You’re Out, 3-Strikes!

So the UN Special Rapporteur for Freedom of Opinion and Expression, Frank La Rue, dropped the human rights hammer this week on ‘3-strikes’ laws — laws that mandate internet disconnection as a penalty for online copyright infringement.  His report is one of the strongest official statements yet to describe Internet access as part of a fundamental right to expression that supersedes intellectual property rights:

The Special Rapporteur considers cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, to be disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights.

Even if nobody outside the UN knows what the ICCPR is, the symbolism here is potent and a sign of the emergence of a richer rights discourse around Internet use.  Richer, that is, than the existing rights discourse, which built almost solely around copyright claims.  The La Rue report is evidence that that larger repertoire of rights language–including freedom of expression, privacy, and more diffusely articulated civil and economic rights–is finally being brought into play.  And the report also illustrates some of the limitations of that repertoire.

Much of the coverage of the report focuses on the 3-strikes pronouncement, which is particularly stark because 3-strikes violates what La Rue characterizes as a basic right to access.  But in fact the report gives more attention to other issues, notably that of protecting internet intermediaries from liability–not just for infringing content but also for potentially offensive or dangerous speech.  In fact, the report argues that freedom from liability has been the key condition of innovation on the Internet:

The range of services offered by intermediaries has flourished over the past decade, mainly due to the legal protection that they have enjoyed from liability for third-party content that Internet users send via their services. However, the Special Rapporteur notes that in recent years, intermediaries’ protection from liability has been eroding.

La Rue is somewhat less clear on what constitutes an appropriate level of protection from liability, citing ‘notice and takedown’ procedures like those in the US, while also noting their potential for abuse and the need for adequate remedies for the unjustly accused.  But he argues strongly that the only legitimate restrictions on such speech are those that come from the state–from court rulings rather than, say, preemptive compromises to avoid litigation.

In addition, while States are the primary duty-bearers of human rights, the Special Rapporteur underscores that corporations also have a responsibility to respect human rights, which means that they should act with due diligence to avoid infringing the rights of individuals. The Special Rapporteur thus recommends intermediaries to: only implement restrictions to these rights after judicial intervention; be transparent to the user involved about measures taken, and, where applicable, to the wider public; provide, if possible, forewarning to users before the implementation of restrictive measures; and minimize the impact of restrictions strictly to the content involved. Finally, there must be effective remedies for affected users, including the possibility of appeal through the procedures provided by the intermediary and by a competent judicial authority.

Although the report talks about the responsibilities of intermediaries to defend freedom of expression, it goes to lengths to reaffirm the centrality of states as the main protagonists in this conversation.  States, in this context, are both the guarantors of freedom of expression and the main threats to it.  By extension, the central drama is that between citizens and governments, now carried on through the struggle to appropriate the new technologies of expression and communication.  This is a Chinese censorship and Arab spring centered view of power and the Internet.

Such struggles are enormously important, of course, but they also send us toward a very traditional view of freedom of expression, rooted in a post-WWII western rights discourse that viewed the authoritarian state as the fundamental threat.  A bundle of expression-related rights followed from this view of the protagonists: freedom of the press, freedom of information, freedom of opinion–all universally conceived but also strongly mapped onto east-west conflict.  A whole ecology of rights organizations emerged to defend and reinforce these rights–with the ICCPR covenant itself as one of the early achievements in 1966.

These negative rights–these freedoms from coercion of different kinds–are often described as first generation rights.  The emergence of a positive right discourse around social and economic issues–advanced initially by socialist block countries but later reformulated by developing countries in the 1970s and 1980s–is often described as the ‘second generation.’  In the area of freedom of expression, this second wave most commonly includes rights to access communications as a practical, material reality–not just a notional freedom.  The La Rue report squarely embraces these first and second generation traditions: a basic right of access to content is opposed to censorship and filtering; and a basic right of access to the Internet is opposed to efforts to restrict it (3-strikes).

La Rue also does some pioneering conceptual work in pulling the secondary liability of internet intermediaries into this framework, roughly setting up “intermediaries” in the privileged information-sharing role formerly reserved for “the press.” But, while recognizing that this report is closer to an occasional paper than a formal, exhaustive statement, it’s worth noting a few of the things the report doesn’t do–especially where these seem symptomatic of the limitations of the dominant rights-based approach.

