Internet Governance in Latin America, Part I

The internet began with a strong culture of what would come to be called cyber-libertarianism. The whole story is documented in detail in Fred Turner’s From Counterculture to Cyberculture, but you can get the general idea from the first sentence of John Perry Barlow’s oft-quoted 1996 “A Declaration of the Independence of Cyberspace“:

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.

My oh my, so much has changed. Today John Perry Barlow is making statements like this:

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It’s likely that in 1996 a few important questions might have escaped Perry Barlow, among them:

  • Who is responsible for ensuring that broadband Internet access is made available to all, not just the urban wealthy?
  • Should individuals have a say in how they are portrayed on search engines like Google?
  • Who is to ensure online freedom of expression?
  • Who is to be held responsible for online defamation, especially if it comes from anonymous sources?
  • Who is to ensure the privacy of Internet users?

These issues have become so key, so difficult, that earlier this week Derek Wyatt, founder of the Oxford Internet Institute, announced that he is setting up the “Internet Policy Institute”, a think tank to advise governments about internet regulation and governance. (Interesting tangent: in 1999 another Internet Policy Institute was formed which included the bizarre combo of Jim Barksdale, Newt Gingrich, and Vint Cerf on the board of directors.)

In fact, internet governance is now all the rage. If you’re placed within a particular echo chamber of the internet then not a day goes by where you don’t see a deluge of blog posts, tweets, academic papers, newspaper articles, and op-eds about net neutrality, open access, intellectual property reform, intermediary liability, online freedom of expression, privacy, and anonymity. Two of the leading organizations working on these topics are the Electronic Frontier Foundation and the Center for Democracy and Technology. Older organizations like Article 19, IREX, IFEX, Freedom House, CPJ, and Internews are also trying to get in the mix, as that’s where donors’ money is starting to flow. Here in Latin America there are at least five major non-governmental organizations working on these issues: Fundaçao Getulio Vargas in Brazil, Derechos Digitales in Chile, the Center for Studies in Freedom of Expression and Access to Information and Fundación Vía Libre in Argentina, Espacio Público in Venezuea, and Sociedad Internet de México led by Alejandro Pisanty in Mexico. Surely there are also others, but I am not yet aware of them. (Please leave a comment if you are a Latin American NGO and/or activist working on issues of internet governance.)

Much of the modern movement working on internet governance grew out of the 2005 World Summit on the Information Society in Tunisia. Rebecca MacKinnon – who attended the summit – posted a useful summary that same week of all sides of the debate. At the end of the week a compromise was reached and the non-binding Internet Governance Forum (IGF) was created as a “multi-stakeholder venue” to make sure that voices of NGO’s, citizens, companies, and governments were heard when discussing governance of the internet. (For the record, I throw up a little in my mouth every time I write “multi-stakeholder venue.”)

The Internet Governance Forum has organized major annual conferences in Athens, Rio de Janeiro, Hyderabad, Sharm El Sheikh, and most recently, Vilnius, Lithuania. There have also been a number of regional meetings, mailing lists, social networking experiments, and who knows how many wikis. What has all of this accomplished? Just about nothing, according to just about everyone.

Which has led China to call for its end, the EU to call for a “G12 for Internet Governance“, and the outdated International Telecom Union to claim that they should hold veto power over all decisions made by ICANN, the group currently responsible for managing the internet, or at least how domain names (like http://el-oso.net) are mapped to the IP addresses of the computers that hold a website’s files.

Throughout their countless meetings and mailing lists the IGF has tried to identify the core values, or principles, of the internet that should be protected and regulated. Sometimes these values are enforced by communities like Global Voices, other times by companies like Facebook, and still other times by governments (either through technological filtering or legal decisions in courts).

There is so far little international consensus – or few ‘norms’ – about what principles should be regulated by which groups. Are we comfortable, for example, leaving Facebook to develop its own privacy policy, or do we want courts to enforce certain standards about what information a company can collect from us, and what they can use that information for?

The Internet Rights and Principles Coalition also came out of the 2005 World Summit on the Information Society as an attempt to collectively draft a document that articulates the rights of internet users. According to its many authors – or at least Lisa Horner who is shepherding the whole process forward – the charter is not meant to establish new rights, but rather to apply existing human rights standards and principles to the internet. Which begs the question: What is the existing human right that claims that “the virtual personality of human persons needs to be respected.” (Ie. “Don’t diss my Second Life avatar, foolio.”)

