The Internet and Non-Nationals: Is the Internet a Tool for Inclusion or Exclusion?
Maria Francesca De Tullio
SUMMARY: 1. Introduction. Internet and Terrorism: National States Vis-a-Vis Foreign Actors and Jurisdictions. - 2. Privacy and Big Data as a Matter of International Trade. - 3. The Continuing Relevance of Nations and Territories in Discriminator}' Counterterrorism Surveillance. - 4. Conclusions: Towards an Inclusive Digital Citizenship.
Introduction. The Internet and Terrorism: National States Vis-a- Vis Foreign Actors and Jurisdictions
This chapter addresses the regulation of the Internet and terrorism, with specific regard to the tension between the growing internationalisation of lawmaking and the relevance of national citizenship and territory. Hence, the basic idea of this work is not to make an overall analysis of the balance between digital freedoms and counterterrorism. Rather, these themes are used here as an example. Indeed, the growing interdependence among States is ver)' evident; however, this does not tend to make nationality and residence irrelevant in the national juridical systems.
The indicated phenomena are emblematic of the internationalisation of law, because they compel each system to relate to subjects and jurisdictions outside of its boundaries. Namely, either the State allows foreign actors to participate in its decision-making processes, or it seeks an extra-territorial application of its rules. This is true for the Internet, which is a global network, hosting communications and traffic among people and organisations outside the national limits. And it is also true for terrorism, because criminal cells are flexible and rooted in different countries, but are also able to aggregate with each other on a transnational scale and strike in other parts of the world. In this sense, the Internet and terrorism are particularly fitting examples of the broader trends of internationalisation that call into question the actuality of our idea of democratic community.
Traditionally, the very concept of democratic community is based upon an overall assumption of coincidence between the State territory, a political community and cit-
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Audrey K Cronin, ‘Behind the Curve: Globalization and International Terrorism’ (2002-2003), 27(3) International Security, 30-58.
izenship, i.e. a “space of equals” composed of people who share a unitary interest and set of values, and consequently are entitled to the same duties of obedience and participatory rights. Nowadays, this construction is subject to contradictory tensions, as a result of the increase of migratory flows and transnational movements of capital, commodities and people.
However, the examples examined in this chapter show that the internationalisation of rules and regulated phenomena creates new boundaries in participatory rights. To be more precise, trade negotiations overcome, to a certain extent, the exclusion of foreigners from participatory rights, because they give an active role to international businesses and private stakeholders. What is more, the non-national actors who participate in these negotiations have an advantage over average citizens of the State, who are prevented from even observing such decision-making processes through the ordinary transparency rules. On the other hand, this chapter shows that such processes are not indicative of a linear tendency to expand non-nationals’ enjoyment of fundamental rights. When it comes to ordinary immigrants or foreigners, discrimination persists, especially in the field of national security.
The aim of this chapter is to explore these contradictions, by examining specifically the Internet and terrorism from a constitutional law standpoint. The analysis starts with human rights and the way they have declined in European Union (EU) law. Basically, it addresses two questions. The first one is: to what extent do these phenomena disrupt the traditional understanding of citizenship and political participation? The second one is: is it possible to find some unitary direction, if not rationality, behind these processes?
In Section 2, it is observed how transnational regulatory dialogue is undertaken in trade law. The aim is to identify the international actors in these processes and assess their impact on the harmonisation of rules on the Internet. The results are compared, in Section 3, with the effectiveness of the universality of human rights in the field of counterterrorism: the question is whether fundamental freedoms have kept pace with the internationalisation brought about by technological development, or are still dependent upon one’s reattachment to a territory, through citizenship, residence or cultural belonging.
Finally, Section 4 draws some conclusions from the work. Given the novelty and ever-changing nature of the phenomena, they are far from being definitive answers. Rather, they set the lines for future research addressing the links and trade-offs between the development of lex mercatoria and humanitarian legislation at a supranational level.
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The normal assumption is that citizens are the ones who are mainly interested in the destiny of the Country and, therefore, hold voting rights: Adriana Ciancio, ‘I diritti politici tra cittadinanza e residen-za’ (2002) 1 Quaderni costituzionali, 54-55. Even if sometimes there are some breakthroughs towards the recognition of the right to vote for foreigners, its effectivity largely depends upon the immigration laws: Lara Trucco, ‘11 permesso di soggiorno nel quadro normative e giurisprudenziale attuale’, in Pasquale Costanzo, Silvana Mordeglia and Lara Trucco (eds), Immigrazione e diritti umani nel quadro legislative attuale (Giuffre 2008), 43.
For the sake of conciseness, the questions animating this chapter are analysed through a specific issue, i.e. the regulation of big data. This lens seems to be appropriate, because data shares the transnational character of the Internet, as well as its multi-purpose usability, allowing it to serve both the economy and human rights and to act as both an emancipatory and a repressive tool. In particular, data is also subject to communication surveillance, which is often a pillar of counter-terrorism policies.
