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, March 29, 2012

politik-digital.de berichtet über unsere Initiative: Offline wie online gelten die Menschenrechte

(c) politik-digital.de. Die Site berichtet über unseren Workshop mit einem Foto unseres Schlusspanels: Jörgensen, Fleischer, Kettemann, Kleinwächter (v.r.n.l.).

Heute hat auch Alexander Wilke von politik-digital.de über unsere Initiative berichtet.

Er schreibt unter anderem: 

"Den Satz des Tages steuerte Matthias Kettemann vom Institut für Völkerrecht der Universität Graz bei,  mit dem er UN Special-Rapporteur Frank La Rue zitierte: „Whatever States May Do to Curtail Human Rights, the Internet Will Prevail!""
Frank La Rue ist nichts hinzuzufügen. 

Außer eines: Das gesamte Interview, das ich mit Frank La Rue für die Initiative geführt habe, wird in unserem Abschlussbericht veröffentlicht werden. Schon vorweg:  Er inspiriert sehr, wenn der von der Nutzung des Internet für die Rechte etwa der Mapuche berichtet und über die Chancen, die verstärkter Zugang für alle schafft. 

Wednesday, March 28, 2012

Heise.de berichtet über den Abschlussworkshop der Menschenrechte-Initiative

(c) Heise.de (2012)

Der angesehene Online-Nachrichtendienst heise.de hat einen ausführlichen Bericht über unsere gestern präsentierte  laufende Initiative zu Menschenrechten und Internet veröffentlicht.

Der Autor Stefan Krempl zitiert ausführlich aus den Beiträgen und fasst die Initiative gut zusammen 

Unbedingt lesen.

Whatever States May Do to Curtail Human Rights, the Internet Will Prevail, Says UN Special Rapporteur Frank La Rue

Yesterday the final workshop of the 5th Initiative on Human Rights and the Internet of the Internet & Society Co:llaboratory took place at the Konrad Adenauer Foundation in Berlin. As thematic lead of the initiative I had the pleasure to help coordinate 30 experts over the last three months - and the privilege to gather, with them, some cutting edge insights into human rights protection online. 
I will, over the next weeks, post key findings from the initiative intermittently, as we develop our final report, to allow readers to have a say on some of our key thesis. 
These include that the Internet does not  change human rights protection as such completely. Offline rights are online rights. Offline human rights violations are online human rights violations. Legitimate interferences with human rights offline can be made applicable to online scenarios. We do not need to reinvent the wheel, but rather to give it some new breaks, necesseary for the breathtaking speed of development online. 
This echoes what Carl Bildt, Minister of Foreign Affairs of Sweden, said at the first-ever panel discussion focusing on the right to freedom of expression on the Internet which was held by the UN Human Rights Council on 29 February 2012. "Freedoms and human rights that we cherish in the off-line world", he said, "must also be protected in the on-line world.” What cannot happen, he warns, is that “as we switch on to the online world, we switch off our freedoms.”
On the contrary, switching on the computer, accessing your data stored in clouds with your mobile phone, or signing it to a social networks means switching on your online rights.
We've also noted that, as a second central outcome of the Initiative, the Internet creates new avenues of information and spaces of communication and thus becomes a lens through which people see the world, engage with it, develop their ideas and ideals and can mobilize (and be mobilized) for good (and bad).
Thirdly, we conclude that the Internet can and should be the central ethical foundation and legal anchor of any Internet Governance approach. This is important for the process of operationalizing the Internet Governance principles which will be undertaken in 2012.
We are rather happy with what we've achieved and I am especially looking forward to finalizing the report and pulling together the thematic strings.

In the course of the Initiative I've also had the privilege to speak to one of the most visionary experts on intenrational human rights protection online, Frank La Rue, UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, (I've blogged about his powerful reports before).

I'll write more about the interview at a later stage, but I can't help but share his final words. "Whatever states will do", he said, referring to state attempts to curtail human rights online, 
"they will fail. The Internet is such a powerful messenger. Technology evolves so rapidly. States won't keep pace with users. The Internet will prevail as an open space of communication and the free flows of ideas".
After three months of studying human rights online within the Initiative (and many more months of studying them as a researchers) I can only support his sentiment. Expressing ourselves on the Internet, in La Rue's words the new "plaza mayor" of the world, is an importan emancipatory act. 

Stay tuned for more from the initiative. And, I can tell you that, stay excited.

