Online rights can be defended by new international law

There’s much to welcome in the European Commission’s newly released plan to place itself as self-styled ‘honest broker’ in the fractured world of evolving global internet governance.

But the Commission’s newly released statement on Europe’s role in shaping the future of the net (PDF) also opposes ‘new global legal instruments’ – a stance which could unnecessarily limit efforts to tackle large-scale Internet surveillance and a loss of public trust in the way the Internet is managed and run.

The paper, released on February 12, calls for more transparent, accountable and inclusive governance of a globally accessible internet, one that continues to serve fundamental freedoms, says Commission Vice-President Neelie Kroes.

Its explicit rejection of “any new international legal instrument to address issues of Internet governance” may be just pragmatism in the face of certain US resistance to such an idea. Yet over-emphasis on reforming technical management of the internet could second-place much more needed guarantees for human rights across the web.

The EC’s preferred governance process should be built on stronger, more inviolable rules on protection of free expression and privacy rights – before it addresses that process’ existing shortcomings in transparency, inclusiveness and accountability.

The paper does vow to protect, as the paper puts it, a “single, un-fragmented network, subject to the same laws and norms that apply in other areas of our day-to-day lives; and where individuals can benefit from their rights, and from judicial remedies when those rights are infringed”.

But as the European Digital Rights (EDRI) monitoring group commented before the paper’s publication: “The basis of such an approach should be the fact that existing international law is applicable and that universal values of human rights, democracy and the rule of law guide our dialogue on norms in cyberspace.”

Such a foundation is not impossible without recourse to binding international instruments ratified by states to credibly protect Internet users’ human rights and stop mass Internet surveillance, but the EC’s present position rules out such instruments in any case.

This may play to Washington’s likely sensitivity to the EC’s call for a dilution of US influence over Internet governance, which the EC concedes is a reaction to former intelligence contractor Edward Snowden’s expose of mass-snooping by the US and UK.

On the other hand the EC aims “to pursue (a) role as honest broker in future global negotiations on Internet Governance” – its words – and must keep one eye on Brazil, the most high-profile governmental critic of US cross-border snooping.

Brazil is hosting a major ‘Multi-stakeholder Meeting on the Future of Internet Governance’ in São Paulo, Brazil on April 23-24, where the big ideas in the EC paper will be tested by supporters, critics and sceptics alike.

Reiterated and reinforced basic rights to freedom of expression and privacy should be the foundation for technical steps to preserving the Internet, as “a single, open, free, un-fragmented network of networks”

Another danger stemming from a purely technical agreement lies is in the possible ‘Balkanisation’ of the internet, in that it will allow separate network infrastructures to develop separately, to subsequently co-exist – or deliberately isolated from the rest of the web. This could give greater authority to states that seek to ring-fence parts of the net, such as China and Russia.

It also gives the edge to governments when it is not yet agreed, as EDRI put in its earlier representation to the EC “…whether, and if so how, governments should continue to exercise some form of overall policy leadership. “This is a difficult point to sell to the Internet community – and not without reason, given how completely governments purporting to be champions of global “Internet freedom” have failed in that role in recent years.”

States will stifle the Internet if they take too much control through technical means or via net governance, Frédéric Donck of the Internet Society told the Wall Street Journal. “When you see intergovernmental, it means governments only. That is not what we see as a solution.”

Other international fora such as the Council of Europe have looked sensibly on the responsibility of states to prevent “trans-border harm to access and use of the Internet”.

The CoE’s 2011 Declaration on Internet governance principles asserts that “Internet governance arrangements must ensure the protection of all fundamental rights and freedoms and affirm their universality, indivisibility, interdependence and interrelation in accordance with international human rights law.”

It extends that responsibility beyond pure internet governance, to the operations and activities of public and private actors, of agencies like the NSA, and the private sector technology giants, in the design of new technologies, services and applications.

Is that an unreasonable start point? Is it then unreasonable to at least consider the kind of “new international legal instrument” that could enshrine that basic responsibility in law?

Where new developments that enhance or threaten fundamental rights and freedoms online emerge daily, and practical application of these newly emerging rights continue to test states, a sound and clear foundation in codified standards of international law online could prove a blessing.

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