Overview of our GNI report, downloadable from http://globalnetworkinitiative.org/news/new-report-outlines-recommendations-governments-companies-and-others-how-protect-free

1. Digital Freedoms in
International Law
Dr. Ian Brown and Prof. Douwe Korff

2. Sources of law
 International Covenant on Civil and Political Rights
(1966) §17 and §19 and their interpretation by the UN
Human Rights Committee, UN High Commissioner for
Human Rights, and UN Special Rapporteurs (on Freedom
of Opinion and Expression; on the promotion and
protection of human rights and fundamental freedoms
while countering terrorism; on human rights and
transnational corporations)
 Wassenaar Arrangement on Export Controls for
Conventional Arms and Dual-Use Goods and Technologies
(established 1996)

3. ICCPR signatories
Data: UN High Commissioner for Human Rights; Graphic: WikiMedia

4. UN HCHR Fact Sheet No. 32
“Terrorism clearly has a very real and direct impact on human
rights, with devastating consequences for the enjoyment of the
right to life, liberty and physical integrity of victims. In
addition to these individual costs, terrorism can destabilize
Governments, undermine civil society, jeopardize peace and
security, and threaten social and economic development. All of
these also have a real impact on the enjoyment of human
rights.
“Security of the individual is a basic human right and the
protection of individuals is, accordingly, a fundamental
obligation of Government. States therefore have an obligation
to ensure the human rights of their nationals and others by
taking positive measures to protect them against the threat of
terrorist acts and bringing the perpetrators of such acts to
justice.”

5. Restrictions on rights must:
1. Be based on “law” – on published, clear and specific legal rules, the
application of which is reasonably foreseeable;
2. Serve a legitimate aim in a democratic society – including law
enforcement and protection of national security. Such limitations
should not be abused for other ends, such as to protect a government
from embarrassment or exposure of wrongdoing;
3. Be “necessary” and “proportionate” to that aim, and not impair the
essence of the right;
4. Not involve discrimination based on
race, colour, sex, language, religion, political or other
opinion, national or social origin, nationality, property, birth or other
status;
5. Not confer excessive discretion on the relevant authorities;
6. Be subject to effective (judicial) safeguards and remedies.

6. Special circumstances
 Restrictions “in time of war or other public emergency
threatening the life of the nation … to the extent strictly
required by the exigencies of the situation”
 may “not involve discrimination solely on the ground of
race, colour, sex, language, religion or social origin”
 must be “officially proclaimed” and notified to other parties
 in relation to terrorism (hostage taking, killings or serious
physical violence undertaken for the purpose of provoking a
state of terror or of compelling state action) and other
serious breaches of public order
 “clear safeguards [for] the rights of political opposition
parties, trade unions or human rights defenders” (UN HCHR)
 “terrorism does not trigger emergency powers” (UN SR)

7. UN Guiding Principles on
Business and Human Rights
 “The framework comprises three core principles: the
state duty to protect against human rights abuses by
third parties, including business; the corporate
responsibility to respect human rights; and the need for
more effective access to remedies.”
 Companies faced with state demands that violate
human rights have a duty to refuse to do so where they
can, minimise the extent of any such cooperation, and
help victims of any enforced cooperation
 GNI Principles and Implementation Guidelines already
go a long way to operationalising the Guiding Principles

8. Recommendations
 Greater sharing of knowledge on legal systems and
experiences – to aid market entry and exit decisions, and
assessments of legally binding requests for connection
terminations, user data, and blocking
 Mechanisms for limiting use of products and services for
serious human rights violations (contracts, dispute
resolution, diplomatic support, technical measures)
 Careful planning of user data storage, requirement for legally
binding requests, and renewed focus on (streamlined and
speedier) MLATs for remote access, with backing in domestic
law and contracts
 More transparency (states and companies), with aggregated
reporting of user data access and blocking

9. Export controls
 Heavy criticism of exports to repressive regimes of
equipment for mass Internet surveillance and censorship
 Many of these tools are “dual use”, with legitimate law
enforcement, network management and security
purposes
 US and EU sanctions on Iran and Syria already include
technology bans, with additional recent steps by US on
Syria to target those that “create or operate systems
used to monitor, track, and target citizens for
killing, torture, or other grave abuses”

10. Difficulties
 States’ abilities “to control effectively the export of the
goods” – bureaucratic constraints on legitimate sales
that may be ineffective against bad actors?
 “yet to see a workable definition based solely on the
tools’ capabilities or other attributes that won't either
be too narrow or so broad that they undermine the
people we're trying to help.”
 Wide international availability of equipment (including
second-hand)

11. Wassenaar Arrangement
Data: Wassenaar Arrangement Secretariat; Graphic: WikiMedia

12. Recommendations
 States should extend purposes of international arms
control regimes to include protection of human
rights, and consider including technologies that have
primary or significant potential uses for human rights
violations in “dual use” export control regimes
 The Wassenaar Arrangement is an obvious
candidate, but for these purposes could be better
targeted with formal multi-stakeholder involvement
 Some export controls could be abolished, or better
mechanisms found to enable provision of tools to
democracy activists in sanctioned regimes