Le droit international et Internet après l'« affaire Snowden » : La recherche de nouveaux équilibres
In: Annuaire français de droit international, Band 60, Heft 1, S. 731-753
Edward Snowden, a former employee of a subcontractor of the NSA, revealed the US monitoring and data interception programs. This case has changed International Internet Law in many aspects, including two in particular, which are discussed in this article. The Snowden affair has underlined the difficulty encountered by Law in responding to technological specificities of the Big Data. The legal protection of personal data does not always seem adapted to the volume, velocity and heterogeneity of data. While International Human Rights Law has adapted to this new context, a proper Digital Law has been deemed necessary. This essentially soft law has developed specific principles of data accuracy, purpose specification and security safeguards. The trade-offs between competing interests have evolved from the confrontation between national security and fundamental rights, to the opposition between fundamental rights and digital specificities, to the inclusion in legal instruments today of a commercial and horizontal logic in order to take into account the interests of private Net-actors in addition to those of States and their nationals. But the development of legal instruments is not sufficient and it is the whole governance model that should be redesigned. The imbalance inside Internet governance institutions for the benefit of the United States is challenged by some States and international institutions. Earlier proposals of multi-stakeholders and multilateral governance models are difficult to implement. The Snowden case has showed, firstly, that the material and institutional segmentation of governance should make way for integrated governance. Secondly, it demonstrated that against the risk of " Net Balkanization" a distribution-based and networked logic should be developed. It is however still uncertain whether the reflections triggered by this case will lead to a more appropriate and balanced legal framework for Internet activities.