
Contents
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I. Introduction I. Introduction
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II. The Duty of Constant Care II. The Duty of Constant Care
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A. The Binding Nature of the Duty A. The Binding Nature of the Duty
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B. The Duty’s General Scope B. The Duty’s General Scope
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1. What Military Activities Trigger the Duty? 1. What Military Activities Trigger the Duty?
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2. When Does the Duty Apply? 2. When Does the Duty Apply?
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3. What Harms Is the Duty Meant to Prevent? 3. What Harms Is the Duty Meant to Prevent?
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4. When Is the Duty Breached? 4. When Is the Duty Breached?
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III. The Duty of Constant Care and Data Protection III. The Duty of Constant Care and Data Protection
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A. The Duty of Constant Care as a Data Protection Rule A. The Duty of Constant Care as a Data Protection Rule
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B. Specific Applications of the Duty in the Age of Big Data B. Specific Applications of the Duty in the Age of Big Data
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1. Legality and Transparency 1. Legality and Transparency
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2. Storage Specification and Limitation and Data Integrity 2. Storage Specification and Limitation and Data Integrity
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IV. Conclusion IV. Conclusion
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8 The Duty of Constant Care and Data Protection in War
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Published:December 2023
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Abstract
Military operations have entered a new frontier in the age of cyberspace. The incorporation of Big Data and new information technologies in warfighting has ushered in new possibilities for civilian harms. Our modern belligerents now endanger a set of digital rights, including the rights to privacy, anonymity, access to information, freedom of expression, digital autonomy and dignity, and intellectual property. Against this backdrop, calls have been made to find restraints within existing frameworks of IHL to militaries’ emerging data-invasive practices. This chapter explores one such restraint: the duty of constant care as established under the general customary principle of precautions in attack. It argues that this duty applies to the entire gamut of a belligerent party’s informational activity against its adversaries. It further suggests that the “precautions in attack” principle, as was originally envisaged by the drafters of the First Additional Protocol to the Geneva Conventions, reflects, at least in part, a data protection rule. The chapter proceeds in the following order. First it discusses the binding nature of the duty of constant care and its temporal and subject matter scope. Second, it examines the duty’s possible data protection applications, focusing specifically on two primary categories of obligations: legality and transparency, and storage specification and data integrity. Ultimately, I propose that the duty of constant care might prove a temporary gap filler to the lacuna of wartime data protection, at least until such time as more expansive and restrictive data protection regimes are implemented through treaty evolution and custom formation.
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