Co-authored by Klaus Stoll and Prof Sam Lanfranco [1].

One could think that the authors of The Universal Declaration of Human Rights (UDHR)—adopted in 1948—had the Internet in mind when they declared in 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.”

All human beings are entitled to certain rights, and it makes no difference if they choose to exercise them in a town square or an Internet chatroom.

Internet Governance, like all governance, needs to be founded in, and guided by, the UDHR. This article is Part 1 of a series of articles that discuss the principles and their actual applications in a digital world.

Part 1 discusses the essential values and principles. In the following parts, (to be published in regular intervals), we will look at each of the 30 Articles in turn and conclude in the final part with a discussion of the overall conclusions. [2]

Foundations

How legitimate and just a Government can be measured by the extent to which its governance conforms with the principles contained in the UDHR. [3] Adopted in 1948, the first sentence of the Preamble sets the agenda for the UDHR as a whole:

“Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”

The UDHR evokes the values that are of fundamental importance for humans, such as dignity, equality, freedom, and peace. It also describes the instruments in which these values are to be realized, including justice, tribunals, law, and the social frameworks in which they take place.

Nation and states may come and go. The fundamental principles that govern our common humanity, as inscribed in the UDHR, remain unchanged. The UDHR is the yardstick with which governance is measured for every old and new nation.

The intention of this article is not to interpret the UDHR anew in the light of digital technologies, but to explore how the UDHR informs the development of governance, dignity and integrity of our being in a digital age.

Country, Nation and State

The UDHR uses the terms country, nation and state repeatedly and we need to review their roles and definitions before we can proceed to apply them to the digital cyberspaces of the Internet ecosystem.

A country is commonly understood as a defined and recognized geographic territory inside which people live according to a legally binding sets of rules that are set by its own governance processes. A nation may exist within or across geographic boundaries. It may be defined as a community of people based on political, economic, geographic, ethnic, religious, and other factors. The term nation often refers to a country, but not always. The important difference between a country and a nation is that a nation may not have its own governing power and sovereignty. [4] A state is a political entity represented by a centralized government that has sovereignty over a geographic area. [5]

Intellectual discoveries and technological advances are the driving factors for social change. If the opportunities to use them to enhance safety and security are perceived as significant enough, they result in changes of the social order. The opportunities are often perceived as disruptive and revolutionary (for example, we are talking about the “industrial revolution”), but they give rise to the birth of new nations. The revolution can either be violent or nonviolent, but it never results in stasis. These “revolutions” allow people to disrupt the old state in order to create a new state that is projected to be more effective in securing security and prosperity. Digital technologies, with their promise of exponentially increased security and prosperity, were dramatic disrupters by introducing a technology that transcended and redefined many of the defining factors of an existing country, nation or state.

Membership in the UN is seen as a recognition of sovereignty and statehood. Although the UN is a union of nations, it is people-centered and sees its role as the representative of the interests of the people that are subject to governance, and not of governments themselves. The UDHR envisions the country, nation and state as the appropriate vehicle for protecting the will of its people, for promoting the best possible social order to serve the needs and rights of the people according to the principles of the UDHR.

The Digital Nation: The Internet Ecosystem and Cyberspace

Digital technologies, with their global reach, are transcending and redefining many of the factors of what constitutes a country, nation or state. [6] They are also propagating change in ways that often stand in direct challenge to old perceived values, including those of the UDHR. For example, one’s personal presence in digital cyberspace may be entitled to few or no rights to one’s personal data, if data users ignore UDHR privacy rights based on notions of “unregulated digital innovation.” [7]

The globally expanding scope of the Internet ecosystem (cyberspace), and cheaper and easier access have given billions of persons a digital residence in the cyberspaces of the Internet ecosystem. Click by click, soundbite-by-soundbite, and frame-by-frame, digital human communities are forming, and the notion of a separate “digital persona” and a and increasingly powerful multifaceted global “cybernation” is created in parallel with it.

