A blog on why norms matter online

Tuesday, January 3, 2012

First, Do No Harm

Can a new year start without a New Year's Resolution? I think not. 

So what is the biggest challenge for Internet Governance in 2012? 

Clearly, the operationalization of the Internet Principles that  shaped 2011. From the US to Russia and China, from India, Brazil and South Africa to the EU, from NATO to the G8 - princples were everywhere (also on my blog). 

Principles mushroomed. (By the way, when it comes to describing uncontrolled growht, I prefer the German wildwuchs. It's like schadenfreude, gemütlich and zeitgeist, a very apt word, and my personal suggestion for the Germanism of the Year  2012). 

This mushrooming of principles, the Internet Governance principle "hype" of 2011, might lead to the conclusion that the choice of the principles to shape Internet Governance is arbitrary. 

It is not. 

With few state-oriented exceptions, all collections of principles, though admittedly with different emphases, have supported certain fundamentals. These include 

  • the importance of international law for Internet Governance; 
  • the existence of state duties vis-a-vis the safety and security of the Internet;
  • the central role of human rights in Internet Governance with the Internet being perceived as what it is: a catalyst for change; 
  • the importance of multistakeholder decisoin-making structures; and
  • the openness of the Internet and the validity of key architectural principles of the Internet.

Some of these commitments have come under fire lately. 

It is up to the Internet Governance community, to all stakeholders, to make sure that in 2012 the commitments made in 2011 - to human rights, to multistakeholder participation, to an open architecture of the Internet - are not questioned, but rather the principles implemented. 

Indeed, the time to operationalize the principles has come. 

If we are in need of an  ethical guideline for the operationalization of principles, we can do worse than look at the  special issue "The New Ethical Responsibilities of Internet Service Providers" of the journal PHILOSOPHY & TECHNOLOGY (Volume 24, Number 4, 463-465), where  Cerf has written an article with entiled: "First, Do No Harm". "[T]his might well be an ethical commitment", he writes, 

"the users, makers, and operators of the Internet and its applications might undertake. If we accept this statement as an expression of moral principle, we would have to conclude that use of the Internet to steal, commit fraud, stalk, infect with malware, launch denial of service or other attacks, and so on is a prima facie violation of this principle and should be condemned as immoral. A more nuanced interpretation might extend this notion to include the makers of the software and hardware components of the Internet. Not only would the creation and use of malware be immoral but so would the introduction and use of systems that make no attempt to defend against the various harms undertaken by bad actors."
 Agreeing, not to harm the Internet and its uses, is a very good first step.

Towards the end of his article, Vint Cerf writes 
 "it does seem to me that among the freedoms that are codified, including the right to speak freely, should be the right to expect freedom (or at least protection) from harm in the virtual world of the Internet. The opportunity and challenge that lies ahead is how Internet Actors will work together not only to do no harm, but to increase freedom from harm." (notes omitted).
Freedom from harm (and freedom from want) are essential to human security, which itself is closely connected to human rights and a prerequisite for human development.

Luckily, we have some guidance as to how to ensure human rights online. True, all stakeholders must cooperate in this endeavour, but states have a central role to play. 

At the start of 2012 it might be interesting to remember the 2008 decision of the  European Court of Human Rights in K.U. v. Finland, where the Starsbourg court outlined the positive obligations of states, the limits of privacy and freedom of expression and the role of rights online more generally. 

"42. The Court reiterates that, although the object of Article 8 [right to privacy] is
essentially to protect the individual against arbitrary interference by the
public authorities, it does not merely compel the State to abstain from such
interference: in addition to this primarily negative undertaking, there may be
positive obligations inherent in an effective respect for private or family life [...].

43. These obligations may involve the adoption of measures designed to
secure respect for private life even in the sphere of the relations of
individuals between themselves. There are different ways of ensuring
respect for private life and the nature of the State's obligation will depend on
the particular aspect of private life that is at issue. While the choice of the
means to secure compliance with Article 8 in the sphere of protection
against acts of individuals is, in principle, within the State's margin of
appreciation, effective deterrence against grave acts, where fundamental
values and essential aspects of private life are at stake, requires efficient
criminal-law provisions [...]"
 Effective deterrence is thus important, but so is reconciling the different human rights at stake:

"49. [....] Although freedom of expression and confidentiality of communications areprimary considerations and users of telecommunications and Internetservices must have a guarantee that their own privacy and freedom ofexpression will be respected, such guarantee cannot be absolute and mustyield on occasion to other legitimate imperatives, such as the prevention ofdisorder or crime or the protection of the rights and freedoms of others.Without prejudice to the question whether the conduct of the person whoplaced the offending advertisement on the Internet can attract the protectionof Articles 8 and 10, having regard to its reprehensible nature, it isnonetheless the task of the legislator to provide the framework forreconciling the various claims which compete for protection in this context."

Concluding, this is what I propose to be the New Year's Resolution for the Internet Governance community for 2012: In operationalizing the Internet Governance Principles, reconciling the different regulatory attempts, and applying international legal concepts to the regulation of information society: Do No Harm. 


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