The existence of the 2001 Cybercrime Convention is generally well known. The treaty has now been ratified/acceded to by 60 countries worldwide, including the United States. Less well known is the existence of the Additional Protocol to the Convention “concerning the criminalization of acts of a racist and xenophobic nature committed through computer systems.” The Additional Protocol has 30 ratifications/accessions—although not including the United States—which asserts that the First Amendment to its Constitution would preclude adherence to the provisions.

Next week, Cybercrime signatories and legal experts will gather for an annual ensemble of meetings and workshop in Strasbourg to review the state of the instrument and its implementation. One significant contemporary development that deserves substantive treatment at the meeting is the failure to apply the Additional Protocol to the incessant, pervasive racist and xenophobic Trump tweets and the significant resulting global harm occurring. Trump is the ultimate virtual elephant trampling in the meeting room.

The Additional Protocol

Although the national and international law needed to provide adequate legal responses to propaganda of a racist and xenophobic nature had its origins following World War II, the concern over use of computer systems did not occur until the 1990s. The emergence of heavily promoted, globally interconnected and unregulated DARPA internets in the mid-90s coupled with the marketplace demise of more regulated and secure OSI internets, resulted in a rapidly scaling array of cybersecurity challenges. One of those challenges was the ability for highly motivated groups promoting racism and xenophobia to organize and propagate their material via DARPA internets.

Developments began unfolding in 1997. In June of that year, the EU Council of Ministers established the European Monitoring Centre on Racism and Xenophobia. In October 1997, the Heads of State and Government of the Council of Europe on the occasion of their Second Summit met to seek common responses to the developments of “new information technologies.”

A few weeks later in November 1997, the UNHCR held a seminal workshop in Geneva on the “Seminar on the role of Internet with regard to the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination.” Especially chilling was an NGO presentation by the Paris-based Centre Simon Wiesenthal of statistics on the exponentially increasing hate sites and groups organizing via DARPA internet technology.

By 2001, the problems were significantly worse, and those meeting to produce the Cybercrime Convention found that “the emergence of international communication networks like the Internet provide certain persons with modern and powerful means to support racism and xenophobia and enables them to disseminate easily and widely expressions containing such ideas.” This concern resulted in an explicit Additional Protocol to the Cybercrime Convention that defined racist and xenophobic material, the dissemination proscribed, measures to be taken at the national level, and apply a number of the Cybercrime Convention provisions.

“racist and xenophobic material” means any written material, any image or any other representation of ideas or theories, which advocates, promotes or incites hatred, discrimination or violence, against any individual or group of individuals, based on race, colour, descent or national or ethnic origin, as well as religion if used as a pretext for any of these factors. (Art. 2)

distributing, or otherwise making available, racist and xenophobic material to the public through a computer system. (Art.3)

Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offenses under its domestic law, when committed intentionally and without right… (Art. 4)

Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offenses under its domestic law, when committed intentionally and without right, aiding or abetting the commission of any of the offenses established in accordance with this Protocol, with intent that such offense be committed. (Art. 7)

The associated Explanatory Report provides further history and amplification on the provisions.

Rather little, however, was done for more than a decade. A cursory informal survey of the Council of Europe site finds a significantly rising concern over the manifestation of racism and xenophobia beginning around 2016 and becoming exponentially worse over the past two years. Plainly, the chief executive of one of the Convention’s more prominent signatories who began leading a rather expansive resurgence of racism and xenophobia globally presented a challenge that was unanticipated and included an unprecedented affront to legal systems and norms of behavior. Now, the ultimate question for those assembling in Strasbourg in 2018 is whether they can simply ignore what has been occurring over the past eighteen months.

Trump’s Promotion of Racism and Xenophobia

It is relatively well-established that Donald Trump on a massive scale has been manifesting actions contravened by Art. 3 of the Additional Protocol that are aided and abetted through social media. There are hundreds of articles on his actions that unfold every day in highly respected publications.

• Trump’s Xenophobic Vision of America Is Inciting Racist Violence
• Trump’s candidacy and presidency have been laced with racist rhetoric
• Trump uses xenophobia yet again to rile up his base
• Hate on the Rise After Trump’s Election

Some investigators have even compiled extensive lists of evidence. See, e.g., New York Times, “Donald Trump’s Racism: The Definitive List.”

It is not apparent, however, that any responsive actions have actually been taken by the Additional Protocol signatories pursuant to Arts. 4 and 7, notwithstanding the ease with which the Trump’s offensive traffic can be blocked. Although the European Commission has sought to apply its own recommendations to control proscribed online content, it has not apparent it has ever addressed Trump’s racist and xenophobic tweets, much less sought to proscribe them.

Perhaps more concerning is that the social media service most extensively employed by Trump asserts an affirmative defense that “world leaders” are allegedly exempt from the Convention’s Additional Protocol provisions. See Twitter, Inc, “World Leaders on Twitter.”

The matter has, however, risen to such prominence that it was addressed in a Washington Post editorial several months ago with respect to domestic law. See The Washington Post, “The 3 loopholes that keep Trump’s tweets on Twitter.”

Resulting Harm by Inaction

Trump’s flouting of the Cybercrime Convention’s Additional Protocol provisions on racism and xenophobia is plainly reprehensible. The damage of the global rule of law and sense of acceptable conduct by a national leader is profound and long-lasting. The harm to society globally is equally grave—giving rise to destabilizing hate groups and terrorism in countries throughout the world. See “Palgrave Hate Studies Cyber Racism and Community Resilience.” See also Simon Wiesenthal Center’s “2017 Digital Terrorism & Hate Report Card: Social Media Giants Fail to Curb Online Extremism.”

The inaction has even spurred the emergence of an entirely new market for racist and xenophobic products.

One of the additional disconcerting developments and serious consequences, however, is the Cybercrime Convention signatories and Octopus community largely ignoring a profound problem posed when one of their own signatories goes rogue with a chief executive who is the de facto leader of a global racist and xenophobic movement through Twitter. When even the most prominent public figures in the United States are profoundly embarrassed by Trump’s racist and xenophobic behaviour—which is presently uncontrollable domestically—there is a continuing hope that international forums might step up, speak out in defence of their own treaty provisions, and call for responsive action by signatories. Will they?