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This week, the blog is featuring 8 additional workshops suggested by delegates for the 10th IACL World Congress 2018 on “VIOLENT CONFLICTS, PEACE-BUILDING AND CONSTITUTIONAL LAW”, being held in Seoul, Republic of Korea on 18-22 June 2018. Full details are on the congress website, in English and French, along with information on how to submit a paper. Papers may be in either French or English. Please circulate to colleagues interested in the subject. Note that “early bird” discounts on the conference registration fee are available until 30 November 2017 (click here for details).
The workshop focuses on three questions: what risks imperil the Internet, put under tension by the terrorism of ordinary times? Which was – and which shall be in a State of right – the supranational lawmakers’ reaction to this challenge? What role for the Judges?
a) Internet shows a dual, unprecedented and contradictory identity: a place for the exercise of all kind of freedoms, in its original position ancillary to the person, but also a field for the terrorism-related crimes. A role, the latter, involuntarily helpful to the terror strategy, which alienates the initial individuals’ sympathies from the net.
This two-faced Janus provoked a two-edged regulatory response: favourable and together adverse to freedoms. The different national legislations – affected by the various interventions – appear schizophrenic: they state everything and its opposite. Indeed, the capability of the Net, multiplier of the liberties, has called for a regulation expanding the rights (See European Regulation on Digital Single Market). Whereas the aptitude of the Internet to technically facilitate the commission of crimes, compared to what would happen in the material reality, has provoked, at national and supranational level, a regulation restraining the very same spaces of freedom increased before. One could consider the recruitment of terrorism, whose border with the right of association is very weak, because the crime is built on the model of the crimes of abstract danger (See Directive EU 2017/541, Art. 6).
b) In regard to Internet the response of the lawmakers, national and European (See USA Executive Order, 25/1/ 2017; Décret n° 2015-1475, 3 avril 1955; and Projet de loi renforçant la sécurité intérieure et la lutte contre le terrorisme, 18 juillet 2017), appears weighted in favour of security, having restricted everyone’s fundamental freedoms – and not only the terror suspect’ ones – in violation of the precautionary and proportionality principles. These two are the legitimacy tests with which the model of the ‘laws of fear’ shall comply to avoid transforming the State of right in an atypical regime of constant emergency.
c) Finally, the way Internet is tailored by the creative role played by the European Court of Justice and the European Court of Human Rights in reviewing the controversial relationship between the protection of personal data and the safeguard of national security, drawn by the legislator. The symbolic cases, Digital Rights Ireland and Schrems, differences apart, show how the balancing test works. In addition to this, Schrems will be the occasion to discuss about the new compromise resulting from the Privacy Shield. Its implementation does not seem to have resolved the uncertainties related to the level of protection provided by the US legal order and most notably by the Safe Harbor principles. We want to clarify that this part of the discussion will basically be focused on the possible evolution of the digital privacy enforcement and on the exploration of the relevant constitutional issues raised in line with the supranational constitutional framework of the two previous pillars.