A blog on why norms matter online

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I'm a Post-Doc Fellow at the Cluster of Excellence "Normative Orders" of the University of Frankfurt and lecturer at the Institute of International Law of the University of Graz, Austria. I've studied international law in Graz, Geneva and at Harvard Law School. I enjoy thinking and writing about Internet Governance and discussing and shaping the future of the Internet

Thursday, January 5, 2012

No right to access? Why Vint Cerf got it wrong and what he got right instead

In a New York Times editorial, Vint Cerf, one the fathers of today's Internet, has criticized approaches to define Internet access as a human right. "It is no surprise," he writes
"that the protests have raised questions about whether Internet access is or should be a civil or human right. The issue is particularly acute in countries whose governments clamped down on Internet access in an attempt to quell the protesters. In June, citing the uprisings in the Middle East and North Africa, a report by the United Nations’ special rapporteur went so far as to declare that the Internet had “become an indispensable tool for realizing a range of human rights.” Over the past few years, courts and parliaments in countries like France and Estonia have pronounced Internet access a human right.

But that argument, however well meaning, misses a larger point: technology is an enabler of rights, not a right itself. There is a high bar for something to be considered a human right. Loosely put, it must be among the things we as humans need in order to lead healthy, meaningful lives, like freedom from torture or freedom of conscience. It is a mistake to place any particular technology in this exalted category, since over time we will end up valuing the wrong things. For example, at one time if you didn’t have a horse it was hard to make a living. But the important right in that case was the right to make a living, not the right to a horse. Today, if I were granted a right to have a horse, I’m not sure where I would put it."

I have three issues with his approach.

First, the Special Rapporteur expressly referred to the Internet as having become a "tool" for realizing a range of human rights. I don't see the point Vint Cerf's is trying to make, when he writes that "technology is an enabler of rights, not a right itself". This is what I understand "tool" to mean: an "enabler". To me, he seems to be on the same page as the Special Rapporteur in this regard.

Second, the human rights dimension of access to the Internet and to content is more complex a question than might appear at first glance. In his oral statement, Mr. La Rue highlighted the two dimensions of access: access to Internet and access to online content. Both pose specific, but interrelated human rights challenges. Using the  Internet as a facilitator for other human rights presupposes access to the Internet in the first place (connectivity) and then unfiltered access to content. (I've blogged about these two kinds of access previously).

Third, it doesn't serve the human rights discourse to differentiate between "civil rights" and "human rights". Human rights encompass, inter alia, civil and political rights, economic, social and cultural rights. The 1993 ViennaDeclaration reminds us in para. 5 that all human rights are "universal, indivisible and interdependent and interrelated". The 2005 Tunis Commitment explicitly confirms this in para. 3:
"We reaffirm the universality, indivisibility, interdependence and interrelation of all human rights and fundamental freedoms, including the right to development, as enshrined in the Vienna Declaration."
Hanging one's argument on one arbitrary definition - civil rights as constitutional endowments and human rights as dignity-based concepts - means ignoring much of the intellectual contribution of half a century of human rights theory.  

It is true that declaring a right to Internet access might not be the best approach to ensuring that more people have access to the Internet, and unfiltered access to Internet content. But I do not see whether declaring, as Vint Cerf did, that there is no such thing as a right to Internet is a more valuable contribution to the debate and to the goal of ensuring (both dimensions of) Internet access for all.

Towards the end of Vint Cerf article, however, I find myself in agreement with him again. He writest that "all these philosophical arguments overlook a more fundamental issue: the responsibility of technology creators themselves to support human and civil rights." Though I do not see the added value of differentiating between human and civil rights, I do agree with the importance of enhancing human rights awareness among technology creators.
Too often, I feel, the human rights and the technical community do not speak the same language.
Mainstreaming human rights concerns into the technical dimension of the evolution of the Internet is fundamental. It was another Internet luminary, Lawrence Lessig, who pointed to the differences of "East Coast Code" and "West Coast Code". Both need to respect human rights and - think think SOPA, think Facebook's approach to privacy - both have a history of falling foul of human rights.

Vint Cerf is right when he writes that
"engineers have not only a tremendous obligation to empower users, but also an obligation to ensure the safety of users online. [...] As we seek to advance the state of the art in technology and its use in society, we must be conscious of our civil responsibilities in addition to our engineering expertise."

Indeed. Engineers should enter into a more intensive, open-ended human rights dialogue with human rights exerts in order to ensure that one of the main Internet Governance challenges for 2012 - operationalizing IG principles, chiefly among them those concerned with human rights - is succesfully met.

This would be an important step towards a more human rights-sensitive Internet Governance. What they should not do, however, is to declare that certain human rights do not exist. What is the added value of this approach?

Rather, let us recall para. 2 of the Tunis Commitment:
"We reaffirm our desire and commitment to build a people-centred, inclusive and development-oriented Information Society, premised on the purposes and principles of the Charter of the United Nations, international law and multilateralism, and respecting fully and upholding the Universal Declaration of Human Rights, so that people everywhere can create, access, utilize and share information and knowledge, to achieve their full potential and to attain the internationally agreed development goals and objectives, including the Millennium Development Goals."
Negating the existence of a right to access, doesn't seem to be the best way to succeed in this endeavour. 


What does seem like a good way, is attempting to bridge the gap between the human rights and the technical community. 











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