By Ira Ryk-Lakhman, on 9 June 2017
This post covers several events and initiatives at UCL Laws concerning international law.
Book launch: ‘Domestic Law in International Investment Arbitration’
On 1 June 2017 UCL Laws and the UCL Workshop Series on Investment Law and Policy (ILAP), in conjunction with Investment Arbitration Reporter held an event for the launch of the book ‘Domestic Law in International Investment Arbitration‘ by Dr Jarrod Hepburn.
Domestic Law in International Investment Arbitration: About the book
Although domestic law plays an important role in investment treaty arbitration, this issue is little discussed or analysed. When should investment treaty tribunals engage with domestic law? How should investment treaty tribunals resolve matters of domestic law? These questions have significant ramifications for both the legitimacy of the investment treaty system and the arbitral mandate of the tribunal members. Drawing on case law, international law principles, and comparative analysis, this book addresses these important issues.
Part I of the book examines three areas of investment law-the ‘fair and equitable treatment’ standard, expropriation, and remedies-in which the role of domestic law has so far been under-appreciated. It argues that tribunals are justified in drawing on domestic law as a relevant factor in their rulings on these three issues. Part II of the book examines how questions of domestic law should be resolved in investment arbitration. It proposes a normative framework for use by tribunals in ascertaining the contents of the domestic law to be applied. It then considers counter-arguments, exemptions, and exceptions to applying this framework, and it evaluates how tribunals have ruled on questions of domestic law to date.
Investment treaty arbitration has endured much criticism in recent times, partly over fears of its encroachment on sovereignty. The book ultimately contends that closer attention by tribunals to one of the principal expressions of a state’s sovereignty-the elaboration of its domestic law-will reduce criticism of the field
Martins Paparinskis (UCL Laws) and Alison Macdonald (Matrix Chambers) served as discussants; the event was chaired by Lauge Poulsen (UCL Political Science).
Current Legal Problems lecture: ‘The Internationalists: How a Radical Plan to Outlaw War Remade the World’
On 8 June 2017, the Current Legal Problems lecture series hosted Professor Scott Shapiro, who presented his book project (co-authored with Professor Oona Hathaway), ‘The Internationalists: How a Radical Plan to Outlaw War Remade the World‘. The event was chaired by Professor George Letsas (UCL Laws).
On a hot summer afternoon in 1928, the leaders of the world assembled in Paris to outlaw war. Within the year, the treaty signed that day, known as the Peace Pact, had been ratified by nearly every state in the world. War, for the first time in history, had become illegal the world over. But the promise of that summer day was fleeting. Within a decade of its signing, each state that had gathered in Paris to renounce war was at war. And in the century that followed, the Peace Pact was dismissed as an act of folly and an unmistakable failure. This book argues that that understanding is inaccurate, and that the Peace Pact ushered in a sustained march toward peace that lasts to this day.
The Internationalists tells the story of the Peace Pact by placing it in the long history of international law from the seventeenth century through the present, tracing this rich history through a fascinating and diverse array of lawyers, politicians and intellectuals—Hugo Grotius, Nishi Amane, Salmon Levinson, James Shotwell, Sumner Welles, Carl Schmitt, Hersch Lauterpacht, and Sayyid Qutb. It tells of a centuries-long struggle of ideas over the role of war in a just world order. It details the brutal world of conflict the Peace Pact helped extinguish, and the subsequent era where tariffs and sanctions take the place of tanks and gunships.
The Internationalists examines with renewed appreciation an international system that has outlawed wars of aggression and brought unprecedented stability to the world map. Accessible and gripping, this book will change the way we view the history of the twentieth century—and how we must work together to protect the global order the internationalists fought to make possible.
Launch of a new journal: ‘Europe and the World: A Law Review’
About the journal
Europe and the World – A Law Review aims to contribute to legal scholarship on the place of Europe in the world, with a particular but by no means exclusive focus on the EU’s external relations law.
The Journal serves as a forum where the national, international and EU perspectives meet and engage. The journal is therefore irreverent of traditional distinctions between EU, international, and national law. While primarily offering legal doctrinal and theoretical analyses, the journal also publishes multi-disciplinary work and political science and international relations contributions with an external perspective on the law of EU’s external relations.
The Journal includes 4 articles and 1 editorial:
- ‘Making Transnational Markets: The institutional politics behind the TTIP’, Marija Bartl.
- ‘The EU and International Dispute Settlement’, Allan Rosas.
- ‘Of Presidents, High Representatives and European Commissioners: The external representation of the European Union seven years after Lisbon’, Frank Hoffmeister.
- ‘(Not) Losing Out from Brexit’, Annette Schrauwen.
By Gaiane Nuridzhanian, on 24 March 2017
On 22 March Professor Martti Koskenniemi delivered a talk at International Law Association (British Branch) event at UCL Laws. Martti Koskenniemi is Academy Professor of International Law at the University of Helsinki and Director of the Erik Castrén Institute of International Law and Human Rights. He is currently leading a research project on ‘The History of International law: Empire and Religion’.
At UCL Laws, Professor Koskenniemi spoke about history of international law as history of international power focusing on the relationship between sovereignty and property. He examined in particular how the legal language was used to buttress state power and property rights in the period between XIV and late XIX century when the Institut de Droit International was established and, in Koskenniemi’s opinion, the history of international law began.
Professor Koskenniemi first discussed the concept of dominium, ownership granted to mankind by God, and development of thinking about natural law by the School of Salamanca and Francisco de Vitoria. The notion of dominium jurisdictionis et proprietatis was used to explain the God-given right to exercise power and ownership over property. However, it was jus gentium that governed the division of the property. The idea of interrelation of natural law and jus gentium was reflected in the works of Hugo Grotius (De Jure Belli ac Pacis) who believed that defense or restitution of property could serve as one of the reasons for just war (jus ad bellum). The ideas of natural law and law of nations were further developed by Samuel von Pufendorf who believed that, because of their nature, humans were rationally compelled to cooperate with each other and that the state was a means to achieve common good and salus populi.
The relationship between sovereignty and property was also one of the aspects of the discourse on European balance of powers in the course of XVIII century. Johann Justi, in his treatise The Chimera of the Balance of Europe, argued that the concept of balance of powers was an arrangement suitable for political affairs but not for the trade relationships that were regulated by their own rules. Around the same time Francois Quesnay argued for deregulation of trade and free competition as means of achieving salus populi.
Professor Koskenniemi quoted some further examples of interconnectedness of sovereignty and property from XIX century. One of them was Lord Palmerston’s statement in Don Pacifico Affair to the effect that a British subject (and as consequence his property) was protected anywhere in the world from injustice and wrong by ‘the watchful eye and the strong arm of England’. Another example was the establishment of the US-Mexico Claims Commission to settle the claims by citizens of both states in relation to damages inflicted by one government on the nationals of the other. A more modern example is the existing system of the investor-state settlement of disputes system.
Professor Koskenniemi concluded by emphasising the inherently intertwined nature of sovereignty and property – beneath the surface of government by sovereignty always lie property and contractual relations, and vice versa. Modern legal education should not therefore draw a sharp distinction between private and public law spheres.
By Ira Ryk-Lakhman, on 28 February 2017
We are pleased to publish the program for the 2017 UCL Laws Postgraduate and Early Career Conference.
The Conference theme is ‘Art of Balancing: The Role of Law in Reconciling Competing Interests’. The event will take place at UCL main campus on 30-31 March 2017.
The program of the event is provided below. The full Conference booklet, including abstracts and presenters is available here.