Monday, March 19, 2012

Ensuring Human Rights and Human Security on the Internet: Key Insights from the Graz Workshop on the Future of Security

At the opening of the 5th Workshop on the Future of Security

On 16 March, the 5th Graz Workshop on the Future of Security took place in Graz. It was dedicated to "Human Security in the Information Society: Regulating Risks – Empowering People" and I was one of the organizers. 

We'll publish the presentations in the next edition of Human Security Perspectives (here's the link to last year's papers) and here's a short report on the university's media site (in German). 

I've made some notes on the presentaitons of the four invited keynote spakers. Please find them enclosed (but remember, they are my notes and summaries, not the speaker's, so don't quote or cite, but wait for publication of the workshop papers in May 2012).

Keynote Session I: Human Rights, Technology and Online ‘Securities’

Wolfgang Benedek 

Human Security in the Information Society 
Wolfgang Benedek 
Institute of International Law and International Relations and European Training and Research Center of the University of Graz, Austria

Calling ACTA a useful hysteria Wolfgang Benedek introduced some of the key challenges to human rights online. Everybody is concerned with cybersecurity, he argues. Misuse of cyberspace affects the individuals seriously. The examples of Georgia and Estonia have shown the extent to which cyberspace can be instrumentalized to exert power. But the Internet is also an interesting tool to fight for human rights, as the (not unproblematic) “Kony 2012” campaign shows.

A central problem is the “complicity” of some companies in human rights violations. But in filtering, blacking out the Internet, the state is also endangering human security. Human security has a wider focus than state security. Individuals need to be empowered in the information society. We need to ensure access and freedom of information. We need democratic and decentralized responses.

Transparency is important also with regard to state. Examples of good practice are Google’s Tranparency Reports, websites such as Chilling Effects, and the Council of Europe which has passed important guidelines on human rights in the information society. Self-regulation by stakeholders, by example through cyber-cops, is not enough. What we need is a common, multistakeholder-based approach to refining the principles on which Internet Governance will be based.

Cyberspace is not a lawless zone, there are responsibilities for states, individuals and companies. The “10 Internet Rights and Principles”, developed by the Internet Rights and Principles Coalition, can provide important guidance.

Wolfgang Slany 

The Threats of Social Engineering and Malicious Insiders to IT Security

Wolfgang Slany
Institute for Software Technology, Technical University Graz, Austria

Wolfgang Slany reminds us that there is too little awareness about the threats of new technologies. Too many network administrators are naive to the threats of social engineering and malicious insiders. The biggest problem is manipulable human beings. We are all much too ready to open up and tell our stories. People are the weakest link in IT protection infrastructure. The Internet will never be virus-free, just like human health will always be in danger. 

We need to rethink trust in the information society. But we also need to rethink what we throw away - this enables identity theft. There is too much miscommunication between the technical and the human rights communities. We cannot just give up responsibility to the technical community.

Keynote Session II:                          
Political Contributions and Military Challenges to Human Security in the Internet Age

Ernst M. Felberbauer 

Military Security, Human Security and the Internet

Ernst M. Felberbauer
Head of Research Management, National Defence Academy, Ministry of Defence and Sports, Austria

Ernst M. Felberbauer identifies some of the central challenges that the Internet poses for human rights. The Internet changes the way we think about issues of war and peace. The “Kony 2012” is one case in point, as is the public reception of “Assad-Gate”, the publication by the Guardian of emails from the Syrian president to his wife. The Internet makes information spread incredibly quickly without reflection.

These dynamics need to be taken into account, as we consider the evolution of conflict in 20th century. Today, especially after the Arab Spring, it has become clear that legitimacy of governments is important. There is nothing like a humanitarian military intervention. Military logic will predict in war what will happen. The question is when we stop to make this relation get out of hand.

Governments have a certain responsibility not only to protect the networks but also to protect their people. Cybersecurity is an issue that is by now at the forefront of a number of international organizations.

Currently, the Austrian authorities are working on a National Cybersecurity Strategy which will be made public in the near future. A Cybercrime Resource Center will be created. Within the military, a reshuffling of capacities will lead to more cybersecurity personnel.
People should not get hurt. In order to protect them, we need to conclude the legal framework.

Jörg Leichtfried

How the European Parliament Safeguards Human Rights on the Internet

Jörg Leichtfried
Member of the European Parliament, President of the Delegation of the Social Democratic Party of Austria to the European Parliament

There are three dimension to policy-making, Jörg Leichtfried explained: what is meant to happen politically, what actually happens, and what is applied in practice. 

