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Elkin-Koren and Haber (2016). Governance by Proxy, Cyber Challenges to Civil Liberties

Elkin-Koren, N., & Haber, E. (2016). Governance by Proxy: Cyber Challenges to Civil Liberties. Brook. L. Rev.82, 105.


Distributed networks created new challenges to governance. At the initial stages of the commercial Internet, its distributed nature shifted power from traditional institutions to end users, acting alone or in collaboration with others. This led to a governance crisis: how do governments ensure public safety, secure critical infrastructure, and safeguard national security in an era of open communication networks? To address such crisis, legislatures created a legal framework in which governmental agencies could lawfully obtain information from intermediaries. In practice, as Edward Snowden revealed in 2013, governmental agencies also operated beyond the scope of this legal framework, mainly through an informal collaboration with online intermediaries. Such public-private partnership (PPP) is executed in a regulatory twilight zone, which keeps this type of collaboration beyond the reach of legal oversight, and outside the reach of market powers that could have pushed against it. It therefore fails to provide sufficient checks and balances and could subsequently risk our civil liberties and freedom.
This Article scrutinizes the new type of governance-by-proxy and the legal twilight zone that facilitates it. It identifies legal gaps and offers insights on how to address them. It proceeds as follows: Part I introduces the governance crisis and describes the role of online intermediaries in the new governance model. Part II describes the legal twilight zone in which informal governance by intermediaries takes place. It compares the legal framework for PPP prior to the information era with the legal regime that facilitated the rise of PRISM. Part III examines the constitutionality and legality of such PPPs. Part IV examines potential social and legal solutions to the governance crisis that also secure fundamental rights and liberties. The last Part concludes the discussion and calls for restructuring the legal regime that governs PPPs.