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

Tue Feb 28 12:40:05 EST 2012

I'm afraid I must agree that less would have been more.

Rony Koven

-----Original Message-----
From: Salanieta T. Tamanikaiwaimaro <salanieta.tamanikaiwaimaro at gmail.com>
To: Paul Lehto <lehto.paul at gmail.com>
Cc: governance <governance at lists.igcaucus.org>; Lee W McKnight <lmcknigh at syr.edu>
Sent: Tue, Feb 28, 2012 6:13 pm
Subject: Re: [governance] Re: Managing Critical Internet Resources [IGF 2012 - MAG Consultations]

Dear All,

We would like to thank Paul Lehto for craftsmanship in weaving critical considerations in relation to Human Rights and the Internet. Noting that the Statement has been up for more than 48 hours, we also thank all those that contributed to the Statement Workspace (web) and email thread.

It is now the 29th February, 2012 and we will be sending our Statement. 

Kind Regards,
Sala

On Wed, Feb 29, 2012 at 4:07 AM, Paul Lehto <lehto.paul at gmail.com> wrote:

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)

-- 

Salanieta Tamanikaiwaimaro aka Sala

Tweeter: @SalanietaT
Skype:Salanieta.Tamanikaiwaimaro
Cell: +679 998 2851

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