Abstract
Remedies for violation of rights in cyberspace may be available in domestic courts as well as international courts or tribunals, depending on the national law and the competence of such courts/tribunals in question and provided that procedural hurdles are overcome. Increased cybersecurity would mean less room for cyberattacks, cyber espionage, cyber crimes, and cyber terrorism. Closely related to the issue of cybersecurity is cyber deterrence, which has caught the attention of cyberwar studies. Deterrence works on two major elements: fear of retaliation, or punishment, by the defending party, and denial of any benefit to the adversary accruing from the initial attack carried out by the adversary. Secrecy, anonymity and difficulties in attribution in cyberspace together with the asymmetry of cyber capabilities among nation States create a big challenge for the application of the doctrine of cyber deterrence. Interdependence in cyberspace may help deter cyberattack insofar as such attack would also deny the attacker of a worthy benefit from the attack. The right model for cyberspace governance would make cyberspace a peaceful domain in which humankind can share benefits equitably. Nation States and international organizations are not suitable to lead cyberspace governance, which should be left to codes of conduct within the cybertechology industry, with government stepping in only to uphold international and national human rights standards which are sanctionable in courts of law. In any case, “cyber sovereignty”, with a State or a geographical region completely isolated in cyberspace from the rest, is not realistic in fact or in law.
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Notes
- 1.
The term was first used by Ambassador Tommy T.B. Koh, President of UNCLOS III, at the final session of UNCLOS III.
- 2.
Tallinn Manual 2.0, chap. 10 Space law.
- 3.
Tallinn Manual, p. 198, para. 13 and pp. 199–200.
- 4.
Peter W. Singer and Allan Friedman, “5 lessons from the Sony hack”, CNN, 17 Dec. 2014.
- 5.
Joachim Zekoll, “Online Dispute Resolution: Justice without the State?”, Max Planck Institute for European Legal History Research Paper Series No. 2014–02, esp. 3–4, 8, and 18–19. See also, Dimitrios Koukiadis, Reconstituting Internet Normativity: The role of State, private actors, global online community in the production of legal norms (Baden-Baden: Nomos, 2015), 255–282.
- 6.
App. No. 62332/00, ECHR 2006-VII.
- 7.
The Canadian Federal Law Personal Information Protection and Electronic Documents Act (S.C. 2000, c. 5) does not provide for the right of a data subject to sue for damages. However, and indirect mechanism, through the Commissioner, is stipulated.
- 8.
Swiss Federal Data Protection Act 1992 (DPA), esp. Arts. 15, 34–35, and Data Protection Ordinance 1993 (DPO); Jürg Schneider and Monique Sturny, “Switzerland”, The Privacy, Data Protection and Cybersecurity Law Review. 2 (2015): chap. 24.
- 9.
Personal Data (Privacy) Ordinance, E.R. 1 of 2013.
- 10.
See, Klass v. Germany, §58.
- 11.
See, Criminal Code, R.S.C. 1985, c. C-46, Part VI.
- 12.
Charles Riley and Jose Pagliery, “Target will pay hack victims $10 million”, CNN, 20 Mar. 2015; Jay Knoll and Elizabeth Weise, “Target poised to settle breach for $10 million”, USA Today, 19 Mar. 2015. CNN also reported that under the settlement the plaintiffs’ attorneys could receive up to US$6.75 million in fees, apart from the settlement fund for the plaintiffs themselves.
- 13.
965 F. Supp. 2d 1090 (N.D. Cal. 2013).
- 14.
Case No. 13-MD-02430-LHK (N.D. Cal. Mar. 18, 2014).
- 15.
See also, Sarah O’Loughlin, “Privacy Class Action Against Google Denied”, JOLT Digest (posted 27 Mar. 2014); Paul Elias, “Judge tosses class-action push for Google suit”, Boston Globe, 19 Mar. 2014.
- 16.
