[governance] [Bill-of-Rights] Rights in IG research
Lisa Horner
lisa at global-partners.co.uk
Wed Aug 13 06:02:18 EDT 2008
Hi
I agree with Jaco that the existing institutions are already in place to protect and interpret rights at various levels from the sub-national to international. IMHO, the challenge is to bring these institutions up to standard so that they're capable of doing this job in relation to new and emerging issues concerning internet communications. I agree that constitutional amendments are unlikely in many countries, but that doesn't prevent communications policy and practice concerning issues that might seem unrelated to rights (interoperability, commercial net neutrality...) from being in line with human rights standards. Part of the power of the international rights system stems from the moral obligations it places on people to uphold rights - we might not always need legal enforcement.
I was interested in an idea put forward by the WSIS human rights caucus about the creation of an internet governance institution that would be responsible for monitoring governance policy and processes and assessing whether they uphold or undermine minimum rights standards. Does anyone know if there was any more work done on that front?
Many thanks,
Lisa
-----Original Message-----
From: Jeffrey A. Williams [mailto:jwkckid1 at ix.netcom.com]
Sent: 12 August 2008 04:29
To: governance at lists.cpsr.org
Subject: Re: [governance] [Bill-of-Rights] Rights in IG research
Jaco and all,
My remarks, response and thoughts interspersed below Jaco's.
Jaco Aizenman wrote:
> Dear Jeffrey, please read my answer to your email below....
>
>
>
>
> Well there are a few other courts to go through before one
> even gets a chance to have ones case heard before the
> supreme
> Court in the US.
>
> Agree.
> The bottom line is to have this new right added as a new fundamental
> right in the Constitution. This will have implications not just for
> other Courts, but also for many Government offices, including the
> FCC.
>
> Ok, but you realize that in the US anyway, the Constitution has
> not been amended in quite some time. Adding additional rights
> as they apply to the US "Bill of Rights" a US founding document,
> might be a better way to go. Although I don't believe that the
> US "Bill of Rights" has ever been amended... So to do so is a very
> steep hill to climb and will likely take years if not decades.
>
>
>
>
>
>
>
>
>
> That's not enforcement in any event. That's
> adjudication. Ergo you need a civics lesson or a refresher
> course.
>
> I am always ready to learn more! ;-)
>
> Same here.
>
>
>
>
>
> Civil rights cases of course are heard by the US Supreme
> Court,
> but not all are heard. Those that are not, have usually
> been heard
> in lower courts and the US Supreme Court has in these
> instances
> either decided that the petition of appeal is not sufficient
> to be
> heard, or already agree with the lower courts ruling.
>
> Agree.
>
>
>
> So with the sparse information you and Lisa have kindly
> provided, regarding a Internet Bill of Rights, seek to amend
>
> such rights already provided in the existing US Bill or
> Rights?
>
> Can you please be kind to write this question again?. I want to be
> sure that I understand the question before answering it.
>
> Does the Internet "Bill of Rights" being proposed seek to
> supplement/amend any other countries equivelent?
>
>
>
>
>
>
> Is that correct? Further, what about such rights in other
> countries?
>
> Ideally, every country should include this new right in the
> Constitution. In Costa Rica, he Congress is studying to include this
> new fundamental right in the Constitution. In Germany, one of the
> countries more advanced in the world in legal developments, the
> Constitutional Court (Supreme Court) already added this new
> fundamental right, a few months ago.
>
> Well Costa Rica isn't exactly a first world country with a stable
> political atmosphere. Germany has gone a long ways in expanding
> users Internet rights and protections, as well has regressed on the
> norm for same. So 2 countries does not a global consensus make,
> but it's a tiny start! >:)
>
>
> Whom would enforce those?
>
> Each country has its own systems to enforce human/fundamental rights.
> It goes in many levels, as you wrote before (several types of Courts,
> and even Government).
>
> Yes I am fully aware as I have lived in three countries in my
> lifetime
> so far. Most have very little enforcment of Civil rights of any sort
> that is substancial. Those that do, the individual cost is
> prohibitive
> to the average user/stakeholder to get enforced.
>
>
>
>
>
> The newly formed civil rights division
> of the International House of Justice perhaps?
