A blog on why norms matter online

Wednesday, September 21, 2011

Are Internet Shutdowns Legal?

On 28 January 2011, Egyptian authorities ordered the country’s Internet Service Providers to shut down. On 5 March 2011, Libya shut down its data traffic. Already in 2009, Iran had greatly reduced connection speed, and China had shut down the Internet in the region of Xinjiang. What connects all of these cases of Internet blackouts in times of crisis is the lasting conviction by governments that shutting down information and communication channels in times of crisis increases the country’s stability and security, as defined by the ruling authority. Given the potential of information and communication technologies it is highly likely that this pattern will continue in times to come. Therefore, an evaluation of the legal framework that governs Internet shutdowns in urgently required. 

Next Monday, at the Sixth Annual Symposium of GigaNet, the Global Internet Goverance Academic Network, I will present a paper on this subject and analyze whether states can shut down the Internet because of reasons of “national security” and what international rules limit their behavior. I'll give a short preview here and would love to have some feedback.

As I see it, there  are a number of aspects to this problem: First, human rights law. 

Articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR) provide substantial protection with regard to the manifold aspects of information and communication freedoms. Arguing that the essence of the rights and freedoms protected by Article 19 has crystallized into a norm of international customary law we can affirm the norm’s applicability independent of state commitments. Additionally, the vast array of activities the Internet is used for today makes Article 22 (freedom of assembly) and Article 25 (right to political participation) relevant for a human rights-based analysis of Internet shutdowns. Apart from these individual human rights protection guarantees the Internet enjoys institutional protection pursuant to Article 19 (3) in connection with Article 2 (1) and (2) of the ICCPR as a medium for individuals to enjoy their information and communication rights and freedoms.

But under  which conditions can states legally limit information and communication rights and freedoms through Internet shutdowns? Any limitation needs to be provided by law, necessary for a specific, legitimate purpose – such as national security – and proportional.  At my presentation I will show that in the majority of cases of Internet shutdowns the legitimate objective was missing. I will argue furthermore that indiscriminate shutdowns are  disproportionate and thus illegal.

International humanitarian law is also relevant. After having problematized the different regimes applicable to non-international and international armed conflicts, a discussion of the protection regime for critical infrastructure will lead me to question whether the Internet can be treated as such for the purposes of IHL.  Generally, I will conclude that IHL has not yet developed sufficiently in order to protect the Internet from shutdowns by the parties to the conflict. Some limited protection is provided by the principle of proportionality. Arguing that shutting down the Internet will stop the other party to the conflict from communicating effectively though will regularly allow for shutdowns under IHL in light of the principle of military necessity.

What duties, I will ask in a further step, exist for states with regard to the integrity, stability and functionality of the Internet and inhowfar do these set limits to Internet shutdowns. Basing my analysis on the principles developed for the Council of Europe by an expert group in 2010 and the ten key rights and principles enshrined in the bill developed by the Internet Rights and Principles Coalition I will specifically look at the extent and impact of the need of states to protect human rights and freedoms online and the duty of states to refrain from impacting negatively the global, unhindered and cross-border Internet traffic. 

Concluding, I will show that Internet Governance Principles, especially those confirming the protection of human rights, set limits to Internet shutdowns, though references to ensuring the global integrity, functionality and stability of the Internet in a cross-border context should not be interpreted as setting no limits to national shutdowns without prima facie international impact.

It is of great importance, both as a policy and legal matter, to ensure, especially in times of crisis, the viability of information and communication channels. While international human rights law sets clear limits to state attempts to suppress the mobilization and articulation of democratic dissent, an analysis of international humanitarian law provides a more nuanced picture and sets only few limits. The emerging Internet Governance Principles, again, lay down the duties of states regarding the integrity, functionality and stability of the Internet, but also figure as a source for states’ human rights obligations.

By shutting down the Internet in times of crisis, states send an important signal: that they are ready to attack protest movements without international and national control and critique. This is, when the international community and all of its stakeholders must act.

This are my rough and ready thoughts on the topic. What is your take? 


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