AW: [governance] Cerfing the Web, or Serfing the Web?

Tue Jan 17 09:24:33 EST 2012

Dear all,

we all agree that the technical community and the human rights community should talk to each other more to make sure that technical solutions are human rights sensitive and that solutions developed by human rights lawyers answer effectively to emerging technological challenges.

But is also important that we agree on some human rights basics, which seem to be questioned by some of the more recent emails.

So no, human rights are not about „demand“. Human rights inhere each human beings, even if they do not demand them.

And no, human rights are not “more akin to ‘aspirations’ than enforceable rights”. Human rights are enforceable rights. States need to respect, protect and implement human rights. That violations of human rights occur and that some human rights can only be implemented progressively is not an argument for the lack of their binding character but only evidence of the imperfect nature of the world.

The argument that that “[c]ertainly [the Social Covenant] is neither self-executing in a country, nor judiciable” goes against the UDHR and most human rights scholarship. Indeed, some provisions of the Social Covenant are self-executing (applicable by courts without further legislative or executive involvement) and all are (to a certain degree) judiciable.

Why? First, let us consider Art 8 UDHR. It explicitly states that everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. There is nothing in the language suggesting that only political rights are covered and social, economic and cultural rights should be non-justiciable.

Further arguments (which merit extensive citation) are provided by the Social Rights Committee overseeing the implementation of the Social Covenant in its General Comment No. 9 of 1998 (E/C.12/1998/24).

With regard du justiciability the Committee writes:

“10.In relation to civil and political rights, it is generally taken for granted that judicial remedies for violations are essential. Regrettably, the contrary assumption is too often made in relation to economic, social and cultural rights. This discrepancy is not warranted either by the nature of the rights or by the relevant Covenant provisions. The Committee has already made clear that it considers many of the provisions in the Covenant to be capable of immediate implementation. Thus, in General Comment No. 3 (1990) it cited, by way of example, articles 3; 7, paragraph (a) (i); 8; 10, paragraph 3; 13, paragraph 2 (a); 13, paragraph 3; 13, paragraph 4; and 15, paragraph 3. It is important in this regard to distinguish between justiciability (which refers to those matters which are appropriately resolved by the courts) and norms which are self-executing (capable of being applied by courts without further elaboration). While the general approach of each legal system needs to be taken into account, there is no Covenant right which could not, in the great majority of systems, be considered to possess at least some significant justiciable dimensions. It is sometimes suggested that matters involving the allocation of resources should be left to the political authorities rather than the courts. While the respective competences of the various branches of government must be respected, it is appropriate to acknowledge that courts are generally already involved in a considerable range of matters which have important resource implications. The adoption of a rigid classification of economic, social and cultural rights which puts them, by definition, beyond the reach of the courts would thus be arbitrary and incompatible with the principle that the two sets of human rights are indivisible and interdependent. It would also drastically curtail the capacity of the courts to protect the rights of the most vulnerable and disadvantaged groups in society.”

With regard to the self-executing character of the Covenant it opines:

“11.The Covenant does not negate the possibility that the rights it contains may be considered self-executing in systems where that option is provided for. Indeed, when it was being drafted, attempts to include a specific provision in the Covenant to the effect that it be considered "non-self-executing" were strongly rejected. In most States, the determination of whether or not a treaty provision is self-executing will be a matter for the courts, not the executive or the legislature. In order to perform that function effectively, the relevant courts and tribunals must be made aware of the nature and implications of the Covenant and of the important role of judicial remedies in its implementation. Thus, for example, when Governments are involved in court proceedings, they should promote interpretations of domestic laws which give effect to their Covenant obligations. Similarly, judicial training should take full account of the justiciability of the Covenant. It is especially important to avoid any a priori assumption that the norms should be considered to be non-self-executing. In fact, many of them are stated in terms which are at least as clear and specific as those in other human rights treaties, the provisions of which are regularly deemed by courts to be self-executing.”

Kind regards

Matthias

Von: governance at lists.cpsr.org [mailto:governance at lists.cpsr.org] Im Auftrag von Aldo Matteucci
Gesendet: Dienstag, 17. Jänner 2012 14:43
An: Deirdre Williams
Cc: governance at lists.cpsr.org; Jovan KURBALJA
Betreff: Re: [governance] Cerfing the Web, or Serfing the Web?