The emerging cybernation is acquiring the properties of a physical nation, as a diverse community, both within nation-states and at the global level. Within nation-states, cybernations can be subjected to state governance, as in the case of the General Data Protection Regulation, GDPR, within the states of the European Community. The GDPR also applies outside typical borders to EU Citizens who may live outside the EU. GDPR’s broad regulatory language is not only affecting privacy rights in the EU but having an extra-territorial effect. [8] Lacking an effective global system of governance, cyberspace is still in search of its ‘statehood.’

We now need to look at the role of the individual human in the digital nation. We need to review the role of the UDHR as a navigational aid for embedding the digital rights of persons within state governance and for developing the rights and obligations of persons in the global governance of the cyberspaces of the Internet ecosystem.

The Digital Persona

The advances brought by digital technologies have created a new multifaceted dimension to our digital personas. [9] Our physical persona is something that is gifted to us by our birth. Our digital personas are created by digital technologies. [10] In parallel to our physical persona, with very few exceptions, all people are simultaneously acquiring multiple digital personas. [11] They consist of digital data constructs (personas) that are linked to our unique literal being as a human. [12] Often attached to these digital personas are human or machine-imposed value judgments affecting one’s real-world reputation, personal information, credit or risk worthiness, and other indicia affecting basic human welfare.

Technology builds our digital personas from data assembled from a myriad of sources. We may never be exposed to, or ever use digital technologies. The pervasive collection and processing of data all and any data nevertheless gives birth to our digital personas. Multiple versions of one’s digital persona can be constructed by others through data assembly and artificial intelligence algorithms, which are contrary to the principles of the UDHR. The main question here is: Who has the right to a person’s digital data and its uses? How do the principles of the UDHR dictate the digital rights and duties of the person and others? The UDHR dictates that everyone has the right to liberty and security in their physical persona. How does this extend to digital personas?

Denying one’s rights in cyberspace can amount to digital confinement, isolation or even incarceration. Emerging digital governance structures should be employed to protect one’s digital persona rights in cyberspace. One should have ownership rights with regard to one’s own digital assets in cyberspace, including one’s digital personas built by others and one’s interactions with others in cyberspace. Digital engagement should be able to be pursued in safety, and with protection for both the physical and digital person. [13]

Digital Citizenship

Today, cyberspace bestows on each of us a dual, but inseparable, physical and digital citizenship. Even if we don’t know about cyberspace, or are unable or have decided not to use any of the digital technologies, we are still digital citizens with rights (and corresponding duties). Our lives, one way or another, are affected by that citizenship. [14] Building from the UDHR, digital citizenship comes with fundamental rights that every physical and digital person should enjoy. The design of systems of digital governance to enshrine this is the pressing task at hand.

Rights and Duties

Rights do not come without duties or obligations. The UDHR reminds us that the rights and freedoms we enjoy as human beings in our physical, and now digital, citizenship are not without limitation. Such fundamental duties are referenced throughout the UDHR. Article 1 summarizes and generalizes them. Humans are “endowed with reason and conscience” and should exercise both towards one another “in a spirit of brotherhood”. The freedom and equality, dignity and rights of a person are limited by the freedom and equality, dignity and rights of the rest of humanity.

Digital Integrity

Freedom is a central tenant of human dignity, as equality is a central tenant of rights. Freedom and equality are prerequisites for a person’s physical and digital integrity. [15] If a person does not have the freedom and ability to control personal data, one might be faced with veritable digital Frankenstein’s monster personas, assembled from data “body parts” from various sources, often of dubious origin. Such personas can be inaccurate, created without a person’s permission and be lacking in integrity. A multitude of false digital personas can emerge that undermine one’s integrity, none bearing any fidelity to one’s true literal and digital selves.

