[governance] FoE rights

Wed Apr 5 12:57:29 EDT 2006

Hi Milton and all,

Back to subtantive issues ! Late, as usual, but in any case I'm  
afraid editorial changes (even major) wouldn't be enough to entirely  
agree...

I understand your point about 'ethics', though I think it would be  
clearer to talk about 'corporate social responibility' (or 'societal'  
responsibility, if you prefer, but I personnally this social/societal  
distinction rather artificial. I understand however where it comes  
from). At least, it would be helpful to specify 'ethical obligation  
for companies' to comply with FoE rights. The text of your proposal  
refers to "ethical interactions with the governments of countries  
that heavily regulate and censor content".

-> This point would indeed be easily addressed by minor editorial  
changes.

But, while we agree on the intentions and the objectives, there are  
more contentious points with this proposal.

The text starts with the following question: "Are the Internet  
filtering and censorship practices of states compatible with Article  
XIX of the UN Declaration on Human Rights?". I'm afraid the answer is  
likely to be, when asking in such an arena, another question: "Is  
unfiltered and uncensored Internet compatible with Article XXIX of  
the UN Declaration on Human Rights?

Article 29 says:
"(1) Everyone has duties to the community in which alone the free and  
full development of his personality is possible.
(2) In the exercise of his rights and freedoms, everyone shall be  
subject only to such limitations as are determined by law solely for  
the purpose of securing due recognition and respect for the rights  
and freedoms of others and of meeting the just requirements of  
morality, public order and the general welfare in a democratic society.
(3) These rights and freedoms may in no case be exercised contrary to  
the purposes and principles of the United Nations."

I think I don't need to remind anyone that Article 29 provisions are  
reaffirmed in the Geneva Declaration fo Principles (para 5).
In addition, in case you haven't noticed, among the 11 post-WSIS  
action lines, there is no "human rights" action line, but rather  
"Ethical dimensions of the Information Society" (C10), and among the  
more than 15 UN commissions or agencies respectively in charge of  
their implementation and follow-up, almost only one is strangely  
missing: the Office of the High Commissioner for Human Righst  
(OHCHR)! Even the ICAO is referred, but not the OHCHR.

All this to explain how weak FoE supporters may be in an arena like  
IGF. As we were in WSIS as a whole. This is not something new to  
discover: the UN Human Rights Commission has witnessed for years the  
consequences of this situation. And it's not guaranteed that the new  
UN HR Council would avoid such a situation.
On FoE, the balance of powers is simply not in our favor, and this  
issue is only a question of balance of powers, not of exploring new  
ways of doing/managing/"enhancing" something. You would tell me that  
all issues in IGF are subject to a balance of powers. That's not  
exactly true or, more exactly, for all other issues, the balance of  
powers in not so severely unequal. For most of them, one may find  
allies because there are many different things at stake, not so   
obvious to be on one side or another. If you're not convinced, simply  
look at the 'diversity' of opinions, if only within CS, on any other  
issue.

-> This second point makes it really dangerous to address this issue  
in the IGF framework/arena. It's likely to backfire, and severely.

Under section "Why it is important", the text of the proposal states:  
"Content regulation, filtering and censorship are issues that do not  
fall within the scope of any existing international body, but cut  
across many of them; e.g., UNESCO, ICANN, ITU and WIPO."

That's not true, not at all. What is true is that many international  
bodies make decisions that may lead to content regulation, filtering  
and censorship (you wrote yourself on ICANN's UDRP rules and their  
impact on FoE. No need to mention WIPO, etc.). It is also true that  
regional institutions like, for Europe, the EU, the CoE, have made or  
still try to make decisions directly recommending content regulation  
and filtering leading to censorship, and sometimes even provided by  
law (e.g. by the EC Directive on e-commerce with the notice and take  
down procedure).

But what the proposal states is not true, in that content regulation,  
filtering and censorship are not issues dealt with at international  
level, specially not as governance issues.

They are issues relevant to civil and penal law, fundamentally as a  
matter national legislations - or, in the EU case, at supra-national  
level but still, the EU is a regional entity with its institutions  
and its legislation in many sectors. Even the CoE cybercrime  
Convention - which has been adopted in a regional intergovernmental  
entity more or less consistent, mostly because of the European  
Convention on HR _and_ the existence of the European Court of HR  
enforcing the ECHR - doesn't deal with content regulation and  
filtering. It rather criminalize some very specific infractions  
(child porn, intellectual property infractions, and racism and  
xenophobia through an additional protocol), the rest of the  
cybercrime Convention mostly addressing procedural cooperation.

