Communications Disruption & Censorship under International Law: History Lessons

With Internet censorship on the rise around the world, a variety of tools have proliferated to assist Internet users to circumvent such censorship. However, there are few studies examining the implications of censorship circumvention under international law, and its related politics. This paper aims to help fill some of that void, with an examination of case studies wherein global communications technologies have been disrupted or censored— telegram cable cutting and censorship, high frequency radio jamming, and direct broadcast satellite blocking— and how the world community responded to that disruption or censorship through international law and law making. In addition to illustrating some of the law and politics animating global communications censorship, I extrapolate lessons and insights for the challenges posed by Internet censorship today, such as the international legality of censorship circumvention, the nature of censorship justifications, and the potential liabilities for those engaged in censorship resistance under newly emerging doctrines of international law. 1. Why International Law? A few previous studies have examined or noted the legal implications of Internet filtering [1], mapping [2], or censorship circumvention [3], yet none have examined, in depth, how circumvention of state-implemented Internet censorship fits within international law and its politics, perhaps because the use, distribution, or development of Internet censorship resistant systems or censorship circumvention tools— what I refer to as censorship resistance activities— are often seen as the work of private citizens, organizations, and other non-state actors, and not subjects of the international system. Yet, those involved with censorship resistance activities should pay heed to international law— and developments in international rule-making—for several reasons. First, international law has evolved in important ways in recent decades, with new legal concerns and potential liabilities emerging for organizations, corporations, and other non-state actors involved in transnational activities like censorship resistance [4]. And many states, like the United States, have increasingly sponsored Internet censorship resistance activities, potentially raising other international legal issues like state responsibilities [5, 6]. Second, new international legal rules formulated by treaties and conventions, often negotiated in secret, can quickly shift global Internet regulatory norms, providing new forms or possibilities of censorship and surveillance. For example, many past and present national laws raising Internet censorship concerns were enacted to bring countries in line with their international legal obligations— like the Digital Millennium Copyright Act in the U.S. (implementing the Berne Convention) or lawful access laws in Canada (to meet obligations under the Council of Europe’s Convention on Cybercrime). Similarly, the Anti-Counterfeiting Trade Agreement (ACTA), currently being negotiated, may oblige signatory states to pass broad anti-circumvention laws— which could outlaw censorship circumvention tools— similar to provisions proposed in the controversial U.S. bill, Stop Online Privacy Act (SOPA). Third, the “legitimacy” of censorship resistance activities has been questioned or criticized [7, 8], so situating such activities within broader international legal rules or norms can provide meaningful “moral, rhetorical and at least arguable legal support” to justify censorship resistance and its various components like filter circumvention or anonymous access [9]. Those are just a few reasons why international law remains a relevant and worthy focus. Despite this relevance, few studies have systematically explored the international legal dimensions of Internet censorship resistance activities. This paper aims to help fill at least some of that void, with an examination of case studies wherein global communications technologies have been disrupted or censored— telegram suppression and cable cutting, high frequency radio jamming, and direct broadcast satellite blocking— and how the world community responded to that disruption or censorship through international law and law making. In addition to illustrating some of the law and politics animating global communications disruption and censorship, I extrapolate from these case studies some