Russia Is Fighting for a Treaty That Could Soon Change the Internet Forever

A committee established through Russia's initiative is finalizing the draft for what would be the first-ever legally binding United Nations treaty to crack down on cybercrime.

But as the provisions of the potential landmark deal take shape in talks that began Monday in New York, Moscow wants the agreement to go even further.

"Whether it has promising results or becomes another failure depends on the member states negotiating the document," Artur Lyukmanov, who serves as director of the Russian Foreign Ministry's International Information Security Department and special representative to President Vladimir Putin on international cooperation on information security, told Newsweek. "Discussions are very difficult."

The effort has made significant progress, however, since it began with a U.N. resolution led by Russia and co-sponsored by 46 other nations to establish the Ad Hoc Committee (AHC) to work toward a U.N. convention on battling illicit online activity.

The resolution ultimately won the support of 79 nations and was successfully adopted in December 2019, despite opposition from 60 other countries, including the United States and a number of Western nations.

While Washington and other critics have since joined the treaty-building process, they have continued to express concerns that a broad, open-ended convention could afford governments sweeping powers to rein in internet freedoms and legalize far-reaching restrictions.

As the seventh and concluding session is held from January 29 to February 9 among the AHC, currently chaired by Algeria and comprised of international experts and representatives, Lyukmanov offered some insight as to where the treaty currently stands—and where he believes it needs to get tougher.

'Modest Successes'

Lyukmanov pointed out what he called three "modest successes" in the latest revisions to the draft text provided by AHC Chair Faouzia Mebarki of Algeria.

The first victory thus far, according to Lyukmanov, is that "the draft convention encourages law-enforcement cooperation throughout the provision of technical assistance."

This, he argued, "is an attempt, still timid and uncertain, to create and subsequently improve a new norm of international law aimed at overcoming technological inequality and neocolonial practices."

Lyukmanov stated that "the draft text includes provisions on combating fraud and other financial crimes," such as the laundering of criminal funds, "as well as combating child pornography," a crime he referred to as "a plague in the information space, which is disseminated by the use of ICTs (information and communication technologies.)"

And finally, he argued that "an essential element of the draft convention is the exchange of electronic evidence."

"It lays the foundation for substantive, depoliticized interaction between law-enforcement agencies and creates mutual legal assistance channels," Lyukmanov said. "This is carried out for the purpose of effective criminal justice against offenders and attackers, who get certain advantages in the use of ICTs due to lack of international regulation of the information space."

Still, he felt the document as it stands falls short of fulfilling the original U.N. resolution's mandate of achieving a "comprehensive treaty" that is "aimed at countering" rather than simply investigating cybercrime. As such, he felt the text constituted only a "slightly modified version" of the Council of Europe-initiated Budapest Convention that marked the first legally binding treaty on cybercrime in history when it was established in 2001.

The Budapest Convention has been ratified by 68 nations, including most of the Western countries and their allies that initially opposed the AHC. They have argued that the convention still holds up more than two decades later. Russia and other countries that backed the push for a new cybercrime treaty, including China, India, Iran and much of the developing world across Asia and Africa, have never signed on to the Budapest Convention.

Lyukmanov asserted that those who drafted the latest version of the new cybercrime treaty have left out "the criminalization of the most dangerous offenses, which have become a scourge for all countries."

"They seriously took into account only arguments of developed countries," Lyukmanov said, "from which we never received an explanation of why they cooperate with each other in matters of countering the dissemination of terrorist and extremist ideas, including even Nazism, as well as drug, weapons, illegal medicines trafficking, but refuse to cooperate under the auspices of the U.N."

"How is this explained from the point of view of not only their domestic legislation, but the current U.N. Security Council resolutions and the recommendations of its Counter-Terrorist Committee?" he added.

To challenge these perceived shortcomings, Lyukmanov said that "Russia has presented its views on this matter to the AHC and calls on it to take a more active, responsible position in the implementation of its decisions of international law, and refrain from excuses that the provisions on countering terrorism and extremism with the use of ICTs are non-consensual."

Coercion to Suicide

Other elements described by Lyukmanov as "disappointing" include "the refusal of some member states to cooperate against children's encouragement of or coercion to suicide with the use of ICTs."

"It is absolutely incomprehensible to us," he said. "So-called teen-death groups have become an international phenomenon. Criminals who are satisfied when coercing a child to suicide from behind the screens of ICTs, have a much in common with recruiters of terrorists and neo-Nazis, distributors of drugs and weapons."

