3 Lessons about International Law and Technology from ASIL Midyear

By Caitlin Hunter

At the American Society of International Law’s 2019 Midyear Meeting, hosted at Brooklyn Law School, international law scholars and practitioners talked candidly about the new challenges and opportunities that technology is creating for international law as part of three panels: The Status of Data under International Law, Cyber Affairs and International Law, and The Impact of Technology in International Law.

Here are three key take-aways:

  1. Existing privacy frameworks aren’t keeping up with governments’ use of technology.

Tamar Megiddo (University of Haifa) describes how governments use technology to systemize surveillance and suppress dissent. For example:

Megiddo argues that existing privacy frameworks have become increasingly inappropriate as a response to these tactics. When activists try to speak publically and are shut down by disinformation and troll swarms, the problem is not privacy. Megiddo recommends adopting a new framework focused on human freedom instead.

  1. Technology is challenging stereotypes about the developing world.

Block-chain might be stereotypically associated with Bay Area tech bros but Brittany Bennett (Florida A&M University College of Law) convincingly argues that it’s perfectly suited for adoption within and across African countries. Ideologically, block-chain’s decentralized, independent format fits well with ideals of pan-African socialism. On a practical level, block-chain can provide reliable and trustworthy currency, land registration, and election results in countries that struggle with corruption and lack of trust in government.The African Grid: How Blockchain Technology can Revolutionize African Governance, By Brittany Bennett

Katerina Linos (Berkeley Law) argues that widespread adoption of smart phones and social media is revealing fundamental flaws in the legal concept of refugees. Refugee law assumes that refugees flee their countries with guns to their heads and gratefully accept refuge in the first safe country they reach. The reality, however, is that most refugees exercise more agency that that. As refugees flee violence, their phones remain vital life lines for arranging transportation, finding work, and identifying the most welcoming countries and least crowded refugee camps. Host countries that ignore this and fail to maintain a social media presence allow rumors and misinformation to run rampant within refugee camps. Linos’ Digital Refuge Project maps how information and misconceptions flow among refugees on Facebook.

  1. Governments need to take responsibility for regulating the internet- but they must tread carefully.

Both Nele Achten (Harvard University Kennedy School of Government) and Dafina Bucaj (Loyola Marymount University Law School, Los Angeles) presented papers arguing that countries must take responsibility for preventing cyber-attacks from within their territory. The widespread use of the internet for everything from power plants to airports to elections has made countries increasingly vulnerable to cyber-attacks. At the same time, it’s often difficult to conclusively assign responsibility for cyber-attacks, such as the allegedly Russian-backed attacks on the Ukrainian power grid and the U.S. Democratic National Committee. Both Achten and Bucaj argue that governments have a due diligence obligation to prevent cyber-attacks originating in their territory, regardless of who actually commits the attacks. They analogize to the Corfu Channel case, which held that Albania had a duty to prevent the laying of mines within its water by outsiders, and to more recent environmental decisions, which held that countries must prevent pollution that spills into neighboring countries.

However, Kevin Benish (Holwell Shuster and Goldberg LLP) cautions that overuse of injunctions against websites can create “conflict of law on steroids”. The presumption against the extraterritorial application of injunctions is eroding as the European Court of Justice orders websites worldwide to remove personal data, German courts order websites worldwide to remove hate speech, Canadian courts order websites worldwide to remove trade secrets, and U.S. courts give Microsoft ownership of alleged Russian hacking websites. Given dramatic differences in countries’ attitudes towards free speech, hate speech, and privacy, these injunctions create serious potential for conflict unless courts develop new tests for extraterritorial application of injunctions.

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