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Where We're Going: Leviathan or Golem?

Roy Balleste

It is dangerous to be right in matters on which the established authorities are wrong.1
—Voltaire

The Internet never ceases to fascinate. I am referring not to its content, but to its governance. The IANA transition is the latest example in a world of interesting possibilities. At the core, we find ICANN, and that is why we need a Human Rights Advisory Committee. Any future model, with or without the NTIA, needs to seriously consider this option. But I prefer the hard truth over my own ideals. Maybe this idea will be dismissed, simply because human rights are discussed as some kind of inconvenience. Perhaps these standards of conduct are misunderstood. Underneath the wrangling and demands of various stakeholders for control, the process must burrow deeper, and consider suspect any discussion that excludes recognized principles of human dignity. The present governance structure needs reform, because it is ill-suited to defend the social process.

Most users of the Internet live their lives under the assumption that the protection of human rights is always a guarantee. But the truth is the opposite. The notion of the social contract should be at the core of the discussion, but that seems surprisingly difficult to reconcile with regard to the Internet. It is difficult to grasp why human rights have become such an ugly concept when analyzed from the point of view of Internet governance. This is the greater challenge that the ICANN's Ecosystem needs to tackle. There is an erosion of online human rights and freedoms. The assurance that Internet users can continue to enjoy the Internet is in jeopardy. In order to also approach the challenges of cybersecurity and find a pragmatic solution, we must first be confident in the protection of human dignity. For this reason, all stakeholders must promote the protection of human life, online and offline.

Time is of the essence. We still have time to make a difference. "Hell is truth seen too late."2 This is not about the interests of various stakeholders in the ICANN Ecosystem. This is not about a broad or narrow focus on rights. This is about remembering the inconvenient reality that human rights still matter. It is better to face that reality. Those rights are innate to all humans. They are not hypothetical concepts that need to be considered acceptable by any given stakeholder. Instead, they are inviolable. This also means that it is the nation-state that ultimately must prove its legitimacy as a good steward and protector of the Internet. Indeed, "we judge the legitimacy of a government by whether it lives up to the international standards of human rights," as delineated in the International Covenant on Civil and Political Rights.3

The citizens of the Internet community are not naïve, even those with ideals. We, as Internet users, give up some of our freedoms and, in return, the social contract should protect a set of values that, when considered together, increase the potential for a dignified life. Indeed, all actions taken to reduce security risks rely on the premise that governments will be the equalizers of fairness. For this reason, all stakeholders, particularly governments, must promote the protection of human life and happiness, and not the destruction.4 Each nation, group, and individual may be a participant in the development of Internet governance, and each can participate in the process, to reaffirm its legitimacy. This legitimacy, I emphasize, is the sine qua non of freedom, the necessity of a special "stake" that qualifies the stakeholder to share in the management of the Internet. The stakeholders, governments in particular, should stand as trustees for the world community. The legitimacy of any government and any institution is demonstrated by how it protects the people it claims to serve. Regardless of how narrow the scope of work, human rights considerations will always be unavoidable.

Will we be swallowed by the Leviathan or protected by the Golem? I remember growing up thinking about the American Gemini spacecraft and a future of space exploration. It was an age of dreams and a new age of discovery catapulted by the use of computers. But humanity stopped dreaming, and it seems that cyberspace has now become the new dream to be destroyed. May be one day, we will escape the greedy nature of the human heart on our way to the stars. Still, it is not too late. We still have time to make our world better. The Internet can be a facilitator of that goal. It can be a facilitator of hope, a ground for dreams, and a catalyst for a better future. We still have a chance to provide progress for the benefit of humanity.

1 The Concise Columbia Dictionary of Quotations 81 (Robert Andrews, ed., 1989).

2 Thomas Hobbes, Leviathan (1651, 2011).

3 Lung-chu Chen, In Affectionate Memory of Professor Myres McDougal: Champion for an International Law of Human Dignity, 108 YALE L.J. 953, 956 (1999).

4 Thomas Jefferson, To the Republican Citizens of Washington County, Maryland, March 31, 1809. See, John Bartlett, Familiar Quotations, 389 (1980).

By Roy Balleste, Professor of Law & Law Library Director
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Well articulated, thank you Gabriel Levitt  –  Dec 10, 2014 11:53 AM PDT

Hi Roy -

Your piece is borderline brilliant. Thank you for taking the time to write it. I hope you will turn your attention to this topic in the context of human rights and online access to medicines: http://www.ohchr.org/EN/Issues/Development/Pages/AccessToMedicines.aspx.

I wrote about this recently in a blog post that doubled as a letter to the ICANN community and the people I met while I was in LA: http://pharmacycheckerblog.com/icann-and-online-pharmacies-nabps-scheme-for-pharmacy-is-not-whats-best-for-global-consumers.

Hope to be in touch soon.

Gabriel Levitt
PharmacyChecker.com

An important dimension to all Internet policy Nick Ashton-Hart  –  Dec 24, 2014 1:38 AM PDT

Dear Roy,
I read your post with interest. As I follow Internet policy across the international system in Geneva I'm very aware of the human rights dimension.
I'm afraid I must disagree with your argument that ICANN needs a human rights body; that would be duplicative of those that already exist and have the mandate to address the subject. ICANN could - and should - have a relationship with the UN Office for the High Commissioner for Human Rights and ensure that the work of the HRC and the other treaty bodies on online human rights - which is extensive and growing - is seen within the ICANN context and taken into account. Vice-versa, there are mechanisms for the work of the High Commissioner and the treaty bodies to take note of activities that are relevant or impact human rights in other contexts, and ICANN and/or its communities could certainly ensure that this happens.
There is international agreement that human rights apply equally online and offline. Your point about the many bad trends online with respect to observance of those rights are well taken, but ICANN is not the forum to deal with them; its mandate is too limited, and moreover, as mentioned, there are many better places where the Internet dimension to human rights is dealt with or needs to be.

Regards, Nick

Advisory Committee Roy Balleste  –  Dec 26, 2014 7:23 AM PDT

Dear Nick,
I appreciate your comment.  Indeed, the work of the UN Office of the High Commissioner for Human Rights is admirable.  The UN human rights protection system is key to the ongoing internet governance discussions.  I do not advocate a human rights body per se for ICANN.  I do advocate for an advisory group, analogous to the others that already exist within ICANN.  Any debate to control a particular environment is directly related to human endeavor.  The importance of the individual human being is at the core of this debate.  Unfortunately, the process of international human rights law is imperfect and to the disadvantage of the main Internet user: the individual.  There is more to the work of ICANN that falls outside its perceived narrow mandate.  Now that we are experiencing the IANA Transition, ICANN will have a higher responsibility.  The United States government has already stated that a true multistakeholder entity rather than a multilateral body will be the future of the management of the Internet.  The future of human rights in the Internet could not and would not rely completely on UN mechanisms.  We can agree to disagree.
Regards, Roy

Thanks for the thoughtful reply Nick Ashton-Hart  –  Dec 26, 2014 1:23 PM PDT

Dear Roy,
Indeed we can agree to disagree. I think you'll find that the ICANN reform processes will not result in an expanded mandate - in fact, it has been repeatedly stated that an expanded mandate is not 'in the cards'.

I certainly welcome anyone pointing out the importance of human rights and the need for HR to be recognised fully in the online environment.

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