U.S. Statement as Delivered at the Fifth Session of the Ad Hoc Committee by Ambassador Deborah McCarthy (Ret.) under Agenda Item 5 – Technical Assistance
Tuesday, April 18, 2023, Vienna, Austria
Good morning, Chair and distinguished colleagues. We are here because cybercriminals are determined in their efforts to pursue profit and or other objectives, harming citizens and organizations around the globe. A key defense against their efforts is increasing the capacity of our global and collective effort to prevent and combat these crimes. Training and technical assistance are a critical piece of that.
The United States has, and will continue to have, a robust cybercrime training and technical assistance program. Early on in our deliberations we sent to the Secretariat, on the suggestion made by the delegation of Brazil, an outline of our global assistance programs.
The United States funds two global programs which address cybercrime: the U.S. Transnational and High-Tech Crime Global Law Enforcement Network, and the International Law Enforcement Academies. Both programs have a global reach and have been operation for a collective near 40 years.
The Global Network deploys twelve U.S. attorney advisors worldwide, with locations in Sao Paulo, Panama City, Bucharest, The Hague, Zagreb, Abuja, Addis Ababa, Hong Kong, Kuala Lumpur, and Bangkok, in addition to two global advisors. The International Law Enforcement Academies – or ILEA for short – has six academies worldwide. More than 70,000 alumni have trained in Accra, Budapest, Bangkok, Gaborone, San Salvador, and Roswell New Mexico, in the United States.
The United States also supports training and technical assistance work through international organizations with expertise in this space. Some of those organizations include the UN Office on Drugs and Crime, the Council of Europe, and the Organization of American States. Last year, the United States was proud to contribute $3 million dollars in U.S. funding to the UNODC’s Global Program on Cybercrime.
In order for the United States to continue supporting training and technical assistance globally, there needs to be flexibility, to allow us – and other donor States – the ability to adapt and respond to future needs including emergencies. We should not prescribe technical assistance modalities in detail, at the risk of excluding other modalities or interfering with existing assistance commitments. With this in mind, I will offer our feedback on the articles in this essential chapter.
Article 86
- As written, we are concerned that Article 86 implies that one cannot provide technical assistance unless one is providing technical assistance to all countries. We echo the points made by the EU yesterday, and the spirit of the Australia’s proposal, which we will study more. We agree technical assistance is critically important, but not every country requires technical assistance, nor is it feasible to think every technical assistance provider can provide for such a broad scope. Finite resources across donor countries must be prioritized to conduct activities that can have the most impact. We therefore propose this article as written be deleted but remain open to working with Member States to arrive at an article that provides the necessary flexibility.
- Before turning to Article 87, I would like to note that we would not support the inclusion of technology transfer. Additionally, the United States does not support technical assistance for all offenses involving ICTs. This would expand the application of this chapter to all crimes, rather than cybercrime. This goes well beyond the mandate of our Committee and what should be the focus of our negotiations.
Article 87
The United States generally supports Article 87. We propose edits as follows.
- In paragraph 1, the United States proposes deletion of “especially for the benefit of developing countries.” We recognize the importance of technical assistance and training, in particular considering the needs to developing countries, but believe we should provide broad flexibility when considering technical assistance and training needs. The United States cannot support reference to “material support” as we believe it is too prescriptive for a binding criminal justice instrument, and we propose deletion of this phrase. Finally, we recommend deleting the last clause “in the fight against cybercrime” and replacing it with “in the areas of extradition and mutual legal assistance,” as the CND formulation is broader than Article 60, paragraph 2, in UNCAC.
- In paragraph 2, the United States proposes edits to the last clause. The last two clauses should read as follows: Such programmes “could” include, “inter alia,” secondments and exchanges of staff. Such programmes “could” deal, “inter alia,” in particular and to the extent permitted by domestic law, with the following.”
- The United States finds 2 c as it is too vague, and we feel it is covered by 2 a. We propose 2 c be deleted.
- The United States proposes the deletion of “including the maintenance of the chain of custody” from 2 d, taking into account that chain of custody is a matter of domestic law, and does not need to be referenced here.
- In 2 e, the United States proposes striking “the use of” ahead of evidence-gathering and investigative methods.
