Seeking the right balance in today’s and future networks
At the heart of many discussions concerning the future of communications lies the need to balance security with privacy, and to allow freedom of expression while limiting the dissemination of undesirable or dangerous information. There might be no perfect solution to this challenge, but it is one that needs to be considered as objectively as possible and (because these are issues that cannot be tackled by one jurisdiction alone) from both a national and an international perspective.
Certain commentators have suggested that when the ITRs are reviewed in December 2012 at the World Conference on International Telecommunications (WCIT-12), amendments might be made that weight the balance unduly on the side of censorship and the invasion of personal privacy. But the fact is, national governments already have wide powers to control communications. Under article 34 of the ITU Constitution, its 193 Member States have the right to stop, in accordance with their national laws, communications “which may appear dangerous to the security of the State or contrary to its laws, to public order or to decency.” There is no proposal to alter this right, and the ITRs do not affect it.
At the same time, the ITU membership recognizes the human right of freedom of expression and the right to have access to communications, as enshrined in a number of international treaties as well as in article 33 of ITU’s Constitution. The ITRs contain similar provisions; in particular, article 3.4 states that “subject to national law, any user, by having access to the international network established by an administration (or recognized private operating agency), has the right to send traffic…”
As regards privacy, article 37 of the ITU Constitution says that Member States will “take all possible measures” to ensure “the secrecy of international correspondence.” But it also allows for correspondence to be passed on to “the competent authorities in order to ensure the application of their national laws or the execution of international conventions to which they are parties.”
How these obligations are reconciled differs among countries, depending on their varying laws and cultural values. For example, some authorities have laws that prohibit hate crimes or gambling. Some governments prosecute people after they have put up websites deemed undesirable, in so-called “ex post” regulation. Others prevent such websites going up in the first place by imposing “ex ante” barriers.
When an activity is declared to be criminal, governments and police forces can seek to track it through the network. Does the international community have a role to play in either facilitating or restricting such actions by sovereign authorities? Of course, it depends if we all agree on whether a particular behaviour is, in fact, criminal or needs to be managed. For example, disseminating child pornography is widely regarded as illegal, but there is no agreement on whether the organizing of protest rallies should be monitored, and the recognition of intellectual property rights or commercial interests varies greatly.
Could a balance be found by the international community? And how is crime to be combatted while individuals’ rights are protected?
More in Part Two, to be posted shortly.
By Paul Conneally
Head, Communications and Partnership Promotion, ITU