The symbolic power of law in Internet Governance

The discussion on the existence of a right to access to the Internet shows no sign of abating. This is a good thing. Or, as Joy Liddicoat of the  Association for Progressive Communications (APC) put it in a statement addressed to Vint Cerf:

Your New York Times column Internet Access is Not a Human Right sparked a lively debate about the internet, access and human rights. In 2012 we will need this debate more than ever before. While we will vigorously debate some of your points, your call to action for the technical community to take responsibility for human rights is incredibly timely.

As Joy also notes, much of the debate that followed Vint Cerf's call arms focused on conceptual issues. What are civil rights (a subset of human rights), what are human rights (rights every person has by virtue of being a person), can the UN declare a human right (not really), has the UN declared a human right to access (no, it hasn't) ... 


The importance some commentators have put on the wording of Vint Cerf's article made a recent call for papers of the journals juridikum and Kriminologisches Journal (KrimJ) on the "Symbolic Quality of Law" very timely. Law, you see, is not something that just 'is there'. The relationship between law and social reality is much more intricate that that. The power of law in creating a symbolic level on which social relations are then discussed and defined and social interactions legalized or declared illegal merits discussion. 


This is true for national law and for international law. However, discussing the symbolic quality of law is nothing that lawyers can do alone. Just as engineers have to team up with human rights experts (and vice versa) to discuss the burning issues of Internet Governance, lawyers, philosophers and social scientists together need to deconstruct the symbolic quality law inheres. 

This task reminds me of work that I did in 2010 for a ‘Theory of Law’ class during my LL.M. year at Harvard Law School with Professor Sargentich.

We turned Stanley Fish’s famous question – “Is there a text in this class?” – into an instrument with which to uncover the hidden assumptions supporting liberal legality in law. The question I thus tried to answer in a short analysis of Stanley Fish’s thinking was: “Is there a law in this society?”

With some slight adaptions, I believe that most of my arguments can be used to study the role of law and the deconstruction of law and its symbolic quality both in society and information society, as well.

Back in 2010, I wrote that Stanley Fish shows us that his colleague’s answer to the question whethere there was “a text in this class” (as opposed to deconstructed collections of words without one meaning) – his answer being “Yes, there is a text in this class; what’s more it has meanings; and I am going to tell you what they are” – does not hold water, but is rather a “testimony to the power of social and institutional circumstances to establish norms of behavior [because of] the absence of transcendental norms”.

Similarly, the signature claims of critical jurisprudence allow us to understand why there is no such thing as “the law” in the sense that norms have meanings that can be “told”. It is only within interpretative communities, as I will show in the following, that legal norms are endowed with meaning within a matrix of different and conflicting ideals. I will argue that an interpretation of Fish, informed by critical jurisprudence, leads to the conclusion that we should be aware of the differences between what the law says, what the law means and what the law does. So no: there is no one objective and cognizable “law” that commands respect in this society, just as there is no cognizable, objectively correct interpretation of the “text” in the class of Fish’s colleague that commands universal assent. But let me start with Fish’s critique of the all too uncritical approach to linguistic performance.

            Fish criticizes, as Wittgenstein, Foucault and others have before him, that we do not question our interpretation of texts and fail to grasp that what we understand a text to mean depends not primarily upon the text, but upon us, the readers, and our frame of mind. During his career Fish has developed two approaches to interpretation: The radical Fish argues that texts are created (or substantialized) through the act of interpretation itself. Texts are not 'out there' (do not exist objectively), but rather, once read, develop their contours 'in here' (in and through the readers who endow them with meaning). No objective textual meaning dominates interpretation. In Fish’s words, “disagreements are not settled by the facts, but are the means by which the facts are settled”. Texts are thus fluid and do not have a fixed meaning.

The moderate Fish still argues that meaning depends on interpretative frameworks, but strongly denies that this makes meaning completely subjective and arbitrary. Rather, our grasp of meaning depends on our frame of mind (and thought) that we have developed through our membership in a certain interpretative community which has a rather stable makeup. The assignment of meaning to a text is arbitrary, because the frame’s acceptance is predecisional and Fish sees no rational way to adjudicate between competing claims of meaning. Thus not only are texts fluid; readers conceptions are, too.

