CENTRE FOR COMMUNICATION GOVERNANCE AT NATIONAL LAW UNIVERSITY DELHI TECHNOLOGY AND NATIONAL SECURITY LAW AND POLICY SEMINAR COURSE (FEBRUARY - JUNE 2020) B.A. LL.B. (HONS.) PROGRAMME NATIONAL LAW UNIVERSITY DELHI Course Facilitator Gunjan Chawla Programme Manager, Technology and National Security, Centre for Communication Governance at National Law University Delhi; email: [email protected] ABOUT THE COURSE Given the rapidly evolving landscape of international security issues and the challenges and opportunities presented by new and emerging technologies, Indian lawyers and policymakers need to acquire the capacity to engage effectively with national security law and policy. However, curricula in Indian law schools do not engage adequately with issues of national security. National security threats, balance of power, issues of secrecy and political accountability, terrorism and surveillance laws tend to be discussed in a piece-meal manner within various courses or electives. To fill this knowledge gap within the legal community, the Centre for Communication Governance at National Law University Delhi (CCG-NLU) is offering this seminar course to fourth and fifth-year students of the B.A. LL.B. (Hons.) Programme. The course will explore interdisciplinary approaches in the study of national security law and policy, with a particular focus on issues in cybersecurity and cyberwarfare. Through this course curriculum, we aim to (1) recognize and develop National Security Law as a discrete discipline of legal studies, and (2) impart basic levels of cybersecurity awareness and inculcate good information security practices among tomorrow’s lawyers. National security law, viewed as a discrete discipline of study, emerges and evolves at the intersection of constitutional law, domestic criminal law and its implementation in surveillance, counter-terrorism and counter-insurgency operations, international law including the Law of Armed Conflict (LOAC) and international human rights law, and of course, foreign policy in the ever-evolving contours of international politics. With new and emerging threats to security in a borderless cyberspace, the law and regulation of information and communication technology (ICT) across jurisdictions also gets added to this mix. Accordingly, it is assumed that students taking this course have a basic understanding of constitutional law, criminal law and procedure and international law. Familiarity with the Information Technology Act, 2000, will be advantageous. 1 New legal questions often follow issues of national security. These questions lead to uncertainty regarding the currently settled legal doctrines and raise several legal and policy concerns. The course is an opportunity for us to discuss such issues, brainstorm potential legal solutions and have a broader discussion about what India’s national security policy should look like. TEACHING METHODOLOGY The course will be discussion oriented. Students will be expected to read and be prepared to engage with the assigned material for classes. The reading material will be a mix of theoretical/academic writing, primary sources including legislation, case law and policy documents issued by Governments and/or relevant Governmental departments, as well as shorter public commentaries including op-eds from leading newspapers and scholarly blogs on contemporary issues by international and Indian authors. If, on rare occasion, you are not prepared or are not comfortable discussing the assigned material, you may notify us by email at least two hours before the start of class, and we will not call on you that day. Otherwise, it will be assumed that you are prepared and ready to discuss the assigned readings. A substantial portion of the final grade (15%) is class participation. However, the substance of your response when you are called on, or your comment when you volunteer is far more important than the number of times you speak in the class. The course will also include a number of classes where current and former senior members of the intelligence community, armed forces and law enforcement officials, senior counsels who have dealt with issues of national security law, journalists covering national security law and individuals working on preserving civil rights in the context of national security will join us for the class. One of the aims of the course is to understand what is the actual practice of national security in the country. Some of the classes may include movies or TV shows relating to the relevant issues. 