Hello
and thanks, Ginger,
for the introduction.

The concept of "access to internet as human right" is being used a bit too loosely for my comfort:
The UNDHR has mothered two Conventions:

•       UNICCPR of 1966: International Covenant on Civil and Political Rights<http://en.wikipedia.org/wiki/International_Covenant_on_Civil_and_Political_Rights>, and

•       UNICESCR, also of 1966: International Covenant on Economic, Social and Cultural Rights<http://en.wikipedia.org/wiki/International_Covenant_on_Economic,_Social_and_Cultural_Rights>.
While the first obligates the signatories "respect and to ensure to all individuals within its territory and subject to its jurisdiction" the rights in that Convention, the second only demands “best efforts”:
“Article 2 of the Covenant imposes a duty on all parties to
take steps... to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.
This is known as the principle of "progressive realisation". It acknowledges that some of the rights (for example, the right to health) may be difficult in practice to achieve in a short period of time, and that states may be subject to resource constraints, but requires them to act as best they can within their means.”[1]<https://mail.google.com/mail/html/compose/static_files/blank_quirks.html#_ftn1>
This is what I meant by “Human Rights” are more akin to “aspirations” than enforceable rights. Certainly UNICECSR is neither self-executing in a country, nor judiciable.
The reason is materiality: as long as the law of scarcity is not repealed, one needs to set priorities in fulfilling these aspirations.
So one core issue of any discussion on human rights is not whether the list is exhaustive – it will never be and whether this or that further right better be included; what is crucial is the ordering of priorities among all these rights. Once these rights fall below the “line of scarcity”, any discussion on them would be fatuous.
But one does not do policy by ranking alone. The real issue is one of trade-offs: how much food vs. how much health or education; how much in the North and how much in the South; and so on.
As Avishai MARGALIT points out – no one likes to talk “compromises”[2]<https://mail.google.com/mail/html/compose/static_files/blank_quirks.html#_ftn2>. Yet that’s the only real game in town, and any abstract discussion – gutted of the material context – is whistling in the wind.
The last famine in India was Bengal, 1942. Democracies can’t afford famines, and deal with them as a matter of priority. Mao was able to hide 30 million dead during the Great Leap Forward.
As A. K. SEN points out, life expectancy in India and China was about equal in 1948. Today China ranks 80 in the list of nations, and its citizens expect to live 73 years. India has a rank of 139, with an expectancy of 64.4. North Korea weighs in 67.3[3]<https://mail.google.com/mail/html/compose/static_files/blank_quirks.html#_ftn3>. A matter of priorities, which translates as about 8 million Indians dying prematurely every year.
Different priorities, different compromises, and different outcomes. Who are we to judge, and overload the cart with “human rights” which, at best are a distraction, and most likely will dilute priorities?
Now, and pragmatically: should internet access be a priority? I’d say yes, and not for political reasons, but because internet is such a useful day to day tool. People in India are voting with their pocket books when they buy 7 million mobile phones each month. Sure they use if for gossip, but farmers learn where best to sell their crop. Internet could provide all sorts of services to the villages, from health advice in emergencies, education for children (the PC in the wall), to accounts for the panchayat. There is no limit to the ways internet could transform daily life, particularly in the rural areas. This is why, in genocide-scarred Rwanda, providing every child with a PC is a priority.
Even a politically eunuch internet is transformative of the material world. Of course internet should be both easily accessible (distribution + cost) and protected from political interference (we’ll have to deal with its “viral” aspects though). But, if push comes to shove, a rice bowl half full for most, thanks to internet, might just be satisficing – in the short run.

________________________________

[1]<https://mail.google.com/mail/html/compose/static_files/blank_quirks.html#_ftnref1>http://en.wikipedia.org/wiki/International_Covenant_on_Economic,_Social_and_Cultural_Rights

[2]<https://mail.google.com/mail/html/compose/static_files/blank_quirks.html#_ftnref2>           Avishai MARGALIT (2009): On compromises and rotten compromises. Princeton University Press.