The absence of personal data integrity compromises one’s physical and digital dignity, one’s equality and rights and the ability of a person to be subject to reason and conscience in the spirit of brotherhood. [16] Erroneous data, unverified, can have dire consequences in terms of one’s virtual persona and real-world life. Even correct data processed through a non-transparent algorithm can, in its application, be harmful to people in both the virtual and physical worlds. [17]

Separate but Inseparable

Freedom and equality, dignity and rights, are separate fundamental human values that cannot be separated. Equally, our physical and digital personas, our residence in a country, nation and cyberspace, and our dual citizenships, are separate but cannot be separated. They are interdependent and constantly exert influence on each other. The freedom and equality, dignity and rights, and the resulting instruments that a literal person enjoys have parallel existence for one’s digital personas. [18] The governance around the parallel existence of digital personas is as of yet underdeveloped, and the challenge before us today.

Internet Governance: Cyberspace on its way to Statehood

Governance, in the form of authoritative policy-making processes and resulting laws and regulations, are in their infancy in cyberspace. [19] The existing vacuum is filled by government efforts to exercise a perceived sovereignty over citizen “citizenship” in cyberspace. Part of the argument is that citizens need protection from harm, and part is in support of third parties’ digital business strategies. There are conflicting pressures there. Also, the sovereignty of state is limited to their authority over citizens within the context of the state. Persons now have a second larger form of citizenship in global cyberspace. Laws and regulations that do not recognize the dual nature of digital citizenship are, at best, an incomplete effort to regulate and protect the rights and duties of one’s digital citizenship. In addition to the articulation of proper domestic digital citizenship policies, it is impossible to overestimate the need and urgency for progress on Internet governance at the level of the global Internet ecosystem.

Some stakeholders, especially those who rely on digital business practices that exploit data access, oppose using the UDHR as a navigational aid for policies that protect the rights of national digital citizenship. These parties argue that regulations that constrain data use will stifle digital innovation. Some business (and political) interests in cyberspace push for unrestricted digital business practice innovation. Governments, however, are increasingly dismissing arguments for “unregulated innovation” and instead are increasingly turning to over-regulation, with its unintended consequences, as the answer.

Global cyberspace cannot yet claim to have the status of a sovereign state. It still lacks a governance structure and rubric for determining how citizens, entities, governments participate in multi-stakeholder or multilateral governance structures. The realms of cyberspace need rules and regulations that govern the processes, balance the rights of the individual against those of the community, and vice versa. [20] All citizens in the physical world are entitled to a social and likewise, digital citizens are equally entitled to some form of suitable and, accountable global Internet governance. We need to build equivalent digital governance structures that are accountable to the will of all global stakeholders, whether they be persons, entities or states.

Making the UDHR the foundation of Internet governance is the first step in securing digital rights and obligations in a global Internet ecosystem with integrity. Efforts to create just and authoritative Internet Governance structures can begin with examining the UDHR as a universal and authoritative navigational tool for flagging digital rights and duties and highlighting areas and issues where the Internet’s cyberspace poses challenges. We will need ongoing multilateral dialogue to flesh out the definition of various digital rights and duties and the building of Internet Governance structures.

The time is ripe for the Internet community to explore the potential application of the UDHR to address key protections for citizens and governance at the level of the global Internet ecosystem.

To be continued.

[1] The authors contributed to this article for discussion purposes only and solely in a personal capacity. The authors would also like to thank Sarah Deutsch for her valuable contributions to the article. . The authors would like to note that they see these articles as a contribution to the upcoming 75th UN anniversary and as a start of an Internet ecosystem-wide discussion and would like to invite everybody to add and comment freely to the discussion. (please send your comments with the word “UDHR” in the subject line to [email protected]). If we receive sufficient comments, we will make revised updates of the articles. Our hope is that this discussion might kickstart and contribute to a much-needed International Covenant on digital Civil and Political, Economic, Social and Cultural Rights. (see also footnote 4 below)

[2] The authors are aware that the overall article and its parts are long and at times, repetitive. This series of articles should be seen like the foundation of a house, sturdy, at times ugly, requiring a lot of resources like concrete and rebar but absolutely necessary to build on.