Please note: The event is free and open to the public, however registration is mandatory.
30 March 2017
Main Quad Pavilion Wilkins Building (Main Building)
08:30 – 09:15 Registration and breakfast
09:15 – 9:45 Opening remarks (Prof Richard Moorhead, Vice Dean of Research, UCL)
09:45 – 11:45 Panel 1
Human Rights and the Jurisprudence of the European Court of Human Rights
- John Dingfelder Stone (Rhein-Wall University of Applied Sciences) ‘Undervaluing the Right to an Interpreter: How Societal and Judicial Interests Threaten the Fairness of Multilingual Criminal Proceedings’
- Juha Tuovinen (European University Institute) ‘Balancing, the Margin of Appreciation and European Consensus: Why the European Court of Human Rights Does Not Rely on European Consensus in Article 8-11, Why It Should, and How To Fix the Situation’
- Tara Beattie (Durham University) ‘Porn, Privacy and Public Morals Re-Dressed’
- Rose Ireland (UCL) ‘Human rights and modern slavery: the obligations of states and corporations in relation to forced labour in global supply chains’
- Discussants: Dr Ronan McCrea (UCL) and Dr Inga Thiemann (UCL)
- Secondary Commentators: Zdeněk Červínek, Giulia Frosecchi
12:00 – 13:00 Lunch break
13:00 – 14:15 Panel 2
Jurisprudence and Interdisciplinary Approaches to Law
- Pieter Augustijn Van Malleghem (Harvard University) ‘Proportionality and the Erosion of Formalism’
- Federica Coppola (European University Institute) ‘Mapping criminal brains to predict criminal behavior: New frontiers in neurocriminology, new challenges for the law’
- Maytal Gilboa and Omer Pelled (Hebrew University of Jerusalem) ‘A Welfarist Perspective on Autonomy’
- Discussants: Paul Troop (UCL) and Simon Palmer (UCL)
- Secondary Commentators: Maytal Gilboa, Donald Bello Hutt
14:15 – 14:30 Break
14:30 – 16:15 Panel 3
EU Law and IP Law
- Auke Willems (Vrije Universiteit Brussels) ‘Reconciling competing interests in EU criminal law: the principle of mutual trust’
- Desmond Johnson (The Hague University of Applied Sciences) ‘Institutional Balance as Constitutional Dialogue: A Republican Balancing Act for the EU Constitutional Order?’
- Eduardo Álvarez Armas (Université Catholique De Louvain) ‘Accommodating diverging international environmental obligations: the ECJ’s approach to avoiding legal conflict in the Commune de Mesquer case
- Pinar Oruc (Queen Mary University of London) ‘Competing Interests in the Orphan Works Problem’
- Discussants: Dr Ilana Fhima (UCL) and Dr Eleni Frantziou (University of Westminster)
- Secondary Commentators: Stavros Pantazopoulos, Anne-Claire Bernard-Tomasi
16:15 – 16:30 Break
16:30-18:00 Panel 4
States, Groups, and the International Community
- Aikaterini Christina Koula (Durham University) ‘The definition of Human Rights Defenders’
- Boshko Stankovski (University of Cambridge) ‘Which law, whose standards? The role of international law in resolving competing claims and ensuring securitisation and democratisation of new states’
- Iryna Bogdanova (University of Bern) ‘United Nations “targeted” economic sanctions and individual human rights of their “targets”: what is the role of Article 103 of the UN Charter?’
- Discussant: Dr Ruvi Ziegler (University of Reading)
- Secondary Commentators: Juha Tuovinen, Johannes Hendrik Fahner
31 March 2017
Main Quad Pavilion Wilkins Building (Main Building)
9:30 – 11:00 Panel 5
- Stavros Pantazopoulos (European University Institute) ‘The Protection and Restoration of the Environment in the post-conflict phase: An assessment of the legal framework and the way forward’
- Anne-Claire Bernard-Tomasi (University of Westminster) ‘The Interplay between Environmental Protection and the Market through the lens of Disclosure and Confidentiality of Information: Pragmatism over Dogmatism’
- Discussant: Chiara Armeni (UCL, Sussex University)
- Secondary commentator: Johannes Hendrik Fahner, Iryna Bogdanova
11:00 – 11:30 Break
11:30 – 13:15 Panel 6
Labor Law and Socio-Economic Rights
- Emily Hancox (University of Edinburgh) ‘Equal Access to Social Benefits or Preventing an Unreasonable Burden: Reconciling Overlapping Secondary Legislation’
- Zdeněk Červínek (Palacký University, Olomouc) ‘Proportionality or Rationality? Assessing Reasonableness in Socio-Economic Rights Cases: A Study of Constitutional Review Standards of Czech Constitutional Court’
- Ksenia Mikhailichenko (National Research University ‘Higher School of Economics’, Moscow) ‘The Right of Freedom of Association: Role of International Labor Standards in Russian Practice’;
- Discussant: June Namgoong
- Secondary commentators: Tara Beattie, Rose Ireland
13:15 – 14:30 Lunch Break
14:30 – 16:00 Panel 7
Proportionality and Political Considerations in Adjudication
- Donald Bello Hutt (Kings College London) ‘Constitutional interpretation and institutional perspective: a deliberative proposal’
- Araceli Turmo (Université Panthéon-Assas) ‘Procedural Law as an Exercise in Reconciling Public Interest and Individual Rights: The Example of Res Judicata’
- Discussant: Dr Jeff King (UCL)
- Secondary Commentators: Desmond Johnson, Emily Hancox
16:00 – 16:30 Break
16:30 – 18:00 Panel 8
Investment, Energy, and Trade
- Otabek Ismailov (University of Ottawa) ‘Reconciling Public and Private Interests in Investor-State Arbitration Cases Involving Argentina: Necessity, Proportionality or Margin of Appreciation?’
Johannes Hendrik Fahner (University of Luxembourg/University of Amsterdam) ‘Intensity of Judicial Review in International Adjudication: Balancing State Sovereignty against Regime Effectiveness’
- Michael Imran Kanu (Central European University) ‘Towards Scaling the Energy Financing Predicament in Sub-Saharan Africa: Stating a Case for Legal and Regulatory Reforms’
- Discussant: Dr Martins Paparinskis (UCL)
- Secondary Commentators: Boshko Stankovski, Eduardo Álvarez Armas
18:00-18:15 Closing Remarks
By Ira Ryk-Lakhman, on 31 January 2017
|The Editorial Board of the UCL Journal of Law and Jurisprudence is pleased to call for submissions for the second issue of 2017 on the theme of ‘Crisis and the Law’.
The Editorial Board welcomes submissions that engage with this general theme. It is broadly conceived, covering a range of political, economic, social, environmental and cultural issues, and leaves scope for any area of law or jurisprudence (domestic, regional or international) that is deemed to be crisis-related. The following is a non-exhaustive list of possible topics:
Submissions could be theoretical, doctrinal or aimed at practice. Concretely, the Journal seeks to publish pieces that either articulate the concept of crisis within the law or how the law deals with current crises. Articles which challenge existing boundaries in law or jurisprudence or how legal institutions work and are shaped by crises are also welcome.
We accept articles of between 8,000-12,000 words, case notes of 6,000-8,000 words and book reviews of 1,000-2,000 words. All submissions must comply with the Oxford University Standard for Citation of Legal Authorities (OSCOLA). Contributions that have already been published or that are under consideration for publication in other journals will not be considered.
The deadline for submissions is 14th April 2017.