[3]<https://mail.google.com/mail/html/compose/static_files/blank_quirks.html#_ftnref3>           http://en.wikipedia.org/wiki/List_of_countries_by_life_expectancy

On 17 January 2012 14:33, Deirdre Williams <williams.deirdre at gmail.com<mailto:williams.deirdre at gmail.com>> wrote:
Hello :-)
I've been following this discussion with fascination and amazement.

When I was a little girl Saturday teatime was made glorious by the delicious frisson of terror produced by Dr Who and the Daleks. For the uninitiated a Dalek was a sort of upsidedown dustbin or ur-R2D2, with a nose-like arm sticking out of the front and a metallic voice which said 'I-am-a-Dalek-you-will-obey' Of course Dr Who didn't, and by association we didn't either, but it was fun.

So is Google the Dalek of the 21st century? And have we lost our ability to disobey?

Perhaps you don't know the Google game? I invented it to demonstrate to somebody that Google, like Big Brother, is in fact - watching you! I sent myself a message mentioning my intention to plant mistletoe in the garden. Google responded, instantly and obediently, with an advertisement for exotic seeds from somewhere in Louisiana. You should try it, it's quite entertaining.

What Vint Cerf wrote in his article follows close upon what he said at several workshops at the IGF in Nairobi. Admittedly for me this all happened at an unholy hour of the morning (I was participating remotely) but I think I understood. And no one seemed to mind then.

For me rights seem to be primarily about demand. As an analogy I would propose the 'rights of way' in England. If you don't use them you lose them. And to say that the Internet is not a human right is not the same thing as saying one has no right to the Internet.

So perhaps capacity building needs to place plenty of emphasis on thinking for oneself, on resilience against 'social engineering'.

Deirdre

On 17 January 2012 04:16, Aldo Matteucci <aldo.matteucci at gmail.com<mailto:aldo.matteucci at gmail.com>> wrote:
Paul,

you made such an intellectual somersault from "access to the net as human right" to "Google wants to tell them what they should be doing next" - I  have a hard time following.

Google's vision is "to organize information on the net and make it accessible". It does it for free, hoping to satisfice the individual who searches, the advertiser, and its shareholders.

There is nothing in this vision about controlling the access - just reshuffling the net information in way Google thinks is suitable to you.
Their vision is a virtual avatar of "all the news fit to print" that graces the title side of the NYT.

Google is the net version of the free-grab junk papers you get for free at railway and bus stations.
These junk papers are destroying the staid daylies, by satisficing most people's demand for news. The content is "tits and bits"
soudbites and soundtrites. 90% of social networking is gossip. "Noise" rather than information.

Is there a "human right to the NYT"? I doubt it.
Does Google's approach change society?
You bet.
What can we do about it?
Certainly not by elitistically clamoring "human rights".

In fact, it is a case of "just deserts"
ever since Eve and Adam bit into the apple
the news were "elite-driven"
kings, battles, and big rites.
 Now the masses, through their earning power and day-to-day decisions
decide also for themselves what's "fit to be on top of a google search".
you better get used to it.

The political problem is "natural monopoly"
as more people google
google becomes the only game in town.
Just as Windows DOS has exterminates alternatives
probably with methods akin to those of JDRockefeller as he built up Standard Oil
a "natural monopoly" might allow "natural populism" to emerge
as people graze of newsbits, rather than spend energy on thinking.

So what else is new?
Most of our brain activities are unconscious, to save energy needed to decide...
the world (not you and me maybe) may even think it's an improvement

Aldo

On 17 January 2012 04:51, Paul Lehto <lehto.paul at gmail.com<mailto:lehto.paul at gmail.com>> wrote:

     It would be odd for an evangelist of the Christian religion, or any other religion, to argue that people had no right of access to the "Technology" of the Christian religion - the book known as the Bible.  But Vinton G. Cerf, official "chief Internet evangelist" for Google, Inc., strangely argued an analogous proposition:  That people have "no right to access the Internet" Mr. Cerf is paid to evangelise for by Google, Inc.  Calling the Internet a mere tool or technology that enables "real" rights such as free speech, Mr. Cerf apparently considers anyone denied the Internet by arbitrary government action, for example, to have been deprived of nothing they have a right to access.  Would a religious "evangelist" take the same attitude about accessing the Bible, and think that the right to freedom of religion did NOT encompass a right to access the Bible in either print or electronic form?

