By Ghazala A AjamiInternet GovernanceAn Inspiration by International Law
The Question of the Internet-Does it Assume Intervention in Society and State?GLOBALIZED ACCESS OFINFORMATION
Introduction Internet is a critical trans-boundary information resource that should be governed and protected like other common critical resources. Various risks may follow the internet infrastructure. These vary from technicalities to interstate disputes. Until this date, in an interstate context, there are no enforceable rights of internet access although we see initiatives to setting guidelines for internet governance.
Governance & Internet Filtering The WGIG Report and other documents produced in the WSIS/WGIG process are a solid basis for reflection on the main issues of Internet governance. The Tunis WSIS Declaration provides the necessary policy endorsement of the overall process and a possible basis for soft law status vs. real law of some agreed solutions.
Inspired by International Law Some internet governing principles were derived from the text on “Responsibility of States for Internationally Wrongful Acts” (2001) adopted by the International Law Commission. Article 2 – Elements of an internationally wrongful act of a State Article 31 – Reparation Article 49 – Object and limits of countermeasures
Who Filters? Public vs. Private Location, Quantity, and Manner of the filtering vary greatly Private parties are often centrally involved in Internet filtering filtering may occur through a completely private transaction or with some government involvement in some fashion
Law, Regulation, and Policy of Current Filtering Regimes The two components of a typical country’s filtering regime are a (1) justification for blocking certain material, and (2)a set of laws that enable filtering. Countries usually justify the laws that enable filtering by invoking one of two broad themes:a. Upholding Community Standardsb. Ensuring National Security
Upholding Community Standards One of Singapore’s “main concerns” with the Internet is the ease of access to pornography by minors. South Korea banned content dealing with euthanasia and hacking, and, in a move that attracted widespread media attention, ordered local ISPs to block access to video footage of the gruesome beheading of a Korean hostage in Iraq. Legislation in India blocks sites that “appeal to the prurient interest,” Australian law prohibits sites that include “information about crime or drug use.” Egypt bans Internet content on “taboo issues” such as criticism of its president Uzbekistan prohibits accessing materials critical of the country’s president or based on religious extremism.
Ensuring National Security In China, protecting national security includes banning speech that could threaten “national unity.” Burma, Egypt, and Malaysia forbid any content that criticizes the ruling party. Liberia has blocked Web sites that contain “anti-Liberian material,” Zimbabwe excludes foreign sites that publish anything “likely to cause alarm or despondency”
Laws that Enable Filtering Countries vary in the laws, regulations, and policies they enact to implement filtering regimes. Some states employ regulation specific to the Internet. Countries use laws of general applicability to restrict Internet content. Foremost among these are intellectual property laws
Legal Problems of Internet Filtering Civil Liberties: Speech, Press, Privacy, Religion, and Association. Jurisdiction Internet Governance International Law Telecommunications Law Other Kinds of “Law”
Can jus cogens be applied to the Internet? Jus cogens could be applied in such situations when the Internet is used for promotion or organization of prohibited acts, such as piracy, slavery, and genocide.
Are There Any Effective Legal Limitations ona State’s Ability to Filter? Each state maintains independent control over the nature and extent of Internet access of its citizens. There are no meaningful external legal checks on a country’s ability to filter the Internet access of its citizens, as there are no international treaties or declarations safeguarding a free and open Internet. Currently, the United Nations takes no stance on the Internet, though proposals have been put forth to bring Internet governance under its jurisdiction.
HOT DEBATE WikileaksGENEVA, Dec 9 (Reuters) - U.N. High Commissioner for Human Rights Navi Pillay "The case raises complex human rights questions about balancing the freedom of information, the right of the people to know, and the need to protect national security or public order," … "This balancing act is a difficult one."