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The Universal Declaration of Human Rights in the digital Age. Articles 20-21: Freedom of Assembly, Internet Governance, and The Will of the People.
Co-authored by Prof Sam Lanfranco and Klaus Stoll.1
Internet Governance, like all governance, needs to be founded on guiding principles from which all policymaking is derived. There are no more fundamental principles to guide policymaking than the Universal Declaration of Human Rights (UDHR).
This article, Part 7 of a series, looks at Articles 20 and 21 and explores how principles in the UDHR and lessons learned over the last half-century help define the rights and duties of one’s engagement in the digital spaces of the Internet ecosystem.2 The article also begins to explore the demands contained in Article 21 for the authority of Internet governance to be based on the will of the people.
Article 20 deals with freedom of assembly and association.3 Article 21 deals with the right to take part in governance, and the will of the people as the basis of the authority of government. Here we explore what these mean in the context of Internet governance and the challenges for governance processes that embody “the will of the people.”
Article 20:
The human right to physically assemble, carries over to the right to assemble virtually in the cyberspaces of the Internet ecosystem. Assembly means making a connection and interacting for whatever legal reason. Human history is a history of improved human interaction. Gestures became language, which begot writing, allowing communications over great distances. Print turned written communication from one-to-few into one-to-many. The telegraph transmitted print over great distances in real-time, and the telephone made voice transmission possible in real-time. Radio and television opened one-to-many real-time audio and video communication. Each innovation made the world smaller as more and more people could connect and share knowledge and information across time and over longer distances.
Each of these innovations was an aid to assembly, but none was a venue for the assembly itself. The Internet, as the current step in improved communication, is different. It does all these things, and it is also a venue for assembly. With access, people can connect and interact in synchronous and asynchronous time and easily at any distance.
Before this digital venue, assembly and association with a community discussion or governance purpose required considerable effort. There was assembly, campaigns of letter writing, talks, and messaging in newsprint, on radio, or on television. The Internet allows near-instantaneous one-to-one and one-to-many communications. It also allows virtual assembly involving many-to-many and allows it in a planned or spontaneous and structured or unstructured mode.
Many of today’s challenges global (climate change, water pollution, food insecurity, etc.) and can only be addressed through global cooperation. For example, the Amazon jungle influences weather elsewhere, and its forests are major “lungs of the earth,” sequestering carbon and producing oxygen. The ongoing destruction of the Amazon rain forest is a serious threat to the health of the entire planet, and a concern to the survival of humans as terrestrial species.
The Internet and associated digital technologies have expanded human capacity to see, to be seen, to measure what is going on, and to assemble. This capacity has currently run ahead of recognizing our rights to digital assembly, and some of the issues that come with such action.
The UDHR was drafted at a time when newspapers and radio were well established, television was just coming onto the scene, and the Internet as we know it was half a century away.5 While each was recognized as an aid to assembly, none were venues for assembly in the way that the Internet is.
The framers of the UDHR had physical gatherings such as civil, political, and union meetings and events in mind. The drafters of the UDHR could not have predicted the Internet, but their focus was on the right to assembly and association and not on the means through which those took place.
The Internet has become so significant in human affairs that some wish to declare that access should be treated as human right. That risks confusing access to the tools of communication with the right to communication itself. Equally, the Internet is an important tool to better respect and realize human rights, but it is more like the objectives in the UN’s Sustainable Development Goals (SDGs), and not a right in and of itself.6
Connectivity and access have come a long way in less than a fifth of a Century. In 2000 Nigeria had one landline per 200 people, and the US had almost 140 per 200 people.7 By 2020 Nigeria had almost universal wireless access (cell phones) on a per capita basis, as did an estimated 59% of the global population, with access to the Internet in one form or another.8
There are many initiatives to connect the remaining 41 %, reasons such as development, profit, culture objectives and surveillance. Besides infrastructure and economic constraints, there are socio-political factors, such as race, disability, gender, and age that hinder access.
As an overarching principle for those initiatives’ governments should see and declare access as a goal and essential for the exercise of civil rights.
