State Responsibility to Respect, Protect and Fulfill Human Rights Obligations in Cyberspace
8 J.NAT’L SECURITY L. & POL’Y (2016, Forthcoming)
34 Pages Posted: 27 Oct 2016
Date Written: October 26, 2016
Debate over whether or not international human rights law applies to cyberspace and cyber-related activities has more or less been settled. It does apply, as it would to any other context. Yet, it is one thing to say that cyber communications, for example, hold the same civil and political protection as their offline predecessors, but it’s entirely another thing to say exactly what these protections are, where their limits may lie and the exact nature of the State’s obligations to protect communication rights vis-a-vis cyberspace. Indeed, there are a number of areas of controversy or confusion in the application of human rights law to cyberspace. Some reflect ongoing debates within the human rights legal field that pre-exist the emergence of cyber. These include questions concerning the relationship between human rights law and other international legal constructs such as the law of armed conflict, the territorial scope of application of human rights law obligations, and how to balance competing rights. But crucially, there are also a number of unique features of cyberspace that exacerbate these persistent tensions, or that call for the specific engagement/adaptation of human rights law to address new circumstances. Aspects of cyberspace that to some extent present new challenges include the mobility of data online, the amount of personal detail individuals render vulnerable through cyberspace, and the potential of acts emanating from or involving cyberspace to cause grave disruption and harm to others. This article considers the content and scope of application of international human rights law applicable to cyberspace. Instead of addressing head-on whether international human rights law is well-equipped to regulate the online world, it identifies how human rights law does apply to cyber, and where the application of human rights law remains unclear or, in some cases, ill-suited. Section one affirms the application of human rights law to cyberspace, and also considers its scope of application, including with regard to mobile data. Section two reflects on the content of a State’s obligation to respect human rights law in cyberspace. Section three addresses a State’s obligation to ensure respect for human rights (protect and fulfill rights) in cyberspace by protecting against third party abuse and by providing a remedy for violations. It also addresses State obligations to promote human rights in cyberspace and whether there is a right to access the Internet, or certain online content. Section four considers the limitations of human rights obligations and permissible restrictions in cyberspace. A conclusion follows.
Keywords: human rights, freedom of opinion, freedom of expression, freedom of association, cyberspace, digital communication, online communication, correspondence, metadata, Internet, encryption, duty to respect, duty to ensure respect, privacy, surveillance
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