In order to make Fish’s themes relatable to three signature claims of critical jurisprudence, we first have to use Dworkin for a purposive reduction of Fish. Since Fish wants (us) to engage in communication, he must assume that meaning can be communicated through language. We have known, since Ferdinand de Saussure, that the linguistic sign is arbitrary, that here is an arbitrary relationship between the signifier and the signified. But while the sign ‘tree’ has indeed only an arbiratry relationship to the woody singled-stemmed plant with apical dominance and secondary branches, the English speaking community has agreed on the prima facie meaning of ‘tree’. This, however, does not help us in our query into the interpretation of ‘tree’, its ‘secondary’ meaning. Only this second level of interpretation – where we encounter arbitrary choices with regard to the assignment of meaning between interpretative communities, but general consistency among its members – will be the focus of the ensuing analysis.

First, critical jurisprudence tells us that legal arguments tend to build coherence. They do this because of a commitment to principles, policies and purposes that shape legal discussions and bear down on them. Just as a good legal theory fits and justifies most standing rules, a good literary theory makes a text meaningful. Fish would argue that there is no real way to tell whether an interpretation is good or not, but that the fact of fitting in with other interpretations make it seem likely.

Second, critical jurisprudence scholars argue that we do not only find principles, policies and purposes in law (and thus can deduce how the world ought to be), but also a social vision, a picture of the way the world actually is or might possibly be. With regard to legal argument, the collection of ideals which justify the given law is called ideology. Adherents of critical jurisprudence’s structure thesis argue that there is a knowable legal ideology that explains and legitimates reality. This point corresponds very well to Fish’s notion of interpretative communities, though he would disagree with the possibility of a single knowable ideology. Legal ideology is the collection of principles, policies and purposes through which members of the legal interpretative community perceive and understand the world (and interpret legal rules). Reading Fish into the critical claim on ideology makes us understand legal discourse as an instituted ideology-driven discourse, one rooted in actual social institutions, in which the legislatures, the executive and the judiciary participate as long as it is consonant with a certain social vision. The law is put forward as fit to be argued before a judge, by a judge who distills its meaning for the particular community.

Understanding the ideology behind law that critical jurisprudence identified as arbitrary but coherent in the Fishian sense makes it possible to perceive the legal interpretation in force as nothing more than the interpretation of those who have force and who can enforce their interpretation. Put differently: The ruling interpretation is the one of the rulers (of those who hold actual power in a specific society and project it through monopolizing interpretation). Thus, the legal interpretation proffered by the majority (or a minority in power) seeks to emphasize stasis and continuity. Members of the interpretative communities that suggest differing interpretations plead for intellectual development, for things to move and turn (around) (Lat.: volvere) and are thus revolutionaries.

This raises the conceptually anti-Fishian question whether a ‘right’ interpretation is at all possible. Does a new interpretation based on a recent ruling become right at the moment it is published? Or only after the legal community has digested and not opposed it? Comparative analyses of common law adjudication and judgments in civil law countries would lead to different results. What would be true for both systems, however, is in instituted discourse the right resolution is only ever the one that is accepted. This implies that “right” can only be a descriptive and not a normative term. If we accept that lawyers constitute one and only one interpretative community, then an interpretation is right if it is physically enforced, not because it is metaphysically right. As will become evident, I believe there is in fact more than one of these communities, which makes the question moot.

The third signature claim of critical jurisprudence explains that there are competing ideals at work in the legal system. Unlike legal rationalists, critical scholars will argue that there will always be theories and counter-theories that compete for adherents. Indeed, adherents of the critical jurisprudence’s conflict thesis posit that law and social practice are influenced by a number of competing, transformative and equally valuable conflicting ideals. They do not only transform the law, but also transform what is understood to be the law.

But who does this understanding? Where are the competing and conflicting ideals at work that influence not only what the law is perceived to be – its nomological dimension – but also how we talk about the law – its semantic, Fishian dimension? Basically, we are left with three options: Dworkin’s argument that law is one interpretative community must break down in light of the different interpretations that exist on the meta-level. The Realists’ conception that every reader is their own interpretative community is neither inspiring nor helpful. A Structuralist reading of Fish, however, allows us to conclude that there are a certain number of interpretative communities within and constitutive of the legal community. These subcommunities, within the limits of meaning established by the legal community, differentiate meanings further and provide the interpretorial framework for competing ideals, for interpretations and counter-interpretations.