In short, a major reason for the lack of Internet access stems from a combination of a lack of understanding of its role in advancing human development, protecting basic human rights and from a lack of political will or deliberate disregard for fundamental human rights. Many of the socio-economic obstacles to access would not exist if the responsible political and economic powers respected the principles of the UDHR in dealing with specific group interests. As well, initiatives seeking access for the unconnected should be sustainable development goals in support of respecting the principles of the UDHR.9
Among the most important features of the Internet ecosystem is the ability to engage in virtual assembly. Above the other ways that a safe and stable Internet enhances our private lives, access needs to be protected as a civil right for all10
In the absence of global Internet governance structures, governments in collaboration with the private sector and civil society need to protect the rights of access and assembly. As we spell out later in this article, an understanding of the idea of global digital citizenship serves as a navigational aid to national digital civil rights. What is currently lacking is the political will to make policy and carry out implementation in these areas.
Since the earliest days of the Internet, specific interests have tried to prevent, monopolize, or control access. The marginalized were simply left beyond access, either because of economic constraints or because of no attention to “last mile” connectivity.11 Access denial has risen to a political tool and instrument of state repression. In recent times there have been numerous episodes where governments simply turn off access to quell protest, restrict the ability to digitally assemble, or restrict the use of digital access to physically assemble.
Such blockages may be episodic or sustained. 2019 saw 122 major shutdowns in 21 countries.12 Eighteen thousand hours of shutdowns were divided between Internet blackouts (65%) and social media shutdowns (35%) as well as cell phone blackouts. India, for example, imposed over 100 shutdowns in 2019. The most significant shutdowns were in the turbulent Kashmir region, with intermittent shutdowns continuing to this time.13
The right to Internet access has become essential to the right to freedom of opinion and expression, as well as egovernment and egovernance operations.14 Many governments now announce policy decisions using short messaging services such as Twitter, or via social media platforms. A quarter of a century ago, to even suggest government uses of what is now called social media would have been political heresy. Now they are the order of the day.
Without digital access, political movements of assembly like the Arab Spring would not have been possible. Digital technology and infrastructure have become key tools for the self-assembly and self-realization of individuals, groups, and global networks of virtual assembly.
Censorship, or denying access, is more than just the same as burning books. It restricts access to digital knowledge. It closes assembly halls, both big and small, and both global and local. It is not like a loss of access to “books” and the knowledge they contain. It is a lack of access for engagement in the civil and social dialogue that builds the social norms and public opinion that inform public policies and are essential to the fabric of a successful society.
With today’s mobile phone technology, we may wrongly assume that access is no longer a real obstacle, even in lesser developed corners of the globe. We tend to forget that not all access is equal. In extreme cases like Malawi, Benin, and Chad, 1GB of data transfer costs between amounts to four or five days of average per capita income, and more on the part of the poor. In India, that 1GB cost is about 10 minutes of a working day for an average income person. Competition is a significant variable here. Globally and on average, having three networks reduces costs by about 30%, and four networks can reduce costs by 60%.15
There are significant differences in the quality of access. Remote and rural areas, urban slums, indigenous/tribal lands, areas where the poor and marginalized live, have access, but quality and bandwidth are low and prices high relative to local incomes. Short messaging services (SMS), ring tone counts, and other strategies are used to reduce the impact of these constraints. Still, they are more binding as uses move up the digital ladder to online commerce, engaging in education, or engaging in digital assembly.
Overlooking the fact that IT demand is created by availability, governments and telecommunication companies still argue against infrastructure investment by arguing that there are “not enough customers and demand in the area”. There is an asymmetry here, with always enough bandwidth available to police and authorities to suppress the right of assembly of the poor, but not enough to allow the poor to assemble, gain and share knowledge. Access is necessary to create and use digital opportunities, to engage in human development, and to protect one’s digital, civil, and human rights.16
Access to Cyberspace, even on favorable price and bandwidth terms, does not mean freedom of digital movement and digital assembly, or the protection of digital, civil, and human rights. Access to digital apps, especially those of social media, if free, means that one is not merely a user. One, or rather one’s assembled data, is a product to be sold as part of a digital business strategy. Access services always demand that users agree to terms and conditions of use that are not fully understood, that can be contrary to one’s own self-interest, and can border on violations of one’s human rights.