Like most other products of post-war rights discourse–and like many more recent UN initiatives–the report doesn’t engage the growth of private regulation of speech through intellectual property rights (IPRs), except to admonish governments from engaging in the two classical abuses: censorship and denial of access.  As I put it in a report for the Ford Foundation (which I’m resurrecting from 2007, with apologies for abbreviating freedom of expression as FOE), this works well for the traditional state bad guys, but has less and less purchase on how speech is actually shaped and constrained through the market:

IPRs are the legal framework for a system in which the marketplace rather than the state plays the primary role in empowering and limiting opportunities for expression. IP regimes define the relationship between creativity and the marketplace, and through that process play a fundamental role in expressive culture. Copyright, trademark, authors’ rights, and other IP instruments determine the legal meaning of such basic issues as originality, sharing, and ownership. As public culture increasingly becomes commercial culture, IPRs become primary determinants of the substantive meaning of FOE—affecting not a person’s absolute rights to speak, but more fundamentally his or her practical capacity to draw on, comment on, and innovate with the expressive work of others. IP, in this context, is a framework for sustaining creative expression through the marketplace, but it also creates a space in which concentrations of market power can become obstacles to expression.

Here the primary danger is not state power but the growth of a regulatory framework that overwhelmingly favors corporate control of the materials of expression. IP regimes have expanded in recent years through a remarkable process of regulatory activism, driven by the conflation of developed-country corporate and state interests around the goal of stronger IP rights. Expansion, in this context, refers to both the strengthening of existing rights and the creation of new rights governing uncommodified aspects of the creative process. The number of venues and organizations involved in IP governance has also grown, as corporate lobbies and now public interest advocates test the efficacy of the different jurisdictions in contact with IP policy.

Put differently, it’s an easy ICCPR rights call when the state squeezes web intermediaries to censor speech.  It’s a tougher call when content owners pressure intermediaries to censor content within a framework of private contracts and threats of expensive litigation.  Put differently, the report doesn’t really acknowledge the shift in the power to shape speech from public to private actors or try to develop an adequate language for it, except through efforts to reassert the primacy of the state.  And perhaps symptomatically, it doesn’t discuss the principles of regulation that do recognize a need to balance the unequal playing field between concentrated private power and citizens’ capacities to enjoy the full capabilities of the Internet:

  • net neutrality, which has arguably played the central role in discussions of free speech and the Internet in the US and increasingly Europe. And
  • limitations on copyright, on which another classic but chronically underdeveloped right increasingly depends: the right of everyone “to participate in the cultural life of the community” (UN).

The La Rue report is a very interesting and powerful effort to extend existing freedom of expression discourse to the range of opportunities and tensions that define Internet use.  Its traditionalism may be the best counterweight to the prevailing effort to view IP rights as the only rights at stake in how we regulate the Internet.  But it is hard to have an adequate discussion of these issues while trying to avoid naming the protagonists.  So far, the UN can talk about overreaching public power.  It can’t discuss overreaching private power.

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ps. If it’s not obvious at this point, I think that Internet access will increasingly be recognized as a ‘fundamental’ right that trumps consumer-level infringement of IP rights.  From a study of broadband adoption in low income communities that we conducted last year for the FCC:

The social function of the Internet has changed dramatically in recent years. What was, until recently, a supplement to other channels of information and communication has become increasingly a basic requirement of social and economic inclusion. The reasons are simple, though often not visible to those who take Internet access for granted. Educational systems, employers, and government agencies at all levels have shifted services online—and are pushing rapidly to do more. While this is, in most contexts, a boon for the well connected and a cost-saver for institutions, it has also raised the costs of digital exclusion for low-income and other vulnerable populations, who often lack regular Internet access, Internet proficiency, or both. It also increases the demands on those organizations, such as libraries, that provide a disproportionate share of the broadband infrastructure and support services for these communities. The economic crisis has increased the pressure on all sides of this information ecology—forcing families to drop high-cost home services, forcing cutbacks at libraries and other community providers, and pushing new groups into contact with social services, online job markets, and other Internet-mediated social and economic networks. For low-income people of school and working age, access to the Internet is not a choice: it is a necessity, shaped by a complex array of barriers to access.

 

pps.  I’m also going to use this post as an excuse to dump some more of this Ford report onto the web.  The full version is basically an account of Ford Foundation’s history in regard to freedom of expression.  I argued that Ford’s investments in freedom of expression closely track this narrative, beginning with (1) investments in traditional state-focused FOE advocacy in the 1950s; (2) adding investment in a non-commercial broadcast media sector in the 1960s-1970s–notably by building public broadcasting in the US and funding content production for it; and (3) ending, in 2007, with what was at that time a largely unresolved effort to reconstruct investments in the new generation of regulatory and access questions.

