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

Wednesday, June 25, 2014

The Internet Has a Constitution. Now Make it Work for All!

The normative future of the Internet needs to be realized.
(c) Kettemann (2014)
Ideas on the normative future of Internet Governance

We have no agenda other than furthering the goal inscribed in each social order, globally, nationally, locally: ensuring the centrality of the human being.

We speak with no other authority than the one that allows us to speak truth to power – to make the truth powerful.

The Internet has constituted itself as a regulatory regime. It has given itself a normative framework which we can call a Constitution: it has grown organically and is driven by real needs not perceived wants.

No, there is no single written document, no single formal Magna Charta, but shared commitments encompassing processes and principles, drawing from the outcome documents of WSIS, refined over the years, normatively developed, applied, misapplied and rectified, discussed and questions, confirmed and reconfirmed, translated into national law and regional legal instruments, turned into binding and non-binding norms, used in courts and on the streets, as policy tools and as shields in the fight for access for all and dignity for everyone.

You may object to ther Constitution because you believe only states should have one, but hear me out. 

But we do not need a single written document. A lot of states do not have one. We also need to change our conviction that 'constitutions' are a prerogative of states. Regimes, including emerging ones, are being constitutionalized - endowed with values and a finality - and the body of norms that they give themselves can have constitutional dimensions.

We do not need to wait for a constitutional moment. It probably will not come – and let us hope that it will not. We do not need a moment of existential crisis to identify which norms matter online. We already have ‘constitutional’ norms. We do not need to wait for the next big thing. It is already here, even if we do not, or choose not to, realize it.

The big thing – the constitution of the Internet, the constitutional frame for Internet Governance – exists. We have a body of norms, a normative order, confirmed recently in the NetMundial Multistakeholder Statement, that is neither complete nor perfect, that reflects diverging interests but that has one unyielding advantage.

It exists.
   
Let us use these norms, les us secure the freedoms they enshrine. Let us translate them into practice.

Those of you who are still doubtful should ask themselves one question: Which norms tell us how to legitimately exercise public authority in international settings? International legal norms and national public law, to systems which are interlinked and mutually enforcing.

Current Internet Governance institutions, especially those that exercise substantial authority, are not yet sufficiently legitimized. This is a problem, but one that the progressive constitutionalization of the Internet can effectively counter.

The processes and principles of Internet Governance, as developed in international multistakeholder practice over the last decade, have hardened into a body of norms and normative expectations.

The actors and the normative processes of Internet governance together have constituted themselves as a regulatory regime. There is no going back. After constitution came constitutionalization. We are there.

True: Some important aspects of Internet Governance – access, copyright, intermediary liability – have not or not sufficiently been treated of late. But this is to be expected. Read the US Constitution and see what it says about 21st century problems.

The Internet’s constitution is neither static nor closed. The process of testing principles and processes against the demands of stakeholders and the realities of the Internet is a dynamic one.  

The intrinsic rationality of the regime and its norms must be respected. But we need to do more. After NetMundial, normative silence is wrong. Let us not wait.

We need to build on the momentum developed at and in the wake of NetMundial and support the process of solidifying the normative edifice underlying Internet Governance. We have to contribute to the further constitutionalization of Internet Governance locally, regionally and globally.  

We need to build on the NetMundial commitments. They are an important normative baseline which we need to translate into our own political and judicial systems and make relevant for our daily lives.

As a entrepreneur, you should respect the rights of your customers and innovate in light of the centrality of the human being.

As a member of the technological community, you need to make code help the law secure human dignity. The age of binarity – code or law – is over. The time for positive synthesis has come.

As a member of the academic community, you need to translate the normative commitments contained in the regulatory structure of the Internet into your local language and your local socio-political systems. Tell your students, write papers, give talks, talk to the media.

As a politician, you need to make parliament pass laws that enshrine the values of the Internet’s constitution. Do so, and do so quickly.

As a lawyer, it is your responsibility to advise clients about their rights, to ensure that they can actualize them in Internet-based settings. You are the interpreter of their needs and you need to know what rights they have. Do not be afraid to speak truth to power.

As a citizen, you need to get active, be creative, argue and fight for Internet freedom, take part in online demonstrations, join international civil society groups.

As representatives of an international organization, you have a special epistemic power over states that you can use as a force for good. Make states see the advantages of aligning themselves with the constitutional values of the Internet regime and develop templates, such as model laws, that states can adopt.

We need to keep the normative momentum flowing. We need to keep states, companies, civil society on its toes. Laws and practices that go against the constitution of the Internet Governance regime or its spirit need to be aggressively and loudly criticized. 

This is how constitutional progress happens. 

We need to localize and regionalize Internet Governance, we need to keep the process of substantializing the norms of Internet Governance alive.

We cannot wait for reports, expert groups, heads of state or other actors to show initiatives, or merely hope that the normative energy of NetMundial will not dissipate.

It may. But it must not.

Constitutionalization limits the exercise of power and, internationally, develops legitimacy matrices for the exercise of authority by non-state actors and in international constellations. This is what the debate about Internet Governance is all about – power and legitimacy.

Power online must only be exercised legitimately. Legitimacy of norms, at its core, means that those who are impacted by it have some say in its making. This is what lies at the basis of multistakeholderism. It is imperfect but each iteration brings it closer, and each new user, each new company, each new state that chooses to engage with multistakeholder processes makes them more legitimate. 

We do not need to reinvent the wheel. The wagon of Internet Governance already has them: the principles and processes developed over time and in practice.

We need to ensure that the wheels keeps turning.  

The speed is not so important, the direction is. And the direction is clear: the protection of the individual through the development of a people-centred, human rights-sensitive development-oriented information society in which power is exercised legitimately. 

Join us. Fight for the Internet’s Constitution.

Keep the momentum flowing. Apply the norms and you strengthen them.

Choose to engage and iteratively increase the legitimacy of the Internet’s norms and structure, its principles and processes.

It’s your Internet. It’s our Internet.



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