As to the first element - transnationality — big data has an intrinsic propensity to unrestrained circulation, from both a technical and an economic point of view. Firstly, as scholars clarified, the raw substance of data approximates it to a non-rival and nonexcludable good,[1] because it can be duplicated and transferred virtually everywhere at almost zero cost, and is not consumed by utilisation. Furthermore, the innovativeness of the most advanced data analysis instruments derives precisely from the possibility of reusing data sets. Indeed, “data mining” — as explained below — does not need specific samples, appropriate to each experiment, but allows scrutiny of huge quantities of data collected from different sources and with different aims, even in the absence of a working hypothesis prior to the creation of the data sets. Then, not only is information non-rival, but it also delivers its highest potential value if it is shared, reused and linked with other databases.
As to the second element — multi-purposeness — data can serve multiple aims that meet different and sometimes contrasting interests, involving the economic, personal or public sphere. This means that data regulation is not neutral, on the contrary, it has to balance constitutional values. For example, information can be gathered and sold for advertising purposes or to build artificial intelligence, or can become a shared industrial asset, able to innervate and boost the whole of the agricultural and manufacturing sectors. However, the discipline of data is linked to fundamental rights, especially privacy.
This is particularly evident in the matters analysed in this chapter. Sure, the balancing of fundamental rights in trade law or counter-terror provisions is not the main object of this work. Nevertheless, a clarification is in order, since privacy is taken here as a point of reference in assessing equality and participation.
Privacy in this chapter is understood in accordance with the EU framework: it is not only a protection of what is normally “secret”, like a person’s private sphere or domicile, rather, it is a right to “informational self-determination”, i.e. the possibility for everyone to control their own information. Personal data is the natural expansion of the individual sphere itself, and is embedded in the overall right to personal autonomy, which protects the autonomous development of personality in the internal forum and in the relationship with others.
Of course, the enjoyment of this right can be limited if necessary to fulfill other rights, like economic rights, as in trade law, or security, as in counter-terrorism. Though, in this case a balance is needed, according to the proportionality principle. As specified by EU Court of Justice, limitations of privacy are only accepted if provided by the law, apt, necessary and proportionate in relation to the counterposed value. Moreover, another criterion, not stated in the Charter, appears to be slowly emerging in some recent decisions of the EU Court of Justice:[2] a hierarchy has to be recognised that privileges personality rights over economic ones. With reference to these parameters, the research will assess how regulations affect the respective status of nationals and non-nationals.
- [1] Katarzyna Sledziewska and Renata Wloch, ‘Should We Treat Big Data as a Public Good?’, Mari-arosaria Taddeo and Luciano Floridi (eds), The responsibilities of online service providers (Springer 2017), 265-268. 2 Viktor Mayer-Schonberger and Kenneth Cukier, Big Data: A Revolution That Will Transform How We Live, Work and Think (Houghton Mifflin Harcourt 2013), 11-70, 147-158. 3 ’ Josef Drexl, ‘Designing Competitive Markets for Industrial Data - Between Propertisation and Access’ (2016) Max Planck Institute for Innovation & Competition Research Paper No. 16-13. https://ssrn.com/abstract=2862975, 30-38. 4 Privacy is stated specifically in the Charter of Fundamental Rights of European Union [2012] OJ C 326, 26.10.2012, Article 8. Such right should have at least the same meaning and scope as the European Convention for the Protection of Human Rights and Fundamental Freedoms [1950], Article 8.
- [2] See, lastly, Cases c-293/12 and c-594/12, Digital Rights Ireland Ltd v Ltd v Minister for Communications, Marine and Natural Resources and Others and Kärntner Landesregierung and Others [2014] European Court of Justice, ECLI:EU:C:2014:238. Concerning the requirement of “provision by the law”, the respective balance of Judiciary and Parliamentary powers is controversial: Antonio D’Andrea, Autonomía costituzionale delie camere eprincipio di legalitä (Giuffré 2004), 1 ss.; Oreste Pollicino, ‘Inter-pretazione o manipolazione? La Corte di giustizia defmisce un nuovo diritto alia privacy digitale’ (2014) 3 Federalismi.it. http://www.féderalismi.it/ApplOpenFilePDF.cfm?artid=28017&dpath=document&dfi le=25112014121445.pdf&content=Interpretazione+o+manipolazione?+La+Corte+di+giustizia+definisce +un+nuovo+diritto+alla+privacy+digitale+-+stato+-+dottrina+-+, 5-8. 2 Case C-131/12, Google Spain SL, Google Inc. v Agencia Española de Protección de Datos (AEPD), Mario Costeja González [2014] European Court of Justice, ECLI:EU:C:2014:317, paras. 97 and 99.
