parties. It is recommended that states hold private actors who enable or facilitate
these acts to account.xiv For example, where there has been misuse of personal data
in political campaigns, companies should be investigated and brought to account.xv
In addition, the targeting of individuals, including human rights defenders and
journalists, using surveillance technology has been shown to lead to “arbitrary
detention, sometimes to torture and possibly to extrajudicial killings”.xvi States
should address the human rights abuses within their territory and/or jurisdiction
which occurs as a result of the practices of the largely unregulated private
surveillance industry. Seven recommendations to states, including the imposition of
an immediate moratorium on the export, sale, transfer, use or servicing of privately
developed surveillance tools until a human rights compliant safeguards regime is in
place, are included in the Report of the Special Rapporteur on the promotion and
protection of the right to freedom of opinion and expression (A/HRC/41/35).xvii
Due diligence is linked to the principle of state sovereignty. When applied to
cyber operations, this principle would oblige a state to not knowingly allow its
territory or the ICT infrastructure under its control to be used for cyber operations
that affect the rights of other states. Because cyber operations can harm and infringe
upon the human rights of individuals in other states makes the principle of due
diligence imperative from a human rights perspective. Although it might be
practically difficult to prove the “knowledge” element of this principle, as states can
plausibly deny having actual or constructive knowledge of such activities, this does
not render the legal obligation moot (see “Global Partners Digital, Unpacking the
GGE’s framework on responsible state behaviour: international law”).
Institute for
International
Cyber
Stability
This norm was not included in the section of the UN GGE 2015 report titled
“How International Law Applies to the Use of ICTs” but rather in the section on
“Norms, Rules and Principles.” As such it is not clear whether all signing States
agreed that this norms is based on international law. In order to increase the
achievement of the implementation of this norm all States should first provide their
position on whether this norms is based in international law. Assuming that some
States’ positions will be that it is not based in binding international law then in order
to assist in the implementation of this non-binding norm States should codify
domestic law that would criminalize any actions. Second, there should be an
education campaign for States that need assistance in building the domestic legal
framework for this while educating the prosecutors and judges. International sharing
of information through a process like the MLATs needs to be instituted for
investigations in order to gather the relevant information concerning the cases at
issue. And lastly, each State should take reasonable steps to ensure that its own
infrastructures are secure. This can be done by passing domestic regulation requiring
a certain level of cybersecurity or by developing voluntary standards for
cybersecurity such as the NIST standards in the US.
Tech Accord
First and foremost, states should develop comprehensive cybercrime laws to
ensure that offences emanating from their territory can be prosecuted.
Cybersecurity Tech Accord signatories would encourage state to leverage
internationally established framework, such as the Budapest Convention on
Cybercrime for this purpose.
Secondly, states should invest in capacity building for law enforcement and the
judiciary to ensure that cybercriminals can be effectively prosecuted.
Thirdly, states should ensure that they are able to share and receive information
surrounding a particular incident. In addition to recommendations outlined in the
response to norm d), we encourage governments to ensure that their CERTs are part
of international networks, such as the global Forum of Incident Response and
Security Teams (FIRST) or similar initiatives.
Finally, states should promote cyber hygiene practices and thereby reduce the
vulnerable attack surface. These could range from promoting patching, to adoption
of Domain-based Message Authentication, Reporting & Conformance (DMARC), or
Mutually Agreed Norms for Routing Security (MANRS).
@DFAT DFAT.GOV.AU
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