     I find Mr. Cerf's argument to be, frankly, nonsensical.  At the same time, I can readily understand it as a coherent statement of Google's business position on the future of the Internet when Cerf's statements are considered side by side with Google CEO Eric Schmidt's famous statements to the Wall Street Journal in 2010 comparing Google's classic search engine business with its newer Android-based strategy, focused on giving Android away to cell phone companies for free, because of the extremely lucrative market thus made available to Google to sell targeted ads to cell phone users:

"I actually think most people don't want Google to answer their questions," he elaborates. "They want Google to tell them what they should be doing next."

Let's say you're walking down the street. Because of the info Google has collected about you, "we know roughly who you are, roughly what you care about, roughly who your friends are." [And, thanks to Android GPS capabilities, they know where you are, within a tolerance of about one foot, if you carry an Android "smart"phone.]

Google's business vision for the future of the Internet is reasonably clear:  They already have extremely detailed data on each user, and they want to use all of that data to push ads in front of users allegedly targeted to what Google "already knows" they want, and sell many "heads ups" to local restaurants and other "opportunities" in the physical vicinity of wherever the Android user may happen to be.

If the above idea is even close to being correct (and it makes sense of Schmidt's bold claim that we "want Google to tell [us] what [to do] next") then we can understand why Google, via their official public face and Internet evangelist Vinton G. Cerf, would try to evangelize against Internet access rights in the January 4, 2012 New York Times:  Any such "right to access" the Internet is clearly a potential interference with Google's business plan to reconfigure the Internet based on what it thinks we want from the Internet, in Google's sole discretion, based on the voluminous data Google routinely collects on users.

You and I may prefer to make our own discoveries on the Internet, and do our own searches.  But Google, quite literally, thinks it knows better than we do, and even goes so far as to claim that it's what we really want from Google, in the end:  for Google to tell us all what to do.

Many people object to Google's idea with fervor, and would much prefer to tell Google where to go, than to have Google tell them what to do.

But imagine an aggressive, ad-selling, data-shaping future google that is choosing so much data for us and putting it in front of our faces that it can be said that the "Internet" as we now know it is no longer accessible to us, only an edited and targeted shadow of the Internet chosen by Google is accessible to us, as a practical matter, on our devices.   This is not too hard to imagine at all, since most of it is already here.  Such a "personalized" Internet is but a shadow, albeit an arguably personalized and targeted shadow, of the Internet we know today.  Perhaps (and this is only a maybe) we could still get to the "full Internet" if we are committed to doing so and know what we are doing, but to do so we will have to wade past Google's paternalistic suggestions for what we should be doing next, and past Google's conclusion that people no longer want "Google to provide them with information, they want google to tell them what to do."

Clearly, a right to access the Internet is in tension with, if not in conflict with, Google's business vision for the future of the Internet.  Mr. Cerf's many notable achievements related to the Internet aside, he indisputably owes a duty of loyalty to his employer, Google, and in this particular context, Mr. Cerf is not speaking as a true evangelist for the Internet, he is speaking out of loyalty to the forthcoming business vision and profitability of his employer, Google Inc.

Perhaps Google's increasingly paternalistic vision of Internet users, in which they decide for us what we should do next, and presume that we don't really want Google to simply provide information at our choosing, will one day give new meaning to the phrase Cerfing the Net, which perhaps will be spelled Serfing the Net, in honor of Vinton G. Cerf's feudalistic exposition on their new internet reality in which one's rights of access to the Internet are predetermined, as in feudal days, by the land (or operating system) one is born on or born into.

The masters of the universe at Google are indeed on the very precipice of being the Lords of the Internet, not evangelists of the Internet.  Lords do not simply answer searching questions, Lords tell us what we should be doing next.  Evangelists hope and pray that ALL will access the Internet or the Bible, but by saying there is no right of access to the Internet, Mr. Serf is made himself and fellow executives at Google our Lords, and abandoned his post as Chief evangelist of the Internet, at Google.

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

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