The preceding paragraph has provided the foil for my argument: I do not deny that texts are open to interpretation. Law is (also) text. Logically, law is thus open to interpretation. But it does not follow that all of law is always open to all possible interpretations. With Fish, it can be argued that the legal community is one interpretative community. But just as Benedict Anderson identified socially constructed, culture-based “imagined communities”, I would posit that within law there are intersecting, possible imagined, partly institutionalized, imagined sub-communities with regard to interpreting legal speech that sometimes have very strong immune systems vis-à-vis the mainstream’s meta-interpretations. The names of these sub-communities are often eponymous with the ideals that influence their interpretation. Interestingly, they are – for most purposes – indistinguishable from the Modern Language Association’s 1992 list of cohesive fields of literary criticism, including, inter alia, feminist criticism, African American criticism, Marxist criticism, psychological criticism and post-colonial criticism (see MLA (ed.), Redrawing the Boundaries: The Transformation of English and American Literary Studies (1992). Most of these fields have counterparts in the field of legal sub-communities: there is a feminist critique of law, an African American legal critique, a Marxist theory of law, post-colonial legal studies etc.

The assignation of legal meaning to certain terms is arbitrary. But once meaning has been assigned, individuals who wish to take part in the discourse cannot unilaterally discard this meaning. Even if they criticize the law’s language they have to use the language of the law to do it. Failure to engage in the community’s discourse patterns and fundamental disrespect for the meaning the interpretative community assigned to certain legal texts would lead to a breakdown in communication. Therefore, as mentioned before, the real role of sub-communities is in the meta-debate. There are indeed certain ‘legal essences’ which are interpreted similarly by most members of the legal community and all sub-communities. If it were otherwise, communication would be impossible. A meaningful debates on the comparative advantages of a retributive and restorative criminal justice systems is impossible, if there is no basic, fundamental agreement on what the terms mean. The difference between “murder” and “manslaughter” or between “theft” and “robbery” is essential for criminal law debates; it is not for newspaper articles or high school schoolyards. Built on this basic understanding, any further agreement is preconditioned on membership in the same sub-community.

Varying the Dworkinian reduction of Fish, I would argue that three dimensions of legal language have to be distinguished: 1) What does the legal text say; 2) What does the text mean; 3) What does the legal text do.

What the legal text says is what could be termed its “essence”, a prima facie, rather unreflective meaning that most members of the interpretative community of lawyers have agreed upon. A law proscribing murder prohibits the killing of another person. It is relatively static and can only be changed gradually. Something is forbidden because the law says so. The question, what the law means, leads us to a wholly different category of questions, one that necessitates recourse to the interpretative sub-communities. Existing law forbidding gay marriage will be interpreted by LBGT lawyers (thus lawyers of the LBGT interpretative sub-community) as an attempt to immunize traditional notions of marriage, thus reflecting existing power differentials and historical conceptions of what marriages ought to be like, while members of other interpretative communities (e.g. lawyers belonging to the intersecting sub-communities of conservatives and Christians) might see the prohibition as an affirmation of divine commandments. This is not what the law says, but what it means to them. Lawyers specializing in mergers and acquisitions or tax law might not (care enough to) identify any meaning (as in trans-semantic content) in the prohibition, but just consider it on its face, and not engage in debates on its meaning. While most members of the legal interpretative community would thus agree on what certain laws say (also because they have all gone to law school and were thus faced with forces tending to reproduce existing hierarchies and modes of thinking), they might not agree on what laws mean (though they often do because the reproduction machinery does not only provide them with the tools of the trade, but seeks to influence their frame of mind as well). Laws as reflection of entrenched power differentials in society might mean different things to different people coming from different interpretative sub-communities.

Importantly, laws do not only say and mean something, they also do something. This is an important dimension that is understandably absent in Fish’s analysis, as he focuses on literary interpretation. While Robert Frost’s The Road Not Taken might make us feel awed and lead us to reflect critically on our choices, reading the poem does not “do” anything in the sense of changing socio-legal relations between one member of a society and the society or between two or more of its members. Some legal phrases, if pronounced by appropriate authorities, “do” something, insofar as they change reality. Two “I do”s are necessary to marry a couple; the oath of office makes the person proclaiming it the President; a sentence, when pronounced by the judge in his office, sends the offender away to jail. (This particularly powerful performative dimension makes the interpretation of nomological texts different from the interpretation of the performative power of signs outside of norms-based discourse, though the linguistic field of pragmatics devotes much attention to “how to do things with words”, as J. L. Austin entitled his 1955 William James Lectures delivered at Harvard University.)

There are – uniquely to law – physical dangers of refusing the interpretative community’s mainstream interpretation. Somebody, for example, who considers the production of child pornography to be protected under the First Amendment can be seen as nothing else than a member of the sub-community of strong supporters of the First Amendment who proposes an interpretation of the limits of free speech diverging from the mainstream’s. He cannot be proven wrong in the Fishian sense, but he will go to prison under New York v. Ferber, if he acts on this interpretation.

