Does the Internet bring development or dependency? A man texting on his mobile phone as he fishes on the East River. June 2012. (c) Photo by Catherine A. Fitzpatrick
The UN Human Rights Council, a 47-member political body with the world's worst human rights violators as well as those doing the most to promote human rights in the world, passed a unanimous resolution on Internet freedom last week that contains multiple troubling references to "development" that in the UN context, could well signal increased governmental interference in what has been largely a free realm of cyberspace.
You would never know this problem exists from the huge celebratory greeting of this resolution by the tech press (which includes confusion about the roles of different bodies like the Human Rights Council and the ITU). Yet in fact the UN resolution is only one banner waving in a highly contested battle for the Internet, summarized very well by Hillicon Valley -- freedom means very different things to the US, China, or Russia (all of whom endorsed this vague resolution) and both "progressives" and Ron Paul libertarians are battling for the word "freedom".
The UN resolution has not yet been formalized and posted on the UN website, but here it is: Download Internet Freedom Resolution.
Here are the very worrisome paragraphs that while seemingly benign actually contain a world of problems within them in the UN context which "progressives" have been silent about -- whether unwittingly or deliberately:
2. Recogniizes the global and open nature of the Internet as a driving force in accelerating progress towards development in its various forms;
3. Calls upon all States to promote and facilitate access to the internet and international cooperation aimed at the development of media and information and communications facilities in all countries;
5. Decides to continue its consideration of the promotion, protection and enjoyment of human rights, including the right to freedom of expression, on the Internet and in other technologies, as well as of how the Internet can be an important tool for development and for exercising human rights, in accordance with its programme of work.
Disturbingly, the resolution, although mercifully short, contains not one, not two, but THREE references to "development" -- code word for state economic measures that can involve control of commerce and hence control of the heart of the Internet's success -- the big US-based global companies like Google, Twitter and Facebook that helped foster mass usage of the Internet -- and the many individual and corporate entrepreneurs that make it a place of vibrant commerce and livelihood for people.
The minute the Internet has to be harnessed to a vague and easily-manipulated social goal like "accelerating development," it has lost its freedom. American diplomats should know better. I don't know what happened in Geneva, but I have an idea -- as I explain in the background to this effort here.
The references to an "open" Internet, i.e. a web based on open-source code as distinct from proprietary code -- are also codified terms that suit a particular lobby, like "development" -- and this has powerful support in some quarters from Silicon Valley.
Let me focus here on the slippery slope of "development" as "state control" and cut a very long discourse on the history of the loaded term "development" at the UN by simply quoting the plaintive question of a Tibetan official I once managed to get into the UN to attend a side meeting of the Economic and Social Council, in response to China's flogging of the notion of "development" against civil and political liberties.
"Whose development?" he asked, pointedly. Indeed.
Oh, I get it about the realities of UN diplomacy. One such reference to "development' in the UN context is a necessity -- ever since the West had to pay for a truce on "civil and political rights" versus "economic and social rights" at the Vienna conference in 1995 with conceding a "right to development," we've been stuck with this strange politicized portmanteau concept. The Soviet Union was the main promoter of exclusive focus on economic and social rights or "development" which they didn't even do a good job of supplying to their hapless subjects. After the USSR fell, the Russian delegation at the UN was taken over by human rights leaders including ex-political prisoners Sergei Kovalev and Vyacheslav Bakhmin, and they insisted on promoting the integral nature of both sets of rights -- because the economic justice the Soviets claimed to provide was hollow without a free media, free trade unions, and many other exercises of freedom of expression and association to curb and prevent the state's abuses. Even so, as the Russians sadly noted, Soviet pupils like Cuba still continued to flog the line at the UN for years to come.
It's a constant skirmish in every council, commission, and committee, and you can't get by without at least a nod to "development". But three mentions?! And with even a role for the "international community" for "development" -- which makes it all the easier for the ITU to claim a role now in controlling the Internet!
Today, the "right to development" is still hotly debated but scolded even by some of its fans as just too amorphous and ineffective. The game at the UN continues -- Cuba and other socialist authoritarian states continue to insist on the primacy of economic rights; the US doesn't even recognize these concepts as "rights" even though it may do a better job than many states that do in supplying social goods like housing, education, and health care.
