Regulation and splinternet
A concept first envisaged a decade ago, the splintering of the internet is moving closer to reality as regulation attempts to impose both limitations and new responsibilities, reports Boon-Hiong Chan of Deutsche Bank Corporate Bank’s Market and Technology Advocacy team
R
ecent years have seen a growing realisation regarding the great economic and manipulative power of
data and information. They have also been marked by a series of human tragedies1 involving encrypted data, high-profile computer compromises, audacious cybercriminal ransomware hits, the monetisation of hate speech, and increased geopolitical dynamics; each exposing uncomfortable cross-border dependencies. These have led to greater legislative enforcement against abuses and regulatory scrutiny of cyberspace/digital activities, requiring firms to adapt to a fluid and ever-changing landscape.
As a result, the trending global regulatory focus on cyberspace and its participants addresses a diversity of areas encompassing cybersecurity, transparency of online content governance, personal data privacy, non-personal data confidentiality, data localisation and mirroring, outsourcing and the use of cloud service providers, encryption backdoors, decryption, competent authorities’ access to data (whether at a national level or overseas), and measures to rebalance the digital ‘winner-takes-all’ business models. Recent examples* of regulatory attention include:
Cybersecurity The Budapest Convention, which came into force in 2004, is an international treaty that focuses on cybercrime, which 65 countries
20
have ratified. The Convention seeks to harmonise laws related to cybercrime and support international cooperation in the fight against cybercrime, while it also serves as a limited mutual legal assistance treaty. An update2
to the Convention is
ongoing to reflect new criminal justice challenges and to support more effective cross-border cooperation on issues such as electronic evidence. The final protocol is expected later in 2021.
In late July 2020, China’s Securities Regulatory Commission issued a consultation paper on new rules for the reporting, investigation and management of cybersecurity incidents in the securities and futures industry.3
classification methods and accountability and incident handling, among other areas. The consultation period closed on 11 January 2021.
The European Commission published a new EU Cybersecurity Strategy4
in December
2020, which covers three action areas: • Resilience, technological sovereignty and leadership;
• Building operational capabilities to respond to and deter cyber threats; and
• Increasing cooperation for a more global and open cyberspace.
A further two legislative proposals were also issued – a new draft Directive on the resilience of critical entities, and a revised
Directive on measures for a high common level of cybersecurity across the Union.
Decryption A new decryption platform was launched in December 2020 by the European Union Agency for Law Enforcement Cooperation (Europol), developed with the European Commission’s Joint Research Centre, that increases Europol’s capabilities to decrypt information lawfully obtained in criminal investigations.5
It aims to improve incident
Its decryption goal has much in common with Australia’s Telecommunications and Other Legislation Amendment Act of 2018, under which law enforcement and intelligence agencies can request technology companies to provide technical assistance including decryption.
A similar policy direction was also reflected in the latest (October 2020) call by the UK, US, Canada, Australia and New Zealand – the so-called ‘Five Eyes’ countries – together with India and Japan, for the introduction of encryption backdoors for law enforcement.
Transparency The Digital Services Act (DSA) was published in draft form by the EU in December 2020.6
The DSA defines four
categories of online services, with each having increased regulatory obligations. They include transparency reporting,
Image: iStock
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