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| 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.
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