Can We Apply The Rule Of Law In Cyberspace?

William Gibson coined the term “cyberspace” in his short story “Burning Chrome” (1982)[1] to describe data matrices existing in a dark distant future, the term cyberspace has entered into the common lexicon. It has come to mean the information spaces created by the technology of digital networked computer systems, most of which ultimately connect with the mother of all networks, the Internet. [2]

According to recent research about 360,985,492^[3] person all over the world has a valid access to the internet. They communicate through the internet and they share almost every possible piece of information over the internet. They exchange their ideas, photos, events, etc. some of these information is supposed to be privacy to different extent. The fact that all these information are stored on web server and can be tracked raise the concern of public privacy. The issue is that there are many incidents recently when people find out that their data might be used in ways they didn’t expect, or that information they did not know about is being silently collected. We can consider the NASA case as the most announce scandal where The US government, with assistance from major telecommunications carriers including AT&T, has engaged in a massive illegal dragnet surveillance of domestic communications and communications records of millions of ordinary Americans since at least 2001[4]. These events heighten the issue of cyber security as well. The internet is not safe haven for data to protected, is not safe for our privacy. With internet there is no guarantee for privacy even if we are in a private room in our home. To an extent, this is a problem of our own making. Our personal diaries are an open book because we open them. We put details about ourselves out into the ether that often forfeit our right to privacy.[5] We can say we are in the post privacy era.

Article 29 from The Universal Declaration of Human Rights (UDHR) consists:

“everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.[6]”

We can apply the same definition over the internet usage, we need to feel free to express, free to access the information, and free to share our ideas and concerns over the internet. Of course, there are some reasonable restrictions over freedom of speech. Restrictions are possible due to spoil others freedom, use hate speech, racism, or discrimination. We can use “don’t harm clause” to recap all these restrictions. But the fact is in the name of national security lot of privacy and freedom are restricted. Many other charter ensures the Human Rights such as the article 3 from the International Covenant on Civil and Political Rights (ICCPR) when no discriminations rule it ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant[7].

We need to transfer these contextual concepts about human rights and how to apply it over the internet. These concepts should be applied worldwide from here the term international regime emerges. Stephen Krasner in a special issue of the journal in 1982 defined international regime as

“International regimes are defined as principles, norms, rules, and decision-making procedures around which actor expectations converge in a given issue-area[8]”

This definition refers to the influence entities as actors, in internet regime actors can be states, no-states, international organization, and non-governmental organizations (NGO). In addition to the regime actors there are other actors with a strong influence over the internet privacy and security such as the technical actors, Microsoft and Google, Yahoo, and Apple are examples. Also, network actors like Facebook and Twitter. These actors gather a huge amount of our personal data, they track and keep our conversations, express of ideas and feeling, our photos, and videos. The main aim of internet international regime is to protect this data (privacy) and how to protect human of being punished because of his ideas or opinion (security). The international organization in the internet regime almost agree about the main rules that ensure privacy and security but they can’t confirm these rules to be applied only governmental actors can implement them.  Before moving to the rule of governmental actors rule, let’s discuss some attempt for configuring the main rules that can protect our privacy and security over the internet. The Organization for Security and Co-operation in Europe (OSCE) declaration in 2001 declare a set of principles to ensure the privacy of human, these includes freedom access to the internet, freedom of expression as Internet Human Rights. Also, this declaration includes that cutting of the internet can be justified, slow-down or filtering the internet should be under the international law[9].

Many other attempts come with an agreement about Human Rights online. One of these attempt is the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression it includes[10]:

·        Everyone shall have the right to hold opinions without interference;

·        Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice;

The European Union plan to protect open internet and online freedom conference in 2013 aims at an open and free cyberspace has promoted political and social inclusion worldwide; it has broken down barriers between countries, communities and citizens, allowing interaction and sharing of information and ideas across the globe; it has provided a forum for freedom of expression and exercise of fundamental rights, and empowered people in their quest for democratic and more just societies – most strikingly during the Arab Spring[11].

We can assume that the international actors can agree about a clear definition for privacy and security. These entities have common main principles for example they all confirm that Human should have a valid access to the internet with no unjustified restrictions. They agree about the freedom of human to express their ideas and opinion. They all emphasis that gathering and misusing the personal data over the internet is not acceptable and is considered as a crime.

The bad news is that they can’t impose these guidelines over the governments around the world. All the international declarations are optional, some countries avoid signing on these agreement so they are free not to join them. Other agreements have many exceptions that governments can use to bypass the principles the agreements. One of the crystal clear example is that international covenant on civil and political rights states:

The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.^[12]

The opened statement of necessary to protect national security can be misused to spoil the human rights. Under this wide expression of national security internet access can be blocked, filtered, or slowed down. Citizens’ privacy can be hacked and they can be confined due to their opinion.

To conclude, international organizations can set a guide for human rights online. They can use what they already agree on human rights offline to establish a crystal clear border that describe in details the human rights on the internet. But they can’t impose or ensure the application of these rules. Only, governments can apply them. The fact that different types of governments around the world don’t accept these rules, they prefer to filter, block, or slow down the internet. Some dictators reject any opinion that is against them and punish anyone who express his ideas over the internet. Many bloggers around the world are sentenced to court only because they declare that they have another opinion rather that the national one, they are accused of being against the national security. The international organizations should seek more tools and methodology to get these countries comply with the international treaties and declarations. Also, they also should raise the awareness of people about their rights and support them to fight for their rights.