>
> Of course they can help, but most of the work will be in the National
> Courts.
>
> Agreed.
>
>
>
>
> How would such
> new rights be so recognized by such an august body without
> nearly
> every country's legal structure amended appropriately?
>
> Agree. First the country legal structure has to change.
>
> Ok. I hope you realize I doubt that I will live longe enough
> before enough countries achieve this very lofty goal. Very steep
> hill here. Just being realistic...
>
>
>
>
>
>
> And than
> yet again, how and who would be the enforcer in
> multi-jurisdictional
> cases?
>
> Same as today with other fundamental rights.
>
> Well I guess than we can not count on Russia or China, and not
> likely Iran, Saudi Arabia, or Syeria.
>
>
>
>
>
> How would any ruling be upheld/enforced accordingly?
>
> Same as today with other fundamental rights.
>
> Ok, so again same as just above, I guess than we can not count
> on Russia or China, and not likely Iran, Saudi Arabia, or Syeria,
> at least not in my life time.
>
> And whom would be mandated to enforce such a ruling?
> Interpol
> perhaps? < shrug >
>
> Same as today with other fundamental rights.
>
> Ok so very little enforcment in most countries, no third world
> countries, and no purely nationalistic countries. And very few
> middle income to lower income users/stakeholders can
> reasonably expect in the near term, any significant enforcment.
>
>
>
>
>
>
> Thank you for your time Jeffrey!,
>
> Welcome! And thank you for your frank and prompt responses...
>
>
>
>
>
>
> Jaco Aizenman wrote:
>
> > Constitutional Courts. In USA for example, the US Supreme
> Court.
> >
> > On 8/10/08, Jeffrey A. Williams <jwkckid1 at ix.netcom.com>
> wrote:
> > > Jaco, Lisa and all,
> > >
> > > I fully support a comprehensive Internet Bill of
> Rights. What
> > > I always come back to though, is if broadly adopted,
> whom would
> > > enforce them for all? The UN? ICANN?, the ITU?, US
> Congress,
> > > or some other governmental entity?
> > >
> > > Jaco Aizenman wrote:
> > >
> > >> Dear Lisa,
> > >>
> > >> Thank you for the FoE link, which is very impressive
> and I support.
> > >> Let me know if I can help in any way the FoE from Costa
> Rica.
> > >>
> > >> Please also note that a new virtual personality
> fundamental right is
> > >> complementary to FoE, and can enhance even more the FoE
> initiative. Of
> > >> course it has to be done in the right way....
> > >>
> > >> If Constitutional Courts worldwide will have a clear
> and good virtual
> > >> personality fundamental right (Internet rights) it will
> be much easier
> > >> to implement fully the FoE initiative and vice versa.
> > >>
> > >> Don´ t you like or support the first, worldwide,
> "internet right",
> > >> made a few months ago by the German Constitutional
> Court?.
> > >>
> > >> Thanks a lot for your time.
> > >>
> > >> Best regards,
> > >>
> > >> Jaco
> > >>
> > >>
> > >>
> > >> On Fri, Aug 8, 2008 at 5:31 AM, Lisa
> > >> Horner <lisa at global-partners.co.uk> wrote:
> > >>
> > >> Hi Max and all
> > >>
> > >> Thanks for your interest in what we're doing. I'm
> equally
> > >> interested in your work and in exploring
> potentials for
> > >> collaboration. Maybe we could start a 'research
> ideas' and
> > >> 'research in progress' page on the bill of rights
> wiki?
> > >>
> > >> Apologies in advance for the length of this email
> - those
> > >> who aren't interested can delete email or go into
> skim-read
> > >> mode now!
> > >>
> > >> The research we're doing is as part of the ongoing
> Freedom
> > >> of Expression Project. I think I've mentioned
> before that
> > >> we're working with 6 key partner organizations in
> different
> > >> countries to develop policy principles that, if
> adhered to,
> > >> would shape a global communications environment
> that would
> > >> support human rights and a 'public interest'
> communications
> > >> environment. They address issues spanning
> infrastructure,
> > >> code and content. The latest draft of the
> principles is
> > >> available and open for comment at
> > >>
> > >>
> http://www.freedomofexpression.org.uk/resources/public+interest+principles+for+the+networked+communications+environment.