The need to deal with these issues at national level (or in a very  
coherent regional entity) comes from the difference in cultures and  
contexts. What is illegal - or simply 'harmful' - in a given country  
is not in another country. This has been for long an argument against  
filters for e.g. parental control. Even people that favors the use of  
filters, e.g. in France, find them inadequate because they are mainly  
designed by US companies, with US culture criteria.

-> In summary, my third point is thus that the issues of content  
regulation, filtering and censorship are not a matter of governance,  
but a matter of national legislation/regulation. And it is at this  
level that FoE rights, which are universal, should be raised as main  
argument against this censorship.
If you open any way to address the content regulation, filtering and  
censorship at international level, then this would lead to the  
definition of a set of 'content seen as inappropriate by all', i.e.  
FoE would be reduced to the least common denominator. Again, the  
initial good intentions carry a risk of backfire.

My final remark deals with the workability of the proposal. The  
objective is, in the end, that companies would agree to act against  
the willing of national governements of countries which are a market  
they want to enter.
Given on the one hand that commercial companies are only driven by  
their profits (I don't know if anyone really trust 'civic behaviors  
of companies' here, in any case I don't, by no mean) and, when this  
may have a serious impact on their profits, by their image; and given  
on the other hand that these companies are, in this case de facto  
monopolies, so they afford a bad image (which in addition they may  
sometimes balance with some charity actions); incentives to have them  
stop selling filtering and censorship tools - or doing themselves  
filtering and censorship - can hardly be identified.
What remains is constraint by law. And this constraint can only come  
from the law of their country of origin/establishment, the law they  
have to respect. For most if not all of them, its the  US legislation.
RSF has recently made a lot of noise on this issue in the US. There  
have been some back-up from some Congress members. I'm not sure  
things are advancing in the US (you can probably brief me on that),  
but I really doubt that, with the huge China market at stake (to only  
talk about China), this noise will go further than that.

In my first comment on your proposal, I've mentioned that I've had  
myself recommended this kind of corporate social responsibility  
guidelines in order to fight racism and xenophobia (I haven't said  
holocaust denial, because I think that, unlike racism and xenophobia,  
it's not a matter of court, but of history). But the situation is  
rather different, and more workable, provided that political will  
exists, of course. In the case of racism, concerned companies - ISPs,  
portals, etc. - are US, and they want to operate, directly or through  
affiliates, in countries where racist and xenophobic speech is  
forbidden by law. And here the governments of these countries can  
play with both incentives and constraints, coming from their side.

-> This fourth point shows, I hope, that the proposal is not only  
dangerous since it may backfire, but also rather useless in that it  
is rather unworkable.

I hope this message - rather long, I'm sorry - has helped to clarify  
my comments on your proposal. I remain interested in further arguments.

Best,
Meryem

Le 2 avr. 06 à 19:39, Milton Mueller a écrit :

>>>> Meryem Marzouki <marzouki at ras.eu.org> 4/1/2006 4:45:22 PM >>>
>
>> I do apologize. It's not that easy to have a full time job, and
>> run (many) volunteer activities besides that.
>
> I fully understand. I am in the same condition! No need to  
> apologize, just expressing my disappointment that we didn't benefit  
> from your wisdom sooner.
>
> Based on your argument below, I am not convinced we are raising the  
> dangers you claim, but it is not too late to modify the theme  
> proposal in the next two days if you have specific changes to propose.
>
> Let me explain why I am not convinced. You say that we base our  
> claim on "ethics" and not "rights." This constitutes a  
> misunderstanding of what we are doing, I think. Or maybe we didn't  
> formulate it clearly.
>
> We assume that individuals have rights to FoE, and wish to assert  
> those globally by confronting the problem of multinational ISPs who  
> cooperate with states who violate those rights. Recognizing that  
> neither IGF nor probably anyone else can overcome national  
> sovereignty of the local law, we ask: how can we define principles  
> for interaction with these states that a) put pressure on the  
> repressive states to recognize rights to FoE, and b) encourage ISPs  
> to minimize the damage to FoE; c) encourage ISPs to recognize an  
> ethical obligation to do so.
>
> So it is the ethical obligation to recognize FoE rights, not ethics  
> in a broad sense that would encompass any kind of claim to regulate  
> content regardless of rights, that we are interested in.
>
> Let me know if that addresses any of your concerns. And I welcome  
> simple editorial changes that might clarify things or avoid  
> problems. Even major editorial changes, if you are willing to do that.

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