The Internet is often portrayed as a disruptive equalizer, an information medium able to directly give individuals access to information and provide a platform to share their opinions unmediated. But the Internet is also a tool for surveillance, censorship, and information warfare. Often states drive such practices, but increasingly the private sector plays a role. While states have a clear obligation to protect human rights on the Internet, questions surrounding the human right accountability of the private sector are unclear. Which begs the question what the responsibility is of the private industry, which runs and owns much of the Internet, towards human rights?

During the 35th session of the United Nations (UN) Human Rights Council this month, David Kaye, UN Special Rapporteur (UNSR) for the right to freedom of expression, presented his latest report [1], which focuses on the role of the private sector in the provision of Internet and telecommunications access. The UNSR on freedom of expression is an independent expert, appointed by the Human Rights Council to analyse, document, and report on the state of freedom of expression globally [2]. The rapporteur is also expected to make recommendations towards ‘better promoting and protection of the right to freedom of expression’ [3]. In recent years, the UNSRs on freedom of expression increasingly focus on the intersection between access to information, expression, and the Internet [4].

This most recent report is a landmark document. Its focus on the role and responsibilities of the private sector towards the right to freedom of expression presents a necessary step forward in the debate about the responsibility for the realization of human rights online. The report takes on the legal difficulties surrounding the increased reliance of states on access to privately owned networks and data, whether by necessity, through cooperation, or through coercion, for surveillance, security, and service provision. It also tackles the legal responsibilities that private organizations have to respect human rights.

The first half of Kaye’s report emphasises the role of states in protecting the right to freedom of expression and access to information online, in particular in the context of state-mandated Internet shutdowns and private-public data sharing. Kaye highlights several major Internet shutdowns across the world and argues that considering ‘the number of essential activities and services they affect, shutdowns restrict expression and interfere with other fundamental rights’ [5]. In order to address this issue, he recommends that the Human Rights Council supplements and specifies resolution 32/13, on ‘the promotion, protection and enjoyment of human rights on the Internet’ [6], in which it condemns such disruptions to the network. On the interaction between private actors and the state, Kaye walks a delicate line. On the one hand, he argues that governments should not pressure or threaten companies to provide them with access to data. On the other hand, he also argues that states should not allow companies to make network management decisions that treat data differentially based on its origin.

The second half of the report focusses on the responsibility of the private sector. In this context, the UNSR highlights the responsibilities of private actors towards the right to freedom of expression. Kaye argues that this sector plays a crucial role in providing access to information and communication services to millions across the globe. He looks specifically at the role of telecommunication and Internet service providers, Internet exchange points, content delivery networks, network equipment vendors, and other private actors. He argues that four contextual factors are relevant to understanding the responsibility of private actors vis-à-vis human rights:

(1) private actors provide access to ‘a public good’,
(2) due to the technical nature of the Internet, any restrictions on access affect freedom of expression on a global level,
(3) the private sector is vulnerable to state pressure,
(4) but it is also in a unique position to respect users’ rights.

The report draws out the dilemma of the boundaries of responsibility. When should companies decide to comply with state policies that might undermine the rights of Internet end-users? What remedies should they offer end-users if they are complicit in human rights violations? How can private actors assess what impact their technologies might have on human rights?

Private actors across the spectrum, from multinational social media platforms to the garage-based start-ups are likely to run into these questions. As the Internet underpins a large part of the functioning of our societies, and will only further continue to do so as physical devices increasingly become part of the network (aka the Internet of Things), it is even more important to understand and allocate private sector responsibility for protecting human rights.

The report has a dedicated addendum [7] that specifically details the responsibility of Internet Standard Developing Organizations (SDOs). In it, Kaye relies on the article written by Corinne Cath and Luciano Floridi of the Oxford Internet Institute (OII) entitled ‘The Design of the Internet’s Architecture by the Internet Engineering Task Force (IETF) and Human Rights’ [8] to support his argument that SDOs should take on a credible approach to human rights accountability.

Overall, Kaye argues that companies should adopt the UN Guiding Principles on Business and Human Rights [9], which would provide a ‘minimum baseline for corporate human rights accountability’. To operationalize this commitment, the private sector will need to take several urgent steps. It should ensure that sufficient resources are reserved for meeting its responsibility towards human rights, and it should integrate the principles of due diligence, human rights by design, stakeholder engagement, mitigation of the harms of government-imposed restrictions, transparency, and effective remedies to complement its ‘high level commitment to human rights’.

While this report is not binding [10] on states or companies, it does set out a much-needed detailed blue print of how to address questions of corporate responsibility towards human rights in the digital age.

References

[1] https://documents-dds-ny.un.org/doc/UNDOC/GEN/G17/077/46/PDF/G1707746.pdf?OpenElement
[2] http://www.ijrcenter.org/un-special-procedures/
[3] http://www.ohchr.org/EN/Issues/FreedomOpinion/Pages/OpinionIndex.aspx
[4] http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf
[5] The author of this blog has written about this issue here: https://www.cfr.org/blog-post/should-technical-actors-play-political-role-internet-age
[6] http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/32/L.20
[7] https://documents-dds-ny.un.org/doc/UNDOC/GEN/G17/141/31/PDF/G1714131.pdf?OpenElement
[8] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2912308
[9] http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf
[10] http://www.ohchr.org/Documents/Publications/FactSheet27en.pdf

The current dominant mechanism for public inclusion is the multistakeholder approach, i.e. one that includes governments, industry and civil society in governance debates. Despite at times being used as a shorthand for public inclusion, multistakeholder governance is implemented in many different ways and has faced criticism, with some arguing that multistakeholder discussions serve as a cover for the growth of state dominance over the Web, and enables oligarchic domination of discourses that are ostensibly open and democratic.