>
> > >>
> > >> The principles and values that they express are
> purposefully
> > >> broad so that they can be tailored to specific
> contexts.
> > >> The idea is for them to provide an overarching
> framework for
> > >> policy discussion and advocacy at different
> scales. For
> > >> example, our project partners are currently
> working to
> > >> elaborate what they might mean in different
> country
> > >> contexts, and this in turn will provide the
> foundations for
> > >> policy work. A major aim is to identify spaces
> where
> > >> different stakeholders can agree that they share
> certain
> > >> values and principles, and work to shape policy
> accordingly.
> > >>
> > >> We have been working to base all of our work so
> far in
> > >> international human rights standards, in
> particular freedom
> > >> of expression, the right to culture and the right
> to
> > >> participation in government. We've taken an
> expansive
> > >> definition of freedom of expression that many (but
> not all)
> > >> human rights institutions and lawyers around the
> world
> > >> take. This includes positive dimensions of
> freedom of
> > >> expression, including the notion that governments
> are
> > >> responsible for putting the necessary
> > >> structures/infrastructures in place for the right
> to be
> > >> realized. Incidentally, that's why I don't
> believe that we
> > >> need to be advocating for new rights such as the
> right to
> > >> the internet or to communication. The sentiments
> and
> > >> demands expressed by these 'new' rights are
> already
> > >> contained within the human rights system. In my
> opinion,
> > >> our energy should be focused on further developing
> and
> > >> upholding what we have already, for example,
> further
> > >> embedding expansive definitions of freedom of
> expression in
> > >> rights and policy institutions. And, as Anriette
> and Milton
> > >> importantly pointed out, in furthering/developing
> > >> understanding about what international rights
> standards and
> > >> compliance with them actually means in practice.
> > >>
> > >> The research that I referred to before is intended
> to
> > >> contribute to this effort, illustrating how an
> expansive
> > >> definition of freedom of expression is being
> supported in
> > >> contemporary legal and philosophical thought and
> case law,
> > >> and identifying areas where further work needs to
> be done.
> > >> It is taking our policy principles framework as a
> starting
> > >> point, ensuring that it is firmly rooted in the
> > >> international human rights system. In this way,
> if the
> > >> framework was used as a basis for policy
> discussion, human
> > >> rights standards would effectively be
> 'mainstreamed' within
> > >> the discussions.
> > >>
> > >> Whilst I'm sure some would make the argument that
> these
> > >> aren't IG issues, we hope that we're making a
> positive
> > >> contribution towards ensuring that the 'shared
> norms and
> > >> principles that shape the use and evolution of the
> internet'
> > >> are rooted in human rights standards. These are
> the most
> > >> widely accepted and acknowledged ethical standards
> in the
> > >> world, which (in reference to earlier
> conversations) is why
> > >> it makes sense to us to work with them and build
> on them,
> > >> rather than try to reinvent or disregard them.
> > >>
> > >> I'll leave it there for now, but I'm interested to
> hear
> > >> anybody's thoughts on the work we're doing, and
> am keen to
> > >> explore opportunities to collaborate on further
> research on
> > >> any of these issues.
> > >>
> > >> Many thanks,
> > >>
> > >> Lisa
> > >>
> > >> From:bill-of-rights-bounces at ipjustice.org
> > >> [mailto:bill-of-rights-bounces at ipjustice.org] On
> Behalf Of
> > >> Max Senges
> > >> Sent: 06 August 2008 17:36
> > >> To: governance at lists.cpsr.org; Anriette
> Esterhuysen;
> > >> bill-of-rights at ipjustice.org
> > >> Subject: [Bill-of-Rights] Rights in IG research
> > >> dear lisa and all
> > >>
> > >> Lisa wrote:
> > >> > We've just commissioned some research into how
> policy
> > >> principles based
> > >> > around notions such as net neutrality,
> interoperability,
> > >> universal
> > >> > access and content diversity can be rooted in
> the
> > >> international human
> > >> > rights system which will hopefully yield some
> interesting
> > >> insights...
> > >>
> > >> that sounds very interesting. Stanford lawschool's
> Center
> > >> for Internet and Society has offered to
> collaborate by
> > >> contributing research and i agreed to frame
> research
> > >> opportunities/themes for student projects to be
> taken up in
> > >> the fall.