Manuscripts must be uploaded via the submissions section: http://ojs.lib.ucl.ac.uk/index.php/LaJ/about/submissions.
By Ira Ryk-Lakhman, on 9 January 2017
Author: Asaf Lubin (JSD candidate, Yale Law School and Robert L. Bernstein International Human Rights Fellow with Privacy International)
In Part I of this blog I examined four of the most troubling elements of the new Investigatory Powers Act and their compatibility with IHRL. It is, however, important to note that the IPA is only one of several electronic communications surveillance laws that have been adopted in recent years, or are currently undergoing legislative processes, across Europe (one can particularly note adopted or pending legislation in Germany, France, Poland, Italy, Austria, Romania, Belgium, and Spain, to name a few examples). In this blog post, I suggest we look at the broader implications of the IPA on the landscape of regulation of espionage in international law.
Tinker, Tailor, Hacker, Spy: The IPA and the Law on Espionage
In his recent autobiography, The Pigeon Tunnel, John le Carré laments about the “British public’s collective submission to wholesale surveillance of dubious legality”. He argues that this type of concerted wilful surrender is the “envy of every spook in the free and unfree world”. Rarely do I find myself disagreeing with le Carré, but this is one of those cases. It is not just the British, but rather the general public, worldwide, that is supportive at worst or apathetic at best to the real prospect of a 1984-type Big Brother global surveillance scheme. The revelations surrounding the British American surveillance programs, as part of their successful collaboration within the broader 5-Eyes Intelligence Alliance, have clearly had ripple effects around the world.
These ripples are causing tectonic shifts within the “law on espionage”, as a distinct body of lex lata rules within the jus gentium. If in 2007 Prof. Radsan had recommended that Academia simply succumb to the idea that “espionage is beyond the law”, the last decade of political and legal developments are pushing away from this policy position. Both the advancements in technological capacities and the prevalence of leaks and whistleblowing, have forced parliaments, courts, academics, and the media, to face the spooks head on in a way they have never done before. As the activities of intelligence agencies, once draped with a cloak of secrecy, are moving further and further into the light, customary international law (dependent by its very nature on state practice to emerge) is slowly beginning to take shape.
We should thus look at the IPA not only from the narrow perspective of UK law, European law, or even international human rights law, but rather embark on an understanding of the broader role this Act plays in the evolution of the Law on Espionage. In this regard, let me conclude with three short brief comments.
- The Right to Spy (The Jus Ad Explorationem)– I have written elsewhere that espionage should be recognized as a sovereign right under international law. There is room to suggest that the same processes and justifications that have limited the right to use force in the early 20th century are now taking shape to limit certain aspects of the right to spy. In that regard particular emphasis has been given to economic espionage. In 2015 the United States and China reached a “common understanding” not to conduct or support cyber espionage and intellectual property theft for the purposes of commercial gain. Similarly, Germany legislated a prohibition on “economic espionage” as part of its October 2016 “Communications Intelligence Gathering Act”. According to wikileaks, Hilary Clinton’s Campaign Manager John Pdesta, in a policy brief on U.S.-German Surveillance relations concluded that “If Germany were to propose to the US a bilateral engagement to prohibit industrial espionage as the starting point for multi-lateral agreements or standards, the response from Washington would likely be positive.” In this regard how should we interpret the IPA which allows for foreign surveillance for the protection of the “economic well-being of the United Kingdom” or the French legislation which maintains that foreign surveillance may be conducted to advance the “economic, industrial, and scientific interests of France”. These pieces of legislation are exposing different approaches as to the justifications for the right to spy, and its limitations.
- Intelligence Sharing– As part of the IPA the U.K. had the opportunity to engage in statutory authorization of its intelligence sharing arrangements with foreign agencies, which it declined to do. The Equivalent German law which was adopted two months before the IPA, did include, in a precedential way, three provisions authorizing and limiting certain aspects of German intelligence sharing operations. The pending 10 Human Rights NGOs Case, calls on the ECtHR to establish that the principle of legality requires States to establish the powers to engage in intelligence sharing as part of accessible and foreseeable primary legislation. This is important as significant abuse can take place in the form of “circular exchanges” that is a circumvention of domestic legislation through direct access to data bases or intelligence collaboration with foreign agencies. As Professor Forcese described it in the context of certain accusations that were made about the ECHELON program as early as the late 90s: “Since privacy laws tend to restrict states’ ability to monitor their own citizens but not those located in other countries, each state’s agency allegedly was asked to spy on the other state’s citizens and, presumably, share the results”.
- Extraterritorial Enforcement Jurisdiction in International law– In conducting cross border interception and hacking activities, Government authorities are breaking away from one of the oldest tenants of international law, the presumption against extraterritorial enforcement jurisdiction. As the U.S. Third Restatement of Foreign Relations (1987) clarifies: “A state’s law enforcement officers may exercise their functions in the territory of another state only with the consent of the other state, given by duly authorized officials of that state”. Indeed, as early as the SS Lotus Case it was established that the enforcement jurisdiction of States to investigate, prosecute, or apprehend an offender extraterritorially is limited by the territorial sovereignty of the foreign State. Whereas the sending of spies across borders was generally perceived as a tolerable violation of the enforcement jurisdiction principle, within the broader operational code of the law on espionage, the introduction of mass electronic surveillance capabilities are tilting the scales. If in the old world order we put up with, as a necessary evil, the naturally limited intrusions of human spies, a different balance must be struck now once we developed the capacity to surveil whole populations remotely and covertly. Current state practice, as reflected in the IPA, is pushing in the other direction, however, and it becoming more normal to engage in unfettered mass global surveillance with few restrictions and few raised eyebrows. This should keep up anyone who dreads for the future of the rule of law and the right to privacy and freedom of expression.
By Ira Ryk-Lakhman, on 26 December 2016
Author: Asaf Lubin (JSD candidate, Yale Law School and Robert L. Bernstein International Human Rights Fellow with Privacy International)
Christmas came early for the UK Government Communications Headquarters (GCHQ). Wrapped in a red ribbon and sparkling with parcel lights, Parliament handed the signal intelligence agency a gift, the Investigatory Powers Act (IPA), providing it with a statutory authorization to engage in bulk interception and retention of electronic communications’ metadata and content, both within and outside the United Kingdom. Like last-minute shoppers running up and down the cramped stores of Oxford Street, so were the Lords in a hurry to complete the IPA’s legislative process before the new year, when the sun was to set on the previous legislation, the Regulation of Investigatory Powers Act (RIPA, 2000).
Since the IPA received royal assent and became an official Act on November 29th 2016, the legal blogosphere and general media have been buzzing over this measure and its implications (see for example: here, here, here, here, and here). Particular attention has been given to the new law’s data retention provisions, which were struck down by the European Court of Justice earlier this week, forcing an impending legal headache for legislators. Nonetheless, a number of the Act’s most troubling features have not been sufficiently reviewed from the perspective of their compatibility with the United Kingdom’s broader international obligations. As we say Rest In Peace to RIPA and usher in a new age of legalized governmental mass surveillance, the following two blog posts will take a step back and examine the new Act’s compatibility with international human rights law (IHRL) as well as its impact on the ongoing evolution of the international law of espionage.
Within the limits of this blog post I will focus on the following four elements of the Act: (a) Thematic Warrants and Lack of Reasonable Suspicion; (b) Foreign Mass Surveillance and Hacking Powers; (c) Standards on Encryption and Direct Access; and (d) Reporting, Notification Requirements, and Gag Orders.