With the incantation of "development" three times, it will be very hard to stop the grab by both states and NGOs interested in selective state control for various political agendas that involve power struggles over the Internet -- whether for US government interference to ensure "net neutrality," or US government interference to supply broadband or "interoperability" of various gadgets. Say, why even have telecoms like AT&T and Comcast and proprietary companies like Apple or Samsung at all, charging for their cost of innovation and service and manufacturing, when you can just have all communications for free supplied by Google? (In exchange for privacy and freedom of choice, of course...)
With this incantation of "development," there's also a subtle but very troubling re-surfacing of the bane of UNESCO some decades ago, the Soviet- and Cuban-led "New World Information and Communications Order" ultimately defeated by the West. (Wikipedia's version of this story is quite biased, making it seem as if opposition to NWICO was merely a Cold-War Reagan Administration stunt, when in fact a number of Western liberals in the World Press Freedom Committee and Freedom House justly fought this illegitimate attempt to induce more state control).
Few are old enough to remember these struggles, which is unfortunate. This "order" involved harnessing the press to socialist state objectives like "economic justice" or "people's democracy" that meant the press was no longer free to criticize those abusive states, but had to praise their efforts and enforce "balance" against what they saw as "Westernized" media (in fact, NWICO, preceding the Internet, was an effort by authoritarian states to stop even the communication tools of that era that were making it increasingly hard to maintain closed societies and keep news under state control).
The truth is, any time you ascribe a social mandate to the press like "development", you muzzle it -- and open up the issue of who or what will enforce this social-mandate requirement other than conscience. We've forgotten that in an era of blogs and social media eroding the notion of an objective press, which is scorned by gurus like Jay Rosen as "the view from nowhere". But what, indeed, is "development" and who gets to decide what is good development?
When Frank La Rue, the UN Special Rapporteur on Freedom of Expression, formally released his report on Internet freedom June 7, the media widely covered his demand to make "Internet access a human right". The tech press in particularly greeted the news that an obscure UN process had resulted in something that seemed to encourage their industry, but the claim wasn't without critics. None other than Vincent Cerf himself, the grand old man of Google, in a widely-read and discussed op-ed piece, explained that Internet access is not a human right -- a position I said was right but for the wrong reasons.
It's wrong to glorify access to a right because providing access to the Internet is a positive human right -- a right in which states have to expend resources and take action to provide -- whereas freedom of expression is a "negative right" -- a right that states fulfill by doing nothing and getting out of the way. We never had the "human right to the telephone" or the "human right to the fax machine" or even "the human right to e-mail". Instead, we have the durable and enduring right to freedom of expression in any medium under Art. 19 of the Universal Declaration of Human Rights which is perfectly fine and in fact needed no new special resolution to enjoy and promote in the 21st century:
"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."
Cerf didn't want "access as a right" because he instinctively knew this would mean more state interference in his gigantic global ad-selling business with its free search loss-leader. So he took a position that contains with it as many dangers as state interference in the Internet -- he said, essentially, "leave the driving to us" -- Silicon Valley's engineers and coders will be trusted stewards of the Internet and take care to observe the values of freedom and openness that customers have come to expect. That they also readily help states maintain censorship -- and with the help of some of the famous Internet "freedom fighters" -- is something they prefer we overlook.
So many online news sites and blogs covered Frank La Rue's report last year as a "new right" and riled so many governments seeking to avoid "new norms," that by the time he appeared as a keynote speaker at the Dublin OSCE Conference on Internet Freedom last month, he was stating emphatically that he was "not for any new norms". Yet in the next breath, he introduced in fact what were two new norms, and in fact crept into the final resolution -- notions that I immediately challenged from the floor as problematic during the Q&A.
The first notion he introduced was the idea that states had to "provide" the Internet -- that's a developmental, positive right -- meaning that inevitably the state then becomes involved in the market of Internet services which opens up the gateway for state control. Currently, the free market supplies the Internet, with some government and corporate programs helping to provide more access for the poor and disadvantaged. Be careful what you wish for if you want *more* government involvement in supplying broadband to the masses -- it can come with conditions, it can be taken away.
The second notion he introduced is that the media "should have" used the Internet more to uncover injustices like the banking scandals that led to the recession and "must" cover such social injustices.
This is a simplistic analysis of the global recession as it implies that journalists (rich, bourgeois, northern journalists?) didn't do their job in sufficiently policing banks (evil banks, engines of imperialism!). Of course, this perspective overlooks not only the actual reporting that was done on the savings-and-loans crisis but the role of the Internet itself in accelerating and making less accountable everything from loan applications and decisions to stock market transactions. And any time the state or the multilateral state institution ascribes a social role to the media, it loses its freedom, even if the outcome is seemingly positive.