In social media, one is basically allowed to associate with friends and family online in exchange for the use of everyone’s data and intrusions into everyone’s privacy. Think of one’s presence on the Internet as a form or residency inside the Internet ecosystem. The current terms of access can be viewed as an abuse of the rights of digital citizenship and abuse of one’s human rights through actions in the digital space.
There is greater attention to how terms of access and digital business practices impact individuals, but they also impact private sector companies. Increasing attention is being paid to the integrity of digital business practices along entire supply chains. Companies seeking digital integrity may be held accountable for the digital practices of their suppliers, or downstream customers, much as clothing retailers are increasingly being held accountable for textile workshop conditions, and the fate of used clothing. This is a growing area for “trust” and “integrity” marks such as are being used in the marketing of “Fair Trade” coffee. Restrictions on workers’ rights to digital assembly, along the supply chain, may be factored into the digital integrity of a downstream company.
This is further complicated by the gross imbalances of power between companies in the Internet ecosystem. Companies may find themselves in situations where they must agree to conditions that might be against their interests, against the interests of their customers, against the interests of others elsewhere in the supply chain, and against the interests of society at large.
Repressive governments have closed off access to social action and digital assembly by passing legislation requiring non-profit and civil society organizations to be registered to have websites, own domain names, and engage in digital assembly. This is followed by delisting non-profit and civil society organizations, on some pretext, and then terminating their digital existence. Such strategies are also used by governments in the name of public safety. Such moves effectively violate the digital right to expression of opinion and virtual assembly.
The second part of article 20 states that no one may be compelled to belong to an association.
Article 20: (2) No one may be compelled to belong to an association.
Sometimes an individual is required to join a professional association, such as doctors and lawyers, to ensure standards of performance. Increasingly elements of one’s scope of practice are monitored or enforced via online processes. Translating such requirements and regulations to the digital venue should involve engaged consultation and bring no undue complications.
Employing Artificial Intelligence on the vast collection of tagged data stored in the cloud, companies and governments can assign individual persons to digital groups, cohorts, or associations, without knowledge, consent, recourse to action. This can be for digital business practices, for digital governance, or for political purposes. This area of “forced digital association, or assignment” is fraught with risks and problems. This happens without a person’s knowledge, and such algorithmic judgments, possibly in violation of one’s human fights, can decide who receives credit, goes to jail, or gets the job.17 This issue of “forced association” needs further research and attention.
Human rights are not absolute and boundless. They are balanced against the rights of others. The UDHR adds the additional qualifier of “peaceful” to “assembly and association.” In the context of the UN, ‘peaceful’ is defined as the absence of war based on international law.
What does “peaceful” mean in the context of behavior and content on the Internet? Peaceful assembly and association on the Internet have to do with other than war. The uncertainty around this is reflected in social media’s initial attempts to come to terms with false postings, abusive postings, and postings that might promote violence. This is an area ripe for intense research and dialogue to reach a social consensus around public policy, digital business practices, acceptable social norms of behavior, and the appropriate list of acceptable corrective measures.
It is important to recognize that ‘peaceful’ is not just the absence of physical violence. Many forms of violence exist that are not physical but mental and psychological, and they may target the individual, the group, or the social fabric of society. The Internet is a rich venue for forms of nonphysical violent practices such as online bullying. It is a venue for false news and conspiracy theories that damage the social fabric and social contract. Persistent abusive and criminal activities such as phishing, viruses, and such intrude into one’s privacy.
In 2020, the world was at an interesting place when it comes to the right of assembly. For health reasons, the COVID-19 pandemic has forced authorities to limit the right to literal assembly. Literal Assembly has become subject to public policy since it is perceived as a danger to the public good. At the same time, the services of the Internet ecosystem have provided society, businesses, government, families, and individuals with platforms for virtual assembly and with virtual platforms to conduct many aspects of literal life. Within the Internet ecosystem, we have the tools and spaces to assemble without danger. This makes Internet access and digital assembly more important than ever.