Contemporary discussions of FOE remain strongly shaped by the international rights frameworks of the post-WWII period, in which diverse strands of liberal democratic thought were combined into a powerful—if also unwieldy and incompletely realized—rights framework. Postwar FOE was grounded in the fundamental challenge of monitoring state power, with particular reference to authoritarianism, but it also included concepts of collective cultural identity and notions of personal dignity linked to individual expressive capacities. This encompassing set of claims anchored arguments that FOE was a fundamental human right that enabled other rights. Postwar conventions on human rights largely adopted this view. Beginning in the 1940s, FOE was written into the foundational international rights statements, including the Universal Declaration on Human Rights (1948) and the later International Covenant on Civil and Political Rights (1966).

In the postwar era, FOE activism—both on the part of state and civil society actors—was strongly inflected by cold war tensions and the question of authoritarianism. FOE discourse
in the West was oriented around questions of censorship, state control of the press, and the physical safety of journalists and political dissidents. Associations of journalists, human rights organizations, private foundations, and other NGOs engaged in extensive efforts to defend these rights through monitoring, publicity, and persuasion. They emphasized the development of legal frameworks that could secure the independence of the press and the mass media in its diverse social roles and its independence from the state.

….
This civil and political conception of FOE is protected in all international and regional human rights treaties, starting with the foundational postwar rights document, the Universal Declaration of Human Rights (UDHR, 1946). The now canonical Article 19 outlines the predominantly individualistic, political view of expressive freedoms:

Everyone has the right to freedom of opinion
and expression; this right includes freedom
to hold opinions without interference and
to seek, receive and impart information and
ideas through any media and regardless of
frontiers.

Despite the simplicity of Article 19, the UDHR did little to clarify a range of other social, economic, and cultural rights claims, from the right to work and equitable pay, to the right to participate in the cultural life of the community. Support for these latter rights—sometimes called second generation rights—became entangled in cold war politics and produced a split along socialist-capitalist lines. A political solution to UDHR disagreements was eventually reached by dividing the covenant into two separate agreements, the International Covenant on Civil and Political Rights (ICCPR, 1966) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR, 1978). The ICCPR prioritized the traditional civil and political framework for FOE, while the ICESCR asserted a range of moral rights for individual creators, as well as collective rights of self-determination defined at the level of cultures. Although both agreements are currently in effect and nominally binding—with the US a notable holdout in ratifying the latter—the ICESCR remains vague on collective and cultural rights and has not been widely supported. When a more substantive conversation about collective rights to expression began to emerge at UNESCO in the 1980s, it did so under the new framework of ‘communication rights,’ and prioritized rights of access to communications technologies.

….

The central contention of this report, however, is that the forces shaping expressive freedoms have changed in ways that are no longer defined primarily by state power and the traditional mass media—the primary objects of Ford FOE grantmaking in the past half century. The rise of digital technologies and the liberalization of media sectors, especially, have produced an upheaval in the institutions, cultural practices, and forms of governance that shape the public sphere, often in ways that bear only tangential relationship to the speech rights and demands for government transparency that dominate the core FOE tradition.

This report suggests that an effective contemporary engagement with expressive freedoms must increasingly work within the larger set of converging policy and issue domains, ranging from media and technology policy, to intellectual property regimes and development strategies. These are powerful structural and infrastructural determinants of public life, shaping not just formal rights but also the underlying conditions and possibilities of expression. The project of translating expressive freedoms into these new technological arenas is fragile and incomplete at best, though it is enriched by a growing number of conceptual advances, socio-technical practices, and forms of political mobilization.

An adequate conception of FOE must also recognize positive claims for access to media and communication—claims first elaborated in the 1980s at UNESCO and later through communication rights and communications for development work. These traditions recognize that freedom of expression as a meaningful force for social and political inclusion depends not simply on the atomized right of individuals to express opinions, but also on access to the dominant technologies of expression—today, radio, TV, and the Internet. Such positive rights claims are implicit in the major international FOE statements, but have been underdeveloped and under-utilized within western FOE advocacy especially.

Above all, a contemporary approach to FOE must contend with growing corporate control over the conditions of expression. Corporate power is grounded not in direct coercion but in the ways that concentrated ownership of cultural materials and communications infrastructures affects the speech opportunities and costs of expression for others. Because our shared culture is overwhelmingly a commercial culture, the assertion of exclusive rights can block traditional but largely informal freedoms to represent, comment on, and explore our shared social condition.

 

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