> > >>
> > >> It would be great to team up or at least be aware
> of all the
> > >> other research undertaken to better understand a
> Rights
> > >> based approach to IG.
> > >>
> > >> Lisa could you share a bit more info about Global
> Partners
> > >> research?
> > >>
> > >> Everybody else doing research work in this area is
> very much
> > >> invited to get in touch so we can ensure we
> complement,
> > >> share and avoid duplication
> > >>
> > >> best
> > >> maxOn Wed, Aug 6, 2008 at 5:37 AM, Anriette
> Esterhuysen
> > >> <anriette at apc.org> wrote:
> > >>
> > >> Hallo all
> > >>
> > >> Lisa, you are correct in that the SA Human Rights
> Commission
> > >> is the appropriate
> > >> institution to deal with this. In fact they deal
> with hate
> > >> speech issues quite often.
> > >>
> > >> They are under-resourced, but they do do excellent
> work.
> > >> Here is their URL
> > >>
> http://www.sahrc.org.za/sahrc_cms/publish/cat_index_26.shtml
>
> > >>
> > >> Draft hate speech legislation has been before
> parlaiment a
> > >> few times here in South
> > >> Africa. I am not sure what the status is. If I
> remember
> > >> correctly the draft bill was badly
> > >> not well conceived and very controversial.
> > >>
> > >> I certainly think that making a formal complaint
> to the HRC
> > >> (human rights
> > >> commission) would the way to start if the
> intension is to
> > >> create public awareness of
> > >> the issue.
> > >>
> > >> It will also drive lots of traffic to the site....
> which is
> > >> less desirable. Personally, Rui, I
> > >> would just ignore it.
> > >>
> > >> Lisa, I completely agree with you about the
> relationship
> > >> between rights and internet
> > >> governance. Sadly I think that we have lost ground
> since
> > >> WSIS. As you say there is a
> > >> lot of work to be done to get beyond rights
> rhetoric and to
> > >> work out what the
> > >> implementable rights-based public policy
> principles are that
> > >> we can work with on
> > >> specific issues, e.g. those you mention, for
> example
> > >> net-neutrality. APC tries to adopt
> > >> this approach in our access work.
> > >>
> > >> I also think that the mainstream human rights
> movement has
> > >> not engaged this terrain
> > >> enough, altough there are exceptions.
> > >>
> > >> Anriette
> > >>
> > >>
> > >> Date sent: Wed, 6 Aug 2008 12:09:58
> +0100
> > >> From: "Lisa Horner"
> > >> <lisa at global-partners.co.uk>
> > >> To:
> <governance at lists.cpsr.org>,
> > >> "Rui Correia" <correia.rui at gmail.com>
> > >> Subject: RE: [governance] Taking
> down a site
> > >> [was: beijing ticket scam]
> > >> Send reply to:
> governance at lists.cpsr.org,"Lisa
> > >> Horner" <lisa at global-
> > >> partners.co.uk>
> > >>
> > >> > Echoing Ian, I wonder if it would be worth
> filing a
> > >> complaint with the
> > >> > South African Human Rights Commission? The SA
> bill of
> > >> rights states
> > >> > that freedom of expression doesn't extend to
> "advocacy of
> > >> hatred that
> > >> > is based on race, ethnicity, gender or religion,
> and that
> > >> constitutes
> > >> > incitement to cause harm." Is this supported by
> any other
> > >> legislation
> > >> > in SA?
> > >> >
> > >> > So many of our discussions around internet
> governance
> > >> issues can be
> > >> > approached from a rights perspective, but human
> rights
> > >> lawyers and
> > >> > institutions are usually absent from the
> debate. Human
> > >> rights and
> > >> > their associated tools and mechanisms are
> arguably one of
> > >> the only
> > >> > global governance institutions that is
> 'thickening' in the
> > >> current age
> > >> > of 'globalisation'. Human rights approaches
> also have an
> > >> inbuilt
> > >> > framework for balancing out tensions between
> different
> > >> rights and
> > >> > responsibilities. However, there's still a lot
> of work to
> > >> be done in
> > >> > bringing them up to date and ensuring that
> they're capable
> > >> of dealing
> > >> > with new issues, including those relating to
> freedom of
> > >> expression and
> > >> > the internet. I wonder if engaging directly
> with national
> > >> human
> > >> > rights institutions is one way of starting that
> process?