Fish’s analysis of the indeterminateness of meaning and the role of institutions as imagined headquarters of interpretative communities can be substantially enriched by an analysis in light of the tenets of critical jurisprudence. Essentially, the existence of theories and counter-theories has influenced a more sophisticated construction of Fish: There is not only one legal community, but a number of different sub-communities. The “shared understanding of what could possibly be at stake” in certain institutional scenarios enables lawyers to converse. Fish writes that within interpretative communities shared assumptions “delimit[s] in advance the paths that [our] consciousness can possibly take” (ibid.). I have argued that this is true only insofar as the first, the semantic level is concerned. Knowing as a member the legal interpretative community what a “contract” is, indeed limits the paths that our consciousness can take when we search for the meaning of “contract”. And yet, we should not stop there. On a meta-level we can, having agreed on the essence of “contract”, discuss what importance contracts have in social life and inhowfar their enforcement might stabilize existing power relationships through ownership. It is the common consciousness that allows us to reflect back on what we, as lawyers, believe. 

To answer the question Fish’s colleague was confronted with in light of this analysis: Yes, there is a law in this society; what’s more it has a certain shared essential content; and these are the interpretations which lawyers give it; and these are reflective of the power relationships that sub-groups see embedded in these meanings, which they then criticize.

The law school is a powerful harmonizer of minds. Yet the arbitrariness of language and of law should not be far from our mind when we practice law. Membership in interpretative communities and sub-communities carries responsibilities. It is important to question interpretation, especially when those of the ruling community are at odds with those of sub-communities. Sometimes, as Robert Frost already knew, it is indeed a good idea to take the road less travelled by: in real life and in the interpretation of literature and law. If nothing else, the “linguistic turn” made lawyers look around and consider the road they have travelled on so far.

Keeping this in mind, I believe, can contribute to understanding both the debate on the future role of human rights in Internet Governance and the conceptual battle being waged on the existence and non-existence of specific rights. 

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. 

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. 

 

Why Internet Governance is Just a Bit Like Christmas

It's Christmas - time to reflect on what happened in the past year and to think about what will shape the next. 


Have you noticed that Internet Governance is a bit like Christmas?


1. You're basically really happy that you're involved, but it can be stressful.


2. The multistakeholder structure (the family) sometimes makes the whole affair really overwhelming. 


3. There's always one representative (one familiy member) who'll carry on much too long in workshops (at the Christmas table).


4. After IGFs (after Christmas dinners) you feel like you've heard too much to think clearly (eaten too much to get up).


5. You never actually do know which principles will shape Internet Governance (which presents you will get). 

It is in this spirit that I wish you  Happy Internet Governance 2011 and, of course, Merry Christmas!

Improving Facebook: The 10 Most Important Conclusions of the Irish Data Protection Commissioner's Report

Does Facebook violate the privacy of its users? 

Yes, some of their policies do, says the Irish Data Protection Commissioner, who, on 21 December 2012, published the outcome of his audit of Facebook Ireland (which manages data for all European Facebook users). 

From the 150 page report, here's what I consider the 10 most important conclusions: 

1. Facebook's  privacy policies need to be made more simple.
2. Users need to be provided with more information as to why they are targeted by certain advertisers.
3. The current policy of retaining ad-click data indefinitely is unacceptable; Facebook agreed to move to a 2-year-retention period immediately.
4. Facebook employees have too much access to user data; Facebook agreed to implementing a new access provisioning tool.
5. Deleting a friend requests (or a poke) must mean they are permanently deleted and not stored.
6. If a user wishes to irrevocably delete their account, the account and all data have to be deleted completely within 40 days of receipt of the request.
7. Personal data collected by Facebook must be deleted when the purpose for which it was collected has ceased.
8. When law enforcement authorities make requests for user data, these should be validated by a designated officer of a senior rank.
9. There is  sufficient justification, including child protection, to allow Facebook's policy of refusing pseudonymous access to its services to stand.
10. The means in place for users and non-users to report abuse are "appropriate and accessible".

But why the audit in the first place? The audit was held in reaction to complaints lodged with the Commissioner by a group around Max Schrems, a Vienna University law student (and they say that law students only look to make partner fast).

In a press release, Commisioner Billy Hawkes underlined that it was a "challenging engagement" and the "most comprehensive and detailed ever undertaken by our Office" and lauded the cooperative spirit of Facebook.

