Russia initiated the UN treaty, which justifies the collection of sensitive information and requires that all governments enable the search and seizure of stored electronic data, real-time collection of metadata, and the interception of content data. Companies must spy on their staff and users based on an expansive definition of cybercrime.

Although the first Trump administration rejected the proposed treaty, the Russians did not give up. The text is now working its way through the UN negotiation process, scheduled to be adopted in the next month. This time, the Biden administration wants to sign. So does the European Union.

The treaty will allow authoritarian states to criminalize free expression and peaceful assembly under the guise of preventing cybercrime. Both the US and EU rebuffed business and civil society calls to include effective safeguards. A lack of due process or rule of law requirements will endanger security researchers, whistleblowers, activists, journalists, and any citizen expressing an opinion that displeases an authoritarian regime.

The seven-year saga of what is officially called the UN Convention Against Cybercrime occurred in the insular and often siloed world of law enforcement officials, with the broad issues of free expression, human rights, and innovation minimally, if at all, considered. Governments ended up split. When US officials working on free expression issues joined with like-minded European colleagues in the Freedom Online Coalition to raise concerns, law enforcement negotiators praised the proposed treaty.

Worries over the scope, vagueness, and lack of guardrails produced an unlikely opposition coalition of civil society and industry groups. A broad stakeholder expert group called on democratic governments that comprise the Freedom Online Coalition to vote no and reject the treaty. Industry groups sent a joint letter pointing out that the treaty erodes safeguards for individuals and companies and undermines AI safety and innovation. A group of influential US Democratic senators wrote to the Biden administration, cautioning that the treaty will “legitimize efforts of authoritarian countries like Russia and China to censor and surveil Internet users, furthering repression and human rights abuses around the world.” They called on the administration to demonstrate leadership by rejecting the treaty.

The Biden administration’s response was puzzling. A series of inconclusive senior officials’ meetings reportedly exposed stark interagency divisions. Treaty negotiators worried about reputational impacts and the ability to influence implementation should the US walk away, while other agencies, who for years were left out of the decision-making process, objected to joining the treaty based on privacy, free expression, human rights, due process, and innovation grounds. After weeks of engaging with stakeholders, the Biden administration decided to let the treaty move forward. In doing so, they also issued a lengthy self-defeating statement that not only conceded but embraced and reinforced all the problems identified.

The answer, according to the Biden administration, is that the implementation of the treaty “must be paired with robust domestic safeguards, oversight, investments in capacity-building, and strong rule-of-law institutions.” But this laundry list of safeguards is not required by the treaty, and it is absurd to think that authoritarian regimes like China and Russia will pursue them.

Instead of taking a principled stand to demonstrate US leadership and commitment to free expression and human rights, the Biden administration chose ineffective measures. It could have forced a vote and abstained, which in UN speak is remaining neutral. Under that scenario, a strong statement of concern might have had some meaning. Now, it is a hollow gesture that illustrates a lack of strategic thinking and siloed policymaking. Something similar occurred last year when US trade officials unilaterally changed 30 years of US digital trade policy in support of the free flow of data.

In Europe, the story is similar. The European Commission says it “actively consulted with civil society and industry” and that “this new UN convention ensures stronger protection of fundamental rights and provides an efficient framework for international cooperation, including on the fight against child sexual abuse.”

It is unclear how the incoming Trump administration will react or whether a newly installed European Commission will reconsider. They should. The threat to fundamental freedoms outweighs the benefits of increased powers to fight cybercrime. Unless the transatlantic allies shift, they will embolden Russia, China, and their authoritarian supporters.

Fiona M. Alexander is a Senior Fellow for the Digital Innovation Initiative at CEPA. She is both a Distinguished Policy Strategist in Residence at the School of International Service and a Distinguished Fellow at the Internet Governance Lab at the American University in Washington. She is a former Department of Commerce official, specializing in technology policy.

Bandwidth is CEPA’s online journal dedicated to advancing transatlantic cooperation on tech policy. All opinions are those of the author and do not necessarily represent the position or views of the institutions they represent or the Center for European Policy Analysis.

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