> > >> >
> > >> > In a way, this is linked to Anriette's comment
> that many
> > >> new campaigns
> > >> > around rights are a-historical. Similarly, I
> think that
> > >> they should
> > >> > be rooted in, or at least have a firm
> understanding of,
> > >> existing human
> > >> > rights institutions, both formal and informal
> and at all
> > >> scales.
> > >> > We've just commissioned some research into how
> policy
> > >> principles based
> > >> > around notions such as net neutrality,
> interoperability,
> > >> universal
> > >> > access and content diversity can be rooted in
> the
> > >> international human
> > >> > rights system which will hopefully yield some
> interesting
> > >> insights...
> > >> >
> > >> > Any thoughts?
> > >> >
> > >> > Thanks,
> > >> > Lisa
> > >>
> > >>
> ------------------------------------------------------
> > >> Anriette Esterhuysen, Executive Director
> > >> Association for Progressive Communications
> > >> anriette at apc.org
> > >> http://www.apc.org
> > >> PO Box 29755, Melville, South Africa. 2109
> > >> Tel. 27 11 726 1692
> > >> Fax 27 11 726 1692
> > >>
> > >>
> ____________________________________________________________
>
> > >>
> > >> You received this message as a subscriber on the
> list:
> > >> governance at lists.cpsr.org
> > >> To be removed from the list, send any message to:
> > >> governance-unsubscribe at lists.cpsr.org
> > >>
> > >> For all list information and functions, see:
> > >> http://lists.cpsr.org/lists/info/governance
> > >>
> > >>
> > >> --
> > >> -------------------------------------------------
> > >> "It is not the critic who counts, not the man who
> points out
> > >> how the strong man stumbled, or where the doer of
> deeds
> > >> could have done better. The credit belongs to the
> man who is
> > >> actually in the arena; whose face is marred by the
> dust and
> > >> sweat and blood; who strives valiantly; who errs
> and comes
> > >> short again and again; who knows the great
> enthusiasms, the
> > >> great devotions and spends himself in a worthy
> cause; ... so
> > >> that his place shall never be with those cold and
> timid
> > >> souls who know neither victory or defeat."
> > >> - THEODORE ROOSEVELT
> > >> (Paris Sorbonne,1910)
> > >>
> > >> -------------------------------------------------
> > >> Dr. Max Senges
> > >> Stanford Post-Doc Visiting Scholar
> > >> UOC Research Associate
> > >> Freelance Consultant
> > >>
> > >> 98 Loyola Ave., Menlo Park, California 94025
> > >>
> > >> US-Phone: (001) 650 714 9826
> > >>
> > >> www.maxsenges.com
> > >> www.knowledgeentrepreneur.com
> > >>
> ------------------------------------------------------------
>
> > >> _______________________________________________
> > >> Bill-of-Rights mailing list
> > >> Bill-of-Rights at ipjustice.org
> > >>
> http://mailman.ipjustice.org/listinfo/bill-of-rights
> > >>
> > >>
> > >>
> > >>
> > >>
> > >> --
> > >> Jaco Aizenman L.
> > >> My iname is =jaco (http://xri.net/=jaco)
> > >> XDI Board member - www.xdi.org
> > >> Tel/Voicemail: 506-83461570
> > >> Costa Rica
> > >>
> > >> What is an i-name?
> > >> http://en.wikipedia.org/wiki/I-name
> > >>
> > >>
> > >>
> > >> --
> > >> Jaco Aizenman L.
> > >> My iname is =jaco (http://xri.net/=jaco)
> > >> XDI Board member - www.xdi.org
> > >> Tel/Voicemail: 506-83461570
> > >> Costa Rica
> > >>
> > >> What is an i-name?
