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Does the technology tail wag the human rights dog?

Published on 08 January 2012
Updated on 05 April 2024

In his recent op-ed in the NYT[1] Mr. CERF has argued that “internet access” is not a “human right” – though possibly a “civil right” – because “a technology is an enabler of rights, not a right itself”. His argumentation is catchy, but muddles the issues; Mr. CERF, it seems to me, ends up shooting himself in the foot. When he states: “the US never decreed that everyone has a ‘right’ to a telephone”, he means “universal service” – a telephone line strung to each and every door, or country-wide total network coverage for every citizen. Indeed, there is no right to total (or free) coverage – just as “freedom of the press” does not entitle every citizen to a free copy of the NYT every morning at her doorstep. When he states that “freedom of access” should ensure “freedom of speech etc.” he refers to the political conditions under which people who have access to communication media are entitled to communicate among each other: free of government interference. This personal right is e.g. enshrined in the First Amendment to the US Constitution. “Freedom of speech” is an abstract right. Its exercise necessarily relies on technologies: from the human voice to paper, radio and so on – and must apply automatically to all supports through which it is exercised – internet being the latest (but certainly not the last) kid on the block. When radio or TV emerged in the US no one seriously argued that the “right to free speech” as enshrined in the First Amendment did not apply to them “because they were only an enabler”. As long as content and support are inextricably wedded (and control of the content would be through the support) Mr. CERF’s argument “technology is an enabler of rights, not a right itself” is spurious. The UN Declaration on Human Rights (UNDHR)[2] and the European Convention on Human Rights[3] are clear on the fact that the abstract right is embedded in the technologies. Mr. CERF goes on to make a distinction between “human right” and “civil right”. He likes “civil rights” better than “human rights”. He argues: “Civil rights are different from human rights because they are conferred upon us by law, not intrinsic to us as human beings.” By the same logic, Mr. CERF would reject the US Declaration of Independence, where it states: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” – for its character is “self-evident” and universal. He would however endorse the Bill of Rights as positive law. “Human rights” are not self-executing: they represent legitimate aspirations – not obligations. Their role is to provide universal legitimacy for these aspirations. No government may be exonerated from addressing the moral obligation on grounds of cultural “exceptionalism” – cultural or otherwise; and it would have to justify to public opinion world-wide any curtailment of the aspiration. On the other hand each state ought to strive and concretize such aspirations through appropriate legal means, if and when politically and materially possible. This is not always the case, as US history retells. The Bill of Rights enshrines personal and political rights. Exercising such rights effectively presupposes economic independence – President Jefferson saw it that way already, when he hailed “free yeomanry” as the basis of the Republic. President F. D. Roosevelt proposed in 1944 that a “Second Bill of Rights” be passed to make the broad aspiration of economic rights secure in law. He did not succeed[4]. There is no “civil right” to hold a job today, though we may hold a universal aspiration that all have one, and Art. 22-25 of UNDHR stipulate such “rights”. Would Mr. CERF really be ready to trade the universal aspiration to politically unfettered “internet access” for a commitment to equivalent enforceable and judiciable civil rights in this matter?

[2] UNDHR: Article 19. 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. https://www.un.org/en/documents/udhr/index.shtml#a8 (emphasis mine).
[3] The European Convention on Human Rights which, contrary to the UNDHR is legally binding on the parties, establishes in its Art. 10.1: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.” The special reference to broadcasting etc. indicates that it is the intent of the article to cover all media.
[4] See Cass R. SUNSTEIN (2004): The second Bill of rights. FRD’s unfinished revolution and why we need it more than ever. Basic Books.

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