Let me thank the organisers for inviting me to participate in this day, and congratulate them on their initiative and courage in tackling a very important set of issues.
As Alessandro Ovi said a moment ago, I’m speaking to you today on some legal dimensions of the case for internet access as a human right. I do so not as a university president: in fact, I’m convinced if my colleagues knew I was speaking on any substantive issue by virtue of my standing as a university president, I’d be uniquely unqualified.
It is not in that capacity that I’m here today, but rather as someone who, for a number of years, has been both a student of and a participant of a number of different initiatives designed to mediate between the benefits of capitalising on the ingenuity, the creativity, the efficiency of the private sector, the market, and the need for the government to play a fundamental role in brokering, overseeing, setting the terms of engagement in that context, and seeing that in so many different domains.
Very often, however, particularly on the part of economists, on what the market can do, there is discrediting, or at least a marginalisation of the role government plays in making sure that those remits to the private sector work well. Not only that – this is my bias as a one time law professor – I’m not, I should say, at the outset, a human rights expert, but I am someone who has thought for a number of years about the role that law and legal institutions play in undergirding a lot of these desired changes, and here my argument is that the quality of the institutions, how you think about the role of the state and its institutions, is really important in determining again whether what we are trying to achieve is in fact achieved, or whether you would end up with broad aspirations and no delivery.
So that’s the perspective I bring here today, and I think this is important for the discussion we have today, in thinking hard of the role of the state because the human rights we’re discussing don’t exist, of course, in abstract. They are not freestanding principles. They are designed to operate against states and compel them to act, or to refrain from acting and so, in considering the capacity of the right that we are debating here today, we need to ensure that the state and the state’s role is evaluated in two crucial respects.
First is the right; how is the right going to be designed to compel action on behalf of the state, and what is the actual nature of the action that is being compelled. So again, really focusing on what is the meaning, whether we frame this as a right, or as a claim, or a priority. What is the content of it. And secondly, once we decide what the content of that obligation is, what will be the capacity of the state in question to make good on this new obligation, so again, content and then implementation, and then implementation capacity.
I’m not going to dwell on this in detail, because it has been covered well, I think, in the last several sessions, but in thinking about the content of the right of access, we have to be really precise about what we’re talking about, because when you look at the literature on the nature of those who would advocate for internet access as a right, there are several different things that are being contemplated, and again to the extent that we’re having a normative moment here, we should be really clear about what we’re talking about and be subtle in what it is that we’re claiming. So are we talking about merely the right to connect to the internet? Again, just seeing this as a right of connection? Are we thinking about this, as some scholars have, as a right to be free from disruption of internet access? This right relates to the ability to keep your access to the internet once you’re able to connect, so this is a second order issue. And here you can think of the Egyptian revolution in 2011, when the authorities killed the entire country’s web access prior to a large protest march that was planned, so again the fact that the internet was disrupted in that context: is that what we’re talking about? Third, of course, there are rights to free expression, privacy, and other rights to the content of the internet that of course pertain to what you do online once you are there, and again think of governments that engage in censorship, or surveillance of their citizens’ activities online, particularly in the case of dissidents, and again how does a right operate in those cases. These are concepts that are, in some sense, connected but they are distinct, and I think we should be clear about what it is we are talking about and what context we are talking about.
Once we decide on the stage of connectivity that we’re going to focus on, then there are a whole host of other issues that have been referred to by previous speakers about what this right or claim actually means. Do we mean a right of access of any sort, no matter how slow or ineffective, or are there minimal standards on the speed and reliability of that access? What about the cost? Do we, in fact, mean the right of access to an affordable internet, or do we want to say that individuals must have access to all of the information available on the internet? Or is it sufficient that we guarantee only a portion of that information or that information only in a particular form, perhaps a portion that can be sent for least-cost, as in the zero-rating debate? And while we’re at it, does the right include only the ability to access or read information, or do we want to guarantee the ability to create, engage and produce for distribution on the net? And then, finally, of course, as we define this right, while individuals may have a right to the internet, the question is, against whom is this right exercised? Do citizens have a claim to the internet as against their own government? Is the government obliged only to provide the human right of internet to its own people, or is there some broader obligation, as I sense is very much implicit in some of the things that have been said today, to facilitate other countries in their efforts to provide access to their citizens, and if so, what is the content of this additional obligation? And of course, any time lawyers think about rights or claims, you think, as was said earlier, what are the remedies to enforce these claims or rights.
So all of these things, I think, are quite important in the discussion we’re having, and I think also the connection that a number of the speakers before me have made today, in terms of the normative foundations for this right, and continually coming back to this issue of, given that this is somewhat novel, to be making a rights claim around a particular technology, a means, to use Nicholas Negroponte’s word, what is it that makes this particular technology, this moment, so unique that it actually elevates it to rights status. And again, because we’re having a normative moment, I think the more that we can put flesh on the bones of what we mean and why it’s important, that does a lot of the work, I think, of helping advance the cause, the claims that we are all discussing today.