The right of assembly to protest peacefully has long been accepted as essential, given the principles of the UDHR. There have been multiple incidents of governments coming down hard, with physical violence, on literal peaceful protests in recent times. At the same time, governments have closed off the Internet and cell phone access in regions where there are peaceful protests, frequently arresting persons engaged in peaceful digital protest. The issue here is how the world moves forward around digital peaceful assembly issues and government actions in restraint of that peaceful digital assembly.
The right to assemble includes the right to deliberate the terms of engagement and the agenda for assembly. In governance, that includes agreeing on a charter or constitution and the establishment of governance mechanisms. To a large extent, this process has not occurred around the rights of engagement, the rights and duties of digital residency as digital citizens, and the current stage of Internet governance. While this is partly attributable to the youth of the Internet, it can still be argued that these failures are shortcomings in applying human rights in the digital sphere or even violations of those human rights.
Digital governance is handicapped when based on processes that ignore the right of assembly in the governance process. Assembly is not only a process to develop policy but also a learning process to shape the social norms that will impact the implementation and effectiveness of policy.
The piecemeal approach to administrative, legislative and judicial force to address violations of human rights in cyberspace, such as the intrusive digital business practices often referred to as “surveillance capitalism,” may pose as many problems as they solve. We are in new (digital) territories here, but the issues and challenges are not new. There is another way, one that uses inclusive dialogue and the right of assembly.
Borrowing from the birth of the United States, when people come to a point where they feel that “We hold these truths to be self-evident”18 regarding the rights and duties of their digital citizenship, the time will have come to establish an Internet Governance that reflects and protects peoples’ human rights within those digital rights and duties. To reach this stage, stakeholder engagement, dialogue and transparency will be key.
While both situations are based on the notion of inalienable rights, there is a key difference between the birth of the United States and the birth of digital citizenship within the Internet ecosystem. The declaration of self-evident truths in the U.S. Declaration of Independence was a declaration in support of separation from England. The self-evident truths regarding digital citizenship and Internet governance have to do with digital inclusion and joining the virtual to the literal.
Policymaking and implementation in responsive and responsible (democratic) governments always reflects a tension between the interests of competing constituencies and involves maneuvers that test the limits of social norms. At the global level, this tension is between national sovereignty and multilateral agreements for a greater common good. One can see how this can be resolved in the examples of the multilateral agreements dealing with oceans and the atmosphere.
The explosive growth of the Internet ecosystem has raised tensions between stakeholders within nation states, between stakeholders across nation states and between nation states themselves. There have been several responses to the domestic tensions caused by this explosive growth of digital practices of business, digital strategies of governments, and concern for the rights and duties of all stakeholders. At one level is legislation like the EU’s General Data Protection Regulations (GDPR).19 At another is the U.S. Congressional hearings where social media company heads are grilled as to company roles in socio-economic and political processes.20 Yet another is the UN’s Internet Governance Forum (IGF) where a multitude of issues of Internet Governance are discussed.21
What is clear is that the globe is on the cusp of constructing Internet governance at every level and that much of the Internet ecosystem is like the earth’s oceans or atmosphere. It transcends national boundaries. While there will be national Internet governance, there will have to be a global agreement on global internet governance. There is a distinguishing, unique property to the challenge of global governance in the Internet ecosystem. Within the nation, state persons are citizens of the state and subject to the rights and obligations of that citizenship.
There is scant national legislation defining national digital citizenship and none defining global digital citizenship, even if the term “I am a citizen of the world” has been around ever since the time of Diogenes. While underdefined, there is a notion of global digital citizenship. One has a digital residency, where much of one’s tagged data is housed in digital server farms (the cloud) and scattered across the globe. This virtual presence [digital residency] is subject to use by others that have a real impact on one’s real existence and well-being.
This will eventually become one’s global digital citizenship, probably within a multilateral framework of Internet governance, and will come to embody digital rights and obligations. The development of a framework of global Internet governance, as well as national Internet governance, must respect the principles contained in the UDHR. Getting there brings us to the subject of Article 21.
