposes was discussed,” noted Oleg Shakirov.
The second option: the adoption of additional protocols to the convention, which could expand its coverage for wishing countries. Those who disagree will be able to abstain. “So the convention, if adopted, could become the main, but not the only, international agreement on combating cybercrime,” the expert admitted, adding, however, that it is not yet clear “how it will all work.”
Aleksey Lukatsky, Internet security consultant for Positive Technologies, in an interview with Kommersant, noted: “Any fight against crime is based on the fact that we can detect the criminal and prove his guilt, but in world practice this has never happened. adequate mechanisms for more or less accurate attribution of cybercrimes, excluding the highly likely approach.” “This is primarily due to the fact that the Internet is not technically ready to unambiguously determine the authorship of certain actions,” he explained. “This was also affected by various jurisdictional problems, the lack of a clear definition of the list of computer crimes, as well as state and interstate bureaucracy, to which was added total distrust between the key players of the Internet market (Russia, the West, China).” In such conditions, any convention, even if it is adopted, according to the expert, “is doomed to remain nothing more than a document of intent, and not a truly effective instrument.”
