This summer, the United Nations reached a milestone by agreeing on a draft for its first-ever international convention against cybercrime. This significant step raises numerous questions about how this new framework will coexist with existing treaties, particularly the Budapest Convention, established by the Council of Europe. To many in the field of cyber policy, the relationship between these two conventions is crucial in the global fight against cybercrime.
Status and Parties Involved
The UN’s Cybercrime Convention, while drafted, has not yet been formally adopted and will require ratification by at least 40 UN Member States to come into force. In contrast, the Budapest Convention is a legally binding treaty that has already been ratified by 76 countries, including both member and non-member states of the Council of Europe. This disparity in status and adoption processes outlines a significant difference between the two frameworks.
In addition, the Budapest Convention has two protocols, one focusing on the prevention of xenophobia and racism online, while the other pertains to the enhancement of cooperation and electronic evidence sharing, which was only recently ratified by Serbia and Japan.
Scope and Purpose
While both conventions aim to address cybercrime, their scopes differ. The Budapest Convention specializes in specific offences such as illegal access and data interference, while also outlining procedural powers and fostering international cooperation for obtaining electronic evidence. It specifically provides a framework for cross-border access to electronically stored data.
On the other hand, the UN Convention adopts a broader approach. It emphasizes the importance of not just combatting cybercrime but also of preventing it. A notable focus of the UN Convention is on technical assistance and capacity building, particularly for developing countries. Its scope includes serious crimes punishable by severe penalties, offering a less detailed focus on individual cybercriminal acts compared to the Budapest Convention.
Definitions and Legal Instruments
A striking aspect of the legal language in the UN Convention is its use of broader terms such as ‘information and communication technology systems’ as opposed to the more limited ‘computer systems’ found in the Budapest Convention. This choice expands the applicability of the UN Convention to newer devices and technologies, creating potential overlap with domestic laws.
Moreover, the UN’s approach could lead to misunderstandings regarding its scope, especially with features like electronic data potentially allowing for the collection of data related to all national laws, thus raising civil rights concerns. The Budapest Convention is viewed as more focused, primarily tackling cyber-dependent crimes rather than broader infractions.
Criminalization of Offences
While both frameworks address similar types of cybercrime, the UN Convention has opted to criminalize an expanded range of conduct. For instance, although illegal access definitions align in both documents, the UN Convention also addresses money laundering, thereby covering previously overlooked areas.
One vital distinction lies in how each convention handles child protection. The UN Convention not only addresses possession and distribution of illegal materials but criminalizes preparatory actions such as grooming or solicitation. However, this expansive approach could also pose risks, as individuals might be penalized for merely possessing or engaging with certain types of content, particularly if law enforcement utilizes real-time data collection tactics.
International Cooperation Mechanisms
When discussing international cooperation, the Budapest Convention stands out due to its broad application, allowing for collaboration on electronic evidence related to any criminal offence. Its established procedures and networks, such as 24/7 contact points, support swift cross-border cooperation.
In contrast, the UN Cybercrime Convention restricts this cooperation to what it defines as ‘serious crimes.’ While it provides mechanisms for shared data access, critics have pointed out issues regarding confidentiality and transparency, raising concerns that these measures could be used for surveillance or infringement on privacy rights.
Conclusion: The Future of Cybercrime Treaties
As both conventions aim to establish a coordinated response to cybercrime, the compatibility of their frameworks is essential. The Budapest Convention has served as a foundational document for international cyber policies, while the UN Convention attempts to adapt these strategies to a broader context.
To foster effective cooperation and avoid legal fragmentation, the diplomatic community will need to work to ensure these frameworks underpin each other rather than compete. The onus on member states will be to implement both conventions in a manner that aligns with human rights standards and international norms.
The journey forward for these two critical instruments in the fight against cybercrime will be complex, requiring careful negotiation and mutual understanding to ensure cohesive global cybercrime prevention efforts.
