The Internet Bill of Rights: A Way to Reconcile Natural Freedoms and Regulatory Needs?

Francesca Musiani*

1. Introduction. The Recognition of Rights

Retracing the historical development of human rights and fundamental liberties, Gerhard Oestreich affirms that, enshrined in every basic right, are both the aims of the political and social ordering and the human understanding of self.1 With this image, the German author intends to convey the complexity of ethical, social, economic, historical and cultural relationships that underlie the attribution and recognition of every basic right. Every time that a new principle, right, rule or institution is acknowledged, the identity of the world we live in acquires some new facets.

This complexity is first revealed in the debate on the very existence of rights and on their foundations: the hypothesis that a core of inviolable, basic rights does exist carries with it a number of dilemmas. The natural eternity of such rights cannot be demonstrated, as nature cannot, in fact, be defined; the essence of their existence cannot be shown; their intrinsic logic cannot be made explicit, as there is no one and only logic. However, it is not always true that if the existence of something cannot be affirmed, it has to be rejected only because proper instruments to categorically confirm it are lacking; the inviolability of the individual, moral and social is then seen as a historical and at the same time utopian value, a regulatory idea that must show the way ahead.2

A second level of complexity concerns the recognition of rights, that is not a steady and clear-cut process, for at least two main reasons: the difficulty to cope with regional differences, inequalities and social exclusion phenomena, and the trouble in pragmatically identifying not only what has been called the essential content of basic rights, but their limits of vulnerability as well. Moreover, if, as we have seen, the content of a right is hardly identifiable a priori, it means that, at a practical level, the content of a right is rather the result of the implementation of this right according to the history and features of a specific national, regional or cultural reality. It is therefore often difficult to point out which restrictions or regulations entail its intangible, essential core.

This article means to contribute to the debates on fundamental freedoms and security on the Internet, currently engaging with renewed interest within the Committee on Civil Liberties of the European Parliament,3 by attempting to locate the principles outlined above in the specific context of the “new” rights brought along by the diffusion of the Internet in today’s society, in a variety of sectors that include governance, education, management. The article analyses the current state of the proposal for the creation and adoption of a Bill of Rights for the Internet, and debates promises, challenges and limits of the project.

2. Back to “The” Question: Should the Internet Be Regulated?

Ever since the inception of the Web twenty years ago, a number of voices have been raised to define the Internet as the widest global public space of today’s world, due to the millions of people every day exchanging messages, producing and receiving knowledge, building political and social participation, playing, selling and buying through and on it.4 An argument has also been made that the Internet, as the facility that ensures global interconnectivity, has to be treated as a common good. Alongside these arguments, sometimes blamed for their excessive “technological optimism”, a discourse has developed on what it takes for the public space created by the Internet to be preserved. Is it necessary to actively try and prevent its privatisation or control by specific lobbies? Is the absence of regulation ultimately a way to leave the Internet at the mercy of authoritarian regimes or market laws? It should be taken into account, these “mild sceptics” warn, that what was originally the space of boundless possibilities and untamed freedom5 is increasingly also becoming a conflict arena that impacts upon individual and collective rights, where freedom is depicted as the enemy of security, and vice-versa.6

Regardless of the position one assumes in this controversy, it seems safe to acknowledge that these conflicts do exist – and they prompt, now more than ever, a thorough reflection on the opportunity for the Internet to find its rules and produce its institutions, and what it means and takes at a more practical level to “guarantee the respect of freedoms and rights for all its users”,7 despite the appealing but rather vague choice of words. A key contribution to the discussion of these issues is provided by the work of American scholars such as Jack Balkin on freedom of expression,8 John Palfrey on access9 and, especially, Lawrence Lessig on the delicate balance between innovation and control.10 However, the birth and development of the Internet Bill of Rights (IBR) proposal has added a more specifically European dimension to the debate, in particular thanks to the contributions of Italian scholar Stefano Rodotà. The remainder of this section will outline the perspective and vision fostered by the IBR promoters – in order to subsequently assess the feasibility and opportunity to translate those principles into a constitution-like document.

