Description
Title of Paper: Rule of Law 2.0: Articulating Human Rights and Security Online Abstract: Is it possible to maintain the rule of law and effectively protect human rights while defending security online? This paper discusses the relationship of human rights and security with a view to maintaining the rule of law online. In contrast to mainstream views which frame questions in terms of “cybersecurity vs privacy” or “freedom of expression vs privacy”, the paper argues that these questions fall short of grasping the complexity of protecting human rights online and cyber/national security. Cybersecurity, privacy and freedom of expression are mutually supportive goals and form a distinctively interdependent triad due to the unique features of the online environment. International human rights law should, therefore, enrich its vocabulary and analytical tools in order to aptly articulate the interests at stake. The first part of the paper demonstrates how the technical understanding of privacy, freedom of expression and security online creatively informs the design, interpretation and application of human rights law. A lesson learnt in the aftermath of the mass surveillance revelations is that ensuring privacy is a precondition for maintaining freedom of communications and for Internet users to trust the network. Moreover, privacy is an essential requirement for preserving security and resilience online. Interestingly, the interdependence of privacy and network security also extends, in many instances, to national and international security; this is illustrated in the current encryption debate although few emphasise sufficiently that a sound network and national security framework should ensure the users’ privacy instead of undermining it. The second part of the paper explores in more concrete terms how the legal reasoning of national and international courts should be enhanced by a systemic digital perspective. This means that courts must fully appreciate the impact of a restrictive measure, not only from a human rights point of view, but also from the perspective of the functioning of the Internet. A given interference may seem minor, if examined from the perspective of the affected individual, but the same measure may have a devastating impact on the general operation of the Internet (this is the case when courts find hyperlinking unlawful or promote a wide-ranging intermediary liability) and the security thereto (for example, in cases of ordering mandated decryption of data or conducting mass surveillance). Therefore, preserving the integrity and interoperability of the network must be an autonomous consideration in legal reasoning when assessing the seriousness of an interference with a human right and the proportionality test. This is all the more important since a substantial impact on the network could in turn adversely affect other human rights of users. For instance, enforcing the right to be forgotten not only adversely affects the interoperability of the Internet but also impacts freedom of expression. The analysis critically assesses the existing case law of both the European Court of Human Rights and the Court of Justice of the European Union and points out to novel approaches coming from Supreme Courts in Latin America.| Period | 9-Nov-2016 |
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| Event title | Toogdag Annual Research Day - Netherlands School of Human Rights Research: THE RULE OF LAW AND HUMAN RIGHTS: INTERRELATED AND INTERDEPENDENT? |
| Event type | Conference |
| Location | Amsterdam, NetherlandsShow on map |