Are there dangers to the Internet principle hype?

In the last weeks and months a number of organizations and dynamic coalitions have proposed principles for Internet Governance. In an excellent summary, Wolfgang Kleinwächter of the University of Aarhus, a renowned expert in Internet Governance, has called this trend "Internet principle hype".


Basically, developing principles based on human rights and multi-stakeholder partnerships is a good thing. But there are dangers, too. Mainly that stakeholders accept principles without reading them carefully. Recently, a letter by China, Russia, Tajikistan and Uzbekistan made news through which they propose a GA Resolution on a Code of Conduct for the Internet. 


To name just one example: 


The Code of Conduct include the following language at (c): States pledge 


"To cooperate in combating criminal and terrorist activities that use information and communications technologies, including networks, and in curbing the dissemination of information that incites terrorism, secessionism or extremism or that undermines other countries’ political, economic and social stability, as well as their spiritual and cultural environment;" 


This broad phrasing lends itself to political misuse. Curbing the dissemination of information that undermines the "stability" of other countries or their "spiritual and cultural environment" is much too vague and would be used by states to legitimize illegal censorship measures up to Internet shutdowns. 


Milton Mueller of the Internet Governance Project has written an interesting analysis concluding that the letter "is yet another futile attempt to overlay territorial sovereignty on an internet that is fundamentally inconsistent with it". 


Here, at the Internet Governance Forum in Nairobi, Internet Governance Caucus representatives are working on a  statement on the letter to be presented at the closing on Friday.  


What lesson can we take from this? All stakeholders have to analyze the principles to ensure that they are in furtherance of human rights and can not be used to legitimize human rights violations. 

Are Internet Shutdowns Legal?

On 28 January 2011, Egyptian authorities ordered the country’s Internet Service Providers to shut down. On 5 March 2011, Libya shut down its data traffic. Already in 2009, Iran had greatly reduced connection speed, and China had shut down the Internet in the region of Xinjiang. What connects all of these cases of Internet blackouts in times of crisis is the lasting conviction by governments that shutting down information and communication channels in times of crisis increases the country’s stability and security, as defined by the ruling authority. Given the potential of information and communication technologies it is highly likely that this pattern will continue in times to come. Therefore, an evaluation of the legal framework that governs Internet shutdowns in urgently required. 

Next Monday, at the Sixth Annual Symposium of GigaNet, the Global Internet Goverance Academic Network, I will present a paper on this subject and analyze whether states can shut down the Internet because of reasons of “national security” and what international rules limit their behavior. I'll give a short preview here and would love to have some feedback.

As I see it, there  are a number of aspects to this problem: First, human rights law. 

Articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR) provide substantial protection with regard to the manifold aspects of information and communication freedoms. Arguing that the essence of the rights and freedoms protected by Article 19 has crystallized into a norm of international customary law we can affirm the norm’s applicability independent of state commitments. Additionally, the vast array of activities the Internet is used for today makes Article 22 (freedom of assembly) and Article 25 (right to political participation) relevant for a human rights-based analysis of Internet shutdowns. Apart from these individual human rights protection guarantees the Internet enjoys institutional protection pursuant to Article 19 (3) in connection with Article 2 (1) and (2) of the ICCPR as a medium for individuals to enjoy their information and communication rights and freedoms.

But under  which conditions can states legally limit information and communication rights and freedoms through Internet shutdowns? Any limitation needs to be provided by law, necessary for a specific, legitimate purpose – such as national security – and proportional.  At my presentation I will show that in the majority of cases of Internet shutdowns the legitimate objective was missing. I will argue furthermore that indiscriminate shutdowns are  disproportionate and thus illegal.

International humanitarian law is also relevant. After having problematized the different regimes applicable to non-international and international armed conflicts, a discussion of the protection regime for critical infrastructure will lead me to question whether the Internet can be treated as such for the purposes of IHL.  Generally, I will conclude that IHL has not yet developed sufficiently in order to protect the Internet from shutdowns by the parties to the conflict. Some limited protection is provided by the principle of proportionality. Arguing that shutting down the Internet will stop the other party to the conflict from communicating effectively though will regularly allow for shutdowns under IHL in light of the principle of military necessity.

What duties, I will ask in a further step, exist for states with regard to the integrity, stability and functionality of the Internet and inhowfar do these set limits to Internet shutdowns. Basing my analysis on the principles developed for the Council of Europe by an expert group in 2010 and the ten key rights and principles enshrined in the bill developed by the Internet Rights and Principles Coalition I will specifically look at the extent and impact of the need of states to protect human rights and freedoms online and the duty of states to refrain from impacting negatively the global, unhindered and cross-border Internet traffic. 

Concluding, I will show that Internet Governance Principles, especially those confirming the protection of human rights, set limits to Internet shutdowns, though references to ensuring the global integrity, functionality and stability of the Internet in a cross-border context should not be interpreted as setting no limits to national shutdowns without prima facie international impact.

It is of great importance, both as a policy and legal matter, to ensure, especially in times of crisis, the viability of information and communication channels. While international human rights law sets clear limits to state attempts to suppress the mobilization and articulation of democratic dissent, an analysis of international humanitarian law provides a more nuanced picture and sets only few limits. The emerging Internet Governance Principles, again, lay down the duties of states regarding the integrity, functionality and stability of the Internet, but also figure as a source for states’ human rights obligations.

By shutting down the Internet in times of crisis, states send an important signal: that they are ready to attack protest movements without international and national control and critique. This is, when the international community and all of its stakeholders must act.

This are my rough and ready thoughts on the topic. What is your take? 

 

Take part in the first course on international law and the Internet at the University of Graz

The Internet challenges some of the most fundamental assumptions behind international law. At the same time, international law shapes and influences the evolution of the Internet. 


Too few international lawyers have taken up the challenge of critically analyzing the relationship of their field and information and communication technologies. There are even fewer courses that allow students to gain in-depth knowledge of the role of law (and other rules) in the regulation of the online environment. 


This is why I have decided to hold a course on international law and the Internet in the winter term 2011 at the University of Graz. Registration is now open for students.


The course – the University’s first on international legal implications of the 
Internet – will investigate the role of international law in solving legal, political, 
social and economic conflicts related  information and communication 
technologies. 


I will first analyze attempts to regulate the Internet through 
Internet Governance and will then focus on intricate legal problems of the 
Internet age. Among the topics I will discuss are cyber war, cyber terrorism 
and cyber crime; online pornography and sexual exploitation; changing 
conceptions of privacy on the Internet (Facebook); the influence of social 
media on revolutions (Skype);  statal vs. multistakeholder-oriented regulatory 
approaches; global commons and the Internet; censorship and freedom of 
expression; natural hegemonies (Google);  and  strategies to overcome the 
digital divide. The role and mechanics of  human rights  protection on the 
Internet will be a common theme. 


Though non-students cannot participate in the course itself, I will post the materials here to allow all readers to take part in the broader debate I wish to instigate. 


In the future, I will also post, as time allows, my take on internaitonal legal developments with regard to the Internet and issues of Internet Governance. 


I am looking forward to a vigorous discucsion. There's nothing better than some good, critical thinking. The Internet needs it. And we need the Internet to facilitate it.