[governance] multistakeholderism

[Paul Lehto]

JFC and all,

I'll try my best to respond to your main points and give a concise
response, but they are numerous and interweaving is getting
complicated, so I'll respond below to what I read as your core
contentions, trusting you to correct as necessary.  I conclude at
bottom by suggesting that rapid progress 'on the ground' in specifics
can be made, but it is enormously important what arguments are made
and how issues are approached.  (the mountain is climbable, but only
has one two or three routes up, you can't go any old way...)

First, like you among other things I write and speak about democracy
and elections and political theory and talk to thousands of people
about this each year. I've worked for state senators and congressional
candidates, interned for US Senators, been elected to governing boards
and appointed by Supreme Courts, etc.  The most important of these is
talking to the "real public" so to speak.   Far from feeling "all
alone" when I'm out among business and citizen groups like Kiwanis and
the League of Women voters, I don't find anything but unqualified
support and passion for these values, which are not given publicity by
"the system" even remotely in proportion to the support they have.

The only, and I do mean only, opposition I get is not from the
intelligent or informed per se, but only the intelligent and informed
who are in positions of power or would like to be (a large minority of
"the leadership class" of all political persuasions).  But, that's
understandable in part because I "preach" accountability of
governments and (rhetoric of accountability aside) nobody in
government or industry likes to actually be accountable -- it feels
like "harassment" of a sort even though it's justified -- makes people
squirm like they're taking a test with one proctor for each
test-taker.

Then, most of the opposition I do find I woudl chalk up not to ill
intent, but to personal experiences (which are, however, necessarily
limited) that "educating the masses" is too difficult.  I'll repeat
that personal inconvenience or even doubt as to whether the education
will work is no justification at all for denying a person's rights.

As to rights, y ou've expressed some level of disbelief as to the
power of human rights law.  WHAT LAW IS HIGHER IN STATUS OR POWER?
The ONLY difference that can account for other law prevailing is NOT
the legal analysis -- about 159 countries have agreed most human
rights laws are "inalienable" in the Universal Declaration of Human
Rights, meaning they can't be lost, forfeited or transferred even with
the consent of a person.  Inalienable also means that even
Constitutional provisions, if in conflict, would have to yield to the
right that cannot be lost - the inalienable right. The only thing that
would account for human rights NOT prevailing is simply ignoring or
suppressing human rights law on the basis of a personal preference
that is extra-legal and in conflict with the most standard legal
analysis.  Thus, it's a matter of publicity and education ,so perhaps
we agree on that.

I'm doing that publicity and education and I have a very positive
experience with my approach.  APROACH matters enormously.  I'm sure I
don't have the only workable approach but there are many approaches
that don't teach well.  It is one thing to have intelligence, quite
another to teach something, so I don't consider it an insult to
anybody's intelligence or intent to observe, if it applies, that the
teaching approach isn't effective.

Sure, cultural factors, business pressures, etc., all factor in but
they are not LEGALLY relevant to the analysis of what the 'highest'
law is, and we have that law on our side, even if too many judges
don't apply it.  We unfortunately have to have historical perspective
that civil rights advances are steady but usually incremental, yet the
claims being made are always for the full measure of rights - half
rights usually are not rights at all (like the right to be tortured
only every other day)

You asked me regarding human rights "Do I really believe this?'.
Fully acknowledging that many who think they know better and wish to
be de facto dictator or aristocrats are constantly working against it
for reasons both good and bad, SURE I believe it.  On two levels: the
legal level and also in my mind (reason) and in my heart as well.

The only reason I ponit to all the people who have died in wars for
liberation/democracy is not declare that my cup of tea but to point to
h ow intensely MANY people believe that yes, they too have rights,
they too have dignity, and so ought every one else have dignity and a
say.

When the "say" is one person one vote, that's the core of democracy.

It's also my experience, based on my offer to debate anyone anywhere
who doesn't believe in democracy (at least in the US) that even when
people accept, they later withdraw as they start to examine their own
positions and the prospects of an internet streamed debate with a jury
and the modest form of public accountability that creates.  There is,
admittedly, a "ton" of seeming force and bluster but when it gets
examined in the limited kind of accountability that a debate forum
offers, people chicken out of the task of attacking democracy as the
sovereign law so to speak.   This has little to do with me (except
perhaps my angle of approach) and everything to do with the strength
of democracy's arguments which were created by past generations and
actually consciously intended to be principles that would be
meaningful yet still last for "all posterity."

I personally don't feel a need at all for an Article 31 on internet
rights.  It's a matter of applying existing law and principles to new
facts.  It's exactly what I used to do when I was a business
law/consumer protection/ection law attorney for a decade or so,
applying the consitution and laws of intellectual property to new
contexts (technologies).  Sure it's not the easiest task, but it's the
kind of work a lot of people I know love to do.  That being said, I'm
not OPPOSED to a such a new article for the internet, but that puts
enormous pressure to get it exactly right, so that the article is not
just a symptom of a temporary misunderstanding of the fundamental
rights at issue.

No matter how detailed the new legal language might be, it is true
beyond any doubt that talented lawyers can argue any and all language,
so the fact that human rights laws are also argued and contested
(sometimes) doesn't really indicate anything at all in terms of
establishing the superiority of a more detailed specific text.  Any
such text would, in any event, have the burden of treaty ratification
by about 159 countries just to get on the same legal level as human
rights, in any event.

I admit that I don't understand  your idea of an "update" for
democracy, it sounds like interior re-decoration.  Fundamental
principles like Equality can't be "updated', they can only be amended,
and in the case of equality any amendment would be to create some
inequality that's claimed legally justifiable, so I'd like to know
what inequality is legally justtifiable.