Article 21:
Article 21 of the UDHR poses challenges for applying its principles in the context of the Internet ecosystem. Sections 1 and 2 refer to a person’s right to be engaged in the governance of one’s country and to access public service in one’s country. In theory, this is relatively straightforward regarding translating the literal rights and obligations of literal national citizenship to digital rights and national digital citizenship obligations. It is less clear how it will work at the level of global digital citizenship.
Section three states that “The will of the people shall be the basis of the authority of government.” For the Internet ecosystem, there is no global governance structure that can be held responsible for establishing and protecting the rights and obligations of global digital citizenship. As for the mechanisms listed in section 3, there is no entity for carrying out the recommended mechanisms. One possible way to honor the principles contained in Article 21 would be to take lessons from the multilateral agreements relating to the seas and the atmosphere.
There have been efforts to put flesh on the bones of possible Internet governance structures. The UN World Summit on the Information Society (WSIS) proposed the following definition in its 2005 report:
“Internet governance is the development and application by Governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programs that shape the evolution and use of the Internet.”22
Much of the dialogue and discussion is on structures and processes, with only weak regard to the rights and duties of one’s digital citizenship, or reference to the underlying human rights principles drawn from the UDHR.
Some, like law professor Yochai Benkler, conceptualize IG in terms of physical, logical and content layers.23 There are as many definitions and concepts of Internet governance as there are vested interests.
Wikipedia’s entry on Internet governance confuses as much as it illuminates.24 It describes Internet Governance as follows:
“No one person, company, organization or government runs the Internet. It is a globally distributed network comprising many voluntarily interconnected autonomous networks. It operates without a central governing body with each constituent network setting and enforcing its own policies.”
Wikipedia goes on to say:
“Its governance is conducted by a decentralized and international multistakeholder network of interconnected autonomous groups drawing from civil society, the private sector, governments, the academic and research communities and national and international organizations. They work cooperatively from their respective roles to create shared policies and standards that maintain the Internet’s global interoperability for the public good.”
This description is fairly accurate in what it covers but is not adequate in dealing with Internet governance and the rights and duties of digital citizenship, or issues of the integrity of digital business and governance practices.
It refers mainly to the work of groups like the Internet Engineering Task Force (IETF), the Internet Architectural Board (IAB) and ICANN in maintain the stability and security of the Internet backbone and its operational Domain Name system (DNS).25
While sessions like those of the UN’s Internet Governance Forum (IGF) deal with both specific and general governance, rights and duties issues, there is no consensus on how to proceed with global Internet governance or with protecting the rights and duties of digital citizenship, other than some piecemeal approaches.
Much of the discussion around Internet governance embraces the notion of multistakeholder engagement in governance processes. While this can be seen to be compatible with sections 1 and 2 in Article 21. Section 3 still represents a conundrum in terms of a multistakeholder operational role in Internet governance, especially at the global level.
There is no clear or agreed-upon understanding of multistakeholder approaches to governance. ICANN calls itself a multistakeholder organization but its operational structure results in more entitled positions on the part of contracted (DNS) parties and non-contracted (DNS) parties and a weak presence from its civil society and non-profit constituencies. The International Labor Organization (ILO) has a highly defined model of stakeholder participation, with each member state bring representatives of three constituencies (government, industry, labor) to the policy making table. The ILO had no legislative authority, so its policy recommendations are moved forward and become the subject of multilateral negotiations.
Multistakeholder structures suffer from shortcomings. Constituencies are usually financially responsible for their own participation, and this discriminates against marginalized civil and non-profit groups most closely affiliated with the common interest. Stakeholder groups with a substantial financial interest in policy usually have disproportionate leverage in multistakeholder processes. One cannot freely associate if one cannot afford to be present. One cannot be empowered if one does not have the means to exercise empowerment. Lastly, the most powerful stakeholder groups are usually organized around specific interests and not around principles like those in the UDHR.26 Internet Governance should see stakeholder methods as an intermediate step in Internet governance and strive for the association of digital citizens around common values, and not just around perceived status and group interests.