As asked by Christopher Kuner, “Extraterritoriality and the Fundamental Right to Data Protection”, and see also, id., “Regulation of Transborder Data Flows under Data Protection and Privacy Law”, 21–24.
- 17.
For a review of the literature on this topic, see, Paul K. Davis, “Deterrence, Influence, Cyber Attack, and Cyber War”, Int’l L. & Politics 47 (2015): 327, 334–342.
- 18.
Emilio Iasiello, “Is Cyber Deterrence an Illusory Course of Action?”, J. Strat. Security 7 (2014): 52, 55–59.
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Dorothy E. Denning, “Rethinking the Cyber Domain and Deterrence”, Joint Force Quarterly 77 (Apr. 2015): 8, 11–15.
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Eric Talbot Jensen, “Cyber Deterrence”, Emory IL Rev. 26 (2012): 773, 780–783.
- 21.
Ibid., 785–787.
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Zachary K. Goldman, “Navigating Deterrence: Law, Strategy, and Security in the Twenty-First Century”, Int’l L. & Politics 47 (2015): 311, 320–321.
- 23.
Jensen, “Cyber Deterrence”, 787–789.
- 24.
In re Weizsaecker and Others, US Military Trib., Nuremberg, 14 Apr. 1949 (1955) 16 Ann. Dig. 344, 348; Prosecutor v. Zoran Kupreskic and Others, Case No. IT-95-16-T, ICTY T. Ch. II Judgment (14 Jan. 2000), paras. 23, 125, 162, 511, 513, 515–524, 527–535, 765.
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Wolter Pieters, Dina Hadziosmanovic, and Francien Dechesne, “Security-By-Experiment: Lessons from Responsible Deployment in Cyberspace”, Sci. Eng. Ethics 22 (2016): 831, 840, 844.
- 26.
Jensen, “Cyber Deterrence”, 789, 807.
- 27.
Ibid., 807–820.
- 28.
Iasiello, “Is Cyber Deterrence an Illusory Course of Action?”, 67.
- 29.
Cf. “deterrence through the traditional law enforcement paradigm” in Jensen, “Cyber Deterrence”, 800–806.
- 30.
Ibid., 820–823.
- 31.
Daniel Stauffacher and Camino Kavanagh, Confidence Building Measures and International Cyber Security (Geneva: ICT4Peace Foundation, 2013).
- 32.
See also, Laura DeNardis, The Global War for Internet Governance (New Haven: Yale University Press, 2012), chaps. 2 (Controlling Internet Resources), 4 (Cybersecurity Governance), and 10 (Internet Governance and Internet Freedom).
- 33.
US Secretary of Commerce issued a press release on the launch of the NETmundial Initiative as follows:
I want to thank the World Economic Forum for taking on the important task of facilitating discussions for the global Internet community on how to apply the NetMundial Principles in practice. I hope the framework for these discussions is open and transparent and allows for the participation of all interested parties. These discussions also should consider how to build bridges between the NetMundial initiative and existing governance institutions and processes, including the Internet Governance Forum, taking care to complement and bolster them through its work. The US Department of Commerce looks forward to working with all the stakeholders on this important effort.
- 34.
See, The IT Countrey Justice, “Internet Governance Theory – Collisions in the Digital Paradigm III” (13 Jul. 2014), available at: https://theitcountreyjustice.wordpress.com/2014/07/13/internet-governance-theory-collisions-in-the-digital-paradigm-iii/.
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Tim Wu, Esther Dyson, Michael Froomkin, and David Gross, “On the Future of Internet Governance”, Amer. Soc. IL Proc. 101 (2007): 201.
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Tim Harford, “The iPhone at 10: How the smartphone became so smart”, BBC, 26 Dec. 2016, reporting on the finding of economist Mariana Mazzucato.
- 37.
As suggested in Raymond E. Spier, “‘Dual Use’ and ‘Intentionality’: Seeking to Prevent the Manifestation of Deliberately Harmful Objectives”, Sci. Eng. Ethics 16 (2010): 1, 3–4.
