Under the auspices of the OEWG, India has highlighted the need for “real-time cooperation between government agencies”
in combatting cybercrime, cyberterrorism, and cyber threats more widely. To date, however, India has not signed any international cybercrime agreement. It voted in favour of a Russia-sponsored UNGA Resolution
calling for the establishment of a separate cybercrime treaty.
Despite having brought its legal framework largely in alignment with the Budapest Convention, India remains a non-party because the document was drafted without the country’s participation
, thus rending the treaty discriminatory. Another big objection has been raised on the basis of section 32.b, which gives intelligence agencies trans-border access to data for the purposes of criminal investigations with lawful and voluntary consent - a concern shared by Russia.
It has also been argued
that the Mutual Legal Assistance (MLA) regime under Budapest is not effective, as it does not commit states to a firm promise of cooperation; from the perspective of the Indians, it would be preferable
to replace this regime with a UN-driven process.
The US is a signatory and an early proponent of the Budapest Convention. A big part of American cyber diplomatic activity has, in fact, been focused on promoting the Budapest regime as the global model of cybercrime governance. In 2019, the US firmly opposed the Russian-sponsored resolution calling for an alternative legal instrument to the Convention; following the passing of the resolution, however, the US has agreed to participate in the Ad Hoc Committee established under UNGA resolution 74/247
despite the fact that the “surprise text” within the May 2021 resolution
was seen as an effort to “circumvent dialogue” and undermine the “balanced, inclusive, consensus-based process” sought by the US.
On a multilateral level, the US is also a party to the UN Convention against Transnational Organised Crime (UNTOC) and the Inter-American Convention on Mutual Legal Assistance of the Organisation of American States (OAS) and is a member of Interpol.
Bilaterally, the US has completed an agreement
with the UK under the CLOUD Act that facilitates cross-border data sharing directly between US companies and the British government; the US is trying to expand this type of bilateral engagement, currently negotiating
a similar agreement with Australia.
Canada’s National Cyber Security Strategy
identifies the activities of malicious cyber actors as a “growing challenge”. Following the adoption of the ‘Protecting Canadians from Online Crime’ Act, Canada acceded to the Council of Europe’s Budapest Convention in 2015 and has since consistently promoted
the instrument as the “best tool to fight cybercrime at the international level”. Canada has specifically
“encourage[d] countries to bolster their anti-cybercrime efforts by becoming Parties to the Convention, or using it as a model to implement their own cybercrime laws”. Moreover, upon Canada’s initiative, the Quintet of Attorneys General (which brings together Attorneys General from Canada, the US, Australia, New Zealand and the UK) issued a public statement
at their July 2019 meeting, expressing their support for the Budapest Convention as a “necessary basic framework for fighting cybercrime” and for the work of the United Nations Open-Ended Intergovernmental Expert Group on Cybercrime (UNIEG). Being part of the ‘like-minded’ group of states, Canada voted against the Russian-sponsored UNGA Resolution 74/247
aiming at establishing an alternative cybercrime instrument; upon the passage of 74/247 and its follow-up UNGA Resolution 75/282
, however, Canada has been a vocal member of the Ad Hoc Committee on Cybercrime. Prior to the Committee’s May 2021 organizational session, the Canadian position paper
on the Implementation of 74/247 noted that the Committee must “ensure consistency with existing UN treaties in the field of crime prevention and criminal justice, in particular the United Nations Convention against Transnational Organized Crime, the United Nations Convention against Corruption and take into account multilateral instruments that have already proven their usefulness in the fight against cybercrime, in particular the Council of Europe Convention on Cybercrime”. In the same document, Canada emphasized the need for an “inclusive, transparent, constructive, and consensus-based process that will lead to a fair outcome to the benefit of all”. The first session
of the Ad Hoc Committee will be held in New York from 17 to 28 January 2022. Canada’s perspective on the scope, objectives, and structure of the convention was submitted to the Ad Hoc Committee in advance of the start of the first negotiation session (E