Parameters towards a Fundamental Right of Accessing the Internet and Its Restrictions: The Case of Terrorism

Claudio de Oliveira Santos Coinage

SUMMARY: 1. Introduction. — 2. The Lessig Theory: Law, Norms, Markets and Architecture. — 3. Internet Access as a Human Right: Symbolism and Scope of Protection. - 4. Access Restriction and Terrorism: Concrete Cases and Real Issues. - 5. Conclusion.

1. Introduction

This chapter intends to address the following problem: how to determine the proper parameters for limiting a fundamental right to access the Internet? If it is true that Internet access may be considered a human right (due to technology evolution and all the effects that it brings to individuals and society as a whole), it is also feasible to infer that such a right should not be interpreted in an absolute way.

Therefore, it would be natural to allow some sort of limitations or restrictions to this recently developed human right, considering that a basic parameter for interpreting all sorts of human rights is that none of them is absolute. Moreover, every single fundamental position may have to give way to a different one, in order to strike a proper balance in concrete situations. However, these limitations cannot be stab-lished in an arbitrary way, but must satisfy minimal legal and constitutional requirements or standards in order to be considered admissible from a human rights perspective, duly developed in an argumentative way in each case. In order to verify whether limitations to human rights are considered to be valid, one criterion that has been used by scholars and legal actors is the proportionality technique, which proposes a way to rationally balance different human rights, depending on the facts.

The research will focus on the question regarding which variables may be applied to the restriction of access to the Internet and how these parameters articulate with the growing problem of terrorism in the digital age. Thus, the chapter will address matters from different perspectives, from the lawfulness of restricting access to someone who is serving time for terrorism, to proper strategies that may be combined with access limitation in order to fight such hideous crimes, without criminalizing innocent behaviour.

Since Internet regulation theory may benefit from the theoretical model created by Lawrence Lessig (the four constraints theory, first articulated in ‘Code and Other Laws of Cyberspace’ and then strengthened in ‘Code: Version 2.0’, which are: Law,

Norms, Market and Architecture), this author will be our base-theory to be used alongside the proportionality adjudication technique, in order to provide a robust proposition in answer to the main question elected as the research focus.

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