[3] As proclaimed by the United Nations General Assembly in Paris on 10 December 1948 (General Assembly resolution 217 A). See: https://www.un.org/en/universal-declaration-human-rights/ . The UDHR resulted in 1976 in two major International Covenants that developed the rights enshrined in the UDHR and made them binding on States that ratified the UDHR. The International Covenant on Civil and Political Rights, https://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx , and the International Covenant on Economic, Social and Cultural Rights, https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx . The covenants and the UHDR together make up the International Bill of Human Rights, https://www.ohchr.org/Documents/Publications/Compilation1.1en.pdf .

[4] A country can be a nation, for example, France, Japan and Germany. The United Kingdom is a nation of countries, consisting, for the time being of England, Wales, Scotland and Northern Ireland. A new Celtic nation, consisting of Ireland, Wales and Scotland is being raised as a conceivable possible outcome of the Brexit.

[5] From: https://en.wikipedia.org/wiki/Sovereign_state

[6] What makes the intellectual discoveries and technological advances of digital technologies so extraordinary is that they created a realm that is both physical and virtual. Created through physical infrastructure, it creates a virtual world for digital personas to exist and interact.

[7] Predatory digital practices like these and many others will be discussed in detail in the deliberations of the UDHR Articles in part 2.

[8] see: https://gdpr-info.eu/. Attempts by states to tackle difficult Internet “rules” whether for privacy, liability, security or other regulatory purposes, can have a jurisdictional spillover effect given the global connected Internet.

[9] Digital Persona is here defined as: Any assembly of transactions, behavioral, and ambient data composed to ascribe characteristics to the person, such persona to be used for economic, political, social or other purposes. Composition may be by simple data aggregation or by using artificial intelligence algorithms.

[10] For example, humans born into native tribes that live without contact to the world outside their tribal territory. Even a hermit in his cave without outside contact is not without a digital identity that has been created from data by others about him.

[11] Our digital persona could have been created before our physical birth using data that was generated and processed as our parents announced and discussed our imminent arrival with family and friends online.

[12] Our digital persona is based on three types of data:
a) Ambient Data: Sourced through the Internet of Things, (IoT), GPS and other tracking devises, public data, (CCTV), and mobile devices such as the mobile phone
b) Behavioral Data: Sourced through Browsing, Social Media, Messaging, (SMS), email etc.
c) Transactional Data: Sourced through online purchases, selling and buying, financial transactions, etc.

[13] The physical world is full of dangers that threaten our personhood and the need for security is one of the driving motivations of human societies. Likewise, cyberspace is a dangerous place that can harm the physical and digital persona. Many of the dangers in Cyberspace are just dangers we are already familiar within the physical world and that have been transferred by digital means to cyberspace. Other threats to our security are more specific to cyberspace.

[14] For the purpose of this article, we talk about physical and digital citizenship when referring to citizenship specific to those realms. Today everyone has citizenship in both realms. When we talk about “citizens,” it is implied that these citizens are citizens of both realms.

[15] Digital Integrity is here defined as: The state where a person owns all their personal data and has control over how this data is assembled for digital personas and their uses.

[16] There are two components to data integrity. The first is about the properties of the data. Does it measure what it proports to measure? The second is about the uses of the data. Do the uses meet data ownership, data access, and data use principles as written into law, and as generally understood regarding user behavior?

[17] For example: A child diagnosed at birth with a serious health defect can face health costs without the benefits of the pooled risks of health insurance. The existence of this data, and its use in non-transparent algorithms available to insurers, governments, schools and employers (whomever IG will allow) will affect every aspect of the person’s existence, from birth to death.

[18] For the remainder of this article when we talk about: a) persona, it is defined as both the physical and digital persona, b) citizen is defined as both a physical and digital citizen, c) citizenship is defined as being subject at the same time to physical and digital rights and responsibilities.

[19] For example: ICANN, IGF, WEF, WSIS

[20] Article 28 of the UDHR supports this notion: “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.”