The EU is clearly an export-oriented continent and it is quite a problem that our successful trademarks are being pirated. While ACTA has a legitimate goal, its realization is problematic. It covers WTO law, and could thus be brought before the Dispute Settlement Body.

But there is another problem: the second part on intellectual property rights in connection with virtual products. Big international companies are protected, but a whole generation of people might be illegalized. 

Further, the negotiations process was much too opaque. Also, penal law should not be used to counter IPR violations. Private data could be compromised if business interests are at stake. 

As the case of German lobbying for dual use technology has shown, governments sometimes act against the interests of human rights. 

Leichtfried underlined that it makes much sense to pressure European parliamentarians to ensure human rights-sensitive policies. The Internet can be used to effectively mobilize civil society.  In fact, anti-ACTA protest was the first real revolution of civil society in Europe. 

Organization committee 

(left to right) Wolfgang Benedek |  Cristina Pace|  Pascoal Santos Pereira Heike Montag | Paul Gragl |  Matthias C. Kettemann 

Mayor publishes pictures of "vandals" on Facebook: a human rights violation?

(c) ORF Steiermark 2012

On 6 and 7 March the small town of Gleisdorf in Eastern Styria erupted. Well, at least the Facebook page of its mayor. He had published the picture of two young men who were sitting inside the closed public swimming pool of Gleisdorf, asking whether anyone knew them. 

Was he allowed to do so? It's illegal to incriminate someone publicly, but there was no crime he'd suggested they'd committed? But about their right to privacy? They were easily recognizable - it only took a couple of minutes for the mayor to be contacted with the names of the two.

The human rights questions that this incident raises are interesting and ORF Steiermark interviewed me for both the radio news and the TV news. I highlighted that it was not ok to just publish the pictures, as this violated the privacy of the two young people. Space didn't allow for much more detail in the interviews, but I'll be writing a paper on this and related phenomena. 

You can find the ORF Steiermark report here. TV and radio reports are no longer available online, but I can provide them on request.

Saturday, March 10, 2012

Good News or Bad News? On NTIA, ICANN, ITU and Why Internet Governance is No Puppet Show

An interesting day for Internet Governance: The National Telecommunications and Information Administration (NTIA) says ICANN “does not meet the requirements” for renewal of its functions regarding managing the root zone file, but there are layers upon layers to the question whether that's good news for the international community. 

It is, if it leads to more accountability in the next application of ICANN, which is sure to follow. 

It isn't, if it leads to more governmental oversight in defining the global public interest vis-a-vis the web. 

Right now, it seems to early to tell, which way the are leaning.

In a statement issued today, NTIA says

"Based on the input received from stakeholders around the world, NTIA added new requirements to the IANA functions’ statement of work, including the need for structural separation of policymaking from implementation, a robust companywide conflict of interest policy, provisions reflecting heightened respect for local country laws, and a series of consultation and reporting requirements to increase transparency and accountability to the international community".
Basically, it seems like a good idea for ICANN to separate policy-making from implementation - though we can ask whey ICANN should engage in policymaking at all. BUt that's a different question. 

It also seems very sensible to provide for more consultation and increased reporting requirements to ensure "transparency and accountability to the international community". What's not too like about that? 

What's not to like, is that this decisions has multiple layers that make the assessment of the benevolent or malevolent character of the NTIA decision tricky.

Kevin Murphy writes that the NTIA and ICANN didn't quite see eye to eye during the application phase. Importantly,

"one of the key sticking points is the NTIA’s demand that the IANA contractor – ICANN – must document that all new gTLD delegations are in “the global public interest”." This demand is a way to prevent another controversy such as the approval of .xxx a year ago, which the Governmental Advisory Committee objected to on the grounds that it was not the “the global public interest”.[...] [The]  IANA language could be described as “if the GAC objects, you must reject”."
Ensuring transparency and accountability to the international community is important, but the "international community" is not the Governmental Advisory Committee, which dinstincly lacks two of the three key stakeholders of Internet Governance: the private sector and civil society.

Murphy reminds us that "ICANN CEO Rod Beckstrom has previously stated that he believed such rules imposed by the US government would undermine the multistakeholder process." They would, if GAC were given the last word.

