Internet Governance and Human Rights

Carolina RossiniWarsaw, June 25, 2013

Paul Baran (1964)

World Wide Web

Conscious Choice To Be Open

GNU General Public License:The use of IPs to create freedom

With around 2.3 billion users, the Internet has become part of the daily lives of a significant percentage of the global population, including for political debate and activism.

UN Human Rights Council

“one of the most powerful instruments of the 21st century for increasing transparency in the conduct of the

powerful, access to information, and for facilitating active citizen participation in building democratic societies. Indeed,

the recent wave of demonstrations in countries across the Middle East and North African (and Brazil) region has shown

the key role that the Internet can play in mobilizing the population to call for justice, equality, accountability and

better respect for human rights.”

Frank La Rue*

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Human Rights Council seventeenth session, document A/HRC/17/27, 16 May 2011.

“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.”

Article 19 of the Universal Declaration of Human Rights

Policies to Enhance Freedom of Expression

Role of Internet intermediaries:

Facilitate communication;

Protect freedom of expression;

Provide avenues for democratic participation

Policies to Enhance Freedom of Expression

Heavy regulation can vastly increase costs beyond the ability of startups;

Even if large companies have technical and financial capacity to take some actions, small startups do not;

For jurisdictions who are trying to develop and grow an online industry, policy structure is even more important.

Policies to Enhance Freedom of Expression

Due process for anonymous speech is critical for freedom of expression;

Forced “identification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance”;

“Anonymity is a shield from the tyranny of the majority,” that “exemplifies the purpose” of freedom of expression: “to protect unpopular individuals from retaliation...at the hand of an intolerant society.”

Privacy and Anonymity

Why is anonymity important?

Wide variety of reasonsCriticism of political figures, corporations, bureaucratsStigma or embarrassment

Opposition parties, victims of violence, AIDS sufferers, survivors of abuse can use Internet to share sensitive and personal information anonymously without fear of embarrassment or harm

Privacy and Anonymity

Privacy and Anonymity

Internet intermediaries do know who’s a dog

When a user posts content, third parties may want to sue the use

To sue the user, plaintiff must first identify the user

Due process should protect identify users

ISPs best practice is to provide notice to users, and give time to allow for court review

Moving on…

Governance

“Governance can be understood as the establishment and operation of shared “rules of

the game”, which define the actors and their responsibilities, both in cooperation toward common goals and in resolving any arising

disputes.”

Report of the Working Group Strengthening Europe’s Contribution to World Governance. White paper on Governance. Working Group

5. May, 2001,

Internet Governance

Internet governance is the development and application by governments, the private

sector, and civil society, in their respective roles, of shared principles, norms, rules,

decision-making procedures, and programs that shape the evolution and use of the Internet.

WSIS, 2003

“Multistakeholderism” Policy authority for Internet-related public policy issues is the

sovereign right of States. They have rights and responsibilities for international Internet-related public policy issues;

The private sector has had, and should continue to have, an important role in the development of the Internet, both technical and economical;

Civil society has also played an important role on Internet matters, especially at community level, and should continue to play such a role.

Intergovernmental organizations have had, and should continue to have, a facilitating role in the coordination of Internet-related public policy issues.

International organizations have also had and should continue to have an important role in the development of Internet-related technical standards and relevant policies.

“Although Internet governance deals with the core of the digital world, governance cannot be handled

with a digital-binary logic of true/false and good/bad. Instead, Internet governance

demands many subtleties and shades of meaning and perception; it thus requires an

analogue approach, covering a continuum of options and compromises.”

Jovan Kurbalija

Internet Governance

Through the lens of Human Rights

Technology impact The use of the technologies affect a range of fundamental

rights:

freedom of communication,

freedom of association,

freedom to seek, receive and impart information and ideas without interference by public authorities, regardless of frontiers and through any medium,

freedom of information, and

freedom from surveillance and intrusion into one’s private life and social and political activities.

economic, social and cultural rights of individuals and groups, especially cultural, religious, ethnic or national minorities, and women.

The role of International Bodies

ITU

The International Telecommunication Union (ITU) is an agency of the United Nations with a specialized focus on telecommunications regulation, as well as radio regulation and development.

The ITUʼs regulatory approach diverges significantly from the lightweight and decentralized type of governance that has sustained Internet development and innovation to this day

ITRs

The ITRs (1988) to facilitate international interconnection and interoperability of telecommunication services, ensuring their efficiency and widespread public usefulness and availability*.