What’s in Santa’s Stocking? GCHQ’s new surveillance powers and their compatibility with IHRL
a. Thematic Warrants and Lack of Reasonable Suspicion
While disguised as targeted surveillance, the IPA seeks to introduce into law “thematic warrants”. These warrants delegate to the police or intelligence agencies the choice as to whose privacy will be interfered with. This, in turn, increases the risk of arbitrary decision-making and undermines the implementation of effective judicial authorization. In accordance with the Act, the Secretary of State may issue a “targeted interception warrant” (for the acquisition of content of communications) or a “targeted equipment interference warrant” (for extracting information from devices either directly or remotely, via hacking tools). These warrants are subject to the approval of a Judicial Commissioner, barring urgent matters. The warrants allow communication within the United Kingdom to be intercepted and, equipment within the United Kingdom to be interfered with; insofar as these communications or equipment relates to: (1) people or equipment “who share a common purpose or who carry on, or may carry on a particular activity”; (2) “more than one person or organization, or more than one set of premises, where the conduct authorized or required by the warrant is for the purposes of the same investigation or operation”; (3) “equipment that is being, or may be used, for the purposes of a particular activity or activities of a particular description”; (4) the testing, maintenance or development of capabilities relating to interception or equipment interference.
As clarified in the explanatory notes, these subject matter expansions intended to encompass, “thematic warrants”. Under a thematic warrant, the Secretary of State and a Judicial Commissioner do not approve each individual target of surveillance, but rather the security agencies can choose their targets without additional sign off. To illustrate, a thematic warrant might authorize the hacking of all mobile phones of members of the Muslim faith in Birmingham, or the interception of the communications of anyone suspected of having travelled to Turkey in the last three months.
As the Intelligence Services Commissioner points out “the critical thing … is that the submission and the warrant must be set out in a way which allows the Secretary of State to make the decision on necessity and proportionality”. However, permission for interception of communications and hacking of networks without prior reasonable suspicion is by its very nature disproportionate. In the case of Gillan and Quinton v United Kingdom, the European Court of Human Rights (ECtHR) expressed particular concern over an intrusive power that did not require any “reasonable suspicion” (in that case the power of random stop and search individuals under s44 of the Terrorism Act 2000). Such broad discretion gave rise to a “clear risk of arbitrariness”. In S and Marper v United Kingdom, the U.K. government submitted that the retention of DNA samples from people who had not been charged or convicted of a criminal offence was of “inestimable value” and produced “enormous” benefits in the fight against crime and terrorism. The Grand Chamber of the ECtHR nonetheless held that the retention was a “disproportionate interference” with those individuals’ private lives. Central to the reasoning was the absence of any assessment of suspicion by the authorities that was sufficient to justify the retention of each individual’s DNA data. The same reasoning applies in relation to thematic warrants under the IPA. More recently in Zakharov v. Russia the ECtHR reiterated the principle that the authorization of interception of communications “must clearly identify a specific person to be placed under surveillance or a single set of premises.
b. Foreign Mass Surveillance and Hacking Powers
Part 6 of the Act authorises the GCHQ to engage in bulk interception, acquisition, and equipment interference of “overseas-related” communications and communications systems. These comprise communications “sent or received by individuals who are outside the British Islands”. In order for the Secretary of State to issue such a bulk warrant, the warrant must be considered necessary for : (1) the national security; (2) the prevention or detection of serious crime; (3) the economic well-being of the UK. At the next stage, the examination of any such acquired data may be authorized only for one or more of the operational purposes specified in the warrant. These may include, inter alia: counter terrorism, counter proliferation, countering hostile actors, safeguarding prosperity, cyber defence operations, security of agencies’ and allies’ operational capabilities, security assurances, and the tackling of serious crime.
The issuing process is identical for each type of bulk warrants. First, the head of an intelligence service, or any official designated by her, must submit a request to the Secretary of State. The Secretary may then issue a bulk warrant, subject to a necessity and proportionality analysis. The decision to issue a warrant is then further scrutinized by a Judicial Commissioner, before it is granted. This is known, in the UK jargon as the “double lock mechanism” (a dual executive-judicial pre-authorization process for its foreign bulk warrants).
In essence, the law explicitly authorizes the GCHQ to engage in bulk hacking of networks and devices and to intercept communications worldwide. While the UK has taken pride in solidifying the “double lock mechanism”, in actuality the law limits the scope of review by the Judicial Commissioners to mere procedural aspects. In other words, judges will not be given actual powers to assess the merits of any proposed surveillances measures. Moreover, in the case of bulk warrants, the authorization requests will be formulated in such broad and vague terms, that the attempt to form any judicial assessments on the merits of the application will prove essentially impossible.
Legal institutions and judicial fora may hardly be said to have fully resolved the question of what standards should apply to foreign governmental surveillance. For instance, this issue has not been sufficiently addressed by the ECtHR; although a ground-breaking pending case launched by Privacy International alongside nine other human rights NGOs invites the Court to clarify this matter specifically. The Human Rights Committee in its Concluding Observations to South Africa did note that State Parties should refrain from “engaging in mass surveillance of private communications without prior judicial authorization”. Similarly, certain Special Rapporteurs, such as Ben Emmerson, have already concluded that “the very existence of mass surveillance programmes constitutes a potentially disproportionate interference with the right to privacy” and that “shortly put, it is incompatible with existing concepts of privacy for States to collect all communications or metadata all the time indiscriminately.
c. Standards on Encryption and Direct Access
The IPA allows the Secretary of State to issue a “technical capability notice” in order to compel an operator to provide government officials with direct access to its network apparatus. Moreover, under such notices, the Secretary of State may further compel an operator to decrypt intercepted communications. The issuance of such a notice is subject to a necessity and proportionality test, which is [to be]/will be conducted by a Judicial Commissioner. Amongst other factors, the Secretary of State must further take into account the technical feasibility and likely costs of the request. Should the Judicial Commissioner refuse to approve the notice, the Secretary of State may appeal to the IP Commissioner so as to approve the notice nonetheless.
It is on this point that the ECtHR, in Zakharov v. Russia, affirmed that “a system…which enables the secret services and the police to intercept directly the communications of each and every citizen without requiring them to show an interception authorisation to the communications service provider…is particularly prone to abuse.” It is in this context that providing government officials with direct and complete access to communications networks run by private corporate providers, is unlikely to comply with the standards of necessity and proportionality. Furthermore, as noted by the U.N. Special Rapporteur David Kaye, “national laws should recognize that individuals are free to protect the privacy of their digital communications by using encryption technology and tools that allow anonymity online… States should not restrict encryption and anonymity, which facilitate and often enable the rights to freedom of opinion and expression. Blanket prohibitions fail to be necessary and proportionate. States should avoid all measures that weaken the security that individuals may enjoy online, such as backdoors, weak encryption standards and key escrows.”