Another dimension to the NTIA decision is coupled with the discussion on, and preparation for, the ITU Summit later this year, where some states are pushing for a stronger role for governments - in the spirit of the proposal by China, Russia and other states of 2011 and the proposal by IBSA.

Murphy writes: 
"A strong GAC, backed by an enforceable IANA contract, is one way to field concerns that ICANN is not responsive enough to government interests."
So strengthening a single-stakeholder-body is better than risking involvement of the ITU, a two-stakeholder-organization (states and private sector) in a process that should enable multistakeholder input from all three stakeholders (states, private sector and civil society)?

It might be a way to field concerns, but strengthening GAC to the detriment of the multistakeholder approach would render multistakeholde-based human rights-sensitive Internet Governance a huge disservice. (And relying on the ITU, by the way, could too).

In fact, the  ITU  World Conference on International Telecommunications (WCIT-12) will, I suspect, fail to produce a treaty that will change fundamentally (or at all) Internet Governance as we know it and will, to no one's surprise actually, not result in the UN taking over the Internet. 

Well, no one might be wrong. There is that one guy known for overrreaching. In the Guardian,  ITU's secretary general, Hamadoun Touré, writes that the 
"aim of the conference is to review the global treaty widely credited for creating the basis of today's connected world, thus the international regulatory framework governing all ICT technologies."
The treaty refered to are the International Telecommunication Regulations (IRTs). And they  have clearly not created the basis of today's connected world, though they have contributed to its evolution. Similarly, the ITU (and the UN) won't take over the Internet, but they will (and should) contribute to Internet Governance. Especially the UN doesn't have a bad track record. 

Remember when the UN Secretary-General had to calm fears the UN would take over the Internet in the run-up to an important international conference? Only, it wasn't in 2012, it was in 2005. And the conference wasn't  the WCIT-12, but the Tunis Summit of the WSIS process that brought us the Tunis Commitment, a document that can with much more right than the IRTs be credited with "creating the basis of today's connected world". 

And what's that basis: multistakeholderism, that the ITU eschwes (it focuses on only two stakeholders, states and the private sector) and, centrally, human rights and international law.

Let us recall the Tunis Commitment's clear wording on that subject:

2. 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.
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. We also reaffirm that democracy, sustainable development, and respect for human rights and fundamental freedoms as well as good governance at all levels are interdependent and mutually reinforcing. We further resolve to strengthen respect for the rule of law in international as in national affairs.

How's that for two paragraph's for the new ITRs? 

But back to the NTIA decison.

At dot.nxt, Kieran McCarthy writes that the decision took ICANN by surprise. He thinks that NTIA is trying to force ICANN to up its game and "start treating the IANA contract like a professional contractor". ICANN, again, is under pressure as NTIA "is using the IANA contract as a blunt tool to force it to make the changes that it wants to see."

Now, for "the changes that [NTIA] wants to see": Are they good or bad? This, unfortunately, leads us straight back to the top of this entry. They may be, they may not be.

I agree with Kieran that we're seeing a "dangerous politicization of a crucial technical function". 

But when he writes

"Behind the puppet show of Internet governance, the hidden hands of influence are popping into view."
I have to contradict him strongly. 

Internet Governance is not a puppet show. Internet Governance is an increasingly complicated normative machinery with moving parts, emerging actors, multiple stakeholders and a  normative vocabulary that itself challenges how international rules have been made for decades. 

Calling Internet Governance a "puppet show" is the same as discounting international altogether, just because some states violate it. 

Let's recall Louis Henkin’s famous words: 
“[A]lmost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.” (How Nations Behave, 47 (2d ed. 1979) (emphasis omitted)
I admit that it might be too early in the normative structuring of  Internet Governance to conclude that all stakeholders observe almost all basic principles of Internet Governance and observe almost all of their obligations almost all of the time. 

But this is mainly because neither the basic principles nor the obligations have crystallized completely. The normative trend, however, points squarely in that direction. 

Just because ICANN has to rework its application for the IANA contract, is not the occasion to question Internet Governance as such. 

Great post by Milton Mueller, who is less equivocal than I am and argues that all of the implications "seem to be bad". He is much for generous to ICANN than I was and criticizes that it is  
 "being bludgeoned with the largest possible stick to abandon key elements of its hard-fought, multistakeholder based policy to add new top level domains: a threat to move the IANA contract to someone else."
Milton is less generous with NTIA and by extension the US government: They have "completely lost perspective on the larger issues" he writes, and are  "pursuing some very short term political gains that will have some very long-lasting and potentially disastrous costs."

