The EU’s Cybercrime and Cyber-Security Rulemaking: Mapping the Internal and External Dimensions of EU Security

By taking the EU Cyber Strategy as a case in point, this contribution examines how the distinction between external and internal security in contemporary EU law manifests itself in large-scale risk regulation and in particular, how the EU relies upon external norms to regulate risk. This article also maps the evolution of the rule-making processes themselves.

The traditional character of EU risk regulation has been to carve up discrete manageable segments, where risk is narrowly construed in single instruments. While scholarship on risk regulation has sought to look beyond sectoral lines at EU policy, large-scale risk regulation remains distinctive. EU Security as such a category impacts significantly upon individuals and generates many questions of the rule of law, legal certainty and fundamental rights. These are not always central concerns for EU risk regulation, especially given that EU risk regulation has sought to draw close correlations between EU risk and market regulation. Nonetheless, to the extent that risk regulation is ‘Janus-headed’, it necessitates both inwards and outwards-facing analysis of its subjects and objects. It often requires taking into account external and internal limitations of institutional environments and its actors. The relationship between internal and external security policies of the EU is both a descriptive and normative challenge, as much as it is for the regulation of risks. For example, the EU's Internal Security Strategy aims to target the most urgent security threats facing Europe, such as organised crime, terrorism, cybercrime, the management of EU external borders and civil disasters- seemingly ‘outwards-in’, while the ‘European Security Model’ outlines an interdependence between internal and external security in establishing a ‘global security’ approach with third countries. There is thus a descriptive challenge of deciphering what is external versus internal as much as a normative challenge concerning their inter-relationship. This phenomenon is evident in EU rulemaking in the area of cyber policies, as a contemporary case study of the process of rule-making in both internal and external security as well as providing an insight into their specific relationship in its formulation and regulation of risk. Cyber regulation inherently necessitates multi-level risk regulation, employing international and supranational components and local enforcement. It is thus readily portrayed as fragmentary, multi-sourced and ostensibly unfocussed not least because of its external and internal components but also because it involves new and emerging technologies and restrictive Regulation. The pre-emption of security risk based upon inadequate assessments of internal and external risk continue to represent a major challenge for the regulation of EU security.

Copyright: © Lexxion Verlagsgesellschaft mbH
Source: Issue 01/2014 (März 2014)
Pages: 15
Price: € 41,65
Autor: Elaine Fahey

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