UN Treaty: Cybercrime Transcends Boundaries. International Cooperation Can Curb Its Proliferation

The UN Convention against Cybercrime was officially adopted by the UN General Assembly on December 24, 2024, in an effort to strengthen international cooperation for combating certain crimes committed by means of information and communications technology (ICT) systems.

The Convention shall come into force on the ninetieth day from the date of deposit of the 40th instrument of ratification, acceptance, approval, or accession.

While signing a treaty indicates a country’s initial endorsement of its content, ratification requires a country’s formal approval to make it a legally binding instrument.

The key purposes of this UN Convention are to strengthen the measures to prevent and combat cybercrime more efficiently, improve international cooperation, and support technical and capacity-building to prevent and combat cybercrimes, particularly for the benefit of developing countries. 

As of now, India has not signed the UN Convention, owing to some reservations. If India is to sign and ratify the Convention, it would require changes in some of the existing laws in order to make them commensurate with the provisions of the UN Convention.

68 Articles, Nine Chapters

The Convention contains 68 Articles divided into nine Chapters:

Chapter I includes the purpose and scope of the Convention, and various terms used therein. The protection of sovereignty and respect for human rights are also taken care of in this Chapter. 

Chapter II is specific about ten offences, which shall also be predicate offences to bring money-laundering provisions into effect. While most of the proposed offences are covered under the Information Technology (IT) Act, 2000, some offences contained in this Chapter are alien to our laws. It criminalises ‘illegal interception’ when done intentionally using technical means.

The newly enacted Telecommunication Act, 2023, and the recently notified Telecommunication (Procedure and Safeguards for Lawful Interception of Messages) Rules, 2024, contain provisions relating to interception by authorities in the case of any "public emergency".

Though the procedural safeguards laid by the Supreme Court in People’s Union for Civil Liberties (PUCL) v/s Union of India (1996) have been incorporated in the aforementioned rules, they do not punish the authorised agencies for their willful misuse of the powers of interception, nor for the violation of the right to privacy of citizens.

The Convention also provides for the punishment of the "misuse of devices". Thus, the procurement, production, sale, import, and distribution of such devices shall be prohibited.  

Most importantly, the UN Convention provides for curbing child sexual exploitative and abusive material (CSEAM) through an ICT system. While the Supreme Court of India, in the Just Rights for Children Alliance & Anr. v/s S. Harisha & Ors. (September, 2024), elaborated on various measures to check CSEAM, its definition may need a little tweaking to include "written and audio content" as well.

The Convention makes all the ten offences predicate offences to deal with the laundering of the proceeds of crime.

Chapter III, which is on ‘jurisdiction’, is largely compatible with the Indian law. 

Chapter IV, which is on ‘procedural measures and law enforcement’, would require additional infrastructure to be put in place. 

Chapter V, which lays emphasis on 'international cooperation', contains various provisions relating to extradition, protection of personal data, transfer of sentenced persons, and criminal proceedings, and other details pertaining to mutual legal assistance, including when it could be refused on grounds of sovereignty, security, or other essential interests. In order to ensure immediate assistance, a point of contact must be made available round the clock and throughout all days of the week.

There are also provisions with regard to cooperation among law enforcement agencies, including those of the International Criminal Police Organization (ICPO), to facilitate the secure and rapid exchange of information concerning all aspects of the offences, in accordance with the Convention.

Joint Investigation Bodies

The Convention also envisages the establishment of joint investigation bodies by mutual agreement, on a case-by-case basis.

Chapter VI, giving priority to ‘preventive measures’, includes capacity-building of the domestic criminal justice system (including training and developing expertise), the strengthening of security of the service providers’ products, services, and customers, promoting public awareness, and undertaking specific and tailored efforts to keep children safe online.

Chapter VII, which is on ‘technical assistance and information exchange’, specifically includes methods and techniques used in the prevention, detection, and investigation of offences and prosecution of offenders, among others. 

Chapter VIII describes the mechanism of implementation of the Convention, which includes convening the Conference of the State Parties by the Secretary-General of the UN (who shall also provide the necessary secretariat services) and establishing regular meetings to facilitate, inter alia, the exchange of information on legal, policy, and technological developments pertaining to offences, in accordance with this Convention.

Finally, Chapter IX, on ‘final provisions’, provides for the State Parties to take the necessary measures, including legislative and administrative steps, in accordance with fundamental principles of its domestic law, to ensure the implementation of its obligations under this Convention.

There is also a provision to settle disputes through arbitration, and, as a last resort, any party may refer the dispute to the International Court of Justice.

The Need For International Cooperation 

Against this backdrop, India calls for international cooperation. Therefore, it is necessary to frame a universal criminal justice policy by adopting legislation, a holistic framework, and fostering international cooperation.

It is time for all States to establish a robust legal framework so that cybercrimes, which know no boundaries, can be dealt with effectively. 

(RK Vij is a retired IPS officer. Views are personal.)