- In 2 f, the United States greatly supports UNODC’s involvement in the field of technical assistance and training. However, in a legally binding criminal justice instrument, we do not feel it is appropriate to identify a single organization to provide support to the State Parties of this convention. There are many organizations which may provide such assistance, in addition to support delivered bilaterally through States Parties, and we do not wish to preclude those alternative implementors and donor programs.
- In 2 g, the United States proposes the deletion of “controlled deliveries and undercover operations.” We do not anticipate reaching consensus on Special Investigative Techniques in the treaty, and should that be the case, we should not include reference to it here.
- 2 i and j are unclear. The United States proposes replacing the text of 2 i and j with the similar UNTOC clause, which reads “Detection and monitoring of the movements of proceeds of cybercrime, including methods used for the transfer, concealment or disguise of such proceeds, property, equipment or other instrumentalities.”
- In 2 k, the United States proposes the term “established” rather than ”covered” by this Convention.
- In 2 L, the United States proposes simplifying this paragraph. Some cooperation may only occur with the police and may not include the court depending on each Member State’s domestic law. As such, we propose the text read as follows: “Methods used in the protection of victims and cooperating witnesses;”
- In 2 m, the United States proposes deletion of “personal data” because, while we do view with importance the protection of data, it is not internationally recognized as a stand-alone human right. We have also proposed the addition of “from arbitrary or unlawful interference” ahead of “respect for due process.” We welcome further explanation from Member States that support this sub paragraph.
- In paragraph 3, in the aim of maintaining flexibility, the United States proposes the following changes: add “consider” to the first phrase, to read “States Parties shall consider assisting,” strike “paragraph 1 of”, and change the latter part of the paragraph to read “shall also consider.”
- The United States proposes deletion of paragraph 4. We feel the objective is met elsewhere. Such obligations could be time intensive and burdensome on our practitioners, drawing them away from their primary obligations.
- In paragraphs 5, the United States proposes following changes: “States Parties shall consider promoting,” and “such training and technical assistance could include, inter alia.”
- In paragraph 6 the United States proposes the replacement of “shall” with “may” in the first line.
- In paragraph 7, the United States propose deletion of “are strongly encouraged,” to be replaced with “shall.”
- In reference to paragraph 8, the United States proposes its deletion. Again, we do not want to be overly prescriptive when identifying technical assistance needs as they vary immensely, and we need to allow flexibility to the donors providing such assistance and the beneficiaries receiving such assistance.
- With reference to paragraphs 9 and 10, we recommend deletion. Here too, while we strongly support UNODC’s role in providing excellent training and technical assistance support, we do not feel it appropriate to identify UNODC as such a provider of assistance within the context of a legally binding instrument.
Article 88
The United States generally supports Article 88. We have a few edits throughout.
- On paragraph 2, the United States proposes deletion of “with a view to developing, insofar as possible, common definitions, standards and methodologies” because we are opposed to establishing common international standards and methodologies. Such obligations will create burdens for our practitioners. Further, harmonization of those standards across UN Member States would be incredibly complex.
- On paragraph 3, the United States proposes the paragraph read as follows: “Each State Party shall consider monitoring its policies and actual measures to combat offences establish by this Convention and make assessment of their effectiveness and efficiency.” These edits bring this = paragraph in line with Article 61, paragraph 3 in UNCAC.
Article 89
The United States generally supports Article 89. We have proposed edits throughout.
- The United States recommends deletion of paragraph 2, which we find is duplicative of paragraph 3 in this Article.
- The United States recommends deletion of “material” assistance in 3b. Financial assistance could include material assistance, and we do not think the convention should be overly prescriptive when identifying potential assistance contributions.
- In 3 c, the United States cannot support a United Nations funding mechanism. As we have noted previously, we should provide both donors and beneficiaries the highest degree of flexibility possible to be able to respond effectively to technical assistance and training needs, consistent with national law, regulations, and policy. This proposal would not offer States Parties sufficient flexibility to provide funding in ways that comport with national practices and requirements.
- We recommend deletion of paragraph 6. We feel it is duplicative of the other paragraphs in this article.
- The United States recommends the addition of “and” ahead of prosecution, and the deletion of “and control” in paragraph 8. We would either prevent, investigate, or prosecute crimes under this Convention.
- The United States recommends deletion of paragraph 9. The request for such a designation is overly prescriptive for a criminal justice instrument.
- We recommend deletion of paragraph 10. It is not the role of this convention to set out such standards of evaluation.
Thank you, Chair.