In his recent op-ed in the NYT[1] Mr. CERF has argued that “internet access” is not a “human right” – though possibly a “civil right” – because “a technology is an enabler of rights, not a right itself”.
His argumentation is catchy, but muddles the issues; Mr. CERF, it seems to me, ends up shooting himself in the foot.
When he states: “the US never decreed that everyone has a ‘right’ to a telephone”, he means “universal service” – a telephone line strung to each and every door, or country-wide total network coverage for every citizen. Indeed, there is no right to total (or free) coverage – just as “freedom of the press” does not entitle every citizen to a free copy of the NYT every morning at her doorstep.
When he states that “freedom of access” should ensure “freedom of speech etc.” he refers to the political conditions under which people who have access to communication media are entitled to communicate among each other: free of government interference. This personal right is e.g. enshrined in the First Amendment to the US Constitution.
“Freedom of speech” is an abstract right. Its exercise necessarily relies on technologies: from the human voice to paper, radio and so on – and must apply automatically to all supports through which it is exercised – internet being the latest (but certainly not the last) kid on the block. When radio or TV emerged in the US no one seriously argued that the “right to free speech” as enshrined in the First Amendment did not apply to them “because they were only an enabler”. As long as content and support are inextricably wedded (and control of the content would be through the support) Mr. CERF’s argument “technology is an enabler of rights, not a right itself” is spurious.
The UN Declaration on Human Rights (UNDHR)[2] and the European Convention on Human Rights[3] are clear on the fact that the abstract right is embedded in the technologies.
Mr. CERF goes on to make a distinction between “human right” and “civil right”. He likes “civil rights” better than “human rights”. He argues: “Civil rights are different from human rights because they are conferred upon us by law, not intrinsic to us as human beings.”
By the same logic, Mr. CERF would reject the US Declaration of Independence, where it states: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” – for its character is “self-evident” and universal. He would however endorse the Bill of Rights as positive law.
“Human rights” are not self-executing: they represent legitimate aspirations – not obligations. Their role is to provide universal legitimacy for these aspirations. No government may be exonerated from addressing the moral obligation on grounds of cultural “exceptionalism” – cultural or otherwise; and it would have to justify to public opinion world-wide any curtailment of the aspiration.
On the other hand each state ought to strive and concretize such aspirations through appropriate legal means, if and when politically and materially possible. This is not always the case, as US history retells. The Bill of Rights enshrines personal and political rights. Exercising such rights effectively presupposes economic independence – President Jefferson saw it that way already, when he hailed “free yeomanry” as the basis of the Republic. President F. D. Roosevelt proposed in 1944 that a “Second Bill of Rights” be passed to make the broad aspiration of economic rights secure in law. He did not succeed[4]. There is no “civil right” to hold a job today, though we may hold a universal aspiration that all have one, and Art. 22-25 of UNDHR stipulate such “rights”.
Would Mr. CERF really be ready to trade the universal aspiration to politically unfettered “internet access” for a commitment to equivalent enforceable and judiciable civil rights in this matter?
[1] New York Times, January 4, 2012; http://www.nytimes.com/2012/01/05/opinion/internet-access-is-not-a-human-right.html?_r=1
[2] UNDHR: Article 19. Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. http://www.un.org/en/documents/udhr/index.shtml#a8 (emphasis mine).
[3] The European Convention on Human Rights which, contrary to the UNDHR is legally binding on the parties, establishes in its Art. 10.1: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.” The special reference to broadcasting etc. indicates that it is the intent of the article to cover all media.
[4] See Cass R. SUNSTEIN (2004): The second Bill of rights. FRD’s unfinished revolution and why we need it more than ever. Basic Books.
Ginger Paque
January 8, 2012
What Mr. Cerf said (“Internet access is not a human right” [1]) is not unusual; it is something many of us discuss, even (horrors) agree with. The value of his editorial is in the debate it has catalyzed. While this is a semantic argument, it is an important one that helps us define strategies and approaches as we search for solutions. Here is how I look at it.
Mr. Matteucci makes an excellent point that “’Human rights’ are not self-executing: they represent legitimate aspirations – not obligations”, and a point he made earlier, “’Freedom of speech’ is an abstract right. Its exercise [emphasis mine] necessarily relies on technologies…” is even more important.
Under the UN Declaration on Human Rights[2] (UNDHR), we all have a set of inalienable human rights, no matter who we are, no matter where we live. What we may or may not have is the ability to exercise these rights. The exercise of these rights may be legally interrupted because we have broken the law. They may be illegally (or legally in exceptional circumstances) interrupted by government action or decree. Or their exercise may be supported or hindered by selective legal and/or practical implementation. State sovereignty allows each country to establish its own triage to apply their funds and energies as they see fit. We cannot decide for another whether water, food or information are their highest priorities, so their application or practical administration must be a local or regional issue. What the UN and others can do is (attempt to) ensure that the the implementation (exercise) of human rights is not prohibited.
