National Sovereignty and Free Expression

Cory Doctorow's latest LOCUS column explores the tension between the rights of nations to "establish the rule of law" and individuals' rights to freedom of expression.

Hard Cases, Bad Law

Some nations use the power of their sovereignty to protect individual rights, while some do the opposite. The internet comes into the discussion because it "crosses international borders." Currently the United Nations is working on a Cybercrime Treaty, intended to prevent "ransomware attacks and other serious crimes." The problem is that the treaty will leave it up to each country to define "cybercrime" within its borders. A dictatorship might well define it as any public criticism of the regime. Or, for example, weaponize it against a dating site that permits same-sex matches.

The essay also discusses "data localization" laws, enacted by the EU member nations and some other European countries. Beneficial effects include preventing data about internet users within these countries from being accessed by the NSA's global surveillance. A less benign provision, however, "allows sovereign nations to access and use the data stored within their borders," a power obviously vulnerable to abuse by countries such as Russia.

Encryption presents another dilemma rooted in the clash between sovereignty and individual rights. Governments would like to ban highly effective "working encryption," at least to the extent of mandating a back-door feature for investigation of criminal activity. The trouble is that it's impossible to create such encryption to allow action prosecution of criminals while still protecting the data of legitimate users. Laying out the procedures that would be required to implement the kind of restrictions authorities might like, Doctorow concludes "the collateral damage to human rights from this kind of ban are gigantic."

The essay goes into considerable detail about these and other related issues of interest to anyone devoted to freedom of speech. Conclusion -- in irreconcilable clashes between national sovereignty and human rights, the latter should rule, and "we can recognize the legitimate exercise of sovereignty without using that as a pretense to ignore when sovereign power is used to undermine free expression, especially when that use is likely to kick off a cascade of ever-more-extreme measures that are progressively worse for free expression."

Margaret L. Carter

Pease explore love among the monsters at Carter's Crypt.