Internet Governance and Human Rights

1. Internet Governance and Human Rights Carolina Rossini Warsaw, June 25, 2013

3. Paul Baran (1964)

5. World Wide Web

6. Conscious Choice To Be Open

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

13. 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.

14. 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.

16. Policies to Enhance Freedom of Expression “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

17. Policies to Enhance Freedom of Expression Role of Internet intermediaries: • Facilitate communication; • Protect freedom of expression; • Provide avenues for democratic participation

18. 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.

19. Privacy and Anonymity • 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.”

20. Privacy and Anonymity • Why is anonymity important? • Wide variety of reasons • Criticism of political figures, corporations, bureaucrats • Stigma 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

22. Privacy and Anonymity • Internet intermediaries doknow 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

23. Moving on…

24. 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,

26. Internet Governance Internet governance is the development and application by governments, the private sector, and civil society, in their respective roles, of sharedprinciples, norms, rules, decision-making procedures, and programs that shapethe evolution and use of the Internet. WSIS, 2003

27. “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.

28. “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

29. Internet Governance Through the lens of Human Rights

30. 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.

31. The role of International Bodies

32. 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 ITUʼsregulatory approach diverges significantly from the lightweight and decentralized type of governance that has sustained Internet development and innovation to this day

33. 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 rates • Misuse of numbers, names and addresses • Network routing and traffic management between countries

34. ITU and… Multistakeholderism Cybersecurity

35. 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

36. 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

37. What happened at the WCIT (Nov. 2012) • 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

38. 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.

39. World Telecommunication/ICT Policy Forum(May 2013) • Unlike WCIT, the WTPF outputs were non-binding opinions: • Promoting Internet Exchange Points (IXPs) as a long term solution to advance connectivity • Fostering an enabling environment for the greater growth and development of broadband connectivity • Supporting Capacity Building for the deployment of IPv6 • In Support of IPv6 Adoption and Transition from IPv4 • Supporting Multi-stakeholderism in Internet Governance • 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

40. 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

41. 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

42. Is there a role to the government? 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

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

44. 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).

45. ITU and multistakeholder model 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.

46. 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/

47. ITU and multistakeholder model 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

48. 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.

49. 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.

50. Technology impact > Policy Impact • 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.***