The Internet ecosystem is global. The Internet governance efforts of governments, for the most part, are limited to their own territory. For global issues dealing with the oceans and the atmosphere, this problem is addressed through international treaties and multilateral agreements. In the case of the UN’s UDHR, when states abridge fundamental human rights, those violations tend to generate limited responses, except for some cases involving crimes against humanity.
Governance regarding the Internet ecosystem is particularly difficult for several reasons. There are no natural geographic boundaries for much of what goes on in the Internet ecosystem. Many private sector players enjoy immense financial advantage from unfettered global digital business practices. National governments have been slow to understand the policy issues within the Internet ecosystem. In an era where neoliberal values still dominate, much of the policy that would shape Internet governance remains stillborn.
Civil society plays a marginalized role when it comes to Internet Governance. Governments and the private sector see civil society as either dangerous or pursuing unrealistic objectives. Both feel that their interests in the Internet are too valuable to give civil society much of a role in its governance. As mentioned above, civil society is handicapped in participating through the lack of resources. It is even more important that civil society lacks regional and global organizational structures to bolster its effective participation in Internet governance and educate and be accountable to its base. As a result, participation by civil society is effectively minimal and has the character of a very small fig leave to disguise its exclusion.
Without effective civil society engagement in Internet governance, there are risks to the social fabric, to the social contract, and to acceptable social norms (behavior) regarding our digital residence in the Internet ecosystem. Whether by a structured multistakeholder engagement or other means, it is in the interest of all sectors to give civil society a meaningful role and place in Internet governance development.
There are elements of the Internet ecosystem where some governance exists.27 ICANN is charged with the security and stability of the Internet’s DNS system, and has evolved a multistakeholder model for policy development and implementation. Policies from a demanding multistakeholder working group policy development process get “baked” into ICANN’s contract language with gTLD registries and shape other behavioral norms as they apply to the DNS system. Other bodies, like the United Nations Internet Governance Forum (IGF), explore governance issues and suggest policies at various levels, but carry no policymaking authority.
Various Internet governance bodies cover only certain aspects of Internet Governances. In the case of ICANN, the focus is on the security and stability of the DNS, and ICANN is very vigilant not to engage in “mission creep.” The concern is that this would overstep ICANN’s role and upsetting the fragile equilibrium of powers between larger stakeholder groups. The United Nations bodies have a much broader remit to foster engagement in and discuss overarching Internet governance and policy issues.
The power of Internet Governance bodies, some formulated as “standards bodies,” is based on agreement and compliance evolve from a trade-off analysis by significant players. There are constant attempts to gain more power and to get existing coordinator activities under their control.
A current example is the proposal of Huawei, China Unicom and China Telecom, and Chinas Ministry of Industry & Information Technology, pushing a New Standard for Network Technology, called “New IP”, within the remit of at the United Nations International Telecommunication Union (ITU).28 If adopted, it could replace ICANN and the IETF with a Chinese state lead conglomerate that would also be able to influence the remaining Internet Governance bodies.29
In the context of Article 21.(1) the wording is to “take part in the government of his country, directly or through freely chosen representatives.” Governments will claim that their citizens are fully integrated with global Internet Governance in a representative fashion through their elected representatives, arguing that the UN bases its IG representations on its member states and so by default on their citizens.
From the bodies dealing with aspects of Internet Governance, only four: ICANN, IETF, IGF, and ISOC, permit direct and free participation by digital citizens. This participation takes place under the limitations of multistakeholder engagement, and, in the case of ICANN, digital citizens face further obstacles to having their voice heard.30 As Internet Governance matures the major challenge will be to secure the voice and participation in dialogue and policy development for those voices speaking in the public interest and those coming from the Internet ecosystem’s marginalized communities.31
Part 2 of Article 21 states that:
(2) Everyone has the right of equal access to public service in his country.
Exactly what this means within the Internet ecosystem requires some thought. The right to equal access to public service can be linked to the growing notion that universal internet access is a goal, much like the Sustainable Development Goals (SDGs). Here, even if not taken as a right, equal digital access is taken as a high priority goal, given its integral role in achieving all the UN’s SDGs literally.