2.1The Rationale Behind a Constitution for the Internet

The promoters of a charter for the rights of the Internet argue that while information and communication technologies (ICTs) offer, on one hand, the possibility of increasingly wide participation to the Information Society11 and unprecedented sharing of ideas and contents, they give on the other hand room to issues of information control and manipulation from particular groups or individuals. Technologies of freedom and technologies of control live side by side.

Delivering the future to absence of rules and natural evolution might expose the global public network created by the Internet to the law “of the strongest” – not only in the sense of a progressively higher level of control by governments in the name of security,12 but also as a gradual self-imposition of the logics of the market (often the only source of rules when an institutional framework of guarantees is lacking).13 It is therefore argued that a truly accessible, both individually and collectively, public space should not be subjected to private owning, nor to public control. Object of special attention within the Internet’s creation and organisation of a public space should be the new modalities of intervention and interaction, like the progressive organisation of public structures (networks), the access to online information and services, the introduction of new possibilities of control by citizens of their representatives and thus a wider availability of possibilities to intervene in decision-making processes, the creation of new social spaces for knowledge and information sharing.14 At the same time, the focus on positive aspects should not lead to the neglect of the “sins of the digital age,”15 such as inequality, commercial exploitation, exposure of misleading information, threats to privacy and the “tyranny” of access control.16 Interestingly, IBR discourses on these aspects seem to focus exclusively on the rights of human beings, while discussions on the rights of companies, legal entities in their own right, are absent – including for those issues in which the promotion of the rights of one group does not (necessarily) go to the detriment of the other (e.g. net neutrality).

The main argument of the IBR promoters can then be summarized as following. All those who see in the Internet either only the freedoms it naturally enables, or the need for regulations and constraints in the name of security, are missing a vital part of the picture: only a collective and capable use of ICTs can avoid the transformation of the Net into a controlled realm, dominated by a few actors. Furthermore, the very relevance of the Internet inasmuch as the birth of a global public space is concerned makes it necessary to guarantee and safeguard citizens’ rights within that same public space through appropriate instruments.

3. Basic Principles, New Rights

The predictable next step of the discussion concerns the features that these “appropriate instruments” should have. As the promoters of the Bill themselves consider the right to privacy as being of crucial importance, it will be given particular attention here as a case study which will put in context the rationale behind the IBR. The instrument would, however, be aimed at protecting a number of other rights, such as: the right to be online in the first place (freedom of access and use); the right to create and share knowledge; and last, but not least, freedom of expression – a controversial theme which is central to the present debates and comes with a long history.17 An issue which has, thus far, been neglected in the IBR debate (but heavily discussed in other settings and potentially interesting to address in this one) is the realm of rights in virtual worlds and avatar rights; the question whether avatars – being the manifestation of actual people in an online medium – should have their utterances, actions, thoughts, and emotions considered to be as valid and endowed with rights as their equivalent in any other forum or through another medium.18

As Rodotà argues repeatedly, the primary aspect that a discipline of the Internet should take into account is privacy.19 IBR promoters propose that uses of personal data should be further clarified for the specific context of the Internet, with particular focus on the responsibilities of everyone concerned; the purpose(s) for which data and personal information are collected; and the acknowledgment and informed consent of the interested party. Furthermore, it should grant that the storage of personal information does not exceed a strictly necessary period of time, and allow the possibility of the interested parties to access the data in order to correct errors at any time.

