Global protection against cybercrime now within reach

HE Faouzia Mebarki explains why the first United Nations effort to create a legally binding instrument on a cyber issue could have far-reaching impacts.

Interview Published 14 June 2023 5 minute READ

HE Faouzia Mebarki

Permanent Representative of Algeria, United Nations

Since 2021, United Nations (UN) member states have been engaged in a negotiation process to develop a convention aimed at countering the criminal use of information and communications technologies (ICTs) – commonly known as the UN cybercrime convention.

This convention would be significant for global cybercrime policymaking, as it has the potential to improve international cooperation while also empowering (and building capacity for) national law enforcement authorities to investigate and combat cybercrimes.

It could also be an opportunity to strengthen criminal justice safeguards and reduce the risk of using cybercrime laws to impose arbitrary restrictions on rights and freedoms.

But, if drafted without sufficient human rights safeguards, the convention could pose a significant risk to human rights by inadvertently legitimizing the expansion of government control over online content which in turn could lead to the criminalization of free speech and reshape law enforcement access to data, potentially undermining the right to privacy and other fundamental rights.

The chair of the process, HE Faouzia Mebarki, is about to publish a draft of the convention for discussion, based on agreements reached by UN member states and outlining proposed compromises on the remaining contentious issues.

In this interview, the chair talks to Joyce Hakmeh about the progress achieved so far and discusses the approach she will take in the draft to bridge the gaps between states and increase the likelihood of achieving consensus at the end of the process.

Despite disruptions caused by COVID-19, the ad-hoc committee (AHC) has made considerable progress. Has the process unfolded differently to how you expected it to? What would you count as the AHC’s main achievement so far?

From the first session of the committee, the process was put on track thanks to the adoption of the mode of work and the roadmap. The steps and deadlines set out in the roadmap have been rigorously followed and respected so far.

I hope we will continue with this same momentum to carry out the mandate of the committee within the given timeframe. I am therefore delighted that the process is moving forward in a way that respects the mode of work and the roadmap that was adopted by consensus during the first session. This was possible thanks to the constructive engagement of all member states and other stakeholders.

My hope is that all member states will be open to positively considering the solutions proposed in the draft text of the convention and refrain from sticking to their initial positions

This leads me to say that the main achievement we have been able to accomplish thus far is involving all member states and ensuring they have ownership of the process due to the neutrality of the chair and the Secretariat, as well as the transparency and inclusivity in conducting the work, which has fostered a relationship of trust between the chair, the Secretariat and the member states.

Also, the participatory approach, notably the presentation of negotiating texts based on the written contributions received in advance from states. The co-facilitated informal process, the regular meetings of the Bureau and the openness to contributions from other stakeholders have also reinforced this participatory spirit.

All eyes are on the zero draft that you will be producing soon and there remains several issues that states disagree on, especially the scope of the convention and its human rights safeguards. What is the approach you will be following in the draft to increase the chances for a consensus?

I prefer to use the term established in the roadmap and work plan, which is the ‘draft text of the convention’ as this better reflects the progress made so far. The term ‘zero draft’ implies a beginning, whereas we are at an advanced stage of the negotiations.

After five sessions, we now have a clear understanding of the positions, points of divergence and points of convergence. The ‘draft text of the convention’ is therefore a title which aims to reflect this progress.

Our approach in developing the draft text of the convention is the same as the one we have followed so far, with transparency, inclusion, and good faith as its guiding principles. The draft text will thus be the sincere expression of my perception of a possible compromise.

This perception is, of course, based on objective parameters, namely the positions expressed by the member states during the formal sessions, the informal sessions, and the numerous bilateral consultations that I have conducted. The views expressed by other stakeholders, including experts, will also be taken into account.

In a nutshell, the document that we will publish soon will be a text based on what I consider common ground. It also offers compromise solutions for issues of divergence.

You have been a strong advocate of multistakeholder participation since the process begun. How do you evaluate multi-stakeholder contributions so far and, at this point in the process, what kind of contributions would add the most value?

I am convinced we cannot overlook the expertise and advice of other stakeholders in a process like this. Several provisions of the future convention rely on the cooperation of service providers for their implementation, which requires us to listen to their perspectives and concerns.