Both the report and the appendices are a treasure trove of information on the policies and practices of Facebook. They make for very interesting reading and will be the topic of this blog in the weeks to come.

In a first statement, Richard Allan, Director of Public Policy, Facebook EMEA, expressed his content at the engagement with the Commissioner, even though the conclusions have identifed violations. On his website, Max Schrems criticizes Facebook for downplaying the negative aspects and requested further changes of policies, but concludes on a positive, if ironic note: "can it be true:  data protection experts and Facebook are both happy?" (my translation).

In retrospect, users shouldn't be too happy though because the recommendations (on pp. 5 et seq. of the report make for troubling reading. The Data Protection Commissioner, inter alia, finds and/or recommends

• that Facebook must work towards simpler explanations of its privacy policies, easier accessibility and prominence of these policies during registration and subsequently enhanced ability for users to make their own informed choices based on the available information;
• that Facebook must be transparent with users as to how they are targeted by advertisers;
• that Facebook should improve user knowledge of the ability to block or control ads that they do not wish to see again;
• that It should also improve user knowledge of the ability to block or control ads that they do not wish to see again;
• that the current policy of retaining ad-click data indefinitely is unacceptable (Facebook agreed to move to a 2-year-retention period immediately);
• that data on users or non-users must be provided upon access request within 40 days;
• that user’s should be provided with an ability to delete friend requests, pokes, tags, posts and messages and be able to in so far as is reasonably possible delete on a per item basis;
• that personal data collected must be deleted when the purpose for which it was collected has ceased;
• that  no use is made of data collected via the loading of Facebook social plug-ins on websites for profiling purposes of either users or non-users (something the Commission is satisfied with finding);
• that the current Single Point of Contact arrangements with law enforcement authorities when making requests for user data should be further strengthened by a requirement for all such requests to be signed-off or validated by a designated officer of a senior rank and for this to be recordable in the request;
• that more tools should be in place for ensuring that staff were authorised to only access user data on a strictly necessary basis; and
• that there must be a robust process in place to irrevocably delete user accounts and data upon request within 40 days of receipt of the request.

Importantly, the Commissioner also concluded that Facebook "has advanced sufficient justification for child protection and other reasons for their policy of refusing pseudonymous access to its services" and that  the site has "appropriate and accessible means in place for users and non-uses to report abuse on the site."

While generally agreeable, Facebook's reaction to most of these findings and recommendations was future-oriented: they will phase in changes by the end of Q1 2012, they "have commited to showing demonstrable progress" ... It is up to the Commissioner's review to make sure that these targets are met. Ideally, an interim review and constant supervision would ensure that the social network is on track.

It will be interesting to see how the changes will be implemented in the day-to-day management of the network and how Facebook will communicate them. 

The affair isn't over, though. In  July 2012, a formal review will take place in which the Irish Data Commission will assess Facebook's efforts over the next six months. It's also up to the users to make sure that the social network meets its obligations.

Kudos to Max Schrems and his team - they did what states should have done a long time ago: stand up for the rights of social network users.

At the same time the engagement by Facebook and the Data Protection Commissioner is an interesting development in the emergence of a human rights protection framework within Internet Governance. 

By the way: If you're interested in Facebook, Google and what challenges the Internet brings for human rights, consider coming to Graz on 12 January 2012, where the latest of edition of the Austrian journal on law and politics, juridikum, will be presented.

All in all, there's only one thing left to be said on the report. 

Like.

Why International Law is Like a Box of Chocolates

In 2010, I published an article in the Harvard Law Record, the Harvard Law School's student newspaper, on the question of whether and why (and how often) states comply with international law. The issues hasn't faded away, indeed in light of current events in Syria and Iran, North Korea and Myanmar, it is arguably as relevant as ever. 


Here's what I wrote: Forrest Gump’s mother famously said that life was like a box of chocolates: “You never know what you’re gonna get.” The same holds true for international law. Taking the box of chocolate und accepting “what you’re gonna get”, independent of whether you like the particular praline, is what international law is all about. Since the famous Peace of Westphalia of 1648, which brought along the emergence of today’s international legal system, states have taken the box and eaten both the bitter chocolate (i.e., they have accepted their obligations and changed their behavior accordingly) and the nougat (when they have enjoyed the international legal rules that reaffirmed their interests).


Then came along Harvard Law School’s Jack Goldsmith and University of Chicago Law School Prof. Eric Posner ’91. In 2005, they published The Limits of International Law, which argued vehemently for what could be termed a “nougat only approach” to international law. In essence, they posited that international law does not, in fact, pull states toward compliance. States conform with international law, they argued, only when it furthers their interests. 