The IPA, as currently drafted, does not give sufficient weight to factors against decryption. Such factors include: the importance of maintaining the integrity of networks, potential cybersecurity threats, the reputational costs for companies, and chilling effects on expression and creativity of users. By ignoring these issues, the law lacks balance and could open the door to a UK version of Apple v. FBI (which concerned the question of whether US Courts could compel manufacturers to assist in unlocking cell phones whose data are cryptographically protected).
d. Reporting and Notification Requirements
In conformity with the IPA, an individual subjected to surveillance would be informed by the IP Commissioner only when such surveillance involved a “serious error” or concerned the “public interest”. Further, the Act establishes a general reporting requirement, whereby at the end of each calendar year the IP Commissioner must report to the Prime Minister (PM) of/on the way the functions of the Judicial Commissioner have been carried out. While by default this report is to become part of public record, the PM may order otherwise. Thus, should the PM consider the publication of parts of the report as: contrary to public interest or prejudicial to – national security, the economic well-being of the State, the continued discharge of functions of public authority, or the prevention or detection of serious crime, she can decide, in consultation with the IP Commissioner, to exclude from publication those parts of the report. This is not the only way the Act leaves certain information out of the public eye. Notably, any warrants issued to a telecom company or service provider, demanding direct access to its networks or decrypt its users’ data, will be followed/accompanied by a gagging order, “forbidding the firm from discussing it” essentially squashing public debate and scrutiny.
Independent oversight mechanisms ensuring transparency and accountability of State surveillance communications have been recognised as necessary to guarantee privacy and data protection rights. The lack of a strict reporting requirement in the IPA, due, in part, to the broad range of [security/self-judging] exceptions the Act prescribed, brings into question the degree to which transparency and accountability can effectively be achieved. Additionally, the Act only provides for notification to individuals in cases of identifiable “error”. However, as the ECtHR has affirmed, States have an obligation to provide notification to persons concerned by/with the used measure. To be sure, according to this jurisprudence, notification is due not just in cases of abuse, but rather immediately following the termination of the measures assuming “it can be made without jeopardizing the purpose of the surveillance.” Furthermore, the UN High Commissioner for Human Rights further acknowledged that notification is fundamental in ensuring individuals access to effective remedy. Under the current IPA it is unlikely that individuals will have the opportunity to seek redress where their privacy rights have been violated.
By Gaiane Nuridzhanian, on 8 December 2016
What was formerly known as the Investigatory Powers Bill, referred to elsewhere as the “revised Snoopers’ Charter,” has received Royal Assent and, as of Nov. 29, is officially law in the UK. The Act (full text here) does introduce additional safeguards, as well as a new body of oversight and the involvement of judges in the authorization of surveillance warrants. However, the broad range of surveillance powers available to the British Government, which were exposed by the Snowden leaks, have not been scaled back but further entrenched within British law. This is despite consistent pleas to reduce the powers by parliamentarians, legal practitioners and legal NGOs, and amendments having been made to the Act by both Houses of Parliament.
The Not So New Powers
The government’s powers exposed by the Snowden leaks were the subject of widespread fear and shock, and they will be further consolidated by this new legislation. The surveillance powers that the Act will now explicitly enshrine in law include: targeted and bulk hacking powers; bulk interception of communications (provided for under the previous UK surveillance regime); access to bulk personal datasets (BPDs); and the acquisition of communications data, both targeted and bulk, which involves the retention of web history logs (known as “Internet Connection Records”). The Act also provides for the use of thematic warrants in relation to targeted surveillance powers. These warrants, equated with general warrants in a previous Just Security post by Scarlet Kim, have the potential to be very broad in scope and may be used against “a group of persons who share a common purpose or who carry on, or may carry on a particular activity.”
All of these far-reaching surveillance powers existed in one form or other prior to the Act. However, many of them were only avowed by the UK Government in the aftermath of the Snowden leaks. For example, engagement in the bulk acquisition of communications data by the security services was first admitted in November 2015, when the then-Home Secretary, Theresa May, informed Parliament that communications data was being obtained in bulk from Communication Service Providers under the authority of the Telecommunications Act 1984. The use of hacking powers was acknowledged by the UK government through the publication of the Draft Equipment Interference Code of Practicepublished in February 2015 (containing, admittedly, unclear distinctions between bulk and targeted powers). The use of thematic warrants and BPDs were publicly avowed for the first time in March 2015 in a report by the Intelligence and Security Committee (the Parliamentary committee appointed to oversee the work of the UK’s security services).
The Passage of the Act
Many were hoping to prevent or obstruct the UK Government in its consolidation of these extensive powers. Since the Act was first published in bill form, there has been rigorous engagement with its provisions by legal practitioners, legal NGOs as well as tech companies. When the Act was published in draft form in November 2015 last year, over 1,500 pages of written evidence were submitted to the Joint Committee responsible for scrutinizing the bill. Written evidence was then submitted throughout the year. Legal NGOs and legal practitioners made recommendations calling for many of the powers either to be removed or subjected to much greater restriction. For example, Liberty calledfor a removal of all bulk powers contained in the bill, and the barrister (and Reader at University College London) Dr. Tom Hickman called for the scope of thematic warrants to be greatly reduced.
Official scrutiny of the Act was primarily undertaken by the Joint Committee for the Investigatory Powers Act and the Intelligence and Security Committee (ISC), who both wrote reports in response to the draft bill. These reports also conveyed skepticism about certain powers contained in the bill. For example, the ISC expressed uncertainty over the need for bulk hacking powers, and the Joint Committee stated that it was not clear that the bulk powers of interception and hacking were compliant with the UK’s obligations under the European Convention on Human Rights.
Partly in response to concerns such as these, the government called for a review of bulk powers by the Independent Review of Terrorism Legislation. The publication of the review report was discussed in a previous blog post by Shaheed Fatima Q.C. The Independent Reviewer concluded in the report that there was a “proven operational case” with respect to three of the bulk powers which were “already in use.” These powers were bulk interception, bulk acquisition (of communications data) and BPDs. At the time of the review, the Independent Reviewer had been told by the UK’s Government Communications Headquarters (GCHQ) they had not so far engaged in bulk hacking. With regards to this power, it was found that there was a “distinct, but not yet proven, operational case” for it.
While the conclusions of the review were welcomed by the UK government, they were not accepted across the board and opposition to the reach of surveillance powers in the bill remained. Liberty criticized the scope of the review, arguing that its lack of consideration of the necessity and proportionality of bulk powers meant that the most important question regarding their use had gone unanswered. It also criticized the short time-frame for the review, citing the lack of time that had been available for those carrying out the review to consult experts in the field. It also highlighted that no operational case with regards to internet connection records had been made, and it claimed that this power should be removed from the bill.
Despite determined efforts by many to oppose the powers in the bill, only fairly minor changes were made to them during its passage. For example, restrictions were added to class warrants for BPDs, the examination of material obtained under bulk warrant and additional safeguards were added with respect to accessing journalistic material and legally privileged material.
Changes the Act Makes to the UK Surveillance Regime as a Whole
For those less familiar with the provisions contained in the Act, it should be noted that at the same time as ensuring the same breadth of surveillance powers are available to the government, it also introduces a new authorization process for these powers and new safeguards and body of oversight.
With respect to the authorization process, there is now a mechanism by which judges, called Judicial Commissioners, will be involved in the decision-making process for the issuing of surveillance warrants—a mechanism described as the “Double-Lock.” Judicial Commissioners will be required to approve warrants initially issued by the Secretary of State before they can be fully authorized.
A new oversight body will be set up, which merges previously existing oversight bodies. The body will be made up of an Investigatory Powers Commissioner and a group of Judicial Commissioners. It will keep under review the exercise of statutory functions by public authorities provided for in the Act. Furthermore, as stated, Judicial Commissioners will also be involved in the authorization process for surveillance warrants.
Insofar as these additions to the UK surveillance regime serve to impose robust limitations on the UK government’s use of its surveillance powers, they are clearly welcome. However, the extent to which they will impose robust limitations has been a matter of debate. One issue of controversy is that the Act expressly states that the Judicial Commissioners are to apply judicial review principles when reviewing the Secretary of State’s decision. As was discussed in an earlier blog post by Shaheed Fatima Q.C, there may still be potential for Judicial Commissioners to undertake substantive and meaningful review of the Secretary of State’s decision despite this constraint. However, this remains to be seen.