> > >> http://en.wikipedia.org/wiki/I-name
> > >>
> > >>
> ----------------------------------------------------------------
>
> > >>
> ____________________________________________________________
>
> > >> You received this message as a subscriber on the list:
> > >> governance at lists.cpsr.org
> > >> To be removed from the list, send any message to:
> > >> governance-unsubscribe at lists.cpsr.org
> > >>
> > >> For all list information and functions, see:
> > >> http://lists.cpsr.org/lists/info/governance
> > >>
> > >
> > > Regards,
> > >
> > > Spokesman for INEGroup LLA. - (Over 281k
> members/stakeholders strong!)
> > > "Obedience of the law is the greatest freedom" -
> > > Abraham Lincoln
> > >
> > > "Credit should go with the performance of duty and not
> with what is
> > > very often the accident of glory" - Theodore Roosevelt
> > >
> > > "If the probability be called P; the injury, L; and the
> burden, B;
> > > liability depends upon whether B is less than L
> multiplied by
> > > P: i.e., whether B is less than PL."
> > > United States v. Carroll Towing (159 F.2d 169 [2d Cir.
> 1947]
> > >
> ===============================================================
>
> > > Updated 1/26/04
> > > CSO/DIR. Internet Network Eng. SR. Eng. Network data
> security IDNS.
> > > div. of Information Network Eng. INEG. INC.
> > > ABA member in good standing member ID 01257402 E-Mail
> > > jwkckid1 at ix.netcom.com
> > > My Phone: 214-244-4827
> > >
> > >
> ____________________________________________________________
>
> > > You received this message as a subscriber on the list:
> > > governance at lists.cpsr.org
> > > To be removed from the list, send any message to:
> > > governance-unsubscribe at lists.cpsr.org
> > >
> > > For all list information and functions, see:
> > > http://lists.cpsr.org/lists/info/governance
> > >
> >
> > --
> > Jaco Aizenman L.
> > My iname is =jaco (http://xri.net/=jaco)
> > XDI Board member - www.xdi.org
> > Tel/Voicemail: 506-83461570
> > Costa Rica
> >
> > What is an i-name?
> > http://en.wikipedia.org/wiki/I-name
>
> Regards,
>
> Spokesman for INEGroup LLA. - (Over 281k
> members/stakeholders strong!)
> "Obedience of the law is the greatest freedom" -
> Abraham Lincoln
>
> "Credit should go with the performance of duty and not with
> what is
> very often the accident of glory" - Theodore Roosevelt
>
> "If the probability be called P; the injury, L; and the
> burden, B;
> liability depends upon whether B is less than L multiplied
> by
> P: i.e., whether B is less than PL."
> United States v. Carroll Towing (159 F.2d 169 [2d Cir.
> 1947]
> =====
> =========================================================
> Updated 1/26/04
> CSO/DIR. Internet Network Eng. SR. Eng. Network data
> security IDNS.
> div. of Information Network Eng. INEG. INC.
> ABA member in good standing member ID 01257402 E-Mail
> jwkckid1 at ix.netcom.com
> My Phone: 214-244-4827
>
>
>
> ____________________________________________________________
>
> You received this message as a subscriber on the list:
> governance at lists.cpsr.org
> To be removed from the list, send any message to:
> governance-unsubscribe at lists.cpsr.org
>
> For all list information and functions, see:
> http://lists.cpsr.org/lists/info/governance
>
>
>
>
> --
> Jaco Aizenman L.
> My iname is =jaco (http://xri.net/=jaco)
> XDI Board member - www.xdi.org
> Tel/Voicemail: 506-83461570
> Costa Rica
>
> What is an i-name?
> http://en.wikipedia.org/wiki/I-name
>
Regards,
Spokesman for INEGroup LLA. - (Over 281k members/stakeholders strong!)
"Obedience of the law is the greatest freedom" -
Abraham Lincoln
"Credit should go with the performance of duty and not with what is
very often the accident of glory" - Theodore Roosevelt
"If the probability be called P; the injury, L; and the burden, B;
liability depends upon whether B is less than L multiplied by
P: i.e., whether B is less than PL."
United States v. Carroll Towing (159 F.2d 169 [2d Cir. 1947]
===============================================================
Updated 1/26/04
CSO/DIR. Internet Network Eng. SR. Eng. Network data security IDNS.
div. of Information Network Eng. INEG. INC.
ABA member in good standing member ID 01257402 E-Mail
jwkckid1 at ix.netcom.com
My Phone: 214-244-4827
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