James A. Walsh
Principal Deputy Assistant Secretary of State for International Narcotics and Law Enforcement Affairs
New York, New York
February 28, 2022
Before I turn to our work this week, I first want to express our solidarity with the Ukrainian people. The United States stands resolutely with the government and people of Ukraine and condemns in the strongest terms Russia’s premeditated, unprovoked, and unjustified attack on Ukraine. We call on Russia to cease its aggression against Ukraine and its flagrant violations of international law.
We gather here to build a meaningful tool for international cooperation against the scourge of cybercrime. From the outset of this process, we have sought to foster a spirit of consensus and cooperation—and we remain committed to working cooperatively with all Member States who are here to work in good faith toward a legally-binding international tool to combat cybercrime.
But the events of the last week have made it clear that the Russian Federation does not share our goals. The Russian Federation’s invasion of Ukraine is, as Ambassador Thomas-Greenfield said last week, “tantamount to an attack on the UN.”
As we sit here today, Russia appears to have aggressively used cyber, in addition to physical, means of attacking and destabilizing its neighbor. The Russian government’s repeated violations of international law, including its ongoing invasion of Ukraine, make clear that Russia has no standing to negotiate in good faith toward a consensus instrument that helps the world combat malicious cyber activity.
The Russian Federation cannot present itself as a defender of the sovereignty of nations in these discussions while at this very moment it violates the sovereign territory of Ukraine. We can hardly address the Russian proposals for cooperation in this sphere while Russia continues its audacious and illegal efforts in Ukraine. Until the current crisis in Ukraine is resolved peacefully, we will treat proposals by the Russian Federation with extreme skepticism as not being offered in good faith. Based on its unprovoked and unjustified attack on Ukraine, we can only assume that Russia’s true goal in the ad hoc committee is to negotiate a legal instrument by which all other states abide but which it will ignore. We call on all member states to do the same and remain clear-eyed about the true motivations at play here.
Luckily, this process belongs to the whole of the United Nations membership, not merely the Russian Federation. We look forward to making progress with other Member States over the upcoming two weeks.
I would like to turn now to our thoughts on how we can move forward towards a fair and practical UN instrument that respects rights and all Member States can join. We believe an effective instrument should be grounded in existing best practices to provide immediate benefit to law enforcement. It must also protect human rights and preserve an open, interoperable, secure, and reliable internet.
As we all know, there are long-standing efforts to combat cybercrime already underway through existing international legal instruments, formal and informal cooperation, and robust capacity-building and technical assistance initiatives. These are critical efforts that we must preserve and promote, and the United States remains committed to strengthening and implementing our existing toolset.
The United States expects a UN cybercrime instrument, like all UN anti-crime instruments, to call for domestic legislation to criminalize core conduct involving computers and provide procedural legal authority that permits law enforcement to preserve, collect, and share electronic evidence—consistent with due process guarantees, privacy interests, and human rights.
We would support an instrument that covers both cyber-dependent crimes, which target a computer or data, and a certain limited number of cyber-enabled crimes whose scope, speed, or scale are significantly increased due to the use of a computer. However, we should also be careful not to treat traditional crimes as a “cybercrime” merely because a computer was involved in their planning or execution. We look forward to further inputs from Member States and additional negotiations on the breadth of criminalization in future sessions.
States also need modern electronic evidence frameworks that are consistent with due process and human rights in order to effectively combat cybercrime and share evidence with international partners.
Sharing evidence with international partners is, of course, a core reason to build a UN cybercrime instrument. We expect the new instrument to provide tools to increase international cooperation, including broad mutual legal assistance for sharing electronic evidence, regardless of whether the criminal offense under investigation was committed with a computer. These provisions should include the appropriate safeguards and protections we find in existing UN anti-crime instruments, which have been successfully implemented by the overwhelming majority of UN Member States.
Finally, the United States expects the UN cybercrime instrument to promote avenues for capacity-building and technical assistance, particularly for developing and less-developed countries. For most countries, international cooperation does not fail from lack of will but from limitations either in domestic law or in the expertise of law enforcement agencies.
Finally, we welcome the Chair’s proposal for a work plan that clearly outlines which chapters we will tackle in each session and solicits inputs from both Member States and multistakeholders in stages in line with that chapter schedule.