[governance] Is This An Issue for Internet Governance/Internet Human Rights?

[Paul Lehto]

On 7/25/11, Roland Perry <roland at internetpolicyagency.com> wrote:
> Does Internet Governance only apply to those activities which for
> whatever reason their "Digital technology law" has failed to address, or
> all digital technology that has some flavour of the Internet?
>
> If it's the first, who decides if it really has failed, rather than
> succeeded in following policy principles other than those they would
> have preferred?

Human rights law was prior to the internet, and globally applicable.
There could be no policy "choice" to ignore human rights law in favor
of some vision of "digital technology law".  Such digital technology
policies or laws would be mere statutes, and would have to fall
whenever inconsistent with (higher) humans rights laws.  To carve out
an exception for the internet, a law at the same level as human rights
laws (an amendment to human rights laws) or at a higher level
(somehow) would have to be effected.

Here, Roland implies that the clash between human rights laws and
corporate governance of the internet has already been consciously
worked out, and that human rights approaches somehow lost.  It is far
more accurate to say human rights laws are often unapplied, or
violated, in the context of the internet.  It is quite often the case
that human rights are ignored and violated even for centuries (e.g.
slavery, etc.).  That does not mean that the human rights law is
inapplicable or not the highest law, nor does it mean that the debate
about human rights on the internet has somehow been settled in favor
of corporate "slavery" so to speak, or settled against whatever human
rights law violation is at stake in a particular internet context.  It
is quite often the case that illegal or unconstitutional actions
against human rights or any other laws continue on not just for years
but occasionally for decades or even centuries before enforcement of
the law catches up with social practices that violate those laws.

We still struggle with things like discrimination, many types of which
are clearly against the law and have been for some time.  As to any
specific example of human rights laws applied to the internet,
Roland's suggestion that the debate has already been settled in favor
of private practices is not a point well taken.  This point would work
just as well (which is to say, not at all...) if someone were to
suggest that discrimination on the internet, (because it exists and
has existed for some time now, and is also engaged in by those in
public or private "governance" positions) has "succeeded in following
policy principles other than those they would  have preferred."

Assertions in the above *form* used by Roland suggest among other
things that we should no longer worry about things such as
discrimination, because discrimination has been "successful."  Does
the existence of internet discrimination mean we've lost the debate
against discrimination?  Hardly.

But discrimination is something of human rights concern, and its
continuance or "success" could be easily taken as the kind of
endorsement or "win" for "policy principles" that Roland directly
suggests occurred with regard to internet governance's shift from
government-based public policy to private corporate laissez faire
governance.  Because every other human rights concern on the internet
is at the same general level as the human rights concern about
discrimination,  I believe my substitution of the word discrimination
-- in order to test Roland's argument and logic - is a fair
substitution.  And thinking about the same argument in the context of
discrimination shows clearly why the existence of some pattern of
conduct does not mean that this conduct won in a fair democratic
debate and that some "choice"  has been made.  Legislatures make
"choices" to pass unconstitutional laws routinely, and nothing
insulates those laws from constitutional or human rights attack.  But
here, such a conscious choice has typically not been made.  We've
skated over much thin ice to get to corporate governance without any
real examination of the issues involved, and without much real
conscious debate, followed by choice.

Democracy is 100% process, and without proper process, the outcomes
are invalid.  This applies with force to the corporate governance
regime that presently rules over the internet.

Paul Lehto, J.D.

-- 
Paul R Lehto, J.D.
P.O. Box 1
Ishpeming, MI  49849
lehto.paul at gmail.com
906-204-4026 (cell)
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