Illegal Government Surveillance Tactics
Abusive surveillance tactics are becoming the hallmark of modern authoritarian and corrupt regimes, wherein political opponents, journalists, and activists are often spied upon via telecommunications, email communications, and multiple other means. This type of conduct has in large part been facilitated by the growth of the multi-billion dollar surveillance technology industry, as private companies manufacture and sell spyware software to governments and law enforcement agencies. These products are often sold with the explicit condition that they only be used to combat terrorists and drug cartels; however, governments have been exposed by independent groups and news organizations as having used these tools to spy on human rights lawyers, political opponents, journalists, government critics, and international investigators. Countries in which this type of illegal surveillance has been alleged to occur include Mexico, Panama, Colombia, Saudi Arabia, the United Arab Emirates, Ethiopia, Uzbekistan, and Kazakhstan.
The Convention on Cybercrime: A Tool for Human Rights Advocates to Combat Illegal Government Surveillance Tactics
Importantly, this type of conduct—including illegal access and illegal interception, among many others—was proscribed in the Convention on Cybercrime, also known as the Budapest Convention, a multilateral treaty that seeks to curb cybercrimes through the harmonization of national laws and the collaborative sharing of information among law enforcement agencies. Moreover, these tactics can easily exceed the bounds of the government’s own laws, and as a consequence, come regime change, criminal prosecutions may arise.
Indeed, this has actually happened, as seen in the case of former Panamanian President Ricardo Martinelli. Martinelli was extradited back to Panama from the US on June 11, 2018, to face illegal surveillance charges. The extradition was based on Panamanian domestic law, US-Panama treaty law, and the Convention on Cybercrime. His case illustrates how two states (the US and Panama) invoked the Convention on Cybercrime to extradite an accused individual back to his home country to face illegal surveillance charges, and how a US federal court interpreted the Convention on Cybercrime in an extradition proceeding.
Why This Is Important
The way the Convention on Cybercrime is playing out in the US legal system may be a harbinger of how former leaders who have fled their home countries might be held accountable for their illegal surveillance while in office. This legal development may impact nations that are both party to the Convention on Cybercrime and have bilateral extradition treaties with the US. Specifically, former officials in these countries who engaged in similar activities could potentially be extradited and held accountable by the judicial processes of their home countries. For example, if Mexico were to become a party to the Convention on Cybercrime in the future (given that it has an existing extradition treaty with the US), former Mexican government officials could potentially be extradited and prosecuted for their alleged illegal surveillance crimes were they to attempt to flee to the US. This possibility has grown in light of Mexico’s recent election in 2018 of President Andrés Manuel López Obrador, who campaigned on upending the status quo by ending corruption and impunity. However, this possibility may be tempered by the interests of the US State Department, which ultimately has the last word on extradition. For example, its foreign policy calculations may interfere with attempts to hold former leaders accountable for their alleged crimes.
So, while the Convention on Cybercrime is primarily a tool for law enforcement agencies, judicial officials and human rights advocates can also potentially use it as a tool for government accountability. While this use might be tempered by the fact that governments are ultimately in control of extradition proceedings (that is, the current regime has to be willing to request the extradition, and the US State Department has to be willing to comply and ultimately grant the extradition), targeted advocacy and invocation of the Convention on Cybercrime may be able to provide the adequate pressure and legal basis to secure such extradition and subsequent prosecution.
Aden Tedla is a J.D. student at Columbia Law School.