Any further regulation on privacy concerns can benefit from already existent, widely ratified conventions. For example, the right to protection of personal data is enshrined in Article 8 of the Charter of Fundamental Rights of the European Union (EU). At paragraph 2, the article reads:

Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.20

Interestingly, paragraph 3 of the same article underlines the necessity of an independent authority with oversight functions.21 The rights are thus located in a realm in which public institutions are asked to fulfil a function of guarantee and control.22 This further underlines the overcoming of the negative concept of the right to privacy (as might be a “right to be left alone”), and moves it forward to a positive conception, that involves the public institutions being proactive in order to guarantee that freedom.23

Such a discipline also implies the safeguard of the right to privacy of communications, as it is already set in many national constitutions. The Italian one, for example, reports at Article 15 that “the freedom and secrecy of communications and correspondence are inviolable.”24 The extension of such principles of freedom and secrecy should arguably be extended to the Internet-created public space, especially considering that communications and correspondence increasingly take place in virtual spaces and less often in “real” ones. Once again, this necessity is acknowledged in most national legal orders, at least within EU borders. It is argued, however, that these norms are inadequate as the competence and jurisdictions of national legal systems cannot apply to the Internet and more generally to transnational networks. If agreements and forms of judicial cooperation are lacking, it may prove difficult (e.g. to find a national of one country liable for the violation of the privacy of a national of a different country.)25

These remarks are considered to be all pointing in one direction: the need to reaffirm those liberties that are enshrined in international conventions and national constitutions, whilst updating them according to the content and communication features of the Net. In doing this, special care should be paid to formalise them in such a way that increases their certainty and applicability. This would best be translated pragmatically into the creation of an IBR.

4. ...Towards an Internet Bill of Rights?

For the good and for the bad, the unprecedented change in power balances that the Internet is supporting prompts the establishment of the basic principles of the new “global citizenship”: freedom of access, freedom of use, right to knowledge and to share it freely, respect to privacy, identification of new common goods.26 The idea of an IBR is born out of a desire to face and respond to the challenges posed by the evolution of the technical architecture and to legally ensure the respect of principles deemed as fundamental and intrinsically linked to the evolution of a global, “networked” public space.27

To the objection that even before considering how the IBR should be done, one should consider whether it can be done or not, its promoters respond that it is the Internet itself that suggests the way forward. Of course, the IBR will not be achieved by summoning a Constituent Assembly; innovative ways are needed, able to take into account the multiplicity of actors involved in Internet governance (i.e. states, individual citizens, providers, producers, entrepreneurs) – translating, into practice, a multi-stakeholder approach.28 The very nature of the Internet opposes the adoption of regulation forms according to traditional, “vertical” models involving a single authority, or multiple authorities in intergovernmental fora. Rodotà points out that the Internet is the place of pervasive discussion, universal initiatives, elaboration and sharing of contents and ideas.29 It is thus hard to imagine that the adoption of an IBR would follow the traditional procedures pertaining to international conventions.

In the intentions of the IBR promoters, however, this should not mean that the content of precedent legal instruments is to be deemed as obsolete. In fact, as mentioned previously, a good starting point for any IBR is to be found in the Charter of Fundamental Rights of the European Union, due to its recognition of personal data protection as an autonomous, fundamental right, together with the overcoming of the traditional conception of privacy and the acknowledgement that the freedom of human beings cannot be achieved without the preservation of personal data.30

5. The Internet Rights & Principles Dynamic Coalition: an Outcome of the Internet Governance Forum

The project of creating an IBR, already outlined during the World Summit on the Information Society in November 2005,31 has taken a more tangible form at the Internet Governance Forum (IGF)’s first meeting of October 2006, in Athens, Greece.32 Many commentators have viewed this step as a sign of “maturity,”33 finally giving the “freedom on the Net” theme the spotlight it deserves among the wide spectrum of Internet governance issues.