ITRs were opened to incorporate current technology, including the Internet, and address economic impacts rising from new technology on the exchange of international traffic between networks New definitions and new “problems”:

Accounting and settlement ratesMisuse of numbers, names and addressesNetwork routing and traffic management between countries

ITU and…

Multistakeholderism

Cybersecurity

What happened at the WCIT (Nov. 2012)

Unprecedented hype over a “UN takeover of the Internet” Proposals to amend ITRs:Making ITU rules binding on non-members Gaining control of Internet resource allocation Revenue sharing between content hosts and

telecoms Internet proposals shuffled into a non-binding

resolution

Civil Society and ITU

Civil Society Pressures ITU to Uphold Human Rights, Increase Transprency

"Digital rights advocates around the world are working to make their voices heard at the

upcoming treaty conference of the International Telecommunication Union. Leaked documents

include proposed treaty revisions that could place limitations on online privacy, free expression,

access to information, and ICT use around the world.”

https://www.cdt.org/content/cdt-analyses-key-itu-proposals

WCIT ended in failure: only 89 countries signed so far Spam and security provisions seen as an incursion

Loss of useful provisions on telecommunications Mobile roaming rules, global emergency number,

accessibility

What happened at the WCIT (Nov. 2012)

What happened at the WCIT The issue of scope remains somewhat ambiguous and it will be important to monitor actual

implementation of these regulations to determine whether some countries apply the treaty provisions to a broader group of providers than were previously subject to the 1988 treaty.

The treaty explicitly states that “these Regulations do not address the content-related aspects of telecommunications”.

References to ITU-T Recommendations do not give those Recommendations mandatory status.

Treaty definitions of Telecommunications and International Telecommunications were not changed. New term ICT was not included.

Numbering provisions in the ITRs are limited to references to “numbering resources specified in ITU-T Recommendations” and do not extend to naming, numbering and identification resources.

Quality of Service provisions are open to interpretation and their impact will depend on the interpretation of scope.

Member States are given responsibility to ensure the security and robustness of international telecommunications services.

Member States are given responsibility to prevent the propagation of unsolicited bulk electronic communications.

Accounting Rate principles for international telecommunication services do not apply to commercial agreements.

World Telecommunication/ICT Policy Forum (May 2013)

Unlike WCIT, the WTPF outputs were non-binding opinions:

1. Promoting Internet Exchange Points (IXPs) as a long term solution to advance connectivity

2. Fostering an enabling environment for the greater growth and development of broadband connectivity

3. Supporting Capacity Building for the deployment of IPv6

4. In Support of IPv6 Adoption and Transition from IPv4

5. Supporting Multi-stakeholderism in Internet Governance

6. On supporting operationalizing the Enhanced Cooperation

Process

Drafts were prepared by a new Informal Experts Group (IEG) in a new and initially unclear process

All six were cleared quickly and with few amendments

WTPF Brazil reintroduced a seventh opinion with contentious

preambles (later removed), but uncontentious substance:

Calls on the ITU to provide capacity building for developing country governments to more effectively participate in multistakeholder Internet governance institutions

Encourages states to participate in those institutions, in addition to their discussion of relevant issues at the ITU and in the WSIS+10 process

Chair proposed the opinion could go to the Council Working Group on Internet policy (CWG-Internet)

Best Bits civil society network and others counter-proposed the IGF devise a process to work on the text

Is there a role to the government?

National level

Many government interventions already happen at the national level and with civil society's support: Network neutrality rules to stop operators from

discriminating Providing incentives to promote migration to IPv6 Enforceable standards for the protection of

personal data Extending universal service policies to include

Internet access

International Fora:

Governments must be involved at the global level in two cases: Where their interventions at the national level

cause spillovers To hold others to account for infringing universal

human rights

Is there a role to the government?

Through its Plenipotentiary Resolutions, the ITU membership recognizes the multistakeholder governance model based on WSIS principles as the framework for global Internet governance.

ITU and multistakeholder model

ITU and multistakeholder model

The recognition of WSIS principles, of the multistakeholder model of Internet governance and of the important role and responsibilities of each stakeholder group is advanced in the various ITU Pleni- potentiary Resolutions, especially in Resolutions 101, 102 and 133 (Rev. Guadalajara, 2010).

Discussions at WTPF-13 are along the same lines. Opinion 5 on Sup- porting multi-stakeholderism in Internet Governance invites govern- ments and others to explore ways and means for greater collabo- ration and coordination between governments; the private sector, international and intergovernmental organizations, and civil society, as well as greater participation in multistakeholder processes, with a view to ensure that the governance of the Internet is a multi-stake- holder process that enables all parties to continue to benefit from the Internet; and to focus in particular on how to improve the partici- pation of developing country stakeholders in the initiatives, entities, and institutions involved in various aspects of Internet Governance.

ITU and multistakeholder model

But…

Saying you believe in multistakeholderism is like saying you believe in democracy; no one could disagree, but it doesn’t really tell us much about which values are paramount to shaping a system or a society.*

*http://www.forbes.com/sites/adamthierer/2012/05/06/does-the-internet-need-a-global-regulator/

Operationalizing the role of governments involving mapping, capacity building, institutional reform and funding

The CSTD Working Group on Enhanced Cooperation* and the IGF have the opportunity to pave the way

*http://unctad.org/en/pages/newsdetails.aspx?OriginalVersionID=404&Sitemap_x0020_Taxonomy=Commission%20on%20Science%20and%20Technology%20for%20Development

ITU and multistakeholder model

The role of States

States have “positive” duties to protect the right to life and other crucial rights of individuals, such as against criminal and terrorist threats.