The limits of international law

Former U.S. Ambassador to the UN John Bolton, and more influential thinkers before him, such as Thomas Hobbes, went so far as to question the very existence of international law.
Goldsmith and Posner don’t go nearly as far. They  merely relied on rational choice theory to argue that international law does not act as an external constraint on state behavior. The Limits of International Law was widely read and critically well-received. 


But some critics, such as international law and economics expert Anne van Aaken of Switzerland’s University of St. Gallen, rightly pointed out that there were limits to the Limits book, as the authors only took account  of the interests of states to conform their behaviour to international law at one – arbitrary – point in time. 


More significantly, Goldsmith and Posner ignored the possibility (and, I would argue, likelihood) that states have a non-instrumental interest in behaving in conformity with rules, so as to stabilize the system. Of course, in keeping with an state interest-focused “nougat” approach to international law, Goldsmith and Posner could counter that in so doing states are actually, again, acting in sync with their interests – their long-term ones.


A stronger observation is that rational states will accept the obligatory nature of international legal rules as rules, based on an ex ante assumption that international rules are legitimate since, by so doing, they can most likely achieve advantages incuding and beyond their own self-interest (such as world peace, a sound environment, or international security) in the long run. 


In what Professors George Norman and Joel Trachtman called a “customary international law game”, states sometimes choose to disobey a rule, but rarely question the rule’s legitimacy as such.


To better understand this point, think of a common thief. He will break the rule against violating another person’s property on an individual basis, but does not doubt the existence of the more general rule providing for the protection of property. Indeed, his risky acquisition of property is made because he implicitly trusts the state’s legal system to protect his property, even if it was illicitly obtained. Even thieves hate thieves. 


Similarly, in international law, it is often the rogue states that, while breaking international legal rules on an individual basis, believe (and only sometimes abuse) the international legal system in toto. Think of Iraq, consider North Korea, and look at Iran. In fact, the choice by a state to ignore an international rule, or to question the validity of this rule, might, in fact, contribute to an increase its power to oblige – by making others states voice their opposition to the violation. The real difference between theft and the violation of international legal norms by rogue states is that, while we see the consequences of the former on “Cops”, we have to wait for some years to see the outcomes of the latter – as “Breaking News” on CNN, or of late on AlJazeera.

Does Europe believe in international law?

In a November 2008 Wall Street Journal op-ed, Goldsmith and Posner apply their theory on the limits of international law to Europe. They write that “[l]ike the Bush administration, Europeans obey international law when it advances their interests and discard it when it does not.” In essence, they argue that even Europe, which professes to be international law-friendly, does not really believe in international law’s binding power.


In their first example, Goldsmith and Posner consider the case of Yassin Abdullah Kadi and the al Barakaat International Foundation. Kadi’s assets were frozen according to a UN Security Council Resolution against financing terrorism, which had been inscribed in an EU regulation. Goldsmith and Posner write that, deciding the Kadi case, the “the European Court of Justice ruled that the Security Council resolution was invalid.” They are wrong.


In its 2008 judgment, the ECJ merely ruled that the regulation implementing the Security Council resolution was invalid because it violated Kadi’s fundamental rights. 


The ECJ noted that the protection of fundamental rights must be “considered to be the expression, in a community based on the rule of law, of a constitutional guarantee stemming from the EC Treaty as an autonomous legal system which is not to be prejudiced by an international agreement.” This does not mean that the ECJ would ignore international law – on the contrary. The protection of fundamental rights is deeply rooted in international law. By referring to a “constitutional guarantee,” the ECJ likens its role to that of a constitutional court ensuring that all acts passed by the organs it oversees respect fundamental rights. There is nothing wrong with that.


Goldsmith and Posner interpret the decision as meaning that “European countries must disregard the U.N. Charter … when it conflicts with European constitutional order.” 


Again, they are wrong. 


The Court merely pointed out that any EU regulation implementing a UN Security Resolution must meet minimum human right standards. By reforming the Sanctions Committee, established to oversee these resolutions, the UN has in fact taken up some aspects of the ruling to render the system more accountable.


Another example that Goldsmith and Posner bring to support the idea that Europe has a self-interest-focused approach to international law is the 1999 NATO intervention in Kosovo. “European nations,” they write, “participated in NATO’s bombing of Kosovo without Security Council authorization.”  