Let me just, for a few moments, leave aside the nature of the right we’re discussing, and consider the implementation of this right, and this is a complicated issue from the outset, because again human rights operate against states, that is, a citizen does not have a right to compel a private communications provider to act, but of course the implementation of the right to the internet will not only involve states, but a wide range of other actors, most prominently a range of private companies, all with different interests. And so when we pivot from rights, definition of rights, to implementation, we need to widen our lens, and while we do so, consider what roles states must play in the implementation of the human right, what role should states play and to what degree should they simply seed their terrain to other actors. And one thing I think is helpful, at least for me, in thinking about these types of issues, and thinking about the role of state and market participants, is why haven’t states and many jurisdictions acted to implement this right, to advance this claim? What are the barriers? Why do we need a new right at all? And here, just very quickly, this raises a number of issues. Is it resources? Is it simply that the state does not have the capacity to adopt the right in the manner suggested by its proponents? And it’s not just a question of resources in absolute terms, it may also be framed in relative terms. One might argue that states can certainly provide some level of access and so the real reason for failing to provide access is disinclination, that the state simply refuses to prioritise the fulfilment of the right. Well-intentioned states may decide, given their stage of development, and confronted by other demands from their citizenry, for health care, for education, to shelter, to safety, that this is not the most compelling priority for the state. That is a legitimate process one can imagine in a number of different contexts, but of course there are other cases that are far less legitimate, and raise questions about those states who are seeking to limit political and civil liberties of their citizenry, and that a reason why even in the presence of resources they could have to deploy to this priority, they choose not to.
Let me just go to a third issue, which I want to close out on, because I think it is so important for this discussion, and again something that in my years involved in various regulation or de-regulation privatisation-related endeavours is important, I think, to bear in mind. Ultimately we have to think – even in a setting where you have a strong state inclination to act, and there is some level of resources they could mobilise to act – that there are still very significant and daunting questions, as many people in this room, of course, will know, and are far more learned on this that I am. That is, the state’s capacity to discharge its various public obligations and overseeing, supporting the creation of these rights to access. Again, here I find very often there is a sense to see market solutions as being almost something that happens spontaneously, and the states just get out of the way, but the truth of the matter is that there are so many deep issues that this right, claim, will raise that require state capacity to sort out. The state is going to need to figure out what are the ground rules for entry by the private sector if they decide to rely on the private sector to deliver the right. Will the state promote competition and open access or will they oppose it in some parts of the network, whether downstream access to consumers, or barriers to entry? What are the bases on which those barriers will be erected? Will domestic suppliers be favoured over foreign ones, or will consideration of financial capacity and technical expertise and innovative capacity prevail? Will the state favour an open and transparent regulatory structure, or will it give in to corruption and backroom deals? How do we address endemic concerns over complex contracts and bids, and compliance in how the bids are awarded and monitored and what obligations the state imposes on those bids? Years ago I spent a fair amount of time looking at the context of both the developed and the developing world, a lot of the enthusiasm that then existed in the first wave of public-private partnerships, and again there was that moment of “don’t worry, the state just has to have a much more marginalised role and the private sector will take care of itself”, but it turned out again that the failure to understand the centrality of public goals, values and the role the state meant that a lot of those first ventures that got off the ground discredited the state and ended up creating very significant public backlash.
With all of this said, let me just then close out on a few themes. One is that given that this is, as I referred to a moment ago, a moment when we understand what we’re doing here today about creating norms, and asserting the case for norms, I keep going back to what is it that is distinct about this technology in this moment that justifies accelerating or heightening the value of this particular claim. Again, I think that there is lots that I have heard today in terms of this as a technology that allows for production and consumption, this is a technology that is so critical in terms of rights of livelihood, of education, political and civic participation. As we defined the right, one of the issues I think is really important for us is not to feel duty-bound to end up with a short, sort of assertion, just a sound bite, but rather I think, if this is a day in which we have all of these various perspectives, that we should take this opportunity to argue for the right, or the claim, however it is declared, with some subtlety. That is to say, as Jeffrey Sachs so poignantly remarked a few moments ago, this is a technology that is incredibly powerful and is related to a number of core human rights that have long been recognised. It is, in some sense, a derivative right of a number of other claims that we have, but so too this is a technology that, as we have seen, whether we are talking about the American electoral process, whether we are talking about human trafficking as referred to earlier, whether we are talking about distribution of opiates, or whether we are even talking about the capacity to engage in a level of ethnic cleansing and genocide that I dare say will be almost inconceivable without this technology. There is a dark side here that we must worry about, and again, I think to the extent that right from the get go, we are acknowledging the kinds of benefits that we seek to achieve through this, its important for us to be very attentive to the downside risk, and to make it clear what we’re not advocating for.
Let me finally say that – as hopefully was clear from my remarks –in thinking about this right, and again there are a lot of people here who have done some amazing things with technologies in broadening access, I understand the thrall of this, but I still don’t think it is easy to side-step or marginalise the state. Even the idea that we would be able to put up satellites, or balloons, whatever, in celestial space, and imagine because that is out of the strict and longstanding legal criteria for state jurisdiction, doesn’t mean the state is going to go way. The state is a critical participant in this, and I think that we have to think a lot, as this right or claim gets operationalized, about how do we make states capable of dealing with all of the subtle and complex issues that they are responsible for mediating in discharging these responsibilities. Again, I think this is a strong case for how we can seek transfer expertise, technical support, best practices that become an important vehicle for states who ultimately are the target of this right or claim, to properly discharging their responsibility.