The importance of information security in safeguarding human and fundamental rights
Ahti Saarenpää
Law is necessarily a dynamic force and component of society: Legal principles, the legal culture and legislation all change regularly. When society changes, legislation is the first of these to react – sometimes even a bit too readily. Mostly it is enough to interpret old legislation by a new way in a new environment.
Recognizing and acting on the need for a wholly new body of legislation involves rather more effort. We are even slower to notice changes in legal principles and slower still to detect changes in our legal culture. On balance, law is at once a dynamic and a conservative phenomenon. The legal profession counts amount the most conservative.
Change in a society and change in a state are different matters. This is yet another distinction we fail to make. States are usually the slower to change. In the Nordic countries today we speak of the European constitutional state. It is an old concept that has taken on new vitality with the conclusion of human rights treaties and the establishment of the European Union. The rights of the individual are protected much earlier and more vigorously than before. We are fully justified in speaking of a legal superhighway that should provide the most direct route from human and fundamental rights to the interpretation of individual provisions in the law.
The society we live in today is a network society, the state a constitutional state. This combination changes law significantly: One can see legislation, legal principles and the legal culture all changing. The meeting of old and new is conspicuous. If nothing else, our world of legal concepts is being rapidly reshaped. Much of what we do we now do on networks – in new ways, using new concepts and, to some extent, applying new principles.
The Network Society compels us to reflect on the legal significance of information security in a new way. On the technical end, we have been slow to wake up to the realities of information security and the need to study it closely. Where the legal ramifications are concerned, we have been even slower. On the European level, we have even gone so far as to think that best practices would suffice.
This is not the right way ahead in a constitutional state. Electronic communications, e-commerce and information management – all core processes of the Network Society – require an environment where information is secure. We exercise our fundamental rights to an increasing extent on networks. This unequivocally requires that information security be included among our fundamental rights. It is an element of the essential social contract that underpins the Network Society. The routes that information and legal information follow should run parallel over their full length. Information networks are not solely or primarily a technical consideration from the point of view of information security.