The Dynamic Coalitions were born as groups “of institutions or people who agree to pursue an initiative started at the inaugural IGF meeting,”34 throughout the following year and in preparation for the second meeting that took place in November 2007 in Rio de Janeiro, Brazil.35 They can be seen as working groups on relevant subjects for Internet governance, delving into specific themes and fostering ideal contexts for research into a variety of issues. At the last IGF, the following coalitions were listed as active: Stop Spam Alliance, Privacy, Open Standards, Internet Bill of Rights, Access to Knowledge, Online Collaboration, Freedom of Expression, Access and Connectivity for Remote, Rural and Dispersed Communities, Linguistic Diversity, A2K@IGF, Gender and Internet Governance, Framework of Principles, Child Online Safety, Accessibility and Disability and Internet and Climate Change.36 In January 2009, the Internet Bill of Rights and the Framework of Principles for the Internet Coalitions joined forces in what has been re-baptised as the Internet Rights & Principles Coalition,37 whose mission is to:

[C]reate a platform for the emergence and agreement on definitions of Internet Rights (a notion which encompasses all (human) rights on the Internet), an Internet Rights watch (implying the build-up of a repository of precedences and coverage of Internet Rights cases), as well as a means to translate and mainstream these Internet Rights standards into “human readable” standardized formats so users and providers of services become more aware of the rights they have on any given website or when using services.38

The discussion on modalities, time schedule and features of the project is currently open online. Some principles have already been defined between Athens and Rio, such as the multi-stakeholder approach39 and the respect of existing human rights instruments.40 However, there is a common understanding that the continuous evolution of the technical architecture should translate into the flexibility of the Bill of Rights with respect to any pre-existing, predefined model, both structure- and content-wise, in its double challenge of figuring out the best ways to “implement and better define human rights and duties in the Internet environment” and the “areas and types of rights and duties [that] should be part of this work and of its results.”

Immediately after the IGF 2008 meeting in Hyderabad, India, the Coalition created a new website, with the stated aim of building a “stronger alliance with the related IGF coalitions and the secretariat in order to achieve a more prominent position of rights in the IGF agenda and mainstreaming human rights in the everyday work of the stakeholders.” The new online environment is part of a larger marketing of the initiative to the public, as well as a facilitator for content contribution by the potential subjects of the IBR. While it seems clear that the road towards the Coalition’s final goal is still long, its quest to increase its legitimacy as a proponent of a crucial issue, as well as its efforts to reinvent and update itself, are equally noteworthy.

Interestingly, the nexus between rights, principles and the Internet seems to be the subject of increased attention in the early phases of the preparation of the IGF’s fourth meeting, to be held in Egypt in November 2009. The post-Hyderabad Synthesis Paper reports that “[r]ights and the Internet was recommended as the overarching theme” for the Egyptian meeting, so as to “clarify and attempt to reach consensus on how rights with respect to the Internet were defined, and how they relate to pre-existing definitions of human rights.”41 The meeting of the IGF Multistakeholder Advisory Group held in February 2009 does not appear to have built on this recommendation (“Internet rights and principles was another proposal for an overall theme, but the view was held that this would be too specific”).42 This does, however, further confirm that the interest in the issue and the perception of its importance are present in transnational and international discussions and, maybe, a guarantee of the fact that the IBR proposal will be thoroughly reviewed and assessed.

6. Concluding Remarks. The Future of the IBR Proposal

This article has outlined the current state of the proposal for the creation and adoption of a Bill of Rights for the Internet, with a special focus on the rationale behind it as well as its promises. This concluding section is, instead, aimed at pointing out its challenges and limits, which are not to be overlooked for an impartial assessment of its likelihood of success.

6.1 Possible?

First of all, there is the question of whether creating an IBR is possible. The objection to this is that the affirmation of the need for public regulation(s) collides with the planetary character of the Net. This eliminates the possibility to individuate one and only regulatory authority or body. But even discarding unlikely options like a single state or organisation, who would be – if someone has to be – the creators and “owners” of an IBR? Existing intergovernmental organisations, like the United Nations, would probably suffer from the same in-built unbalances, occasional lack of credibility and problems of enforcement that the organisation has recently faced in other domains. The signature of a baseline treaty by all, or an overwhelming majority of, countries in the world seems an unlikely outcome, and an impossible one to enforce, especially if the ratification process is to happen outside existing institutional settings.

