A Bill of Rights for the Internet

Last night was the UCL Student Human Rights Programme Annual Round Table and the topic was "Internet and E-Rights". I joined an interesting panel of Emily Laidlaw, Daithí Mac Síthigh and Stratis Camatsos to discuss net neutrality, privacy and social networks and the role of informational gatekeepers. The whole event was chaired by Ben Allgrove of Baker & McKenzie who did an excellent job of keeping the whole thing light and open to invite discussion. The purpose of this post though is to let those who weren't there last night to read my presentation on "A Bill of Rights for the Internet". Now I should say this is an aspirational plea I'm not saying it would be easy in any sense. But remember the words of John F. Kennedy "We did not choose to [do these things] because they are easy but because they are hard."

A Bill of Rights for the Internet

The famous essayist and philosopher George Santayana is probably best remembered for his immortal phrase: “those who cannot remember the past are condemned to repeat it”.

It is the claim of this short address that today we must remember and learn from that most tumultuous period in world history – the late Eighteenth Century. This was a period in which the rights of man became an active political rather than philosophical issue, when revolutions in France and the American Colonies (soon to be the United States of America) led to political discourse on civil rights and liberties and eventually in some cases the constitutional enshrinement of these liberties. It may be argued that today we take these rights and liberties for granted and that we no longer have to fight (at least in first world states) for basic civil liberties. Of course if one is not willing to fight for your rights you must accept you may lose them (witness the difference in approach between UK citizens facing cutbacks and French citizens in the same position).

In the next ten minutes or so I’m hoping to draw analogies between these developments and today’s framework of rights for Cyberspace, or rather the lack of such framework. It leads me to argue that a Bill of Rights for Cyberspace is overdue and should now be pursued as a matter of urgency.

The Birth of a Nation – The United States

Everybody knows the story of the birth of the United States of America. From the War of Independence (or rather the American Revolutionary War to give it its proper name) through the Congressional Congress, and eventually the signing of the Declaration of Independence on July 4, 1776 the United States was a country born out of conflict, or was it? Although the United States was born on the 4 July 1776, the modern constitutional, rights-based nation we see today was born some years later. It was on December 15, 1791 that the US Bill of Rights came into effect following its ratification by three-quarters of the States of the Union. I would imagine everyone in this room is familiar with the Bill of Rights – it is a series of limitations on the power of the United States Federal government, protecting the natural rights of liberty and property including freedom of speech, a free press, free assembly, and free association. It contained ten amendments to the original constitution: 

1. Freedom of speech, religion, of the press, and of assembly; right to petition
2. Militia, Right to keep and bear arms.
3. Protection from quartering of troops.
4. Protection from unreasonable search and seizure.
5. Due process, double jeopardy, self-incrimination, eminent domain.
6. Trial by jury and rights of the accused; Confrontation Clause, speedy trial, public trial, right to counsel.
7. Civil trial by jury.
8. Prohibition of excessive bail and cruel and unusual punishment.
9. Protection of rights not specifically enumerated in the Constitution.
10. Powers of States and people.

This I argue is the true birth date of the modern United States. Although the nation may have been formed in 1776 it is in 1791 (around the time the French Revolution was in full swing) that the concept of a rights-based society took hold with the first modern constitutional rights-based system (I realise I have ignored documents such as the Declaration of Arbroath and the Bill of Rights/Claim of Right in saying this but they were about Parliamentary Settlements and Representation not about the individual rights of man).

The Birth of a Space - Cyberspace

We can view Cyberspace much like the United States. A virgin territory which we may shape to reflect our values, culture and society: A global space, not a domestic space. In a mirror development in February 1996 the civil rights activist and EFF co-founder John Perry Barlow declared Cyberspace to be independent of traditional governments. In a hyperbolic statement he suggested that “Governments of the Industrial World [were] not welcome among us [and had] no sovereignty where we gather”. While Barlow’s declaration may have been somewhat premature it was a heartfelt plea from one of Cyberspace’s leading citizens to leave this space alone: while Barlow may not be spoken of in the same breath as Madison, Jefferson or Washington we can see a parallel in Barlow’s plea for independence of thought, assembly and government and the original Declaration of 1776. If it took 15 years to advance from the US Declaration of Independence to the defining moment in 1791 when the Bill of Rights was adopted we can see we are already falling behind should we seek to emulate these great visionaries of the past. A Bill of Rights for the Internet is not only due it is fast becoming overdue.

A Bill of Rights for the Internet

This raises two questions: (1) what work is currently being undertaken in this area? And (2) what should a Bill of Internet Rights contain?

The first question is of course easier to answer. Some countries have made significant progress, some some progress and some very little. Also there are some international developments which are still at an early stage. Probably the greatest development to date at a national level is to be found in Brazil. A very exciting project in Brazil sees the Ministry of Justice, in partnership with the Centre for Technology and Society from Fundação Getúlio Vargas engaged in a co-regulatory design process which aims to produce a Bill of Digital Rights. The collaborative debate is structured in two phases:
First phase (finished on December, 17 2009): based on selected topics, society had an open space to expose their opinion on principles that should become guidelines for Internet. During this period, the blog received more than 800 contributions, besides official reports of important institutions on the matter.
Second phase (underway): considering the opinions posted at the weblog, a draft bill proposition was written and is now submitted to a second round of virtual public debate. The goal is reaching a final document, which will then be submitted to National Congress for institutional appreciation and deliberation.