In my question to Frank La Rue, I put my question in terms of the tensions between freedom of expression (journalists, bloggers, readers/sharers) and freedom of association (corporations supplying Internet services). Indeed, those tensions exist and the use cases intending to illustrate this only create more problems than they solve. For example, at the Dublin meeting, Rebecca MacKinnon characterized as "censorship" and a problem for the "Internet freedom movement" the decision by Apple not to allow an app in its store with drawings of naked men -- a comic-book treatment of James Joyce's Ulysses. A non-state actor can't be accused of censorship, but more to the point, Apple was only taking the usual and standard minimal measures to prevent what we all know happens anywhere on the Internet where the expression slider is pushed on "high" -- penising.
Fortunately for those who felt Apple went too far in this largely automatic process, they were able to restore the app -- which in any event, contained a book that was visible on another site on the Internet anyway -- freedom of expression doesn't mean you have to see something on your phone in one medium as distinct from another link on your phone or PC or tablet! After a petition to the company, it was restored, suggesting that the problem is more about user preferences and taste than "freedom of expression" -- and a company, if it is to enjoy its own freedom of expression and Supreme-Court tested right to freedom of association, has to be able to pick what it wants to sell or store on its servers. I also pointed out in my intervention that MacKinnon had no grounds to insist that Amazon continue to store WikiLeaks' stolen State Department cables on its servers -- its terms of service requires that you warrant the materials you store are your own, and these were stolen. She opted to duck my question by saying she would "use her prerogative as chair to move on."
Meanwhile, Frank La Rue responded to my question saying that "international rights should apply to states as well as to businesses". This sounds like something we should all hurry to affirm, but again, states are the actors and signers and implenters of international treaties; corporations are not. Efforts like the "Ruggie principles" that seek to enforce various rights norms over businesses, sometimes with their active involvement to avoid regulation by governments, are filled with problems not only of justiciability and vagueness but lack an important context: the same UN bodies wishing to rein in corporations have never affirmed the right of private property or the right to engage in commerce or make a profit, but instead, function in a context where many countries and movements of the world hold these very normal human activities in suspicion if not outright contempt.
More to the point, the selection and taste problem of the Ulysses comic app was not a job for the First Amendment (by which Apple, which enjoys freedom of expression, too, is not bound to supply endlessly to its customers); it was even less a job for international law; it was not a job for Frank La Rue. WHICH freedom of expression norm -- the more free US First Amendment or the EU's more restrictive application of the UN's Article 19, the foundation of his mandate?
To hear the tech press tell it, the resolution is a big world event, affirming that "online" freedom of expression is the same as "offline" -- a word that has in rather creepy fashion come to signify "everything that isn't on the desktop computer, laptop, smart phone, tablet or other electronic screen we spend most of our working hours gazing at" -- as if organic institutions of law have ceased their relevance (and indeed they have for the cyber-globe-trotting set -- they hate Congress and think all congress people are stupid and technologically inept).
But the UN didn't see fit to put it on the front page, nor did it get its own press release, and it's buried in a summary record of the whole 20th session with only a one-line reference. (It's true that the much bigger news of this session is that the Special Rapporteur on Belarus, a Soviet holdover in Europe that has been a bastion of repression of Internet freedom, has been reappointed -- despite the concerted efforts of Russia and other allies.)
And as Reuters reported, while nominally endorsing the resolution, Cuba has done so with reservations, complaining that the resolution dealt with "only 30 percent of the world's population" that had Internet access and side-stepped the problem of corporate America:
"Nor in the text is anything said about Internet governance. When we all know that this tool is controlled by a single country globally and this is something which hampers free access to this very important tool."
Count on Cuba in the future to latch on to the three "development" paragraphs and flog them to reverse civil society gains on the Internet and put the states back in control. And count on China to invoke "people's democracy" kind of socialism to insist, as the Chinese UN delegate did, "As the Internet develops rapidly, online gambling, pornography, violence, fraud and hacking are increasing its threat to the legal rights of society and the public."
The Internet is a contested space, as I "storified" after the Dublin conference. This very troublesome resolution fostered by the Obama Administration not only papers over very real differences in conceptions for Internet governance which are going to be cured by assertions of sovereignty whether we like it or not, it introduces very disturbing "development" aspirations that are definitely going to end up in the wrong hands.
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