The academic essay focuses on the connection between cybersecurity and human rights. It examines the interaction between the growing cybersecurity regime and international human rights norms, standards, and mechanisms within legal and political framework.
Table of Contents
A. Introduction
B. Definition: Rule of Law in Cyberspace
C. Legal instruments for Human Rights in Cyberspace
D. Conclusion
A. Introduction
The Rule of law means that the government of any state in all its actions is bound by the rules fixed and announced beforehand (F. Hayek, The Road to Serfdom).
Conformity in the context of the rule of law means that the human dignity is being respected. Cause of this, we need an legal answer for the upcoming question:
Does cyberspace respects human rights and what treaties and rights - national or international - are needed therefore in the 21. century?
Moreover the cyber security has become a major issue for the information society as could be seen from the recent Munich Security Conference 2012 which had a focus on cybersecurity.1
In these times the police is more and more concerned with cybercrime, the military with cyberwar and the state with cybersecurity in general, because cyberspace is increasingly being used in a way which threatens security in general and human security in particular.
Therefore we need precisely a rule of law in focussing human rights, which establishes a legal basis worlwide including opinions of the stakeholders of privacy, the public sector and private entrepreneurs.
B. Definition: Rule of Law in Cyberspace
First of all, we need an elaboration of the rule of law in cyberspace as a means and way to cyber security based on human rights.
On the one hand cybersecurity itself means the collection of tools, policies, security concepts, security safeguards, guidelines, training, best practices, assurance and technologies that can be used to protect the cyber environment that can be used to protect the cyber environment, community and users assets2.
On the other hand human rights must be protected and enforced towards the protection of the end user, regarding the physical or legal personality that is engaged in cyberspace. So, courts and internatonal organisations do have the legitimacy to impose rules on cyberspace regarding of the citizen or organization.
Human security in the information society is also characterized by the specificities of the multi-stakeholder approach. Accordingly, all actors can be subject to threats, but also be involved in remedial measures. In consequence the rules that applying to the internet are characterized by the principle that what applies offline should also be respected online!
Guidance is provided by various efforts to redefine and interpret human rights for the needs of the internet and by drawing up catalogues of principles for human rights in the internet or for internet governance. The human security concept is characterized by the respect for human rights which is also relevant for security threats related to the internet.3
The human security approach requires that security is protected in a way which respects human rights. Human rights are international obligations, which can only be restricted under certain conditions, which have to follow a three-part test of being based on law, being necessary in a democratic society and proportional to the objective to be achieved.4
Security measures which do not respect human rights do not increase the security of the people. Emergency measures have to follow the rules for emergencies as indicated in international human rights law. The Council of Europe has developed certain codes of conduct and guidelines to maintain human rights obligations when taking restrictive measures.5
Our civil society is consisting of various NGOs active in the field of the information society. They are functioning as a „watch dog“ for action against restrictive measures and for the protection of human rights in the field of cybersecurity.
Moreover we need the networking of experts all over the world because each national state wants to be involved with his ideas and understanding in the context of rule of law in cyberspace especially in the involvement of human rights.
C. Legal instruments for Human Rights in Cyberspace
These preliminary considerations leads to the question: What legal instruments are needed to achieve the protection and realization of human rights in cyberspace?
In my opinion there are three special examples of engagement in building the „state of the art“ for the rule of law through human rights in cyberspace.
1. First of all therefore the European Union has made a lot of steps towards the kind of regulation. According to the chapter of Fundamental Rights of the EU (Office Journal of the EU, 18/12/2000/C 364/1), Article 1 („Human dignity is inviolable. It must be respected and protected“), Article 6 („everyone has the right to liberty and security of person”) and Article 8 („Everyone has the right tot the protection of personal data concerning him or her“) is referring in depth to the correlation between the human rights and condition of their protection in cyber space. Also Human rights for the purposes of the European Commission’s work include the rights and freedoms recognised in the ICCPR, including the right to freedom of expression and information in article 19.
As discussed on the European Commission’s webpage on the right to freedom of information, opinion and expression,6 this right is recognised and expanded:
- in the Convention on the Rights of the Child7 and
- in the Convention on the Rights of Persons with Disabilities8 and of course freedom of expression and information is also recognised
- in article 19 of the Universal Declaration of Human Rights9.
2. Furthermore states also have a strong interest in the framework of the security inside cyberspace. It seems that the 3 most vulnerable points for a cyber attack are: Government institutions and services, Electrical grid and Finance institutions. We see it clearly in the fact of „Whistleblowing“ in the case of E. Snowden.
3. And last but not least the civil sociey herself could promote and install itself bridges between stake holders.
Also we should keep in mind that there are different governances at all. So we deal with the traditional and the electronic governance. The disadvantages of traditional governemental systems are bounded by time and direct communication is not often given for the citizens. Also availibility and most of all the corruption is one of the big institutional problems.
By reminding this problems we need for electronical governance transparancy and proofed systems. Therefore the intransparancy of bureaucracy needs the implementation of electronic democracy in the cyber community. Baring in mind the implementation of the rule of law inside the world of cyber space we need to share the participation and power to many stake holders, such as NGOs, the private sector and also firms from the government and also the science sector to avoid the concentration of a one „man“/“state“ power.
We have also to watch at the legitimating entitites that are engaged in the whole process such as the stake holders attitudes towards the states acts and regulations (e.g. NSA, ACTA). In subsequence the rule of law equals to the respect of the Human Dignity.
It is needed cause we have to build in this multitechnical and upgrowing cyberspace a balance between the human rights principles and providing security and safety in the same moment.
[...]
1 Weidlich, A. & Beenken, P., MSC Booklet Paper: Cybersecurity, Munich Security Conference, 2012, at: www.securityconference.de.
2 Therefore see ITU, Defintion of Cyber security, ITV-TX. 1205.
3 Therefore see Benedek , W., „Human Security in the Information Society”. ” in: Human Security Perspectives 1/2012, p. 1-14.
4 Ibid.
5 Council of Europe, Guidelines on human rights and the fight against terrorism, 11.7.2002. Available online at: http://www1.umn.edu/humanrts/instree/HR%20and%20the%20f ight%20against%20terrorism.pdf.
6 See Australian Human Rights Comission. URL: http://www.humanrights.gov.au/right-freedom-information-opinion-and-expression#other.
7 See Background paper: Human rights in cyberspace - Australian ... Opened for signature 20.11.1989, 1577 UNTS 3 (entered into force 2.9.1990) (CRC). At http://www.austlii.edu.au/au/other/dfat/treaties/1991/4.html (viewed 8 of March 2014).
8 See Background paper: Human rights in cyberspace - Australian ... Opened for signature 30.3.2007, 2515 UNTS 3 (entered into force 3.5.2008). URL: http://www.austlii.edu.au/au/other/dfat/treaties/ATS/2008/12.html (viewed 8 March 2014).)
9 Universal Declaration of Human Rights, UN General Assembly Resolution 217A(III), UN Doc A/810, 71 (UDHR) (1948). URL: http://www.un.org/en/documents/udhr/ (viewed 8 March 2014).
- Quote paper
- Caroline Brunhild Wähner (Author), 2014, Rule of Law in Cyberspace and the Way to Cybersecurity based on Human Rights, Munich, GRIN Verlag, https://www.grin.com/document/915386
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