How the UN Cybercrime Convention 2023 can pose a threat to human rights defenders and exiled journalists

Without adequate safeguards, the treaty could legitimize and facilitate the persecution of human rights defenders and journalists beyond national borders

Originally published on Global Voices

By Alexa Zamora

The connectivity of a digitized world has allowed human rights defenders and journalists who have faced persecution to continue their work from countries other than their home countries. However, the 2023 UN Cybercrime Convention presents new challenges for these actors, as, without adequate safeguards, it could facilitate transnational persecution and eliminate the few remaining safe havens. The scope of this convention poses a threat to freedom of expression, cross-border surveillance, and transnational repression, especially for those operating in exile.

The convention was proposed by Russia in 2017 with the stated goal of combating “the problems and threats posed by crimes in the field of information and communications technologies.” Since its inception, it has raised concerns among countries and human rights organizations. In 2019, the UN General Assembly agreed to develop the convention through Resolution 74/247, despite opposition from 60 countries and 33 abstentions.

The resolution was sponsored by countries with historical records of human rights violations, including Russia, China, Myanmar, Nicaragua, Iran, and Venezuela. Organizations such as the Association for Progressive Communications (APC) and the Electronic Frontier Foundation (EFF) warned that the convention could “undermine the use of the internet to exercise human rights and facilitate social and economic development.”

Potential threats to human rights defenders and exiled journalists

Authoritarian regimes have promoted a broad and ambiguous definition of cybercrime, which can encompass legitimate online activities, including criticism of the government and human rights advocacy. This means that publishing articles, organizing online protests, or denouncing abuses are considered cybercrimes, as is the case in Nicaragua, where TikTokers, journalists, and activists have been persecuted and imprisoned under these pretenses.

The convention lacks clear safeguards to protect freedom of expression and other fundamental rights. This means that exiled defenders and journalists could be accused of cybercrime in their home countries for legitimate activities carried out online from abroad. Again, we highlight the case of Nicaragua, where the reform of the Cybercrime Law punishes with prison and fines those who, inside or outside the country, share and publish on social media posts that cause “alarm, fear, panic, or unease” among the population, as stated in a government-controlled parliament communiqué.

Facilitating surveillance and transnational persecution

The treaty proposes mechanisms that facilitate state surveillance and international cooperation in the collection and exchange of personal data. Without strong checks and balances, these mechanisms could be used to track, identify, and persecute activists and journalists in other countries.

One missing check is that the treaty makes dual criminality — requiring the supposed crime to be illegal in both cooperating countries — optional. This principle not only safeguards free expression and dissent but also prevents countries from imposing their laws universally. The ability of states to request data and assistance from other countries without strict requirements for dual criminality or other human rights protections could result in the detention or extradition of people seeking refuge abroad.

There is a precedent for the abuse of international police cooperation systems, such as INTERPOL's Red Notices, to pursue dissidents and critics abroad for political reasons. Countries like China and Bahrain have used these mechanisms to locate and detain peaceful opponents on political grounds. The EFF warns that “the convention risks becoming an instrument of transnational repression.

Elimination of safe havens

With the implementation of the convention, practically no country would remain a safe haven. Broad international cooperation on cybercrime could compel countries that have traditionally offered asylum to comply with requests from repressive states, even if this goes against human rights principles).

Moreover, the absence of a mandatory dual criminality clause puts exiles who operate legally in their country of residence at risk of being pursued under repressive laws in their home nation.

Specific aspects of the treaty that affect exiles

Article 23 allows criminal procedural measures to be applied not only to specific cybercrimes but to any crime involving digital evidence. This includes vaguely defined crimes used to silence dissent, such as “subversion,” “defamation of the state,” “treason,” etc.

The ability to intercept real-time communications without clear restrictions allows states to monitor the activities of individuals abroad. Service providers may be forced to cooperate, even if such actions violate privacy and freedom of expression laws in the country where they operate.

The treaty facilitates cooperation between states without requiring compliance with international human rights standards. This means that a country could request assistance from another to prosecute an exile, and the receiving country would be obliged to cooperate, even if the request were politically motivated.

The implementation of the convention without effective safeguards would endanger the physical and digital security of human rights defenders and exiled journalists. They could face detention or extradition to their home countries, where they would face persecution, surveillance and harassment by the authorities of other countries cooperating with repressive regimes. This would limit their activities from fear of being tracked or persecuted, affecting their freedom of expression and ability to work.

Putting human rights defenders in danger

The 2023 UN Cybercrime Convention, in its current form, presents a significant challenge for human rights defenders and independent exiled journalists. Without robust safeguards, the treaty could facilitate transnational surveillance and persecution, eliminating the few remaining safe havens. It is essential that the international community review and modify the treaty to protect fundamental rights and prevent it from becoming a tool of global repression.

The convention must include mandatory dual criminality clauses, respect human rights, and human rights safeguards, establishing that no cooperation will be provided in cases that could result in violations of fundamental rights. Finally, both transparency and independent oversight are vital to prevent abuses and ensure that measures are used solely to combat genuine cybercrimes.

Without adequate safeguards, the treaty could legitimize and facilitate the persecution of human rights defenders and journalists beyond national borders, putting them at serious risk.

Written by Guest Contributor