Our rights are protected under the UNDHR. Their exercise, as both Mr. Cerf and Mr. Matteucci agree, often, and in the case of Internet, undoubtedly, rely on technology. Although access to information will help solve other ills, the triage priority assigned to Internet access is not as clear cut as ‘breathing, bleeding, beating’. If Finland can manage to make Internet access a legal right, congratulations, and more power to the Finnish. But if another country must make safe water, food and medicine a higher priority, I can understand that. I think we must be concerned about the hindrance or prohibition of the exercise of any human rights, as we work towards the local implementation, in the way we each have set our priorities.
[1] New York Times, January 4, 2012; http://www.nytimes.com/2012/01/05/opinion/internet-access-is-not-a-human-right.html?_r=1
[2] UNDHR: http://www.un.org/en/documents/udhr/index.shtml
Aldo Matteucci
January 8, 2012
Ginger Paque puts the finger on the core issue: the use o the term “right” to mean different things. This leads to confusion.
UNDHR is not binding – it is a declaration – and even if it were, it is not self-executing. Since 1948 a lot of work has been carried out in order to specify the aspirations set out in the UNDHR. Several Conventions setting out specific rights in detail have been signed, which are binding on those countries that are parties to any or all of them. States are free in their decision to sign. The signatories in turn must integrate these Conventions in the form appropriate to their legal system. As Ginger Paque correctly states: “We cannot decide for another state whether water, food or information are their highest priorities, so their application or practical administration must be a local or regional issue.”
Should we have a Convention on Freedom of the Internet akin to the International Convention on the Elimination of All Forms of Racial Discrimination? This for me would be a pragmatic, not a principle issue. First I would survey what has been done so far to secure the translation of UNDHR Art. 19 into Conventions and other international legal instruments. My tendency would be to maintain an equilibrium under the technologies, i.e. not to create tighter rules for paper than say for electronic support.
The next step would be to look for specificities in the internet that might justify urgent action and exception from the aforementioned rule of “equivalent treatment”. The fact that the web is global, while e.g. paper is national (not for long, maybe), might justify closer and priority analysis. Should we conclude that the well-functioning as well as evolution of the internet require the establishment of transnational rules, then we would have a case for multilateral action. Even were the ensuing Convention fall short in its ambition or in the number of signatories, it would point in the (hopefully) right direction. My general attitude would be to go for a half-full glass, and not get stuck with “all or nothing” dualism – be it scope or coverage.
Ginger Paque finally states: “What the UN and others can do is (attempt to) ensure that the the implementation (exercise) of human rights is not prohibited.” Given the international legal structure, what can be done is mostly hortatory. Again, this is a pragmatic issue: hortatory statements often tend toward hectoring – which is counterproductive.
Mary
January 10, 2012
I’ve just sat through about nine minutes of a TED presentation where Internet activist Eli Pariser talks about how Google and Facebook (and the New York Times, etc.) personalise my feeds based on choices I’ve made, sites I’ve clicked on, friends I’ve responded to (http://www.youtube.com/watch?v=bOE1HFEL8XA). So in theory, they are making sure that left-wing thinkers become even more left-wing, while their conservatives friends become more conservative. Does the broader public realise how their previous choices are influencing and narrowing the latest choices they make? Are we, though our increasing use of the Internet, unwittingly heading towards understanding each other less and less and gradually becoming ever more intolerant of each other?
Were the Internet to become a Human Right, who then will be responsible for making sure that ALL users are educated enough to know that in order to avoid this type of ‘censorship’ they need, at a minimum, to clear their browser after visiting a site that requires cookies to be enabled?
Aldo addresses this point in his next blog, Are enabling technologies ‘neutral’? (https://deepdip.wordpress.com/2012/01/08/are-enabling-technologies-neutral/)
This is something that those of us who do have Internet access should be worrying about.
Aldo Matteucci
January 10, 2012
So right you are, Mary!
Cass SUNSTEIN has adressed this issue in “Going to extremes” – a book he published in 2001. Her shows that “hanging judges” tend to become even more extreme, if they consort with like-minded robes. James SUROWIECKI in “Wisdom of the crowds” blames “stove-piping” by neo-cons for their infamous decisions. And this is how crowds turn suddenly violent – the fire storms I mentioned. Go on and explore the subject: it’s all done with (also electronic) mirrors of illusion
Aldo
Jovan Kurbalija
January 11, 2012
Aldo you will have creative common right for “electronic mirrors of illusion”.
what is 5htp
September 25, 2014
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