This is true, but as a Commission that looked into the intervention later concluded, their action was at least legitimate. Further, the intervention served to stop bloodshed and massive human rights violations in Kosovo and thus served one of the most important goals of the international legal order: protecting individuals. The Kosovo case was later  seen as the first important example of so-called humanitarian interventions, many of which have gone on to be officially sanctioned by international legal bodies. The evolution of the “responsibility to protect” has also been influenced by the Kosovo intervention. 


Rather than ignoring international law and enforcing their own interests, the Kosovo intervention thus served to confirm underlying principles of international law.

Errors have been made – but also corrected

I have to concede that Europe’s approach to trade disputes in the framework of the WTO has not been exemplary. But very often, especially with two of the issues Goldsmith and Posner mention – “resisting importation of genetically modified foods, or beef from cattle raised with growth hormones” – Europeans follow an international legal concept, namely the precautionary principle, in opposing imports. It is true that European countries did not implement WTO rulings against them in these cases, but as legal history in both the U.S. and the EU amply shows, the non-implementation of certain rulings, in exceptional cases, does not serve as evidence of a system’s comprehensive failure. International economic law has been a huge success story, but only a few well publicized disputes make the headlines. 

It is also true that some European countries have cooperated with the U.S. with regard to extraordinary renditions, but this attitude has changed. As a number of cases before UN bodies including the Committee Against Torture and the Human Rights Committee show, mistakes have been made and international law has been violated. But again, this does not help Goldsmith and Posner in showing that European states do not believe in the binding nature of international law or ignore it whenever they feel like it.

The importance of values

Goldsmith and Posner mention other examples, including European states’ sometimes wavering support for the ICC, and follow this up with the conclusion that “Europeans hold their values and interests dear, just as Americans do, and will not subordinate them to the requirements of international law.”


But they neglect to mention that values are influenced and honed by international law and international law, conversely, serves to express and implement these values. 


There is no relationship of subordination. Rather, international law, like every legal system, creates and is supported by a value system based on intricate power equilibria and sometimes mutually contradictory goals. 


The international legal system is more complex than any national system, even though – or because – it has far fewer actors. That on the international legal plane values clash, bad choices are made, rules are broken and judgments remain unimplemented cannot be doubted. But this is also the situation in every national legal system  and cannot be used to cast a shadow of doubt over the clear evidence that states consider international law to be just that: law.


The end of the Cold War brought what the Finnish international legal theorist Martti Koskenniemi termed, an “enthusiastic revival” of international law. New actors emerged, new laws were made, new hopes voiced. Within the last twenty years, the system of international was greatly energized, and the United States was an important contributor to and shaper of international legal norms, which reflected, inter alia, American values.


Given this fact, it is incongruous to argue, as do Goldsmith and Posner, that international law reflects only the interest of powerful states and is therefore not “good” as such.

Just like a box of chocolates

But there is also no reason for a prima facie assumption that a system reflecting the interests of powerful states is bad. This bears out especially in light of the renewed commitment, by the Obama administration, to international law as the prime tool to engage other states and to find peaceful and sustainable solutions to international conflicts. And with the notable exception of historically explainable, but outdated institutional rules, such as the membership and decision-making structure of the Security Council, international law, just as any legal system, has a strong immune system and phases out – through state practice – rules which do not conform to the aspirations of the majority of states. 


Again, it is like a box of chocolates. Intrinsically good, but with some bitter pieces. 


To continue in this line of thought (and, yes, I am getting hungry as I write this), Hugo Grotius, often described as the “father of international law”, wrote that there lies in each person an “appetitus societatis”, an appetite, or desire, to live peacefully in an ordered society, structured by binding rules of a general nature and applicability.


I see no reason why states would not also have this “appetite”. In fact, I would argue, they do.  International law needs to be binding, it is binding, and states accept it as binding – Goldsmith and Posner’s arguments notwithstanding.


More than forty years ago, Louis Henkin ’40 formulated, in How Nations Behave, that 

“[i]t is probably the case that almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.”

 While not wrong, he was, as often, too modest: It is not only “probably” the case, but evidence has shown that his statement is unequivocally true. 


States follow the Forrest Gump Approach to International Law, eating the sweet and the bitter pralines, enjoying their rights and respecting almost all of their obligations almost all of the times, even if they contradict state interest in the short run. 


They do so, because they know that the international legal system, and not any particular rule, reflects their values, and will, in the long run, ensure the realization of such values with more effectivity and sensibility to human rights than any nation could possibly achieve alone.

EU hires German plagiarism prince to promote Internet freedom: a silver lining?

