International Community Has Become Closer to “Cybercrime Vaccine”

19:20 06.08.2021 •

Unofficial translation

The COVID-19 pandemic has made humankind dive into the virtual space and digitalise economic and everyday life. Crime, having dynamically adapted to the modern context, has rushed to take advantage of information and communication technologies (ICTs). Fishing, ransomware, DDoS attacks and cyberattacks have often been covered by the media and have become an integral part of our lives. In an era of unrestrained digitalisation, computer attacks can be followed by devastating consequences and lead to disasters related to national security. Meanwhile, the activities of cyber criminals are still mostly aimed at seeking financial gain. The pandemic has given them a new impetus and exposed long-standing issues. They are largely related to the shortcomings of States’ national legislation and the current system of international cooperation in this area. The existing multilateral instruments were elaborated 10-20 years ago and objectively do not keep pace with the cybercrime activity. Bilateral communication channels between the States’ law enforcement agencies are far from being perfect.  It is especially noticeable when crimes are committed within just a few minutes, while it can take from a couple of weeks to two to three years to receive a response to the request for electronic evidence.

Therefore, it is not surprising that in recent years there has been a significant increase in the damage caused by cybercrime. Its scope is staggering. While in 2018, UN Secretary-General Antonio Guterres emphasised that the annual damage from cybercrime amounted to 1.5 trillion USD, in 2021, this figure may reach 6 trillion USD. Given that many companies and States are used to not reporting such incidents, real figures may be significantly higher. Meanwhile, cybercrimes are committed remotely and often from the territory of other countries, and no State in the world is capable of combating them alone.

With that understanding, Russia was the first at the UN as the main global negotiation platform to raise the issue of elaborating a comprehensive practical mechanism under its aegis focused on cybercrime and aimed at combating it. The key message is to consolidate global efforts to fight cybercrime, to severely hamper the activities of offenders and leave them no loopholes to evade justice, even if the chain of events involves the jurisdiction of several States from different regions of the world with different legal systems. A lot of developing States have been seriously suffering from this phenomenon; however, they do not have enough potential to combat cybercrime alone. Given that the UN Convention against Corruption (UNCAC) and the UN Convention against Transnational Organised Crime (UNTOC) have gone the same way, these States share a positive perception of the elaboration of a universal convention against cybercrime.

Yet, at first, this idea faced the serious opposition of Western States that had been actively promoting the Council of Europe’s Convention on Cyber Crime of 2001, better known as the Budapest Convention, for many years as some “gold standard” in this area. 65 States became parties to it. Russia and the majority of the UN Members did not sign this Convention due to its serious shortcomings, chief among which are the low number of offences (only 9), the lack of official statistics on its implementation, as well as the high risk of violating the principle of State sovereignty and fundamental human rights and freedoms of a State Party to the Convention under the pretext of combating cybercrime (Article 32 “b” on trans-border access to data).

Meanwhile, the apologists of the Budapest Convention for a long time blocked any discussion at the UN on the development of common standards in this area, claiming there was no alternative to their brainchild. Therefore, although the real cooperation between the States was moving forward, it was not moving at the right speed, and from a policy perspective, it was even stalling. This lead to local legislative initiatives and mechanisms being proposed in different countries, the fragmentation of international cooperation and, as a result, a surge in unlawful actions in the information area.

Russia has managed to change this negative trend having suggested the idea of creating a negotiation platform to elaborate the first-ever UN Convention on cybercrime to the international community. This resulted in the establishment of an Ad Hoc Intergovernmental Committee of Experts to Elaborate a Comprehensive International Convention on Countering the Use of ICTs for Criminal Purposes under the Aegis of the UN (hereinafter – the Ad Hoc Committee) in pursuance to UNGA resolution 74/247 of 27 December 2019. 47 States co-sponsored the document, although a year earlier only 5‑10 delegations could speak into the microphone at profile venues about the idea of developing global instruments.

Thus, at first, some Western partners tried to stall negotiations by using procedural tactics and appealing to the threat of the pandemic. Yet, the outcomes of the political discussions and voting results at the UN in New York demonstrated that the whole world needs a global treaty in this area to obtain an effective mechanism aimed at curbing the cyberthreat and that it cannot wait any longer.

The background to the negotiations has therefore changed. Despite the rigid positions of various delegations, informal consultations on the future convention contributed to the launch of a dialogue aimed at reaching serious political agreements. It was no longer a question of whether there was a need for a convention, but of how to develop it quickly and effectively.

As part of the preparation for the organisational session of the Ad Hoc Committee (10-12 May 2021), the Russian delegation headed by the Deputy Director of the Department of International Information Security of the Russian MFA Dmitriy Bukin, held several rounds of negotiations with the representatives of the US Department of State, who had previously opposed the establishment of the negotiation platform. However, this time, the dialogue between the countries resulted in a compromise text of a draft resolution on the modalities of the work of the Ad Hoc Committee, which formed the basis of the UNGA resolution 75/282 adopted by consensus.

This was accompanied by the attempts to postpone the consideration of the aforementioned draft resolution, the dates of the organisational Session of the Ad Hoc Committee were changed twice under the pretext of the pandemic, however, the outcome was inevitable and the elaboration of the universal convention on countering ICT crimes was started at the Russian initiative and in the interests of the whole international community. This has become a serious diplomatic achievement in combating cybercrime and a proof that our country has been making a significant contribution to the fight against it.

