Digital Freedoms in International Law

Dr. Ian Brown and Prof. Douwe Korff

Sources of law

International Covenant on Civil and Political Rights (1966) §17 and §19 and their interpretation by the UN Human Rights Committee, UN High Commissioner for Human Rights, and UN Special Rapporteurs (on Freedom of Opinion and Expression; on the promotion and protection of human rights and fundamental freedoms while countering terrorism; on human rights and transnational corporations)

Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies (established 1996)

ICCPR signatories

Data: UN High Commissioner for Human Rights; Graphic: WikiMedia

UN HCHR Fact Sheet No. 32

“Terrorism clearly has a very real and direct impact on human rights, with devastating consequences for the enjoyment of the right to life, liberty and physical integrity of victims. In addition to these individual costs, terrorism can destabilize Governments, undermine civil society, jeopardize peace and security, and threaten social and economic development. All of these also have a real impact on the enjoyment of human rights.

“Security of the individual is a basic human right and the protection of individuals is, accordingly, a fundamental obligation of Government. States therefore have an obligation to ensure the human rights of their nationals and others by taking positive measures to protect them against the threat of terrorist acts and bringing the perpetrators of such acts to justice.”

Restrictions on rights must:

1. Be based on “law” – on published, clear and specific legal rules, the application of which is reasonably foreseeable;

2. Serve a legitimate aim in a democratic society – including law enforcement and protection of national security. Such limitations should not be abused for other ends, such as to protect a government from embarrassment or exposure of wrongdoing;

3. Be “necessary” and “proportionate” to that aim, and not impair the essence of the right;

4. Not involve discrimination based on race, colour, sex, language, religion, political or other opinion, national or social origin, nationality, property, birth or other status;

5. Not confer excessive discretion on the relevant authorities;

6. Be subject to effective (judicial) safeguards and remedies.

Special circumstances

Restrictions “in time of war or other public emergency threatening the life of the nation … to the extent strictly required by the exigencies of the situation” may “not involve discrimination solely on the ground of race,

colour, sex, language, religion or social origin” must be “officially proclaimed” and notified to other parties

in relation to terrorism (hostage taking, killings or serious physical violence undertaken for the purpose of provoking a state of terror or of compelling state action) and other serious breaches of public order “clear safeguards [for] the rights of political opposition parties,

trade unions or human rights defenders” (UN HCHR) “terrorism does not trigger emergency powers” (UN SR)

UN Guiding Principles on Business and Human Rights

“The framework comprises three core principles: the state duty to protect against human rights abuses by third parties, including business; the corporate responsibility to respect human rights; and the need for more effective access to remedies.”

Companies faced with state demands that violate human rights have a duty to refuse to do so where they can, minimise the extent of any such cooperation, and help victims of any enforced cooperation

GNI Principles and Implementation Guidelines already go a long way to operationalising the Guiding Principles

Recommendations

Greater sharing of knowledge on legal systems and experiences – to aid market entry and exit decisions, and assessments of legally binding requests for connection terminations, user data, and blocking

Mechanisms for limiting use of products and services for serious human rights violations (contracts, dispute resolution, diplomatic support, technical measures)

Careful planning of user data storage, requirement for legally binding requests, and renewed focus on (streamlined and speedier) MLATs for remote access, with backing in domestic law and contracts

More transparency (states and companies), with aggregated reporting of user data access and blocking

Export controls

Heavy criticism of exports to repressive regimes of equipment for mass Internet surveillance and censorship

Many of these tools are “dual use”, with legitimate law enforcement, network management and security purposes

US and EU sanctions on Iran and Syria already include technology bans, with additional recent steps by US on Syria to target those that “create or operate systems used to monitor, track, and target citizens for killing, torture, or other grave abuses”

Difficulties

States’ abilities “to control effectively the export of the goods” – bureaucratic constraints on legitimate sales that may be ineffective against bad actors?

“yet to see a workable definition based solely on the tools’ capabilities or other attributes that won't either be too narrow or so broad that they undermine the people we're trying to help.”

Wide international availability of equipment (including second-hand)

Wassenaar Arrangement

Data: Wassenaar Arrangement Secretariat; Graphic: WikiMedia

Recommendations

States should extend purposes of international arms control regimes to include protection of human rights, and consider including technologies that have primary or significant potential uses for human rights violations in “dual use” export control regimes

The Wassenaar Arrangement is an obvious candidate, but for these purposes could be better targeted with formal multi-stakeholder involvement

Some export controls could be abolished, or better mechanisms found to enable provision of tools to democracy activists in sanctioned regimes