They have special duties in relation to the rights of the child.

States have the right, and in some cases the duty, to restrict some rights in order to protect others.

International Law

The International Covenant on Civil and Political Rights and related regional treaties protect online freedom of expression and privacy.

States must ensure these protections for anyone within their effective power and control. In many instances they must also protect individuals against violations of their rights by other individuals or companies.

Under the International Covenant on Civil and Political Rights and regional human rights treaties, these restrictions must:*

Be based on “law” – on published, clear and specific legal rules, the application of which is reasonably foreseeable;

Serve a legitimate aim in a democratic society**

Be “necessary” and “proportionate” to that aim, and not impair the essence of the right;

Not involve discrimination;

Not confer excessive discretion on the relevant authorities; and

Be subject to effective (judicial) safeguards and remedies.

States must ensure the above limits on restrictions of rights not just in respect of their own citizens, but also for anyone else who is within their territory or jurisdiction, or even, as regards extra‐territorial acts, within their effective power and control.***

Technology impact > Policy Impact

UN Special Rapporteur

Recommendation:

anti‐terrorism measures are overseen by the judiciary “so that they remain lawful, proportionate and effective, in order to ensure that the government is ultimately held responsible and accountable.”

ITU and Cybersecurity

As a complex policy issue, cybersecurity has several defining characteristics: effective solutions will be developed only with the participation of a

variety of stakeholders;

given the pace of technological change, governmental bodies are not likely to be the source of effective technical solutions;

requires speed and agility: the cybercriminals are highly adaptive;

given privatization, innovation, and competition, and because the private sector is likely to have greater technical expertise > cybersecurity must be based on public-private partnerships, where the government does not have the lead role.

the issue requires solutions at various levels > improving the practices of the private sector, educating users, improving law enforcement cooperation across borders, and promoting improvement in technical standards.

ITU and Cybersecurity

Not the adequate space, without adequate expertise;

Risk of major role of governments and impact on Human Rights

“A provision in the ITRs referring to the need for “greater confidence and security, including of information,” for example, might be used to support

laws stifling dissent. On the other hand, to really address the issue in its complexity, the ITU would have to address not only the question of how to

define cybercrimes without infringing on free expression, but also how to investigate them while respecting the right to privacy”

CDT*

*https://www.cdt.org/files/pdfs/Cybersecurity_ITU_WCIT_Proposals.pdf

The best structures for addressing cybersecurity are likely to be decentralized rather than centralized, multi-stakeholder rather than government dominated, and voluntary rather than mandatory.

ITU and Cybersecurity

Better and trusted fora:

Internet Engineering Task Force and the Messaging Anti-Abuse Working Group;

Conficker Working Group;COE Convention on Cybercrime (not perfect, but has

developed great expertise and it is open to any country)

ITU and Cybersecurity = a “no no no”

Timeline forward

Source: ISOChttp://www.internetsociety.org/itr

IGF role

Tunis Agenda* 72

(c) Interface with appropriate intergovernmental organizations and other institutions on matters under their purview.

(g) Identify emerging issues, bring them to the attention of the relevant bodies and the general public, and, where appropriate, make recommendations.

(i) Promote and assess, on an ongoing basis, the embodiment of WSIS principles in Internet governance processes.

*http://www.itu.int/wsis/docs2/tunis/off/6rev1.html

Suggestions: the way forward

The run-down of recent developments:

WTPF suggests ITU is not the future for Internet Governance

The way forward:

Operationalizing the role of governments involving mapping, capacity building, institutional reform and funding

The CSTD Working Group on Enhanced Cooperation and the IGF have the opportunity to pave the way

Outreach to the Community to capture perspectives and reengage to establish partnerships to address key ITR outcomes

Develop proactive plans for capacity building to support better comprehension of the Internet infrastructure, its capabilities, opportunities and economic contributions

Work globally, regionally and locally on furthering understanding of the Internet, Internet Governance and Multistakeholder policy development

Suggestions: the way forward

Join

Thank you

carolina.rossini@gmail.com

References

Digital Freedoms in International Law Practical Steps to Protect Human Rights Online A report by Ian Brown & Douwe Korff for Global Network Initiative, http://www.globalnetworkinitiative.org

ISOC WCIT Issue Matrix, Available at: http://www.internetsociety.org/wcit-issues-matrix

CDT page on ITRs - https://www.cdt.org/content/cdt-analyses-key-itu-proposals

MIND 4 – Internet Governance and Human Rights, http://en.collaboratory.de/w/MIND_4_-_Human_Rights_and_Internet_Governance