Law enforcement experts and diplomats of the UN Member States have in fact two years to elaborate a global convention with participation of all parties concerned and to submit it to the UNGA for consideration and approval as early as in 2023-2024 during its 78th Session. To this end, the Ad Hoc Committee will hold seven substantive sessions, 4 of them in New York and
3 of them in Vienna. The first meeting is scheduled for 17-28 January 2022.

The complex and broad negotiations with a significantly increased number of meetings demanded an active involvement of young diplomats of the Russian MFA Department of International Information Security – Second Secretary L.Chernyshova, Third Secretaries A.Kusayev and A.Khamidullin. It has become common practice for them to hold regional and bilateral informal meetings and to present Russian initiatives, preparing the necessary documents, which will then receive the status of a UN document. Considerable time was devoted to public speeches which sometimes involved engagement in debates with venerable opponents ending up with young diplomats coming out winners. The proximity of the young generation of diplomats to the ICT environment and their understanding of its specifics made it possible to accurately convey the essence of the problem and clear arguments to the delegations of other States, which played a positive role in the end. Young professionals have therefore justified the confidence.

Russian Permanent Mission to the UN in New York headed by Vasily Nebenzya and Russian Mission to International Organisations in Vienna headed by Mikhail Ulyanov made a significant contribution to the implementation of the Russian diplomacy. Together with experts from the Permanent Missions, considerable negotiating work has been done to convince other countries that Russia does not consider it a routine process but one of the national and international policy priorities driven by an urgent and real cyber security problem. Altogether, this has enabled the international community to move away from the previous degree of political confrontation and towards a professional and constructive dialogue on such a complex topic.

Once the negotiating platform to elaborate a global treaty on countering ICT crimes had been created and launched, the next step was to decide on its actual contents. The practice of developing such instruments usually involves one of the two options: proposing an initial draft convention or negotiating the key parameters and a skeleton of a future mechanism, which is later supplemented by suggestions from delegations. In view of the limited time allocated to the Ad Hoc Committee to elaborate the convention, Russia chose the first option.

To this end, on 27 July 2021, Russia's interagency delegation in Vienna headed by Deputy Prosecutor General of the Russian Federation Pyotr Gorodov submitted a Russian draft of the first ever universal treaty on countering cybercrime to the Ad Hoc Committee as an input to its work. The document was transmitted to the management of the United Nations Office on Drugs and Crime, which oversees issues of the fight against cybercrime and acts as the secretariat of the Ad Hoc Committee, and to Faouzia Mebarki, the Chairperson of the Ad Hoc Committee and Permanent Representative of Algeria to the International Organisations in Vienna. Russia's Permanent Representative to the International Organisations in Vienna Mikhail Ulyanov as well as Dmitry Bukin took part in the presentation of the draft.

The Russian Federation, which proposed the creation of the relevant negotiating platform back in 2019, was thus the first to come up with substantive contents for the development process of this much needed international instrument. The document is currently being circulated in preparation for the Ad Hoc Committee's first substantive session. The delegations will now have something to build on right from the outset of the Committee's work, which will make things much easier for everyone – country delegations, leading world experts as well as the UN Office on Drugs and Crime, by significantly reducing its expenses.

The Russian draft of the convention was elaborated by country's leading experts within the framework of the Interagency Working Group on Cybercrime established under the auspices of the Prosecutor General's Office of the Russian Federation.

This is an innovative document that has a number of significant advantages over existing instruments. It covers 23 offences reflecting major and current trends in the field. These include unauthorised access to personal data, drug and weapons trafficking, involvement of minors in illegal activities, inducement to commit suicide, illegal distribution of counterfeit medicines and medical devices, cyberterrorism, rehabilitation of Nazism and many others.

The document draws on the provisions of the UN Convention against Corruption, the UN Convention against Transnational Organized Crime and the Budapest Convention, which are well familiar to States. This will not require changing the already established elements and rules of international cooperation but will only complement them with the specifics of the ICT environment and facilitate their incorporation into the national legislation of States. The document includes an extensive set of definitions and establishes procedures for legal assistance in criminal matters, including identification, seizure, confiscation and recovery of assets. It also outlines emergency interaction mechanisms, which are simply indispensable today to make the work of law enforcement agencies considerably faster and more effective when investigating cybercrimes which require immediate response and cooperation with other countries.

An important achievement of this draft convention is that it ensures a balance between protection of personal data, respect for state sovereignty and human rights. At the same time, the document provides for the active use of modern technologies, for example for interrogations and other procedural actions, not previously available to experts in the field. The principle of "extradite or prosecute", one of the pillars of international cooperation in criminal matters, is enshrined in relation to persons suspected of committing a crime and sought for extradition.

For developing States, which appear to be the most vulnerable in the digital environment and thus need serious support, the draft creates a solid international legal basis for providing them with extensive technical assistance, including staff training and material support in combating crimes involving the use of ICTs. Given the digital divide, this issue, being for them the most burning and the most often raised within the UN, is also the key to their stable and progressive economic development.

For some Parties to the Budapest Convention, the prospect of having two instruments at once – a universal document and a regional one – is not a problem but, rather, an asset as their law enforcement agencies will have a greater choice of tools to find, apprehend and convict criminals. This means there is a chance to come up with compromise solutions for the final document during negotiations.

Considering the specific nature of the topic and the differences in approaches, Russia is prepared to receive comments and suggestions on this document from all interested parties, so that we could work together to create a truly effective instrument to counter cybercrime reflecting the current realities. This is a historic chance for all of us to join efforts and take a huge step forward in the fight against the common enemy. We trust that the proposed draft convention will help unite and direct the efforts of the world community towards the development of practical solutions in this area.