The protection of victims and of fundamental freedoms is also at the centre of what several civil society organizations and NGOs do, hence the need to listen to them to better understand the realities on the ground. Universities and research centres can also help us better understand new forms of crime and the trends that we need to take into consideration.

It is for these reasons that I worked for the ad-hoc committee to adopt modalities that allow meaningful participation and substantial engagement of other stakeholders through written contributions, their presence at formal sessions with the opportunity to speak, and inter-sessional meetings which are specially dedicated to them.

I am satisfied with the level of engagement of the multi-stakeholders and find their contributions useful and relevant. I express my gratitude to all the representatives of multi-stakeholders who actively participate in our work.

It is important for multi-stakeholders to continue to offer their expert advice to member states throughout the rest of the process, while adapting to the new status of the negotiation. Once the draft text of the convention is available online, it would be interesting to read and listen to their objective comments on the proposed compromise solutions.

The AHC process has had a strong level of gender diversity so far and several states have been vocal about issues such as gender perspectives and cybercrime. In your experience, what value does gender representation bring to negotiations like these? And what approach will the convention take to mainstream a gender perspective?

I am very satisfied with the level of participation of women in the work of our committee. During the last session, 42 per cent of the delegates were women and we are close to achieving gender parity. I hope we will reach it in our next session.

I would like to thank the member states which funded programs to enable an increased presence of women. This level of participation from the early stages of the negotiation process is, in my opinion, the most effective form of mainstreaming a gender perspective.

Regarding the way in which the gender perspective should be reflected in the text of the convention, I believe that you have been following the debates and have observed, like me, there is a divergence of views. As with the other issues, this aspect will also be covered by the draft text of the convention, which will propose a compromise solution.

There are many scenarios for how this process could end. From your perspective, what are the risks of not reaching consensus, and what can be done to prevent it?

I am rather optimistic about the outcome of the process. There is increased ownership by member states and a real interest in the creation of this new legal instrument. This commitment from countries demonstrates the existence of a political will to achieve a concrete result.

It is important for multi-stakeholders to continue to offer their expert advice to member states throughout the rest of the process, while adapting to the new status of the negotiation

My hope is that all member states will be open to positively considering the solutions proposed in the draft text of the convention and refrain from sticking to their initial positions. Therefore, in my opinion, the biggest risks of deadlock are rigid positions and a refusal to adapt to the developments generated by five formal negotiation sessions and several informal consultations.

It is clear that to prevent impasses, negotiation in good faith and a willingness to accept concessions and explore compromise solutions are key factors.

The AHC process is not the only cyber-related process happening at the international level. How do you think this process will impact multilateral cyber governance more generally?

Even though there are substantial differences in the thematic and legal nature between ongoing international cyber processes – such as the IGF and the Open-ended Working Group on Security of and in the use of ICT (OEWG) – there are still connections and overlaps between them.

They all aim to ensure an open, safe, stable, accessible, and peaceful cyberspace, so it is therefore normal for the work of these different processes to influence each other. In doing so, the success of the committee could generate positive momentum within other processes.

How does this convention complement existing treaties on transnational organized crime and corruption (UNTOC and UNCAC) and what is the legacy you would like the convention to have?

Offences covered by other instruments such as UNCAC and UNTOC are greatly facilitated and aggravated by the development and expansion of the use of new technologies.

Global protection against cybercrime now within reach 2nd part

The convention we are negotiating is expected to include mechanisms for international cooperation, adapted to the volatile and transnational nature of cybercrime and crimes which are facilitated by new technologies, particularly in the rapid preservation of data and the collection of electronic evidence.

The new convention can complement UNCAC and UNTOC by providing adequate tools and appropriate and rapid communication channels for the preservation, collection, and sharing of electronic evidence for the crimes covered by other international instruments.

I sincerely hope this open and inclusive process will result in a practical and universal legal instrument with the potential to improve the collective and coordinated responses of the international community to the challenges of cybercrime and crimes facilitated by new communication and information technologies.

And I hope this will also be an instrument which effectively contributes to the prevention of these crimes and the protection of victims.