- 38.
Cf. the outcome of an empirical study regarding “Big Data” scientists in Rochelle E. Tractenberg et al., “Using Ethical Reasoning to Amplify the Reach and Resonance of Professional Codes of Conduct in Training Big Data Scientists”, Sci. Eng. Ethics 21 (2015): 1485.
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Gianmarco Baldini, Maarten Botterman, Ricardo Neisse, and Mariachiara Tallacchini, “Ethical Design in the Internet of Things”, Sci. Eng. Ethics (2016). doi: 10.1007/s11948-016-9754-5.
- 40.
Mireille Hildebrandt, “Legal and technological normativity: more (and less) than twin sisters”, Techné: Research in Philosophy and Technol. 12 (2008): 169.
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Boudewijn de Bruin and Luciano Floridi, “The Ethics of Cloud Computing”, Sci. Eng. Ethics (2016). doi:10.1007/s11948-016-9759-0.
- 42.
Emilio Mordini, “Considering the Human Implications of New and Emerging Technologies in the Area of Human Security”, Sci. Eng. Ethics 20 (2014): 617, 634–636, discussing unmanned surveillance and military applications.
- 43.
On “privacy paradox”, see, ibid., 630–632.
- 44.
Therefore, this model would not operate in the manner opposed to in Tim Wu, The Master Switch: The Rise and Fall of Information Empires (New York: Knopf Doubleday, 2011), esp. 255 et seq. It can also fit in the governance model promoted by Lawrence Lessig in Code and Other Laws of Cyberspace (New York: Basic Books, 1999), “Code IS Law: On Liberty in Cyberspace”, Harvard Magazine (Jan. 2000), and CODE Version 2.0 (New York: Basic Books, 2006).
Cf. also Chris Reed, Making Laws for Cyberspace (Oxford: Oxford University Press, 2012); Rolf H. Weber, Realizing a New Golbal Cyberspace Framework: Normative Foundations and Guiding Principles (Berlin: Springer, 2015) and “Proliferation of Internet Governance”, GigaNet Governance Academic Network, Annual Symposium 2014, available at: http://dx.doi.org/10.2139/ssrn.2809874.
- 45.
See also, Jonathan Zittrain, The Future of the Internet And How to Stop It (New Haven: Yale University Press, 2008), 242–243.
- 46.
See, e.g., Bruce Schneier, Data and Goliah: The Hidden Battles to Collect Your Data and Control Your World (New York: W.W. Norton & Co., 2015); Marijin Sax, “Big data: Finders keepers, losers weepers?”, Ethics Inf. Technol. 18 (2016): 25; Jonathan Shaw, “The Watchers: Assault on privacy in America”, Harvard Magazine (Jan.-Feb. 2017).
- 47.
Camino Kavanagh and Daniel Stauffacher, A Role for Civil Society: ICTs, Norms and Confidence Building Measures in the Context of International Security (Geneva: ICT4Peace Foundation, 2014), 7–21. Civil society participation can also fit in the theories of international justice in which international Internet regulation would be by representatives of the populations of individual countries who have no knowledge as to which countries they are representing in their collective efforts to achieve a “just and fair Internet”, as elaborated in David M. Douglas, “Towards a just and fair Internet: applying Rawls’ principles of justice to Internet regulation”, Ethics Inf. Technol. 17 (2015): 57, 63–64.
- 48.
Michael Scherer, “Edward Snowden: The Dark Prophet”, Time, 23 Dec. 2013, 48–61, at 55.
- 49.
Felix Gaedtke, “Can Iceland become the ‘Switzerland of data’?”, Al Jazeera, 28 Dec. 2014. The report alleges, however, that “Iceland is far from being a haven for free journalism”, as criminal libel charges have been brought against journalists.
- 50.