He also argued that the current text "does not provide for the procedure for implementing special investigative techniques, creating platforms and communications channels between law agencies."

Beyond this, Lyukmanov asserted that efforts were being made to "dilute" key elements pertaining to the disclosure of information by making them optional or by "saturating the convention with references to human rights and gender perspective as well as sexual orientation."

"In contrast to Russia, Washington advocates maximum harmonization of the U.N. and Budapest conventions," Lyukmanov said. "This means that instead of a comprehensive approach, as enshrined in the AHC mandate, the countries of the collective West are agitating for a narrow scope and criminalization, and are aggressively imposing gender and human rights issues."

He took particular aim at what he described as a group of around 40 to 50 countries, including the U.S., the European Union and their allies, that he alleged was attempting to impose a weaker treaty on the majority of nations while having strong legislation against cybercrime at home.

Having opposed the initial efforts to establish the AHC in the first place, these nations have, in Lyukmanov's view, "moved from direct rejection of the idea of a future convention to tactics of covert sabotage and emasculating the content of the international treaty from within."

The Human Rights Problem

President Joe Biden's administration, however, frames its approach to the talks very differently.

"The United States is advocating for a tailored 'fit-for-purpose' criminal justice treaty that increases international cooperation, protects human rights, and supports multi-stakeholder engagement," a U.S. State Department official told Newsweek on the condition of anonymity.

"We are working with a broad and growing coalition of Member States committed to a focused and consensus-based global cybercrime treaty grounded in existing practices to allow all U.N. Member States to effectively fight the scourge of cybercrime," the State Department official added.

Responding to Russia's grievances with the U.S. push for a more narrow and specific convention that, the State Department official argued that "a limited number of States have proposed the inclusion of a long list of often vaguely worded additional cyber-enabled crimes which are either undefined or covered by other instruments."

"These do not enjoy consensus and, in several cases, are blatant attempts to legitimize an authoritarian view of the Internet," the State Department official said. "We believe a more productive approach is to focus on the list of crimes which do enjoy consensus. It is critical in our view that, as we enhance cooperation, we also build in strong safeguards and strong human rights protections. That is the only way UN Member States can build trust in our joint enterprise."

A failure to reconcile these opposing views threatens to derail the process to reach a milestone treaty.

"The biggest barrier to international cooperation will be if a significant number of Member States cannot to ratify the convention because it has insufficient human rights and safeguards," the State Department official said. "Promoting respect for human rights is a U.S. foreign policy priority that furthers our national interests and security."

In this vein, the State Department official argued that "the core offenses" outlined by the latest draft of the treaty "currently enjoy consensus and are sufficient to cover a wide range of criminal activity, including many of the harms raised by those seeking additional criminalization provisions." Washington believes that "issues such as terrorism, the criminalization of speech, cybersecurity, and Internet governance, are not within the mandate of the AHC," according to the official.

Additionally, the State Department official noted that the text currently presented to the AHC "uses technology-neutral language so that the substantive criminal law offenses may be applied to both current and future technologies."

The Fight to the Finish Line

Amid lingering concerns that the new treaty may allow for overly broad interpretations of what constitutes "serious" online offenses, a submission to the AHC put forth by Canada on behalf of the EU, its member states and 22 other countries, including the U.S., warned that "the scope of the draft Convention and its constituent components has expanded significantly beyond a clearly defined list of core cyber-dependent offences and a few consensus-based cyber-enabled offences."

"There is a continuous push by some to further expand the list of Convention offences, introduce broad catch-all provisions, and generally increase ambiguity as to the scope and application of the treaty," the statement added.

From Lyukmanov's perspective, however, such protests are not rooted in human rights concerns, but rather "the fact that the U.N. process does not fit into the U.S.-imposed paradigm of a 'rules-based order'" in which Lyukmanov said "international cooperation is not implied."

"But anyway, the world still does have some time to change the situation for the better and to agree on a truly effective and sought-after treaty at the concluding session of the Ad Hoc Committee," Lyukmanov said.

"There is no alternative to a future comprehensive convention under the auspices of the U.N.," he added. "We call on U.N. member states to commit themselves to fulfilling the mandate to develop a comprehensive international agreement."

Update, 1/29/24 5:20 p.m. ET: This article was updated to include comments from a U.S. State Department official.