|Transatlantic human rights dialogue on Internet rights |
is essential: for five distinct reasons. (c) Kettemann 2013
Next week I'll participate in a conference on the transantlantic human rights heritage organized by Harvard University and the Council of Europe. My panel will be dedicated to human rights in cyberspace.
I will call for a transatlantic human rights dialogue on Internet rights and present five arguments in support of it.
I. Are States the New Anarchists?
In the early phases of the development of the Internet the absence of state-given norms was a key feature which boosted creativity and facilitated development. Its downside was the perceived anarchy of the early Internet. Users thought they could do what they wanted to do. But progressively, social mores were enforced on the Internet. Norms were created (or applied) and, for cases of serious anti-social behaviour, states reined people in.
This has changed. Today, states seem like the new anarchists. They behave (pass laws, take enforcement measures) as if the Internet was a quasi-anarchic, self-contained place: as if the law-based human rights framework limiting state action did not apply.
Just as early Internet anarchists were proven wrong, states believing their normative behaviour online is off limits to international scrutiny will be, too. States cannot do what they want to the Internet, its data flows and its users. But it will take individuals (an emerging global public sphere) to rein them in. Combining the growth of a whistleblowing culture, old media’s attempts to reassert its role and the technical possibilities of the Internet, keeping secrets regarding Internet surveillance gets progressively difficult, especially when the secret lies in perceived or actual violations of human rights.
Against this background I suggest five propositions that can help inspire a transatlantic human rights dialogue on Internet rights.
II. Five Propositions
(1) All human rights that apply offline also apply online.
On July 5, 2012, the UN Human Rights Council (HRC) adopted by consensus a key resolution on the promotion, protection and enjoyment of human rights on the Internet.The Resolution affirms that “the same rights that people have offline must also be protected online.” We thus do not need any ‘new’ human rights for the Internet age. States need to respect, protect and implement the existing ones – especially in light of the catalytic function of the Internet to exercise a broad range of human rights, especially the right to freedom of expression.
The right to privacy is intricately and closely connected to that right. If you feel watched, you will behave differently. If you think that your communications are read, you will write differently. Recommitting to this consensus, especially in times of serious doubts as to the human rights conformity of national Internet surveillance, must be a transatlantic priority.
(2) Ensuring human security means ensuring both human rights and security.
Fighting terrorism is an essential goal of the international community. In ensuring their citizens’ security, states fulfill their human rights-based role. But their policies must always be proportionate. Ensuring human security means ensuring both security and human rights. The concept of human security, which has been accepted by the United Nations as a key conceptual vector, must be mainstreamed in any surveillance laws and proportionality requirements must be factored in in keeping with established international human rights doctrine and jurisprudence.
(3) The protection of human rights online (and keeping the Internet functional and stable) lies in the global common interest.
The protection of online communication processes is safeguarded comprehensively by Article 19 ICCPR, regional human rights law and customary law. Further, states have a duty to ensure the Internet’s stability, integrity and functionality as a precondition to the exercise of rights related to information and communication processes. Further sources of an emerging duty to safeguarding the integrity of the Internet include aspects of the international legal duty to cooperate, the prohibition of intervention and the precautionary principle.
(4) The transatlantic partnership is important, but do not forget China (and Brazil, and Russia, and India …).
Cyberspace works better, when the US and Europe work together. With 11,4 % and 21,5 % of world users respectively, they are important forces that shape Internet Governance policy across the globe. This applies particularly to the US which has special role due to the historical evolution of the Internet (ICANN, IANA etc.). But we must not forget the rest of the world. Internet penetration rates in Africa and Asia are growing energetically. Some countries, including emerging world powers such as India, Brazil and South Africa, but also Russia and China have markedly different approaches to human rights online than Europe and the US – and Asia has 44,8 % of the world’s Internet users with a penetration rate of only 27,5 % of the population. Here, too, a dialogue is essential. It must be based on human rights-sensitive practices in the US and Europe. If transatlantic practice in human rights protection disappoints or seems insincere, the case for Internet freedom, strongly advocated by the former Secretary of State Hillary Clinton, suffers substantially. When human rights-insensitive states see similar practices in the US and Europe they will feel little need for policy changes. Whether it its Internet surveillance through powerful spy agencies or the sale of Internet surveillance software by European companies: the human rights message cannot be convincing if practice is inconsistent.
(5) In Internet (human rights) policy-making, states will continue to matter, but let us not forget the people.
States will continue to make decisions that influence the usage of the Internet worldwide. But we should not underestimate the power of people to legitimize norms that relate to the Internet. The case of ACTA in Europe has shown how civil society activism could stop a treaty ratification process. Both Europe and the US need to learn from this. When human rights online are at stake, norms should be developed, ideally, in a multi-stakeholder process, but at least more openly than existing surveillance legislation is applied. International multi-stakeholder processes are no substitute for a national political debate, but they can add important legitimacy (and ideas). One example of good practice is the EuroDIG, the annual European Dialogue on Internet Governance, which brings together members from all stakeholder groups and serves as a regional preparatory event for the IGF.
III. The Case for Cooperation
Implementing these five propositions in a spirit of transatlantic cooperation will mean a big step towards effectively respecting, protecting and implementing human rights online. Three cases can be made for the necessity of such cooperation: based on principles, politics and economics.
Principles: The US and the EU share a common heritage of human rights. They need to reassert the primacy of human rights in their relations and ensure that human rights inform their ICT policies and their Internet Governance approaches. Ensuring human rights and human security must be a paramount concern for both transatlantic partners.
Politics: It is poor politics to commit to human rights online (by, e.g., supporting resolutions on human rights online, by promoting Internet freedom) and have laws on the books that allow for widespread monitoring. Respecting human rights of non-US Internet users (and their sensibilities) should be a political goal of the US government. The historical role of the US in establishing the Internet gives it also a historic responsibility: to be a beacon of human rights protection online. And an example for the world, first amendment!
Economics: US companies are (still) in the lead in the provision of IT services. Google and Amazon, Facebook and Twitter are key data handlers and still largely enjoy the trust of people worldwide. If global consumers no longer feel that they can trust the security of their data with US service providers, they will – to the degree that this is possible – take their business elsewhere. As has happened with cloud services. Non-US customers need to feel valued and secure when dealing with US companies. The US government should support initiatives such as the Google and Facebook Transparency Reports by, for example, allowing that the data requested, especially under FISA, is more clearly disaggregated. In the fight against terrorism US IT companies, the US government and Council of Europe states need to be strong allies, but not at the expense of fundamental rights.