The meaning of equal access “to public service” is also unclear. As countries move government services online, one needs Internet access to access those eGovernment public services. Access to public services is an essential element of bolstering the common good. Access and participation by citizens in governance is itself both a public service and a duty. What this means at the global level, with (what) access to (what) services of the global Internet ecosystem, is an area yet to be explored, but all paths rest on universal internet access.
Part (3) of Article 21 deals with the crucial notion of the “will of the people.”
(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
This concept goes back to the (misogynist at the time) thoughts of Jean-Jacques Rousseau, whom we encountered earlier in this series of articles on the UDHR.
“As long as several men assembled together consider themselves as a single body, they have only one will which is directed towards their common preservation and general well-being.”32
He clarifies his understanding in another of his works where he defines social contract as an instrument in which the law is:
“a public and solemn declaration of the general will on an object of common interest.”33
It is the sovereignty authority of the government to create laws. Rousseau and the UDHR argue that all citizens are entitled and charged with participation in law-making, with government officials charged with its faithful implementation.
We will not comment here on the current situation wherein the dialogue preceding law-making increasingly resides with elected representatives, government officials, and special interest lobbyists. Citizens are mainly focused on whom to vote for at election time or distracted by public political discourse levels that are more adversarial than collegial, leading more to confrontation than consensus.
The issue before us here is the absence of a governance structure over the territories of the Internet ecosystem. There are those who call for a global entity, a global state, to administer the governance of the Internet ecosystem, but that a questionable solution with unlikely prospects. It is a bit like the efforts to promote Esperanto as a fabricated global language during the last Century.34
The core challenge is: For the global Internet ecosystem, how does the will of the people get formed, how does it get represented in the rules and regulations, and within the social norms and structures and Internet ecosystem processes?
One approach is to shift the central focus from “what should be the government” to “what principles should govern the rights and duties of digital citizenship” and digital citizens’ engagement and the “will of the people” shaping governance. Part of that path would proceed much in the way that the UDHR has focused on human rights at a universal level, and as leverage on the behavior of the nation state.
Here we will explore the issues around digital citizenship and a global digital citizenship approach to Internet governance. Part 3 of Article 21 poses interesting challenges to the search for governance mechanisms for the Internet ecosystem, challenges that have not been confronted directly. Much of the Internet Governance discussion, for example, in the IGF, and in various national legislative bodies, has focused on specific problems like personal data privacy, registration data privacy in DNS registration data, or transborder data flows.35 A start to a more encompassing view begins with the notion of digital citizenship, and the rights and duties of digital citizenship in the Internet ecosystem.
Rousseau defined a citizen as a person that voluntarily submits to a country’s social contract for the purpose of a lawfully organized social life. Its basis is the common will. This basis is seen as absolute and directed towards the well-being (common good) of the whole people. Each citizen is thus part of a neutral state system that carries out the common will, and at the same time, exercises total control. The problem with carrying out the common will in the Internet ecosystem is that there is no state system, no neutral state system.
The principles of the UDHR include that the will of the people is to be determined by periodic and genuine elections, implying a multi-party polity. Who can vote should reflect universal and equal suffrage and voting procedures should adapt to specific circumstances, as countries have adapted with the advent of the Internet and in the crisis of elections within the 2020 Covid-19 pandemic.
While it is not clear what the path forward is in dealing with a holistic approach to Internet governance, there are lessons from history and contemporary sensitivities that suggest elements of the path forward. They will only be sketched out here and dealt with in more detail at the end of this series of essays on the application of the principles of the UDHR to governance and the rights of duties of digital citizenship (digital presence) in the Internet ecosystem.
There are three challenges at play here. One is the absence of a “state system” to house governance, the other is how to engage the “will of the people” in governance processes, and the last is how to do so with trust and integrity. As this series of essays progress through the UDHR, it will be looking toward the roles of multilateral governance structures, multistakeholder engagement, and the operations of both within the context of the UDHR and the global rights and duties of digital citizenship.
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