Abstract
This article presents a novel way to conceptualize the protection of data in situations of armed conflict. Although the question of the targeting of data through adversarial military cyber operations and its implications for the qualification of such conduct under International Humanitarian Law has been on scholars’ and states’ radar for the last few years, there remain a number of misunderstandings as to how to think about the notion of “data.” Based on a number of fictional scenarios, the article clarifies the pertinent terminology and makes some expedient distinctions between various types of data. It then analyzes how existing international humanitarian and international human rights law applies to cyber operations whose effects have an impact on data. The authors argue that given the persisting ambiguities of traditional concepts such as “object” and “attack” under international humanitarian law, the targeting of content data continues to fall into a legal grey zone, which potentially has wide-ranging ramifications both for the rights of individual civilians and the functioning of civilian societies during situations of conflict. At the same time, much legal uncertainty surrounds the application of human rights law to these contexts, and existing data protection frameworks explicitly exclude taking effect in relation to issues of security. Acknowledging these gaps, the article attempts to advance the debate by proposing a paradigm shift: Instead of taking existing rules on armed conflict and applying them to “data,” we should contemplate applying the principles of data protection, data security, and privacy frameworks to military cyber operations in armed conflict.
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