Democracy is also founded upon rule by "all the people" (Montesquieu)
whereas aristocracies are by less than all the people  Id., Spirit of
the Laws.  Here again, if the "update" occurs at this level, then it
is government by less than all the people, and no lnoger democracy.

The third fundamental axiom is nondelegation or nonabdication --
elected public servants can't simply transfer the power they've been
given to their best friend, a favorite corporation, or even an agency
(without clear standards to govern the delegation, in this last case)
without violating the nondelegation doctrine -- which basically means
that the people elected X, and they didn't elect Y.  In the case of
bureaucracies governed by sufficient standards passed democratically,
that's not an impermissible  "delegation" any more than a politician
hiring a secretary is.

If by "update" you mean simply applying rights to the internet
technical context and coming up with rules partly or totally
"translated" into the jargon of the internet so that netizens can
understand, then my ponit above applies -- it's not necessary but
could be desirable yet it's CRITICAL that the rights be translated
correctly and fully, and not watered down as they currently are in
stakeholder type situations.  On the other hand if by "updated' you
mean something more fundamental like a delegation of largely
unaccountable power to internet captains of commerce, no matter how
strongly motivated to benefit the public, that's not going to be
democracy any more.

The acid test is how do We the people (or netizens) "kick the bums
out" who are governing the internet in our name?   THis is also the
acid test of freedom, because any people that cant' remove the powers
that be are NOT free, they're totally subject to the will of "another"
-the definition of a political slave.

Whenever people suggest that democracy's outdated I need
clarification, because IF they're "ok" with that, I'm not sure how
they can be, unless they can explain why they're "ok" with not being
Free.  In such a case, everyone is either one of the ruled (a
"subject" or "political slave' as it were) or else they are one of the
Ruler(s).  If we have only Rulers and the Ruled, then there are no
'rights' per se but only privileges, even if some might be "extended"
privileges granted to many or even all by the largesse of some
philosopher-king rulers (if such exist).  But not matter how nice the
privilege, it is constantly subject to removal without recourse at the
will of the king or ruling class.  The average person has no "rights"
properly speaking. in that case, only privileges.

If by democracy needing an "update" you, in effect, mean that we don't
really have internet democracy, and the "update" to democracy is in
fact just a way of making democracy real in this context, then you're
not changing democracy per se at all in my mind, at least.  In this
case, in my opinion we ought to be be clear at all times that (a) we
are not free, yet (b) by rights we ought to be free and democratic.

The paradox of rights is that they become RECOGNIZED by ASSERTING them
- they come into legal existence via legal argumentation that they
*already* exist (whether agument is made to a judge or legislature).
This makes sense because if the government GRANTS the most fundamental
rights (as opposed to detail-based "statutory" rights) then those
rights are insecure totally as against the first power-hungry
government.  That's why the law of democracy holds that fundamental
inalienable rights come from Natural Law, or Reason, or the Creator,
or the Supreme Ruler of the Universe (et al...) -- this allows
atheists and theists into the same tent and the critical feature is
that the source fo rights is beyond all governmental control.

Thus, why do I have human rights?  Because I was born human, that's
way.  No other conditions.  Evn if countries violate human rights
constantly,when under the spotlight they are virtually always forced
to acknowledge the human rights, as evidenced by the treaty
ratification in about 159 countries.

Finally, there's cause for great hope in that public opinion exerts an
independent force even in a dictatorship or monarchy (e.g. no dictator
can long sustain a policy as against 90% public opposition that's
firm, for example).  Put another way, non-democratic conditions, of
which we have many, in a sense only wrongfully impose a large
supermajority requirement on the people in an unfree land, though this
ability to change is limited to a given issue and generally doesn't
extend at all to changing leaders.  Here, every poll that I'm aware of
(outside the "leadership" class in business and government) shows high
supermajoritarian support for democracy and human rights as long as
questions are framed even somewhat fairly.

CONCLUSION:  Most people do not know anything approaching a healthy
understanding of law, including human rights law/democracy law.  But
using the usual formula of IRAC (Issue Rule Analysis Conclusion) of
law school the basic principles and laws of human rights and democracy
can be laid out as the rule(s), the "issue" is the facts of the
internet, and the analysis and conclusion follow (within some range
for reasonable debate) fairly readily so long as recourse is had to
what Larry Tribe calls the "rich sea of principles" that inevitably
and necessarily supplement any and all law even though they are
unwritten.

Like another recent poster wrote, we can make fairly rapid progress on
more concrete things.  I agree, and only insist that the most
important laws/principles have a place at the "stakeholder" table.
Does democracy have to beg, or will it be shut out of delberations
there?

Once at the table, if there's buy-in to democracy's principles in
their entirety (and it would be risky to oppose them outright on a
rollcall vote) then it's all downhill from tehre for net neutrality,
provided only that we have enough internet "soldiers" to spread the
word.  The support for NN is out there, so it's really only a matter
of organize, organize, organize ONCE the principles are coherently
laid out.  Technical applications of those principles, no matter if
highly approved and very well drafted, h owever, will not excite the
passion that it takes to win the battle to organize because they are
not more or less self-verifying like democracy principles but instead
rely upon a technical vocabulary, and are experiencing a bad case of
vertigo induced by the rhetoric that the net changed everything (the
same vertigo used in the USA regarding 9/11 to turn our country away
from freedom).

Paul Lehto, J.D.

PS If anyone is interested in this topic, I'm happy to email privately
or publicly to the list, but it may be best to discuss it on the
phone, so that if I misunderstand I can be politely interrupted and
saved from a tangent, and vice versa...

-
Paul R Lehto, J.D.
P.O. Box 1
Ishpeming, MI  49849
lehto.paul at gmail.com
906-204-2334
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