Furthermore, there are a number of other factors that may serve to constrain the Judicial Commissioners, highlighted here by Lord David Pannick, which are not acknowledged in the Act. For example, there is no clause in the Act which provides that the Judicial Commissioner would have access to all of the same information on the basis of which the Secretary of State made their decision. There is also no provision in the Act to ensure that Judicial Commissioners will be able to access a special advocate to assist them in their decision-making. Concerns have also been raised about the fact that this same oversight body, responsible for providing oversight with regards to the UK surveillance regime, is also responsible for approving surveillance warrants.
Initial Concerns with UK Surveillance Powers Still Stand
While it is not clear how robust these restrictions will be, what is clear is that the Act does not reduce the powers available to the government. And ultimately, many of the concerns that were initially voiced about the Act still stand. For example, the problems discussed in the blog post by Scarlet Kim, in connection with the expansive hacking powers and use of thematic warrants, remain. The concerns regarding justifiability of access to Internet Connection Records, discussed in a blog post by Shaheed Fatima Q.C, are as relevant as they were last year.
Due to the extensive surveillance powers that the Act provides for, it is still not clear whether the new regime will be compliant with standards set by international law. This was expressly stated by the UN Special Rapporteur when he delivered his first report to the UN Human Rights Council in March this year. The Special Rapporteur argued that the provisions in the Act “prima facie fail the benchmarks” set in recent case law by the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU).
This view is at least plausible. As was highlighted in an earlier blog post by Carly Nyst, the ECtHR has, in the cases of Zakharov v Russia (Grand Chamber) and Szabó and Vissy v Hungary, recently emphasized the need for human rights law principles to be “enhanced” to take into account States’ increased appetite for “massive monitoring of communications.” In the case of Zakharov, it was also emphasized that interceptions must:
“clearly identify a specific person to be placed under surveillance or a single set of premises as the premises in respect of which authorization is ordered. Such information may be made by names, addresses, telephone numbers or other relevant information.”
Some have taken such commentary by the Court to be a sign that the ECtHR may be willing to take issue with the Act. Indeed, in a memorandum on surveillance and oversight mechanisms in the UK published in May, the Council of Europe Commissioner for Human Rights cited “major human rights concerns” over the then Bill. Of particular interest in the memorandum was a reference made to suggestions by surveillance experts that “the sheer breadth of a bulk warrant may have difficulties” against the “clear standard” quoted above, as set out in Zakharov. The Commissioner also commented that:
“by their nature bulk warrants place large groups of people under the menace of surveillance without any suspicion on the part of the authorities that an individual has committed a criminal offence or is of national security interest.”
Provisions in the Act may also come into conflict with certain standards set by the CJEU. The UK will be required to adhere to these standards for at least the next few years, even if the UK manages to begin the process of leaving the Union early next year. The key issue will be the Act’s provisions on data retention. Recent decisions—such as in the joined cases of Digital Rights Ireland and Seitlinger as well in the case of Schrems —suggest that the CJEU is willing to take a more hardline approach with respect to data retention. Furthermore, in July 2016 the Advocate General of the Court of Justice published his opinion on the Tom Watson (and formerly David Davis) case, regarding the lawfulness of the UK’s Data Retention and Investigatory Powers Act 2014 (DRIPA). The Advocate General stated in his opinion that data retention should only be lawful for the purpose of investigating serious crime. This opinion is not binding, and a lot depends on what the CJEU rules in relation to DRIPA early next year. However, it may be that the provisions for data retention in the Act, which allow for data to be retained on the basis of a broad range of purposes—including for the purposes of “public health” and “assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department”—may be incompatible with EU standards.
Looking to the Future
Legal NGOs have made it clear that they intend to challenge the Act on its compliance with international law. Liberty’s response to the passing of the Act by Parliament couldn’t have been clearer. They stated: “[t]he fight does not end here. Our message to Government: see you in Court.”
There are already challenges relevant to the Act underway. For example, Privacy International and five internet and communications providers have lodged an appeal in the ECtHR challenging the UK Government’s hacking powers (under the previous regime). An application by Big Brother Watch regarding bulk interception and intelligence sharing (under the old regime) is also waiting to be heard in Strasbourg. Many legal challenges to be made directly against the Act once it becomes law are no doubt being currently drafted.
Some will be relieved that, for now, the “fight” is not completely over. However, it seems like a sad reflection of the current state of British law-making that an Act like this could be passed in its current form, with the best chance of opposing its most questionable provisions apparently lying in the ability of pro bono lawyers to challenge it in courts.
People will point to a variety of factors to explain how we got here. One factor which has undoubtedly played a role, which other countries who may face similar legislation can hopefully learn from, is timing. It has taken just over nine months for the Act to pass through Parliament. This is an undeniably brief period of time for an Act which, at the time of being introduced to Parliament, was almost 250 pages of complex legal provisions, accompanied by 19 “overarching documents“ many of which were over a 100 pages long. The then Bill was over 300 pages long on leaving the Lords’ report stage. Nine months is insufficient time to subject so many complex provisions to proper scrutiny. Many parliamentarians would barely have had time to get their head around the implications of the first few chapters of the bill, let alone all of its nine long and technical separate parts. The government was warned that it was “not in the nation’s interest” to pass the Act this year, when over a 100 cross-party lawmakers and campaigners signed a letter calling for a longer consultation period to “give the Bill the time it needs.”
The letter reminded the government that the new law “could lead the world” if it was done right. Indeed, this new legislation was a big opportunity to wipe the slate clean after the Snowden leaks, and to help rebuild trust in the UK government and its surveillance practices. However, the UK government has chosen to push through a law which may well be seen as only serving to enhance distrust: for it consolidates far-reaching surveillance powers which many think should never have been relied upon in the first place.
By Gaiane Nuridzhanian, on 30 November 2016
On 22 November 2016 Devika Hovell, Associate Professor in Public International Law at LSE, spoke at UCL. She discussed the authority of the UN Security Council (UNSC), and its nature. At the outset, the speaker observed that there was little interest among international lawyers, and even less so among the international organisation lawyers, in adopting theoretical approach to international law. Instead, the law of international organisations was developed by practitioners, often in a patchy manner and in response to specific practical challenges. In this process of development, it were the positivism and realism that guided and controlled the development of this legal discipline. In this regard, the speaker referred to Dworkin’s advice to lawyers and philosophers to improve ‘the jurisprudential discussion of international law’.
In pursuing her goal to develop a concept of the UNSC’s authority, Devika Hovell challenged two orthodoxies. The first orthodoxy, from the domain of international law, reflects the idea of State consent as a source of the UNSC authority. According to this positivist approach, the authority emanated from Articles 25 and 103 of the UN Charter that imposed on the States an obligation to comply with the UNSC decisions and established the primacy of the States’ obligations under the UN Charter. In the opinion of the speaker, the State consent based on a singular act of the State’s consent to the UN Charter, was not sufficient of a basis for the UNSC authority. The justification of such authority had to be more complex.
