[governance] Re: Managing Critical Internet Resources [IGF 2012 - MAG Consultations]

[Paul Lehto]

Below is the proposed final draft statement on Human Rights and the
Internet (I changed "on" the internet to "and").  I incorporated the online
comments received on the original draft, received both via email and on the
web.  To the best of my knowledge, I incorporated all suggestions received,
except for the suggestion to reduce length by 50%, which would require
sufficient redrafting as to require posting for comment again.  That being
said, by clarifying paragraph 4 concerning the "right to interfere" with
the internet being far harder to justify than rights of free expression,
and by eliminating a perhaps dated reference to SOPA/PIPA, the final
statement is somewhat shorter.

I also added a clause at the very end that states "and doing so without
regard to frontiers", since "without regard to frontiers" is actual
language used in human rights documents regarding free expression.  The
addition of this clause ties the ending of the statement with the
beginning, which declares that the internet as a technology "without
borders" has a twin in the form of human rights, or rights without
borders.

Please advise if I missed anything, otherwise, thanks for the opportunity
to try to synthesize the consensus thought here.

Paul Lehto, J.D.
*
Human Rights and the Internet*

Rights without borders – also known as human rights – have met their
technological twin in the form of the global Internet, a technology without
borders.

The open architecture of the Internet creates a new commons that
facilitates and enhances many pre-existing human rights, including but not
limited to rights of free expression, rights of information, petition,
association and assembly, creative rights, and the right to earn a
livelihood and contribute to the culture of society. Internet technology
and design choices simultaneously extend human interaction in multiple
directions regardless of borders, at a far lower cost, and on a more
democratic basis than previously imaginable.

This powerful symbiosis between natural birthrights and the nature of the
Internet as a rights-enhancing technology has caused discourse about the
Internet to incorporate many lofty attributes that are further fueled by
already being partially realized, causing (among other things) thought
leaders regarding the Internet to sometimes be referred to as
“evangelists.” Generally speaking, these rights-enhancing aspects have
caused the Internet to reach the loftiest planes of human hope, joining
democracy and religion at the level of promising “a more abundant life” for
all, without the prominent downsides often associated with some actual
implementations of government and religion.

The most powerful question to ask concerning human rights on the Internet
is not where these rights arise from or how they may be further enforced in
courts, but where any claimed “right” to interfere with the freedom of the
Internet arises from.  How can such a right of interference with freedom of
expression be legitimately theorized, asserted and enforced? Because the
very nature of the Internet is to facilitate free expression, and given
that the Internet as a whole is both owner-less and international, how can
any single business, national government, or person obtain and enforce a
right to interfere with the international freedom of the Internet? Any lack
of clarity thought to exist by some regarding where human rights “come
from” simply pales in comparison to the lack of clarity of any asserted
right to interfere with the freedom of others on the Internet.  Any
hypothetical “right to interfere” with inherent human rights of freedom of
expression is far more difficult to justify and explain than upholding the
natural human urge for self-expression and self-determination as a right.
Thus, absent highly exceptional circumstances, in a contest between
interference and free expression, free expression always has the better
case, regardless of whether free expression is thought of as an enforceable
legal right or not.

Access to the full benefits and promise of the Internet can be interfered
with or impeded at numerous levels and by numerous actors, including
businesses, governments, individuals, engineers, web designers,
administrators. Arguably, businesses are in the position to make more
choices that actually or potentially impair or impede human rights on the
Internet than government. Some “governmental” interference with the
Internet is driven by business concern lobbying, such that much
“governmental” interference can be attributed to businesses. Regardless of
the relative amounts of responsibility one may assess to each, it is
extremely clear that both governments and businesses can and are acting in
ways that interfere with the Internet, either by failing to fully
understand the Internet, or by pursuing narrow interests over the public
interest as a whole. Any such government or business that acts to impair or
impede the global freedom of the Internet should not be heard to claim that
they “have the Internet” (in the case of a nation that filters or otherwise
interferes) or that they “support the Internet” (in the case of a business
acting in fact to impede access to the full Internet, or censor content,
etc.)

Although Internet companies are obliged to abide by national legal rules of
host countries, they are even more obliged to follow global human rights
laws like freedom of expression than those national laws. Claims that
domestic laws require business cooperation with censorship, etc. should be
met with the assertion of higher laws and norms than those of a single
country.

In the general context of market freedom, the development of new
technologies will always precede the question of the extent of their
regulation. Yet, as human activity in the technology expands, some form of
regulation is inevitable, just as it is impossible to imagine cities
without any regulation, even though lack of regulation is possible in the
countryside or wilderness. However, the pace of innovation and expansion on
the Internet guarantees that no regulator can sufficiently keep pace. This
requires deep commitment to human rights on the part of engineers and
others who are creating the Internet in real time.

The pre-existing duty of all nations to support the diffusion of education
concerning human rights takes on a special urgency and importance in the
context of the Internet, because important structural and design decisions
regarding the Internet will always continue to be made by Internet
engineers and administrators at a speed and at a point in time where it is
impossible for detailed guidance or best practices to exist. In direct
effect, the “governance” of the Internet, in significant part, takes place
in real time and in diverse places, often by engineers and programmers
making design decisions, making a decentralized awareness and knowledge of
human rights norms by people working on the Internet especially critical to
preventing serious human rights issues from emerging. Knowledge about human
rights, like the Internet itself, is a form of power that not only can be
decentralized, but must be decentralized, given the diffuse points of
potential impact on rights on the Internet, and the lack of any centralized
ownership or control that can legitimately affect the whole.

Therefore, the IGC declares that the Internet is, and by rights ought to
be, a place for the full expression of human freedoms and equality, the IGC
condemns violations of human rights on the Internet and wherever else they
may occur, and the IGC calls upon the United Nations and all people to
support the utmost diffusion of education about human rights so that
developers, engineers, administrators and users of the Internet can
maximize the value of the Internet as an enhancement of the human
experience for all people, making ever more real the human flourishing that
is both the reality and the promise of the Internet, and doing so “without
regard to frontiers.”


-- 
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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