The EU's Internet initiatives need representatives displaying intellectual vigour who are of high moral standing, not copy&paste experts. (c) http://www.flickr.com/photos/nuccini/1854713722/

On 12 December, the EU Commission announced  that

"European Commission Vice-President Neelie Kroes has invited Karl-Theodor zu Guttenberg, a former Federal Minister of Defence, and of Economics and Technology, in Germany, to advise on how to provide ongoing support to Internet users, bloggers and cyber-activists living under authoritarian regimes."

As a policy, this is a good move. Authoritarian rulers have traditionally had a choice to limit access to information (and thus reduce the danger of opposition) or to allow information and communication technologies to be used and risk the subversion of their rule. This dictator’s dilemma has been impressively confirmed by recent events in the Arab Spring. 

In the wake of the revolutions in the Arab World, the Commission has published a Joint Communication, "A Partnership for Democracy and Shared Prosperity with the Southern Mediterranean" (COM(2011) 200). The Commission underscored that "ensuring the security, stability and resilience of the Internet and of other electronic communication technologies is a fundamental building block in democracy" and committed to 

"avoid[ing] arbitrarily depriving or disrupting citizen's access to them. Given the trans-border and interconnected nature of electronic communications technologies, including the Internet, any unilateral domestic intervention can have severe effects on other parts of the world. The Commission will develop tools to allow the EU, in appropriate cases, to assist civil society organisations or individual citizens to circumvent such arbitrary disruptions."

Again, that's a good thing. Assisting civil society is circumventing repressive measures, including filtering and blocking, is both intrinsically positive and a good policy choice. 

As the Commission writes in its press release,

"Enabling citizens of authoritarian countries to bypass such surveillance and censorship measures depends on two basic conditions: availability of appropriate technologies (in particular software programs that can be installed on one's desktop computer, laptop, smart-phone or other device) and awareness / knowledge, both of the techniques used by authoritarian regimes to spy on citizens and censor their communications, and of the appropriate counter-measures to use."

This echoes the two dimensions of access which UN expert Frank la Rue wrote about at length in this report on freedom of expression and I briefly summarized.  

But this is not the problem. 

The problem is that the EU has hired a former German minister who had to step down after lying about plagiarizing his doctoral dissertation.

The Commissioner proudly proclaims that 

"This appointment forms a key element of a new "No Disconnect Strategy" to uphold the EU's commitment to ensure human rights and fundamental freedoms are respected both online and off-line, and that internet and other information and communication technology (ICT) can remain a driver of political freedom, democratic development and economic growth."

These are noble goals, sensible goals, but the choice of personnel is bad. 

Among all the cyber experts in the world, the EU Commissioner chose a former German politician who is widely known to have  plagiarized most of his dissertation. 

Withdrawing his academic title, the former German defense minister's alma mater, the University of Bayreuth, was described what he did clearly: Guttenberg "extensively violated academic standards and intentionally cheated." In the words of SPD parliamentarian Thomas Oppermann, Guttenberg is "an academic impostor and a liar", he "lied and deceived."

When an international organization seeks an expert for dealing with sensitive human rights issues, it will usually select a person of high moral standing and unquestionable personal integrity.

Guttenberg's personal integrity is highly questionable and his standing as an advocate for Internet freedom beyond the freedom of copy and paste and steal the thoughts of others without proper attribution leaves something to be desired.

If it were April 1, we'd have a laugh and return to our work. 

But it's September 13, and we won't laugh and formulate a belated suggestion to the Commission.

What EU Commissioner Kroes should have done is hired real experts of high moral standing, impeccable character and great expertise in analyzing and applying circumvention technology. 

Instead of an unemployed plagiator, I'd have suggested Hal Roberts, Ethan Zuckerman and John Palfrey, of Harvard's Berkman Center, who have recently published the most important report on the tools of the trade of circumvention technology, the 2011 Circumvention Tool Evaluation report. Also, they haven't plagiarized their PhD dissertations.

But there might be a silver lining to the Commission's seemingly ill-informed appointment. 

Guttenberg and the dictators fighting Internet freedom have something in common.

Both are experienced with angry crowds of online activists publishing information online that they'd rather not have the world see. In Guttenberg's case, it was plagiarism in his thesis. In authoritarian regimes, it will be human rights violations.

So here's the silver lining: Guttenberg can share his personal experience - and he can walk the walk.

If he convinces dictators to act the same way he did - lie a bit, if they must, but then accept the inevitable and go peacefully - he might actually not have been such a bit choice after all.