The second conventional wisdom that Dr Hovell sought to deconstruct concerned the jurisprudential domain. Under this orthodoxy, individual autonomy constitutes the ultimate source of the authority of international law, and thus it is the objective of safeguarding the individual autonomy that endowed international law with authority and State autonomy with value. However, in her opinion, this approach does not fully reflect the place of the State and the State interests in international law. It also does not take into account that international law commands authority over States, and not individuals. The individual autonomy-based approach can also be said to be unsuitable for explaining the authority of the UNSC since the latter is primarily focused on the collective responsibility in the face of common threats rather than on promotion of individual interests.
The authority of international law rests primarily on the belief and conviction of those to whom its rules are directed, that they have a role to play in the rule of law itself. Dr Hovell noted the view expressed by Sir Michael Wood in the course of the Iraq Inquiry. Addressing the comment that the absence of a court meant essentially that states could interpret Security Council resolutions as they wished, Sir Michael Wood replied that; “[T]he absence of a court, I think, is a reason for being more scrupulous […].
It is one thing for a lawyer to say, “Well, there is an argument here. Have a go. A court, a judge, will decide in the end”. It is quite different in the international system, where that’s usually not the case. You have a duty to the law, a duty to the system. You are setting precedents by the very fact of saying things and doing things.”
Dr Hovell proposed a grundnorm for the authority of the UNSC that would be based neither on State consent nor on individual authority, but will be grounded in the idea of ‘shared responsibility’. In this regard it is necessary to consider two aspects of the UN Security Council authority: ‘representativeness’ and ‘purposiveness’.
UN Security Council has often been criticised as being unrepresentative. Legitimising its authority would entail the idea that this authority is ‘shared’ with others. Although most theoretical accounts focus on authority held by a single actor, in contemporary international society there are multiple locations and levels of public authority and individuals are increasingly subjected to various overlapping authorities. There is thus a need to separate the authority from sovereignty as well as from the notion of exclusivity. Quoting the writings by Nicole Roughan, Dr Hovell referred to the concept of ‘relative authority’ which reflects the idea of isolation of authority from sovereign power ‘in order to consider its operation in circumstances of plurality’.
Dr Hovell concluded by noting that some have argued that the main problem with the UN Security Council does not lie in its lack of resources or unrepresentativeness, but rather in the lack of any agreement as to its purpose. In the speaker’s opinion, the purpose of the Security Council could not be spelled out in a document of a constitutional nature. Instead, Dr Hovell proposed a procedural and responsibility-based approach to the question of the legitimacy of the UNSC.
By Ira Ryk-Lakhman, on 18 November 2016
The Art of Balancing: The Role of Law in Reconciling Competing Interests
University College London Faculty of Laws is pleased to invite submissions for its 2017 Postgraduate and Early Careers Conference to be held on 30-31 March 2017, at University College London, London, UK.
The conference is designed to provide current doctoral students and recent PhD graduates with a forum to present and discuss their work among academic peers from different backgrounds and legal disciplines. The conference aims to promote fruitful research collaboration between its participants, and to encourage their integration in a community of legal scholars.
The Conference theme is “The Role of Law in Reconciling Competing Interests”.
Contemporary legal problems create the need to balance competing interests, values, rights, obligations, and freedoms. This Conference will explore the response of the law and legal actors to modern challenges, be it in the context of domestic law and national jurisdictions or in the framework of international law.
The increasing criticism against the fragmentation of legal fields have brought about the need to reconcile public, individual, and international interests. Additionally, the growing focus on States’ obligations to respect and protect human rights and freedoms has too led to a shift in the manner States conduct themselves both in the domestic and international arenas. Yet, given the ever increasing extent of international regulation and concomitant demands on limited financial, technical and human resources, it is not at all clear how these competing rights and obligations ought to be balanced. Furthermore, the mounting pressure on the States to ensure the security of their population brings about the debate over States’ ability to limit other rights and freedoms on behalf of security interests, legitimate as may be.
Relevant papers may concern any field of law.
Examples of issues addressed by relevant papers may include (but are not limited to):
- Human rights and public interest;
- Necessity and proportionality and other multi-sourced equivalent norms;
- Constitutional rights and terrorism;
- Protection of public health and environment in trade and investment agreements;
- Sustainable development and climate change and commercial activity;
- Copyrights, trademarks and patent protection;
- lex specialis and competing domestic or international law norms;
- Legal theory’s approach to conflicting rights and freedoms;
- Constitutional rights and the protection of rights absent a written constitution;
- Balancing of competing interest by adjudicative bodies.
We welcome applications from current doctoral students, both in law and law-related disciplines, and from recent graduates of doctoral programs up to five years since the completion of their PhD. We encourage submissions engaging all disciplines of law.
Selection will be based on the quality of the proposal, as well as its capacity to engage with other proposals in a collaborative dialogue.
The UCL Laws 2017 Postgraduate and Early Careers Conference will select a number of papers presented at the Conference for publication in a special issue of the UCL Journal of Law and Jurisprudence.
All the participants will be offered an opportunity to publish a blog post based on their papers at the UCL Law Journal Blog.
Accordingly, an invitation to participate in this conference will be issued to a participant on the following conditions:
(1) The participant agrees to submit an original, unpublished paper between 8,000 words and 12,000 words consistent with submission guidelines issued by the conference conveners;
(2) The participant agrees to submit a full pre-conference draft by 10 March 2017;
(3) The deadline for submitting papers selected for publication is 15 May 2017.
Interested scholars should email an abstract of up to 750 words along with a short bio in no more than two paragraphs by 25 December 2016 to the following address: PGC2017@ucl.ac.uk.
Abstracts should reflect papers that have not been published nor submitted elsewhere for consideration for publication.
Successful applicants will be selected by an Organizing Committee and notified no later than 15 January 2017.
By Ira Ryk-Lakhman, on 11 November 2016
A review of the recent Israeli “Porno Bill”
By Amir Cooper Esq.*
How to pass State-mandated censorship in two simple steps?
First, award any such legislation proposal a catchy name. Second, state that the governmental restrictions are grounded in the need to protect the public, preferably children. If implemented correctly, this simple two-step program may be the difference between having your bill labeled as “disproportionate censorship” or “necessary protection of public interests.”
A catchy name is important. The title should target a clear and present danger so when you hear about the bill for the first time it immediately gets your support. For instance, a government would be wise to name a proposed restriction of online content by law the “Porno Bill.” After all, nobody wants to be the person who cheers for easy access to porn for 8-year olds. After the catchy name is set in place, it would be even wiser to add an explanatory note to the Bill stipulating that the object and purpose of it is to protect children. To be sure, the protection of children is a good and worthy cause and a valid rationale for many acts of legislation. However one must be mindful that not every legislation professedly aiming at the protection of children, in fact seeks to achieve that purpose.
So what if the Bill uses wide open-ended terminology, which potentially encompasses a wide array of content having nothing to do with child pornography, pornography more generally, or even children. As long as children are potentially protected from something and the proposed law is properly marketed to the public, the harm may go unnoticed.
This is in fact the strategy adopted by some Western Countries when introducing new censorship proposals.
Before passing the UK Audiovisual Media Services Regulations in 2014, which requires online porn to adhere to the same guidelines laid out for DVD sex shop-type porn by the British Board of Film Censors (BBFC), the UK Government considered a State-mandated restriction on online pornography. Under the considered (but not adopted) route, certain online contents would be restricted, by default, by Internet Service Providers (ISP). Put differently, it would have been up to customers to opt out from Internet filtering to receive access to adult content.
