Rethinking Privacy Online and Human Rights: The Internet’s Standardisation Bodies as the Guardians of Privacy Online in the Face of Mass Surveillance

There is a growing literature revolving around the role of non-state actors in the international law-making process. The starting point of this article is that, although informal international law-making may not be legally binding, it would be unwise to dismiss it as legally irrelevant. Informal law-making can be relevant with respect to conceptualising and applying existing law as well as guiding future regulation. The present discussion is placed in the context of cyberspace and, more specifically, the Internet standardisation bodies’ informal law-making functions when creating Internet protocols (by setting Internet standards). The article addresses the legitimacy and the ongoing work of the Internet Advisory Board and Internet Engineering Task Force in setting Internet standards with the aim to protect Internet users from mass surveillance and serious threats to privacy online. The article makes two main arguments. First, the effective protection of online privacy cannot be understood only in terms of compliance with legal frameworks but that – in practice - it also needs to be secured through technological means. Second, in the area of online privacy informal law-making and international law converge in a distinctive way. Internet standards should not necessarily be seen as “living a parallel life” to law or as displacing or merely complementing the law. Technical standards and international law can actively inform one another and converge in their application. The analysis explores the implications of the Internet’s technical features to policy-making and legal reasoning by discussing state and judicial practice. The article demonstrates how the technical perspective on privacy informs and enriches the manner in which the legal advisor argues about privacy, the legislator articulates the interests at stake and the judge and practitioner interpret and apply international human rights law.