forthcoming scholarship: Daly on Deep Packet Inspection

June 25, 2010

The Legality of Deep Packet Inspection

Angela Daly (European University Institute)

Deep packet inspection is a technology which enables the examination of the content of information packets being sent over the Internet. The Internet was originally set up using “end-to-end connectivity” as part of its design, allowing nodes of the network to send packets to all other nodes of the network, without requiring intermediate network elements to maintain status information about the transmission. In this way, the Internet was created as a “dumb” network, with “intelligent” devices (such as personal computers) at the end or “last mile” of the network. The dumb network does not interfere with an application’s operation, nor is it sensitive to the needs of an application, and as such it treats all information sent over it as (more or less) equal. Yet, deep packet inspection allows the examination of packets at places on the network which are not endpoints, In practice, this permits entities such as Internet service providers (ISPs) or governments to observe the content of the information being sent, and perhaps even manipulate it. Indeed, the existence and implementation of deep packet inspection may challenge profoundly the egalitarian and open character of the Internet.

This paper will firstly elaborate on what deep packet inspection is and how it works from a technological perspective, before going on to examine how it is being used in practice by governments and corporations. Legal problems have already been created by the use of deep packet inspection, which involve fundamental rights (especially of Internet users), such as freedom of expression and privacy, as well as more economic concerns, such as competition and copyright. These issues will be considered, and an assessment of the conformity of the use of deep packet inspection with law will be made. There will be a concentration on the use of deep packet inspection in European and North American jurisdictions, where it has already provoked debate, particularly in the context of discussions on net neutrality. This paper will also incorporate a more fundamental assessment of the values that are desirable for the Internet to respect and exhibit (such as openness, equality and neutrality), before concluding with the formulation of a legal and regulatory response to the use of this technology, in accordance with these values.

forthcoming scholarship: Nachbar on “Rule of Law” in military doctrine and operations

June 25, 2010

“Defining the Rule of Law Problem”

The Green Bag, Vol. 6, No. 2D, p. 303, 2009
University of Virginia Public Law and Legal Theory Working Paper Series Working Paper No. 125

THOMAS B. NACHBAR, University of Virginia School of Law
Email: tnachbar

This article is based on a chapter written for The Rule of Law Handbook: A Practitioner’s Guide, a handbook used as a text at The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia, and as a reference for judge advocates worldwide.

The paper considers the recent explosion in legal development activity undertaken by the U.S. government in the context of the military interventions in Afghanistan and Iraq. Those programs, frequently lumped together under the title ‘rule of law,’ have in turn led to a flurry of activity to define the ‘rule of law’ in order to provide some guidance to those programs.

The paper highlights the need to define the purpose of the definition before seeking a definition and discusses how recently adopted definitions of the rule of law in U.S. military doctrine necessarily affect not only ‘rule of law’ programs but also the full spectrum of operations undertaken by U.S. forces.

forthcoming scholarship: Newton on reprisals

June 25, 2010

Reconsidering Reprisals

Michael A. Newton (Vanderbilt)

Duke J. Comp. & Int’l L. (forthcoming)

The prohibition on the use of reprisals is widely regarded as one of the most sacrosanct statements of the jus in bello applicable to the conduct of modern hostilities. The textual formulations are stark and subject to no derogations. Supporters of the bright line ban describe it as a vital “bulwark against barbarity.” In the words of the International Committee of the Red Cross, the prohibition is “absolute”, despite the fact that the declarations of key states indicate residual ambiguity over the scope of permissible reprisals, particularly in the context of non-international armed conflicts. Reprisals are a recurring feature of state practice, though conducted under varying legal rubrics and shifting rationales. Reasonable reprisals grounded on an empirical assessment of their deterrent value or framed as appropriate punishment for prior acts of terror may be the most morally acceptable and humane strategy for serving a strategic imperative of civilized society. Limited reprisals may in practice be essential to counteract the growing threat of transnational terrorists. Reasonable reprisals may represent the best long term way to erode support for those who would mobilize terrorist actors to willfully ignore the rules protecting innocent civilians thereby violating the most basic human rights of their victims. This is especially true if nations create clear lines of agreed legal authorities supported by independent adjudication of the motives and methods employed in such reprisals. Peace-loving states should seek common ground to enhance efforts to protect innocent citizens from the effects of terrorist violence. Thoughtful and multilateral reassessment of the lawful scope and rationale for reasonable reprisals is overdue.

forthcoming scholarship: Odom on the “Impeccable Incident” and its implications for US and PRC perspectives on international law

June 25, 2010

* Forthcoming Scholarship

The True `Lies’ of the Impeccable Incident: What Really Happened, Who Disregarded International Law, and Why Every Nation (Outside of China) Should Be Concerned

Michigan State Journal of International Law, Vol.18:3, May 2010

Commander Jonathan G. Odom, JAGC, U.S. Navy, jonathan.odom

Many in the international law and foreign affairs communities are concerned about an incident which occurred on March 8, 2009, in the South China Sea, involving the United States Naval Ship Impeccable and five vessels from the People’s Republic of China (“PRC”). Only a small percentage of those communities, however, are familiar with the March 8th incident in substantial detail, both factually and legally.

Although the episode was reported by the news media, such reporting was merely the “first rough draft of history.” Therefore, much like how a courtroom trial provides a community with an opportunity to step back and dispassionately examine an alleged crime or civil wrong with deliberate consideration, so too is there value in stepping back and reflecting upon this maritime incident in greater depth on its one-year anniversary. Effective reflection on the incident can occur only when detached observers have an opportunity to weigh the actual facts of that day, apply international law to those facts, and reach a well-considered legal judgment-in essence, a “verdict”-on the incident. To reach such an informal verdict, these observers must be presented with detailed perspectives from the two nations involved. This Article provides such a detailed perspective from one of the two nations-in this case, the United States. The discussion focuses on and synthesizes with meticulous detail the official statements and comments and physical documentation (i.e., video and photographs) released by the United States and PRC governments.

Part I of this Article focuses on the facts of the March 8th incident. This includes a factual account of the incident, as provided by the U.S. government one day after the incident actually occurred. The next section introduces the official public statements made by the PRC government about the incident. Then, perhaps most importantly, the discussion of facts identifies objective evidence, which might corroborate or refute the respective factual accounts. Juxtaposing the two governments’ statements on the facts of the March 8th incident with this objective evidence proves quite telling for which side’s account is closer to the truth.

Part II of this Article focuses on the applicable law of the March 8th incident. This legal discussion will examine two bodies of international law: first the international rules of navigational safety, and second, the international law of the sea. Viewing the facts of the incident through the prism of these two distinct, but related bodies of international law will show which nation operated in accordance with its legal rights and responsibilities, and which nation disregarded international law in its actions.

Ultimately, this Article reaches several conclusions. First, the U.S. government was candid, clear, and consistent in its factual account of the March 8th incident. Washington provided detailed corroboration to the international community; in stark contrast, Beijing was cryptic at best, and possibly misleading. Second, the actions of the U.S. Nval vessel during the March 8th incident were consistent with international law; meanwhile, the collection of PRC vessels involved in the incident acted inconsistently with that same body of law. Third, the Article concludes that, since neither the facts of the incident nor the applicable law support the actions and position of the PRC in the March 8 incident, Beijing’s diplomacy and media blitz in the aftermath of the event demonstrate an effort to unilaterally transform international law.

These conclusions raise troubling questions about China’s ability to integrate successfully into the community of responsible nations.

The True Lies of the Impeccable Incident (Odom, MSUJIL, May 2010).pdf