Does the technology tail wag the human rights dog?
Updated on 16 September 2023
In his recent op-ed in the NYT 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) and the European Convention on Human Rights 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. 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?