The technical and legal implication of a possible “EU-only cloud” has been included in its current research topics at Microsoft Cloud Computing Research Centre, a virtual centre where cloud experts from the Cambridge University Computer Lab have been working closely with members of the Cloud Legal Project of Queen Mary University of London. See also, Patrick Lane, “Data protectionism”, Economist: The World in 2014, 122.
- 51.
“Should digital monopolies be broken up”, Economist, 29 Nov. 2015, 9; “Everybody wants to rule the world”, ibid., 19–22.
- 52.
Leo Kelion, “Schools given Dropbox guidance after safe Harbour warning”, BBC, 28 Oct. 2015.
- 53.
Федеральный Закон от 27.07.2006 153-ФЗ «О персональных данных» [Federalniy Zakon “O personalnih dannih”], Federal Law on Personal Data with the amendments from 4 June 2014, available at http://base.consultant.ru/cons/cgi/online.cgi?req=doc;base=LAW;n=163964;fld=134;dst=4294967295;rnd=0.8751107095740736;from=156128-5. See also, Ivana Kottasova, “Moscow’s government ditches Microsoft for Russian software”, CNN, 28 Sept. 2016. On 17 Nov. 2016, the Agency enforced the law for the first time by issuing an order to block the LinkedIn social network in Russia (David Homak, “Russia Raises ‘Potemkin Firewall’ Against Global Social Networks”, Moscow Time, 24–30 Nov. 2016, 2).
- 54.
Bradley Brooks and Frank Bajak, “Brazil looks to break from U.S.-centric Internet”, Yahoo! News, 17 Sept. 2013, also in Taiwan News, 18 Sept. 2013, 6.
- 55.
Leon Kelion, “GCHQ and NSA ‘track Google cookies’”, BBC, 11 Dec. 2103.
- 56.
E.g., Tim Hume, “Apple slammed in China for pulling firewall-busting app OpenDoor”, CNN 4 Oct. 2013.
- 57.
The present author is grateful to Deborah Housen-Curiel for her guidance on this point.
- 58.
The WTO website explains:
The Annex requires each Member to ensure that all service suppliers seeking to take advantage of scheduled commitments are accorded access to and use of public basic telecommunications, both networks and services, on reasonable and non-discriminatory basis.
Members incur these obligations whether or not they have liberalized or scheduled commitments in the basic telecommunications sector. This is because the Annex addresses access to these services by users rather than the ability to enter markets to sell such services; the latter is addressed in schedules of commitments. As such, the beneficiaries of the disciplines in the Annex will be firms that supply any of the services included in a Member’s schedule of commitments; not only be value-added and competing basic telecommunications suppliers, but banking or computer services firms, for example, that wish to take advantage of market access commitments made by a WTO Member. The annex obligations strike a fragile balance between the needs of users for fair terms of access and the needs of the regulators and public telecommunications operators to maintain a system that works and that meets public service objectives.
- 59.
Ian Walden, “International Communications Law, the Internet and the Regulation of Cyberspace” in Peacetime Regime, ed. Ziolkowski, 261 at 281–284.
- 60.
Joel P. Trachtman, “International Economic Law in the Cyber Arena” in Peacetime Regime, ed. Ziolkowski, 373 at 379.
- 61.
Cf. ibid., 380–392.
- 62.
Ibid., 392.
- 63.
USTR, S. 1377 Review, “Compliance with Telecommunications Trade Agreements”.
- 64.
Matthias Bauer, Hosuk Lee-Makiyama, Erik van der Marel, and Bert Verschelde, The Costs of Data Localisation: Friendly Fire on Economic Recovery, (Brussels: ECIPE Occasional Paper No. 3/2014).
- 65.
Leo Kelion, ‘Microsoft to open UK data centres’, BBC, 10 Nov. 2015.
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Kittichaisaree, K. (2017). Future Prospects of Public International Law of Cyberspace. In: Public International Law of Cyberspace. Law, Governance and Technology Series, vol 32. Springer, Cham. https://doi.org/10.1007/978-3-319-54657-5_9
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