The Snowden affair, as expected, is snowballing, gathering more and more new details and revelations. This has already led to several international scandals (including the egregious example of what happened with Bolivian President Evo Morales' plane) and most likely will lead to more.
However, this entire situation poses another, more global question: does current international law measure up to the existing realities of the development of the information sphere, and is it able to give countries the tools they need to maintain their informational sovereignty?
For several years (and actually, for several decades) there has been a standoff in this area between several key international actors over what can with certainty be called the «new information order». Developing countries first made an appeal on an international level to demand changes in existing policy with regard to the dissemination of information, technologies and communications in the late '70s (the issue was discussed especially actively after the appearance of the MacBride Report). And just as in the '70s and '80s, their staunchest opponent is still the U.S. However, while previously it was mostly classic kinds of communications that were being discussed, currently the future of global cyberspace is in the forefront.
For a long time the dominant approach has been that proposed by the U.S., in which cyberspace, and the Internet as a component of it, are to be considered a place of total freedom protected from excessive government interference, an engine of «democratic transformations», a «platform for the development of innovations» and a global communications arena. Such an understanding of cyberspace was formalized by the U.S. in 2011 in the International Strategy for Cyberspace. Moreover, such an approach has always been supported by the European allies of the U.S., first and foremost Germany, Great Britain, France, etc.
In actuality, this approach is meant to forever preserve the dominant position of the U.S. in this field without allowing new players to enter it. Over 10 years ago, American political scientist J. Nye, the author of the term «soft power», noted in his research that in the new world the U.S. should replace its outdated «nuclear umbrella» with a more modern and promising «informational» one. This is because the U.S. has unique abilities to collect and process data, and accordingly the U.S. can decide to whom it will transmit this information and to whom it will not, who will receive an informational advantage and who will remain in a state of artificial «informational containment». And it seems that Washington is consistently applying this concept in its activities.
On a purely practical level, beginning in 2001 such American approaches have been codified in the Council of Europe's Convention on Cybercrime, which the U.S. has been trying for several years to turn from a purely regional document to a global one. The document is of special interest to Washington in that it officially allows the intelligence agencies of one country to infiltrate the computer networks of other countries and conduct operations there without the knowledge of the national authorities. The unique irony of the current situation surrounding Snowden and the European countries' indignation at the scale of U.S. intelligence activities on their territory is that the lion's share of these countries voluntarily gave such powers to U.S. intelligence agencies by signing the said Convention.
And when Russia, which was being actively persuaded to sign the document, brought the obvious violation of the principles of state sovereignty to the signers' attention, its opinion was ignored on the pretext that that provision of the Convention was not going to be used as literally as declared. As we can see, the reality is in marked contrast with the assurances of Western partners.
In contrast to such a perception of modern information technologies, an entire group of countries headed by Russia and China posed the question somewhat differently. Yes, undoubtedly global cyberspace should foster general development, but measures should also be taken to prevent its use against the national interests of other countries, the waging of information wars via cyberspace, and destructive influence on the political, economic and spiritual components of a nation. In developing such approaches, the Convention on International Information Security, in which all these questions were addressed, was proposed for consideration on the level of the UN.
In the context of the Snowden affair, the clause in the draft Convention stating that one of the main threats to international information security is «the use… of information and communication technology and means to the detriment of fundamental human rights and freedoms» is especially relevant.
As noted above, until recently the proponents of the American vision of the future of cyberspace actively opposed any initiative aimed at a more prudent attitude toward the functioning of global cyberspace. This was especially noticeable at the conference of the International Telecommunication Union in Dubai in late 2012. At that time Russia's proposal to consider the draft Convention and make corresponding amendments in ITU documents was met with sharp criticism from the West, which led to a temporary halt in discussions on this topic.
However, in the light of the newly revealed facts about the activities of the NSA, now is a good time to return to the discussion. It is not impossible that now that some European countries (for example, Germany and France) have learned that their allies are watching them more closely than their opponents, they might change their position on the fate of this Convention.
All the more so as the UN is prepared to support such initiatives. On July 15 the head of the International Telecommunication Union, H. Touré, called for solving the problem of cyberwars on an international level: «People used to accuse China and Russia… But we know that it's something that involves everyone».
The results of the most recent meeting of the Council of Europe's Cybercrime Convention Committee also indicate that European countries are prepared to change their position on cyberspace. In particular, the parties decided that the controversial Article 32 on transborder access to data requires closer attention and possible revision. One of the most recent statements is the position A. Merkel voiced on the scandal, in which she urged the EU to create unified legislation in the sphere of data protection and not rely on the individual laws of each country. In addition, she expressed her certainty that Internet giants like Google and Facebook must be compelled by law to reveal their means of data transmission. This statement is a qualitative step forward compared to the position she expressed previously.
The likely resumption of discussion on the Convention on International Information Security in essence brings up the following question: who today is truly for the protection of people's civil rights and freedoms, and who is bent on violating them further? After all, if one looks soberly at the situation, it is «the freest and most democratic» country in the world which is not only a proponent of the further erosion of the concept of «national sovereignty» (but only with regard to other countries), but the largest violator of human rights (and the right to privacy of correspondence is part of them). At the same time, the countries which «developed democracies» often accuse of «human rights violations» have turned out to be the last bastion standing in the way of the total devaluation and trampling of these rights. But any attempts by Russia and China to further protect fundamental rights in the information sphere by refining the existing norms of international law run up against massive opposition on all levels.
Russia, China and other countries which have long been advocating the improvement of international legislation in the information sphere must make use of this extremely convenient moment to put the Convention on International Information Security back on the agenda.
Of course, no one doubts that the intelligence agencies of all countries will continue to try to obtain as much information as possible about all citizens, their own or foreign. And to a certain extent such a practice is justified, especially if it is aimed at resisting terrorism or unlawful activities. But Washington's practice, in which U.S. intelligence engages in total and unabashed espionage throughout the world in its own selfish interests under cover of fighting international terrorism and other threats to international security, is completely unacceptable. As H. Touré said, «I have no illusions about the fact that my mail is being read too…Everyone is engaging in electronic espionage»; however, the scale on which the Americans did it clearly demonstrates that even such activities must be subject to appropriate legislative (in this case international) control.
Despite the extreme difficulty of such effective international control, it is simply essential to make efforts in that direction. The world needs a serious international discussion on the issue of cybersecurity, and the initiatives of Russia and China could truly become a good foundation for it.