When this option was considered, then PM David Cameron met with ISPs to explore possible State-mandated restrictions on online content, and opened the issue for public consultation and discussion. He explained that the Government’s aim is to “fully explore every option that might help make children safer – including whether Internet filters should be switched on as the default, so that adult content is blocked unless you decide otherwise.” Then shadow culture secretary, Harriet Harman, also went on to say that “keeping children safe online is a real problem and a concern for millions of parents.”
Similarly, from late 2007 until early November 2012, the Australian Federal Labor Government pushed for a highly controversial State-mandated scheme whereby ISPs would be obliged to block adults’ access to online content. Any such blocked content would have been stipulated in list compiled by a governmental instrumentality, and according to what the Australian Government deems unsuitable. Here too, a mandatory compulsory filtering was proposed, and described as merely “an added step that can help protect children.” This proposal was softened and mostly withdrawn.
Most recently, on 30 October 2016, the Israeli Government’s Committee on Legislation passed a resolution to support the legislation of the “Porno Bill.” Much like the earlier failed attempts worldwide, the explanatory note of the Porno Bill, inter alia, elucidated that, aside from the positive aspect of the Internet, it also contains materials “which may hurt and jeopardize the public and mostly children.” Accordingly, the Bill proposed a content filtering mechanism to shield children. Further, the Bill was sponsored by Parliament Member (MK) Moalem-Refaeli, who stressed, “the average age that children are exposed to pornographic sites is 8,” and she does not “think it is right to leave things like that.” Indeed, at least professedly, these arguments merit positive consideration.
But MK Moalem-Refaeli also justified the Bill and its predicating rationale by stating that: “as parliamentarians and public leaders, we must put up road signs that say ‘this is how we think society should behave.” And this is a far more problematic statement, which emphasizes much of the concern this type of bills raise.
What is the “Porno Bill” and how did it propose to protect children?
The Porno Bill reflects the most recent attempt by Israeli politicians to limit access to the Internet; six such attempts were foiled and/or withdrawn in the past few years. By and large, a decision of the Committee on Legislation, usually, ensures a bill with an automatic majority support in the Knesset, the Israeli Parliament, making this legislative iteration somewhat unique.
Under its catchy moniker, the proposed Porno Bill placed responsibility upon the Minister of Communication (currently Prime Minister Benjamin Netanyahu) to provide guidelines that define ‘pornographic’ and other ‘offensive’ content. The ISPs, in turn, were required, under the proposed Porno Bill, to limit access to such pornographic and offensive content as a default. Further, under the original Bill, an Internet user who would be interested in accessing any such prohibited content will be required to explicitly request to opt-out of this arrangement (i.e., restriction) by formally informing its ISP of its interest in accessing prohibited content.
Ostensibly, the Porno Bill enjoyed a relatively wide support from both the left and the right wings. Amongst the supporters of the Bill, one would find secular and religious representatives, Arab and Jewish KMs, men and women, and Coalition and Opposition members.
But the devil is in the details. The decision on what constitutes ‘pornographic’ and/or ‘offensive’ content, and the identity of the person that gets to make that decision, threatens to turn the Bill, originally meant to protect children from exposure to harmful content, into a tool for government-sanctioned censorship. In the Israeli society, a split society with exceedingly strong support for conservative ideas, the answers to these questions can be terrifying for some.
Among the KMs that have explicitly attached their support to the Porno Bill one may find two members of ultra-orthodox Parties. The two subscribe to the relatively new extreme religious interpretation that men are not allowed to hear women singing. One of these KMs is known for imploring men to refuse military service, for soldiers face the risk of hearing women singing in ceremonies. Thus, for him, the mere sound of a woman qualifies as offensive content. The Porno Bill was also embraced by KMs who have declared in the past that same-sex marriages lead to the “destruction” the world and the integrity of our society. Another KM who pushed for the Bill, had, prior to his parliamentary position, paraded livestock and dogs in Jerusalem, equating them to the marchers in the Israeli gay pride parade. It stands to reason that for those who hold similar views, the mere sight of a same-sex couple holding hands is offensive.
As religious and conservative – and some would say bigoted – views gain traction in Israel many Israelis fear that providing their Government with the power to define obscenity and limit access to offensive contents will result in excessive limitation on speech in the Internet. A power that was given to the government, as reality has it, could rarely be taken back, especially when future politicians that will attempt to reverse censorship laws risk being labeled as threatening the wellbeing and safety of children.
The Porno Bill, as described above, left Internet users with the option to opt-out of the Bill’s restrictions. The opt-out mechanism should presumably mitigate the fear from government censorship by providing a more balanced approach. It was designated to offer a softer alternative to pure filtering of pornographic materials or strict prohibitions, as those adopted in certain countries (see the OpenNet Initiative for a global Internet survey).
Under the Bill, any person that would contact its ISP and requests to opt-out will be allowed unrestricted access to the interest. To comply with the Bill, the ISP would presumably be required to maintain a list of customers that formally requested access to unfiltered content, and make sure that them, and only them, are provided with such content; so far so good. But one must wonder: what would become of this list?
Just like the explanatory note of the Bill provides, “during the last decades the Internet turned the world into a global village, granting the public easy access to different kinds of information.” Thus, and precisely for the reasons underscoring the Bill, in today’s reality it seems that the question is not “would the opt-out list be provided to third parties?” nor is it a question of “would the list be leaked?” It is rather a question of “when.” And when this “Porno List” – it seems only logical to refer to the list as such, after all a catchy name is important – finds its way to the Internet, how would you explain the inclusion of your name in the list in, say, a job interview? The very threat that an ISP’s “black list” would leak would potentially deter people from waiving the default Internet screening, even if Government eventually defines “pornography” way too broadly.
For this reason, to some the opt-out mechanism seemed to be nothing more than an attempt to cloak government censorship with undue legitimacy.
The outcome and what remains to be seen
The public backlash was extensive and immediate, and before long the Porno Bill was the subject of extensive criticism in the on-line media and social networks. Like the UK and Australian proposal, the Porno Bill, notwithstanding its catchy name, was altered at an astonishing speed. Under the revised Bill, which was passed on 2 November 2016 in a preliminary reading (50:16:0), in lieu of the default censorship of offensive content and the opt-out mechanism, ISPs are obliged to contact their consumers and inform them via text message and email of an option to filter (free of charge) offensive content and offensive sites. This is not a significant change from current law that requires ISPs to notify Internet users of filtering options via mail.
Liberal proponents of free speech have joyfully announced the Internet to be yet again safe from governmental control; at least until the next time a politician is disturbed by offensive content. Indeed, MK Moalem-Refaeli rejected the criticisms against it saying that she “will continue fighting as the web is filled with content that we would all like to shield our children and youth from. Today it is easier to be consume porn than to by a Popsicle in a store.” Similarly MK Eitan Cabel, an outspoken member of the Opposition, another co-signor of the original Porno Bill, continued to express support for the proposed censorship. He explained that “as someone who was exposed to the issue in the educational system, I stand totally behind the bill.” As for the possible infringement of right and invasion of privacy by the Porno Bill, he deemed it “proportionate considering the risks to children, not to mention the exploitation of women.”
As ISPs and Internet companies, such as Facebook, struggle to self-regulate, governments seem to be increasingly eager to step in to fill the void by assuming more power. And while the rhetoric of protecting children is employed in the service of censorship, similar bills will resurface, as put it MK Karin Elharrar, a member of an Opposition party, who signed the original Porno Bill: “The truth is that when I signed it, it was out of a desire to protect children. But I must admit that upon reading it in depth, there were a lot of problems with it.”
* The views presented herein are exclusively those of the author and do not reflect the views of the affiliated law firm and/or its clients.