What IBR promoters see as the alternative way to go, the multi-stakeholder approach – and its chances to preserve the open and public nature of the Internet, safeguard citizens’ access to online services and foster their effective, practical and agile participation – is an interesting one. It is, however, currently showing its flaws alongside its potential, even in the most prominent examples of its application, like the IGF.43 Can it be successfully applied to the case at stake? How would this be carried out in practice? Such questions have not yet been answered satisfactorily.

6.2 Needed?

Second comes the question of whether an IBR is needed. According to the most “libertarian” voices, the Net is in itself endowed with features that enable it to maintain its overall condition of openness in face of and for a variety of actors, contents and forms of knowledge organisation. Given freely, collective contributions make possible the establishment of equally accessible, democratically organised online resource, that overcomes the barriers posed by other forms of communication (“interpret censorship as damage, and route around it”)44 and increase the possibility of a collective critical evaluation of information. There has never been a moral structure or culture to the Internet, and it is useless to try and artificially create one at the present stage.

According to this position, what is needed is rather a bottom-up “self-enforcement” of good practices: the construction of user awareness vis-à-vis the machines they own, what they can do, how they can be exploited if taken over – and a consequent shift to an increased attribution of responsibility to oneself as a user in the first place.

So, why not let the Internet decide for itself? The response of the Bill’s promoters is that the Internet is too much of a reality on the move to argue that its natural, sine qua non condition of space of freedom can only be safeguarded if no regulation is established at all. The very natural freedoms fostered by the evolution of the Net are in parallel leading to an increasing number of initiatives and instruments aimed at controlling online behaviours by impeding access, supervising data, filing end users’ profiles – and creating new needs, such as the safeguard of privacy on the net, that were non-existent only a handful of years ago.

6.3 Suitable?

Without detracting from the validity of this point, another relevant issue with the creation of an IBR lies in its suitability as an answer to these types of threats. It is possibly naïve of those I have called the “libertarians” to neglect the control and centralisation drives that are present in today’s Internet; but it might be equally naïve of the Bill’s promoters to underplay a valid counterargument, i.e. that a protection system for the majority of the issues to be covered by the IBR is basically already in place, in a plurality of legal systems and norms (often inherent in technical devices themselves). This system is already difficult enough to sort through and eventually act upon – and in front of it, the proposal of harmonisation with existing human rights instruments, rather than being a promise of increased clarity, seems more like an argument for irrelevancy. Unless it reaches an incredibly delicate balance between local and global, public and private, technical and political, the Bill is constantly risking being turned into the upper layer of this very complex scenario – an all-encompassing container that can, for the same reason, easily become very thin and rapidly fall into uselessness.

A final point of debate concerns the argument that an IBR is needed to counter the progressive exclusion of end users from the possibility to be exclusive managers, through their individual capacities of access and research, of their relationship with the Net and with other users. As of today, the IBR promoters argue, we could not do without forms of mediation such as the Google or Yahoo! portals that organise the enormous quantity of available information and make them, in fact, available to end users. Without them, research on the Internet would be almost impossible, as in an uncharted continent: portals perform the function traditionally fulfilled by libraries and museums, and have probably outgrown their success, but also carry issues of information selection criteria, that are decided by few for the many.

This is hardly deniable: but is a top-down imposition of rules to existing actors necessarily the way to go about it? Maybe not, according to the many “practitioners of the alternative” that are starting to populate the Internet with fully decentralised, alternative search engines,45 social online storage and exchange mechanisms,46 multifunctional platforms,47 mapping utilities48 – with potentially far-reaching implications for a “counter-evolution” of end users as not only producers, but managers and hosts of their own content.

In conclusion, aside and beyond its eventual translation into a regulatory instrument for the rights of Netizens, the IBR proposal opens interesting paths of reflection on the process of identification and recognition of rights, and on the nature of the challenges to citizens’ liberties inside the global technical architecture. Its success or failure are likely to depend on the ability of its proponents to translate the complex balance between existing normativities, current viewpoints and visions of the future, into words and practice. All concerned parties should keep an interested eye on the debate to be carried on within European institutions in the months to come.

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