In fact, the “Charter of Human Rights and Principles for the Internet” could also be referred to as the “Charter of Inherent Contradictions,” which is what makes it such a valuable resource to help tease out some of the opposing tensions that represent how different communities would like to see the internet regulated. Before we dig into what some of those tensions are, it is important to make the distinction between negative and positive rights. Put simply, positive rights oblige action (usually from a government) whereas negative rights oblige inaction. For example, most of the rights listed in the Universal Declaration of Human Rights are negative rights – they insist that governments (and others) do not torture, to not obstruct freedom of movement, do not arbitrarily deprive property, do not restrict freedom of expression or peaceful assembly. In other words, negative rights place restrictions on the power of governments . Positive rights, on the other hand, place obligations on governments, and these are clearly illustrated by the International Covenant on Economic, Social and Cultural Rights which places obligations on governments to provide their citizens with social security, employment, food, water, housing, health care, education, and more. The latest and most fashionable positive right – which we will discuss in more detail in the second part of this post – is the right to communicate.

It is frequently said that negative rights promote freedom whereas positive rights promote equality and fraternity. The Charter of Human Rights and Principles for the Internet is a document that insists on both positive and negative rights and, as we shall soon see, that frequently produces inherent tensions and conflicts.

Access to the Internet for All

Article 2B: “Everyone has the equal right to access the Internet. Where appropriate, this includes the right to broadband access.” This places the obligation on the state to provide internet access to its citizens, such as the United States’ National Broadband Plan or Finland’s decision to make broadband internet access a legal right. While everyone agrees that expanding broadband internet access is a net good, many are worried that placing control in the hands of governments potentially gives them more power to control the online flow of information, especially content that is critical of the government. Here in Argentina, for example, the government recently told Fibertel, the country’s largest broadband internet service provider, to halt operations. Fibertel happens to be owned by the Clarin media conglomerate, the country’s most vocal critic of the Kirchner government.

Freedom of Expression and Freedom from Hate Speech

Article 6A claims, “everyone has the right to express one’s opinions on the Internet without interference.” But Article 7B insists, “any advocacy of national, racial or religious hatred on the Internet that constitutes incitement to discrimination, hostility or violence should be prohibited by law.” One person’s opinion is another person’s incitement to discrimination and/or hostility. These two rights are in clear tension if not contradiction. Craig Biddle’s Religion vs. Free Speech is one of thousands of articles that has tried to contextualize the problem.

Defamation Versus Libel Tourism

Article 9D: “No one and no community shall be subjected to unlawful attacks on their/its honour and reputation on the Internet.” However, it’s become clear over the past few years that so-called “libel tourism” has a major negative impact on freedom of expression and critical journalism.

Access to Knowledge and Intellectual Property

The inherent tension of Article 12B should be self-explanatory: “Creators should be remunerated and acknowledged for their work in ways that do not restrict innovation or access to public, educational knowledge and resources.” I hate to be so simplistic, but either content creators make their content accessible for all by not charging, or they charge money and restrict access. More “innovative” business models that track user habits to place targeted advertising are in tension with the Charter’s sections on privacy and freedom from surveillance.

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I could go on listing other contradictions and anomalies from the Charter. For example, who is going to enforce Article 14A, which says that “Workers and employees should have Internet access at their work place, where available”? Or Article 17: “Everyone has a right to access health-related and social services as well as their own electronic health records on the Internet”? How involved do we want our governments in the regulation of our online activities? What if I don’t want my electronic health record on the internet?

These are not easy questions. I hope that this post helped provide some basic context about the current debates and proposals related to internet governance. This week I am in Buenos Aires for a meeting organized by Demos Guatemala and the University of Palermo’s Law School about freedom of expression and internet governance in Latin America. In the followup post I will review specific threats to so-called digital rights throughout the region. I will also take a closer look at Brazil’s Marco Civil, a legal framework drafted by the Ministry of Justice to define the rights of internet users in a way that is consistently enforced in Brazilian courts.

1 Comment

  1. Don’t expect Mr Wyatt’s ‘claimed’ Institute to last anything like as long as the old IPI…

    Reply

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