[governance] Inputs for synthesis paper

William Drake william.drake at graduateinstitute.ch
Mon Sep 8 12:27:50 EDT 2008


Since I¹m sitting next to Robin at the A2K3 conference I guess I should
second her statement.

Bill


On 9/8/08 4:07 PM, "Robin Gross" <robin at ipjustice.org> wrote:

> I haven't been able to keep up on this discussion as I would have liked to,
> but I wanted to weigh in (hopefully not too late and off topic).
> 
> I also have deep concerns about promoting "collective" rights because I see
> them as subordinating individual rights in potentially dangerous ways
> (although no harm is intended).  It is the sovereign individual that is
> ultimately responsible.  Individuals acting together can be collectives, but
> it always breaks down to the individual in the end.
> 
> Robin
> 
> On Sep 5, 2008, at 6:43 AM, Milton L Mueller wrote:
> 
>> 
>>  
>>>   
>>>   
>>> 
>>>   From: Parminder   [mailto:parminder at itforchange.net]
>>>   
>>>   
>>> Thanks Milton for   this engagement. While, as you would expect, I have a
>>> lot of issues with your   amendments, this process of engagement and
>>> deliberation is very   useful.  
>>>  
>>> 
>>> Agreed. 
>>>  
>>> It is important to   recognize that there are two important and different
>>> contestations here. One,   whether there is at all a category of positive
>>> and collective rights in any   case whatsoever. My personal view is that it
>>> is a very small minority among   the IGC membership that really contests the
>>> very validity of the category of   positive and collective rights. I invite
>>> members¹ comments on this statement.   Accordingly, I don¹t think an IGC
>>> statement should go out casting doubts on   the very validity of these
>>> categories of rights. I would therefore want all   corresponding parts of
>>> the statement removed. 
>>>  
>>> 
>>> But there is no doubt about the   fact that it is contested. And it is not
>>> just me, three or four others have   taken up this discussion more or less
>>> from my point of view. Based on the list   dialogue this would look like
>>> almost a 50-50 division, but whether this is a   "small minority" or a
>>> significant minority doesn't matter, it is contested,   and if the statement
>>> doesn't reflect that I will opt out of it and issue a   separate statement
>>> contesting the legitimacy of your statement as an   expression of IGC.
>>>  
>>> 
>>> The second   contestation is about whether there are some already accepted
>>> extensions of   positive and collective rights to the Internet ­ right to
>>> access internet   (positive right) and right to cultural expression or an
>>> Internet in ones own   language (a collective right). I agree that there may
>>> not be enough consensus   in this group at present to assert these rights,
>>> and we may only speak of   exploring them, and debating the pros and cons.
>>> Accordingly, I am for   mentioning the language of Œwanting to explore¹ with
>>> regard to these   rights.  
>>>  
>>> 
>>> I did not delete that   language, in regard to RTDevelopment, I think it is
>>> perfectly acceptable   to "explore" contested issues.    
>>>  
>>> ³The openness and diversity of the internet are underpinned   by widely
>>> recognized (but still imperfectly enforced) basic human rights: the
>>> individual right to freedom of expression and to privacy. It may also be
>>> useful to explore if and whether positive and collective rights are
>>> meaningful   in relation to the Internet ­ for instance a right to Internet
>>> access, or a   right of cultural expression - including the right to have an
>>> Internet in ones   own language, which can inform the important IGF thematic
>>> area of   cultural diversity.² 
>>>  
>>>   
>>> 
>>> This proposed amendment does not make it clear   that there are significant
>>> participants in CS who contest the positive   and collectivist notions, so I
>>> can't accept   it.
>>>  
>>> ³We recognize that while it is   relatively easy to articulate and claim
>>> ³rights² it is much more difficult to   implement and enforce them. We also
>>> recognize that rights claims can sometimes   conflict or compete with each
>>> other. For example, a claim that there is a   ³right to Internet access² may
>>> imply an obligation on states to fund and   provide such access, but it is
>>> likely that if states are responsible for   supplying internet access that
>>> there will also be strong pressures on them to   exert controls over what
>>> content users can access using public funds and   facilities.  There can
>>> also be uncertainty about the proper application   of a rights claim to a
>>> factual situation. The change in the technical methods   of communication
>>> often undermines pre-existing understandings of how to apply   legal
>>> categories. ³
>>>  
>>> This para clearly   makes out a strong case against Œright to the Internet¹
>>> and is obviously not   acceptable to those who speak for it. I would delete
>>> the whole   para.  
>>>  
>>> 
>>> So people who believe in a   positive right to Internet access cannot be
>>> contradicted, but those who do not   can be? I think the only thing you need
>>> to do is replace "it is likely that if   states are responsible" with "some
>>> fear that if states are   responsible."  That makes it clear that   there is
>>> disagreement. which there   is.
>>>  
>>> I however find the   last two sentences ­ which I know you state in terms of
>>> meaningfulness of   universal access ­ very interesting in terms of IPR in
>>> digital space. But I   discuss my issues with the IPR paragraph in a
>>> separate email. 
>>>  
>>> 
>>> The last two sentences were meant   to be general, not specific to universal
>>> access or IPRs -- the principle   applies to all kinds of issues, especially
>>> privacy and identity.    
>>> I also have problem   with the new opening para that you propose.
>>> ³The Tunis   Agenda (para. 42) invoked human rights when it reaffirmed a
>>> global   "commitment to the freedom to seek, receive, impart and use
>>> information" and   affirmed that "measures undertaken to ensure Internet
>>> stability and security,   to fight cybercrime and to counter spam, must
>>> protect and respect the   provisions for privacy and freedom of expression
>>> as contained in the relevant   parts of the Universal Declaration of Human
>>> Rights and the Geneva Declaration   of Principles." However, little follow
>>> up work has been done to enact these   commitments to basic human rights in
>>> Internet   governance.²
>>> 
>>>  
>>> If one mentions   rights in the IG arena it is by default read as FoE and
>>> privacy rights. While   these are basic and very important rights, our
>>> effort is to explore the rights   terrain much further. As argued in my
>>> earlier email the possibility that a   broad rights agenda may at ant time
>>> be globally accepted as a good basis for   IG related policy discussions
>>> also lies in making the rights discourse   broader,  
>>>  
>>> 
>>> This is a tactical difference   mainly, but also one of principle. You start
>>> with the area where there is the   most common ground. The point about
>>> citing the Tunis Agenda is that   governments have already committed
>>> themselves to it, I think the line about   balancing security concerns with
>>> other rights is especially important. Even on   your own expansive terms, it
>>> would be wiser to start with the traditional   rights and then move
>>> gradually into how far it can be taken.
>>>  
>>> 
>>>  including concerns of what I call as the   vast majority of people, which
>>> go beyond these two rights.  
>>>  
>>> 
>>> Just for the record, I do not   accept your claim to speak for the vast
>>> majority of people.
>>>  
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>>  
> 
>  
> 
> 
> 
> IP JUSTICE
> Robin Gross, Executive Director
> 1192 Haight Street, San Francisco, CA  94117  USA
> p: +1-415-553-6261    f: +1-415-462-6451
> w: http://www.ipjustice.org     e: robin at ipjustice.org
> 
> 
>  
> 
> 
> 
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***********************************************************
William J. Drake  
Director, Project on the Information
  Revolution and Global Governance
Center for International Governance
Graduate Institute of International and
  Development Studies
Geneva, Switzerland
william.drake at graduateinstitute.ch
***********************************************************


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