He concludes with a gloomy outlook:
"The U.S. Commerce Department needs to understand that it is toying with the complete destruction of ICANN as a governance institution. Its aggressive use of unilateral state power to change community-developed policy makes its lip service to multistakeholderism and its warnings against UN or ITU-based inter-governmentalism ring hollow."
 This provides some important background to the issues I've discussed above.

Monday, March 5, 2012

The Power of Principles: Reassessing the Internet Governance Principle Hype

In late February, the Internatioal Symposion on Legal Informations (IRIS 2012) took place in Salzburg. I had submitted a paper in which I briefly reassesed the Internet Governance Principle Hype of the year 2011. The paper has now been published in the Jusletter-IT.

In the contribution I argue that 

2011 has seen the publication of a number of collections of Internet Governance principles and declarations of rights and principles. While having some common elements, they differ in focus an importance. In light of the progressive politicization of the Internet, 2012 must be the year to translate these principles into practice and to operationalize them. Since no common material standard can be deduced from the collections of principles authored by different stakeholder groups, a formal approach is best suited to translate the principles into norms: the functional approach. Recognizing the essence of all law – the protection of the human being – the approach should be used to shape international legal approaches to Internet Governance in 2012, a year promising to be exciting for Internet Governance.

Importantly, I discuss how principles can help meet the challenges of Internet Governance in 2012. 

Institutionally, the spring 2012 session of the UN Human Rights Council will discuss Internet and freedom of expression. Special Rapporteur Frank La Rue’s report from 2011 will continue to shape the discussion. The IGF in autumn 2012 will also have to consider seriously, in a multi-stakeholder process, the role principles can take. Throughout 2012, the ITU will hold negotiations on its International Telecommunication Regulations to be adopted in December 2012 in Dubai. These could, for the first time, also include a right to access.
In all these discussions Internet Governance principles should play an important role. As they stand now, however, they will most likely fail to do so. Just as the debate on SOPA permeated the last weeks of 2011, the first weeks of 2012 have seen emerge a robust discussion on the right to access the Internet. The discussion on the right to access is an interesting case study of the impact of principles because it evidences a lack thereof. Few discussants related the discussion to the references to the right of access in existing collections of principles, including notably the very first article of the Internet Rights and Principles Coalition’s Charter on Internet Rights and Principles that lays down that “[e]veryone has the right to access to, and make use of, the Internet. This right underpins all other rights in this Charter.” This can lead to the conclusion that the multitude of principles makes it inherently difficult to legitimately select any one of them. What is therefore necessary is a broader approach that allows the translation and operationalization of principles. This approach is the functional approach.

I argue that the solution would be to implement the principles by applying a functional approach to International Internet Law.

It will be difficult to have all stakeholders agree on one set of principles. A functional approach to the Internet Governance Principles helps analyze how these can be shaped, reshaped, formed or reformed in order to more effectively and legitimately reach specified goals – a certain ‘function’. These goals are not formal but necessarily material and be deduced from, what I together with a number of scholars would argue to be the essence of (international and Internet Governance) law: the ultimate concern for the protection of the human being. 
Functionalist approaches to Internet Governance Principles profit from and enhance the implication of legitimacy that inheres these principles coupled with the conviction of at least a substantial part of those who are later on bound by the norms the principles are translated into are, indeed, legitimate. Functionalism, as described above, asks how a regime needs to be optimally designed in light of certain material goals and thus legitimizes both regime design and the normative outcomes through this normative anchor.

I conclude with an outlook for 2012:
 2011 was the year of Internet Principles, 2012 will have to be the year of their operationalization. I have argued that the principles can be best operationalized through a functional approach. In light of the normative goal of Internet Governance law (as of all law: the protection of the human being) a functional approach can help translate the principles into practice. The example of the right to access has shown how this can be done.
2012 will be an important year for the protection of human rights on the Internet. The 2012 session of the UN Human Rights Council will discuss the role of freedom of expression on the Internet, itself a catalyst for other human rights. The IGF 2012 and the ITU conference in December 2012 will both have to seriously consider the role of Internet Governance Principles and how they can be translated into practice.
Principles and rights have started to seriously influence Internet Governance over the last years. Developments in 2011 have only served to accelerate the process and raise the stakes. There is no stepping back. 2012 will the year where we have start taking the operationalization of rights (and principles) seriously – and the functional approach may help in this process.