The Rule of Law and the Internet by Jimson

That the Internet has become the imposing phenomenon of the modern era is no longer news. What appears to be news is how it is defining the way we live, work, learn, share and govern. Talking about governance, I will be focusing on the rule of law on the Internet.

Jimson Olufuye

The Internet, being a network of networks is a borderless online world without national boundaries that has giving birth to new citizens called global citizens or online citizens. The absence of national boundaries create a quick departure from the offline world which is the physical world that we know. In the offline world, clear boundaries exist and with it legal jurisdiction backed up with principles in form of law governing the way of life of the citizens irrespective of status. That invariably defines nationalities and citizenship. Within and outside these boundaries is the maintainance of law and order which is referred to as the Rule of Law.

The pertinent question for the online world is "should we replicate the boundaries on the Internet by creating silos to ensure the prevalence of the rule of law on the Internet in line with the physical world?" In my opinion, to do so is retrogressive. Internet, because of its open, transparent and inherent multi-faceted nature has engendered unprecedented access to information and wealth across the world and has shrunk the world into what we know today as the 'global village' wherein information that hitherto could not be accessed due to distance can be available instantly.

The challenge now is how do we ensure that the rule of law prevails on the Internet? How do we ensure that criminals do not operate with impunity? How do we ensure citizens'rights to privacy, freedom of speech and assembly among others are not trampled upon by anyone not even the state? How do we ensure that there is justice on the Internet? How do we ensure that core principles of decorum, civility and the right of children to participate online without abuse are protected?

Tackling the above challenges must rely on innovation - a key catalyst of the Internet which over the past 43years of its evolution has ensured its resilience. The idea of doing something in a different way has not only benefitted the global economy, it has also added immense value to human life and dignity. The last frontier of the process concerns to how the Internet is governed to ensure the advancement of the rule of law in the online world.

One of the important results of the World Summit on Information Society 2005 was the establishment of the Internet Governance Forum (IGF) to provide a forum for better understanding of the Internet governance ecosystem among all stakeholders irrespective of their constituencies. Now in its 6th edition and the 7th expected to hold in Baku Azerbaijan 6-9 November 2012, the IGF has thrown up a new model of governance called consensus multi-stakeholderism.

At the United Nations Commission on Science and Technology for Development Working Group on the Improvement to the Internet Governance Forum, it was evident that the true and enduring approach to Internet governance is through multi-stakeholder participation with a focus on building consensus around core issues. Issues that are objectionable might have to be put aside. 

The history of the Internet underscores this approach as the Internet is a system that continues to evolve through the participation of many stakeholders in the user community, the business community, the civil society, the technical and academic communities and of course governments. 

All stakeholders have something to offer and their views matter greatly for an effective rule of law in the online world. A case in point was the stalling of the "Stop Online Piracy Act" (SOPA) and "Protect Intelletual Property Act" (PIPA) bills in the US Congress due to the failure of sponsors to carry key stakeholders along. The ideas behind the bills are good but the processes of articulating the bills were not inclusive.

As mentioned earlier, the rule of law has to do with legal principles governing the conduct of all citizens and the disposal of justice in the real (offline) or the virtual (online) world. Every one needs justice on the Internet, from the children, to consumers, users, producers, suppliers, organisations and states with regard to privacy, freedom of expression, security and other such rights. 

The rule of law prevails in the offline world but not yet matured in the online world. Recently, the Council of Europe (CoE) and the International Chambers of Commerce (ICC) in separate proclamations declared that the offline laws and rule apply to situations and circumstances in the online world. For example the crime of credit/debit card theft, identity theft, fraud, misuse of bank accounts, obscene posting etc in the offline world have similarities in the online world.

The challenge facing the international community is evolving the best approach to enthroning the rule of law on the Internet? Should it be a "government only" effort to bring about law and order on the Internet considering the upcoming International Telecommunication Union (ITU) Treaty negotiation conference coming up in Dubai in 2012?  Or should it be an exercise for all stakeholders in line with the Tunis Agenda 2005?

Taking this forward through multi-stakeholder co-operation and collaboration is a sine qua non for the rule of law to prevail on the Internet. With regard to dealing with cybercrime, there is the Budapest Convention which is the first treaty on Cybercrime. 

This can be expanded to create a handshake with the African Union Commission, the regional Economic Commissions eg ECOWAS. The Interpol protocol can be expanded to cover online activities but such scope of expansion should only be carried out incorporating other stakeholders like the business community.

Business gathers a lot of personal data of clients, which based on privacy policies are expected to be protected and not divulged to any third party. But for law enforcement purposes where such data are required from business, even on an on-going basis there should be internationally accepted legal protocol guiding such request by law enforcement authorities so as to promote the rule of law, trust and confidence on the use of the Internet.

Further on dealing with cybercrime, there is need for effective cyber policing and training. National Police authorities in collaboration with Computer Emergency Response Teams (CERTs) and non state actors can set up Cyber Division and Cyber Stations where cases of cybercrimes can be reported and action taken. Special courts can also be inaugurated to handle peculiar online crimes.  With more than US$8trillion worth of transactions done online and close to US$380billion lost to cyber crime each year, the time is more than ripe for action to be taken to arrest the ugly side of the Internet - crime; so that the potential of the Internet can truly be unleashed for the eradication of poverty and cheetapolevault development of developing nations and Africa in particular.

In conclusion, the rapid development of Africa is hinged on the on-going evolution and innovation on the Internet engendered by free flow of information. The enthronment of the rule of law will further assure this process as confidence, security and trust in the online world soar. Whether  offline or online there should be no difference as all should be our world based on liberty and the rule of law. As long as humans are the players in the two worlds, liberty and the rule of law are necessary imperatives for the full potentials of the Internet to be realised for everyone in the world.

Dr Jimson Olufuye is the CEO Kontemporary and Vice-Chairman ,World Information Technology and Service Alliance (WITSA) and can be reached on jolufuye@kontemporary.net.ng.
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