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Protecting human rights on the Internet: here and now!

Yevhen Zakharov
New information technology but the same fundamental rights and freedoms: the real challenge now being legal regulation to ensure post-Soviet hankerings for control are given short shrift

New information technology has radically altered the way people communicate, and one can expect even greater changes.  The law, however, is not keeping up with this rapid development in kinds of technology which are difficult for us to even begin to comprehend. Since human nature on the other hand does not change, such new forms of technology present not only previously unimaginable opportunities for intellectual and technical progress, but also unforeseen ways and means of committing crimes. New threats are also posed to human rights. It is therefore enormously important to consider the real nature of social relations relating to information in new conditions and to formulate new safeguards of human rights. Although our ideas about civil and political rights and liberties – property rights, the right to privacy, to freedom of thought and conscience, to freedom of expression, the right to information, the right to publish, the right of association, of peaceful gatherings and others - have changed significantly, the fundamental concept of the observance of human rights and fundamental freedoms remains unchanged.  The interference of the state in our exercise of any of these rights and freedoms must be based on the law, have a lawful purpose and be necessary in a democratic society, for example, in response to an “urgent public need”.  At the same time the law on the basis of which a particular right is restricted must be accessible, foreseeable and contain adequate and effective guarantees against abuse.  The substance of these criteria must be established by a court.

It seems to me that even a cursory survey of administrative practice regarding the Internet in Ukraine would show that the Ukrainian authorities’ intervention, as a rule, is not based on the law and is most definitely not necessary. Unfortunately this practice continues to hanker after Russian, Belarusian, Uzbek and other post-Soviet models. The state is determined in its wish to take the registration and domain zone .ua under its control.  It is trying to monopolize the information market, by introducing licensing for all telecommunications services, and to turn “Ukrtelecom” into the “provider of providers”,  The state wants to keep tabs on the flow of information, demanding that operators install equipment for monitoring telecommunications, and at the operators’ experience to boot.  It is attempting a division into “the right” and “the wrong” providers, by demanding that state agencies connect up to the Internet only via “the right” providers. It wants to register all electronic addresses, all websites, giving them the status of media outlets, and goodness knows what else in their insatiable desire to protect information security, and and monitor just about everything. One could take any statement in this paragraph, look at in detail and show precisely how the state is violating fundamental rights and freedoms. [1] .

I would therefore identify the first priority in legal regulation of the Internet as being to draw up laws which protect human rights against unwarranted and disproportionate intervention by the authorities in the sphere of information. A full reworking is needed of the basic law “On information” which was passed before the age of the Internet. A law is urgently needed to protect personal data which would provide the possibility of Ukraine’s joining the Council of Europe’s Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108), would comply with the requirements of EC Directives №№95/46, 97/66, as well as other European documents on protection of personal data, and would become a basis for safeguarding information privacy in all areas, which are no less urgently in need of change. The latter include the Laws “On investigative operations”, “On a Single Register of Individual taxpayers”, “On communications” and many others.

Let us look in more detail at the problem of monitoring of telecommunications [2]. Crime has become much more sophisticated, using means of information technology as its weapons. Naturally the police the security service must have adequate means for averting and investigating crime. It would therefore be foolish to deny any possibility of monitoring of telecommunications. However there must be mechanisms of public control which would provide a shield against abuse. We need, in particularа, a procedure for making interception of information from channels of communication more transparent, bringing in a norm making it mandatory to inform the person whose communications were intercepted after the interception has stopped, and to show the person any intercepted material which does not constitute a state secret (there are similar norms in the laws of Germany, Austria and other countries).  країн). There should also be an annual report from the law enforcement agencies on the use of investigative operations in the form of interception of information from communications channels  which would be obliged to indicate the total number of court warrants with a breakdown into the grounds on which they were issued and an analysis of the effectiveness of such measures. We would note that many of the relations in the Internet which our state is trying to regulate are in the countries of the European Union, which Ukraine would so like to be a part of, and in the USA, a matter for self-regulation. Therefore drawing up and carrying out initiatives on self-regulation of relations in the Internet should be a second main direction for legal regulation of the Internet, closely linked with the first.

As Viktor Naumov shows [3], key issues in legal regulation of the Internet are the problems of jurisdiction of relations within the Internet and the issue of the providers’ liability. One can think of information relations as a chain with at least five elements: the user – the provider 1 – the information resource – the provider – 2 – the owner of the resource. And the elements of the chain may be located within the jurisdiction of different countries. One may therefore consider five variants for legal regulation according to the legislation of the countries of residence of the user, the owner, the place where the resource is located, and the place where the providers are situated. Obviously the question arises: which country’s legal system is applied in disputes, and which country’s jurisdiction covers various information relations? There are no universal answers to these questions however a substantial amount of case law has emerged. On the whole the presence of such a complex intertwining of contradictions to a large degrees renders meaningless the practice traditional for the post-Soviet realm of imposing control over social relations.

It should be remembered that attempts to regulate the exchange of information on the Internet by the dictator regimes in Myanmar and North Korea led to a total ban on using the Internet. Let such examples serve as a lesson for the Ukrainian authorities.

[1]  see, for example, Roman Romanov: “The Internet in Ukraine within the context of the relations between the individual, society and the state”  (in Ukrainian)  //Freedom of expression and privacy, №3, 2002. – p. 4-20.

[2] Yevhen Zakharov: “Without the right to privacy?” (in Ukrainian)  // . Freedom of expression and privacy, №3, 2003. – pp. 9-15.

[3] V. Naumov: The Law and the Internet: comments on theory and practice. (in Russian) – Moscow: Knizhny dom “Universitet”, 2002..

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