In her Policy & Internet article “Searching for the Public in Internet Governance: Examining Infrastructures of Participation at NETmundial”, Sarah Myers West examines the role of the public in Internet governance debates, with reference to public inclusion at the 2014 Global Multistakeholder Meeting on the Future of Internet Governance (NETmundial). NETmundial emerged at a point when public legitimacy was a particular concern for the Internet governance community, so finding ways to include the rapidly growing, and increasingly diverse group of stakeholders in the governance debate was especially important for the meeting’s success.

This is particularly significant as the Internet governance community faces problems of increasing complexity and diversity of views. The growth of the Internet has made the public central to Internet governance — but introduces problems around the growing number of stakeholders speaking different languages, with different technical backgrounds, and different perspectives on the future of the Internet.

However, the article suggests that rather than attempting to unify behind a single institution or achieve public consensus through a single, deliberative forum, the NETmundial example suggests that the Internet community may further fragment into multiple publics, further redistributing into a more networked and “agonistic” model. This doesn’t quite reflect the model of the “public sphere” Habermas may have envisioned, but it may ultimately befit the network of networks it is forged around.

We caught up with Sarah to discuss her findings:

Ed.: You say governance debates involve two levels of contestation: firstly in how we define “the Internet community”, and secondly around the actual decision-making process. How do we even start defining what “the public” means?

Sarah: This is a really difficult question, and it’s really the one that drove me throughout my research. I think that observing examples of publics ‘in the wild’ — how they are actually constituted within the Internet governance space — is one entry point. As I found in the article, there are a number of different kinds of publics that have emerged over the history of the internet, some fairly structured and centralized and others more ad hoc and decentralized. There’s also a difference between the way public inclusion is described/structured and the way things work out in practice. But better understanding what kinds of publics actually exist is only the first step to analyzing deeper questions — about the workings of power on and through the Internet.

Ed.: I know Internet governance is important but haven’t the faintest idea who represents me (as a member of “the public”) in these debates. Are my interests represented by the UK Government? Europe? NGOs? Industry? Or by self-proclaimed “public representatives”?

Sarah: All of the above — and also, maybe, none of the above. There are a number of different kinds of stakeholders representing different constituencies on the Internet — at NETmundial, this was separated into Government, Business, Civil Society, Academia and the Technical Community. In reality, there are blurred boundaries around all these categories, and each of these groups could make claims about representing the public, though which aspects of the public interest they represent is worth a closer look.

Many Internet governance fora are constituted in a way that would also allow each of us to represent ourselves: at NETmundial, there was a lot of thought put in to facilitating remote participation and bringing in questions from the Internet. But there are still barriers — it’s not the same as being in the room with decision makers, and the technical language that’s developed around Internet governance certainly makes these discussions hard for newcomers to follow.

Ed.: Is there a tension here between keeping a process fairly closed (and efficient) vs making it totally open and paralysed? And also between being completely democratic vs being run by people (engineers) who actually understand how the Internet works? i.e. what is the point of including “the public” (whatever that means) at a global level, instead of simply being represented by the governments we elect at a national (or European) level?

Sarah: There definitely is a tension there, and I think this is part of the reason why we see such different models of public inclusion in different kinds of forums. For starters, I’m not sure that, at present, there’s a forum that I can think of that is fully democratic. But I think there is still a value in trying to be more democratic, and to placing the public at the centre of these discussions. As we’ve seen in the years following the Snowden revelations, the interests of state actors are not always aligned, and sometimes are completely at odds, with those of the public.

The involvement of civil society, academia and the technical community is really critical to counterbalancing these interests — but, as many civil society members remarked after NETmundial, this can be an uphill battle. Governments and corporations have an easier time in these kinds of forums identifying and advocating for a narrow set of interests and values, whereas civil society doesn’t always come in to these discussions with as clear a consensus. It can be a messy process.

Ed.: You say that “analyzing the infrastructure of public participation makes it possible to examine the functions of Internet governance processes at a deeper level.” Having done so, are you hopeful or cynical about “Internet governance” as it is currently done?

Sarah: I’m hopeful about the attentiveness to public inclusion exhibited at NETmundial — it really was a central part of the process and the organizers made a number of investments in ensuring it was as broadly accessible as possible. That said, I’m a bit critical of whether building technological infrastructure for inclusion on its own can overcome the real resource imbalances that effect who can participate in these kinds of forums. It’s probably going to require investments in both — there’s a danger that by focusing on the appearance of being democratic, these discussions can mask the underlying power discrepancies that inhibit deliberation on an even playing field.

Read the full article: West, S.M. (2017) Searching for the Public in Internet Governance: Examining Infrastructures of Participation at NETmundial. Policy & Internet 9 (2). doi:10.1002/poi3.143

Sarah Myers West was talking to blog editor David Sutcliffe.