The draft Bill (in English) may be accessed online. It includes rights of access, technical stability, privacy, data security and education. It is an extremely well developed piece of draft legislation (although it would benefit greatly from redrafting). Other countries have developed a more limited approach to digital rights development and recognition. Following UN/WSIS calls for universal access to basic communication and information services made originally at the UN Administrative Committee on Coordination some countries recognise a basic right to access – such as Estonia (who has the oldest such recognised right, dating from 2000), France (in relation to the HADOPI Law the Constitutional court recognised this although the revised HADOPI law was allowed later to pass), Finland (Finland's Ministry of Transport and Communications has made 1-megabit broadband Web access a legal right) Greece (Article 5A(2) of the Constitution states “All persons have the right to participate in the Information Society. Facilitation of access to electronically transmitted information, as well as of the production, exchange and diffusion

thereof, constitutes an obligation of the State) and Spain (where from 2011 a right similar to the Finnish one may be found).  

A cross-border initiative is also underway under the auspices of the Internet Rights and Principles Coalition. They have recently produced draft 1.0 of their Charter of Human Rights and Principles for the Internet which was presented to the 2010 Internet Governance Forum meeting on Wednesday 15th September in Vilnius, Lithuania.  This draft shares some similarities with the Brazilian draft containing rights of access, data security and privacy but there are also clear differences such as language rights, gender equality rights and rights of the child not prevalent in the Brazilian version.

Drafting a Bill of Rights  

What should go into a Bill of Internet Rights? Let’s look firstly at the two current draft Bills, the Brazilian and the Internet Rights Drafts.

Right	Brazil	IRGF
A Right of Universal Access	√	√
A Right of Accessibility		√
Data Security	√	√
Net Neutrality	√	√
Secure Data Transfers		√
Freedom of Expression	√	√
The Right to Peaceful Protest  & Assembly		√
Freedom from Censorship		√
Freedom of Religion		√
Right to Personal Privacy	√	√
Right to Data Privacy	√	√
Right to Anonymity		√
Right to Consumer Protection		√
Right to use Encryption	√	√
Freedom from Surveillance	√	√
Right to Education	√	√
Right to Digital Inclusion	√	√
Gender Equality		√
Language Equality and Support		√
Freedom from Copyright Controls on Cultural Goods		√
Rights of the Child		√
Right to Participate in the Public Sphere	√	√
Right to Access Health Services		√
Right to a Fair and Unbiased Trial		√
A Respect for Pluralism and Multiculturalism		√
The Duty to Respect the Rights of Others		√
Free Enterprise and Competition	√
Protect Cultural Exchanges	√

Rights Common to both are:

A right of Universal Access, Data Security, Net Neutrality, Freedom of Expression, the right to Privacy (both personal and data), the right to use encryption for security purposes, freedom from surveillance, the right to education, digital inclusion and the right to participate in the public sphere. They both have a common theme of protected cultural exchanges and that may also be seen to be a shared “right”. 

Beyond this the IRGF draft is much wider and in all honesty includes much that should not be in an internet bill of rights such as a Right to Access Health Services, a Right to a Fair and Unbiased Trial and the Rights of the Child. Looking at the two drafts I’m going to close by mirroring the original US Bill of Rights. Here are my ten “inalienable internet rights”:

1. No law shall be made which shall restrict the right of the individual to full and free access to the internet. This shall include laws which prevent universal access, allow for degradation of quality of access or which allow for access to be suspended without a full and fair hearing in accordance with the Universal Declaration of Human Rights.
2. The service level offered to each internet user shall be universal. There shall be no application of technical measures to affect the level of service offered. This includes packet prioritisation or limitations. The internet shall remain neutral as to content carried.
3. Each person has the right to inclusive internet access. This includes the right to access educational services and training on the use of internet resources and the right for persons of special access requires such as the physically or visually impaired to have a right of full access and participation.
4. The individual shall have the right to use the internet in private. This includes the right to object to monitoring of their activities and the creation of service logs.
5. The individual shall have the right to employ encryption technology in the pursuit of personal privacy and security of transmissions.
6. No information shall be created or retained about an individual without their permission or agreement. All information or data so created or stored must be stored securely and must only be processed in accordance with the permission of the individual data subject. Data is not to be passed on to third parties (including states parties) without either the permission of the individual or an appropriately obtained court order obtained in accordance with the principles of the Universal Declaration of Human Rights.
7. Each person shall have a right to roam the internet free from surveillance.
8. Each person shall have the right to freely express their views and opinions including religious opinions. This right shall not be abridged except insofar as these views cause harm to others and then only following appropriately obtained court order obtained in accordance with the principles of the Universal Declaration of Human Rights.
9. Each person shall have free and unfettered access to public informational resources including sources of law and precedent, government documents and consultation documents. Individuals will be allowed unfettered discussion of such resources and the state shall supply technical support in creating an environment for the free exchange of ideas and comments.
10. Individuals shall have a right of peaceful protest and assembly in the virtual sphere. This right does not include the right to cause harm to others.

      This is my draft. Over to you all.