2 EVALUATION - Two reflection papers of 1000 words each: 20 marks each Students are expected to choose any two (2) of the six (6) modules outlined in the curriculum to write reflection papers on the assigned material. The reflection papers are to be submitted one day before the class and will form the basis for discussion in those sessions. Exceptional reflection papers on relevant issues may also be published on CCG’s blog. - A Seminar Paper of 3500 words: 45 marks The Seminar Paper will be due in the first week of June, the exact date will be provided during the first class. - Class Participation: 15 marks As mentioned above, the substance of your response when you are called on, or your comment when you volunteer is far more important than the number of times you speak in the class. Failure to meet the 75% attendance requirement will result in an automatic zero score on this parameter. ATTENDANCE AND CLASS TIMINGS* Classes will be held every [Wednesday] from [3.00 pm to 6.00 pm] (tentatively), starting on February 27. The University regulations require students to attend at least 75% of the classes. * Timings indicated are tentative, and subject to modification based on class strength and students’ unavoidable scheduling conflicts, if any. Guest lectures to be delivered by various experts over the semester may be organized beyond class timings. OFFICE HOURS We will schedule office hours once a week on [Mondays] between [4 pm and 6 pm]. You may also schedule a meeting by appointment by sending an email. 3 TECHNOLOGY AND NATIONAL SECURITY LAW AND POLICY CURRICULUM OUTLINE1 The seminar course curriculum is divided into six modules, to be taught over a period of 12 weeks between February and May 2020. § Module I: Unpacking ‘National Security’ 1. Why study national security law 2. The meaning of national security 3. Theories of national security and their application 4. Major debates about national security § Module II: An introduction to strategic thinking—Linking national security law and policy 1. Classical Approaches: Hugo Grotius to Clausewitz 2. American Approaches: From Edward Luttwak to Richard Danzig 3. Chinese Approaches: From Sun Tzu to ‘Unrestricted Warfare’ 4. Strategic Thinking in the Indian Context? § Module III: National Security in the Domestic Sphere 1. The State at war 2. War making powers under the Constitution 3. Terrorism, insurgency and national security 4. The role of intelligence and its importance in cyber operations § Module IV: War and National Security in International Law 1. Unpacking the concept of war in international law 2. International law and security: The Law of Armed Conflict 3. ‘National Security’ as an exception to international legal obligations 1 This is a draft of a comprehensive curriculum that CCG is preparing to be taught across Indian law schools. We realize that the scope and depth of this curriculum is ambitious, and we may not be able to cover all issues in the desired level of detail within the course of a single semester. Sections and readings may be added or removed from the course structure, depending on the level of the classes. On an average, students will be expected to read 150-200 pages per week. 4 § Module V: Cyberwarfare, Cybersecurity and International Law 1. Cyberwarfare and its impact on existing international legal framework 2. Applicable and relevant international law 3. Overview of cyber norms formation processes § Module VI: Cybersecurity in India: A Case Study 1. Cybersecurity in the Indian context and why it matters 2. Challenges and threats to cybersecurity 3. India and cybersecurity: The National Cyber Security Strategy 2020 4. Cybersecurity in the FinTech Sector: A Case Study Additionally, we will also conduct at least one session to inform and equip students with practical tips to encourage good information security practices and cyber safety online for individuals. We envision that a critical analysis of current policy and strategy documents in vogue will also enable students to project and predict emerging technological challenges to our national security infrastructure and institutions, as well as the evolution of the legal tools and processes available to deal with these challenges. 5 MODULE I: UNPACKING ‘NATIONAL SECURITY’ The First Module is an introduction to relevant theoretical concepts in security and strategic studies. We delve into the theoretical components of what comprises ‘national security’, and major debates around it, including the tension between security and fundamental freedoms. This module is divided into four parts: 1. Why study national security law 2. The meaning of national security 3. Major debates about national security 4. Theories of national security and their application A flexible phrase, ‘national security’ has distinct yet connected meanings in domestic law, international relations, international law, and related fields such as human rights. In this module, students will (1) learn the meanings of the term ‘national security’, including security of the state and security in the state (2) explore the “why” behind the use of the national security concept, from a legal and political perspective, and (3) be introduced to theoretical models of national security, exploring the extent and limits of the concept with the help of case studies. An understanding of the justifications will enable students to look past stated reasons, and will enable them to arrive at an independent evaluation of the use of the concept. Readings for Module I Part 1: Unpacking ‘National Security’ 1. Arnold Wolfers, National Security as an Ambiguous Symbol, Political Science Quarterly, Vol. 67, No.