Access Restriction and Terrorism: Concrete Cases and Real Issues

As explained by Randall Law, ‘Terrorism is a strategy that makes use of certain tactics; in other words, terrorism is a means to an end — although often one that eventually overshadows the putative goals toward which its users ostensibly strive’. The same author abandons an unproductive search for a precise and perfect definition of the phenomenon, opting for a broad approach. Therefore, he discusses about terrorism either as ‘... a communicative act intended to influence the behavior of one or more audiences’, that can also be understood ‘... as a set of tactics; as an act of symbolic and provocative violence; and as a cultural construct’. One of its primary and essential elements consists of the ‘... ability of violent actors to ensure that news of their acts and intentions reaches their target audiences, sometimes through direct impact’, but in a more probable and effective way, ‘... through rumors, government responses, newspapers, television, entertainment sources, and countless other forms of information dissemination’.[1] That’s exactly where terrorism and Internet intersect: the ability to spread data (correct or incorrect) virtually by anyone to anywhere.

In the same way, Lozano recognizes that ‘Terrorism seeks not only to cause harm, but to accompany it with a forceful message. It has been said that terrorism is a “spectacle”; a tragic representation with an immense communicative force’. Addressing the matter on its core, Lozano unveils the difficulties of dealing with terrorism online, since ‘... it is unclear what the best response is to this situation in which the Web nowadays is a source of radicalisation and it is debated whether repressive measures or censorship is the best method of confronting this problem’.

Consequently, if Internet access may be considered a human right, the same applies to human life protection, which is severely threatened in the occurrence of terrorist attacks and intimidations. Thus, it is useful to lay out some parameters and standards that may be applied to consider which would be proper limitations to the fundamental right of accessing the Internet when balanced with security policies, destined to deal with terrorist threats and prevent terrorist attacks. These standards may be better understood if argumentatively construed based on concrete scenarios that take in considerations Lessig’s constraints theory, which is why we set out a few questions regarding limitations to accessing the Internet due to security issues in a broad way.

Whatever the solutions may be for combating terrorism on the Internet, there should be balanced policies on the matter of human rights, since the ultimate victory of terrorism would be converting the methods of the Constitutional State into terrorist ones. That’s why the limitation of a human right can’t affect its basic core, as stated by de Minico, in the sense that ‘... the legislator has to limit the fundamental rights to the strict necessary and ensure that to a given compression of a certain right will correspond a probable advantage for a counter-posed value’. If that doesn’t happen, ‘... the regulation would be illegitimate and politically inadequate’. That also discharges any option for a policy of absolute control over individuals, since according to de Minico, ‘controlling everyone is like controlling no one’. [2]

So, some issues that may arise from contrasting the human right of access to the basic public policy of security (specifically on assessing terrorist threats) may be divided into two large topics, such as: a) access limitations, and b) ISPs’ collaboration, both of them having in mind the necessity of intelligence processing of data. To propose an answer to these questions, we intend to articulate Lessig’s constraints theory with the proportionality adjudication technique, in order to construe an answer that can be put to the test according to the different legal, social, economic and architectural contexts that may be presented to anyone trying to strike a balance between freedom and security.

One aspect that should be clear is that there is no space for absolute solutions, in both senses. Neither do humans have total protection against data collection nor can the government simply collect data from anyone for any purpose. This has been well noted by Orefice, who formulates the question: ‘[I]s it proportionate (in the balance between the threat of terrorism and the enjoyment of fundamental freedoms) to use the data of all (suspected and unsuspected)’ which are ‘collected, extracted or bought through continuous monitoring, sometimes even without our knowledge, for one apparent purpose of public security ...?’ Even though a clear answer would be “no”, that still leaves us with the necessity of striking a balance somewhere in the middle between the two absolute solutions preemptively discharged.

  • [1] Randall D. Law, Terrorism (Themes in History) (Polity Kindle Edition 2016). 2 Germán M. Teruel Lozano, ‘The Internet, Incitement to Terrorism and Freedom of Expression in the European Framework’, Paper presented on the X World Congress of Constitutional Law, Seoul, South Korea, June 18-22, 2018.
  • [2] Giovanna De Minico, ‘Internet and Fundamental Rights in Time of Terrorism’ (n. 4 2015) Rivi-sta della associazione italiana dei constituzionalisti 4. 2 Maria Orefice, ‘Artificial Intelligence and the Right to Privacy in the Times of Terrorism’, Paper presented at the X World Congress of Constitutional Law, Seoul, South Korea, 18-22 June 2018.
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