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Human Rights and the Digital Domain Primer - Part 4

The Instruments of Governance: Law, Justice and Independent Judiciary, Legislation, Digital policy making Mechanisms and Tribunals, multi-stakeholderism, Commerce —Co-authored by Prof. Sam Lanfranco and Klaus Stoll.

The digital domain encompasses the different spaces and spheres we use to relate and interact with the people and things that surround us using digital technologies. The Universal Declaration of Human Rights, UDHR, as the globally accepted standard, should serve us as the guiding light when it comes to striking the delicate balance between our rights and responsibilities on and off-line. The primer scope with broad brushstrokes to the relationship between human rights and the digital domain. The hope is to create awareness and spark a broad discussion on how to extend our fundamental human rights into the digital domain.

(Part 1, covering Introduction, The digital Domain and Human Rights, Our digital Identity, Integrity and Dignity, Access, Rights and Duties.

Part 2, covering Rights and Duties, Digital Citizenship, Residency, Political Crime, Asylum, Digital Slavery/Servitude.

Part 3: covering Governance, The digital Domain on its way to Statehood, A Bill of Digital Rights and Responsibilities.)

3.5 The Instruments of Governance

The UDHR describes the instruments of governance through which these values are to be realized, as justice, tribunals, law, and the social frameworks in which they take place. These instruments of governance in the digital domain need to fulfill the fundamental requirements for just governance of equality, fairness, independence, impartiality, and competence. There is an urgent need to define cyber law, establish mechanisms of enforcement, and create dispute resolution tribunals, all developed through legitimate policy-making processes.

3.5.1 The Rule of Law

The protection of human rights by the rule of law extends fully into the digital domain.

With regard to the rule of law, the digital domain has some special characteristics that require the transposure and redefinition of territorially based concepts of law and justice into the digital domain of borderless, universal and inclusive activities and behavior.

International laws and treaties extend and do apply in digital domain. Existing treaties and national laws are not adequate for digital governance. Given the global nature of the digital domain, National and regional digital domain law will often have a relevance that goes beyond the limits of territory-based sovereignty.

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. Cyber law is always subject to and guided by national laws and international agreements; there is a need for the design of national cyber laws, and for some degree of global harmony across digital policies.

The digital domain, as a common, redefines the role of the country, nation and state as the appropriate vehicle for protecting the will of its people in the digital domain. They have to consider:

  1. that in the digital domain, their sovereignty still comes from the will of the people but that the global, not national common good guides their citizens as digital citizens.
  2. existing laws might not be adequate in digital domain and need to be adapted. Treatment under the law draws on both codified law and case law. Jurisprudence under digital governance is in its infancy and will further develop over time. So will case law and legal processes regarding issues such as intellectual property, trademark infringement, domain name disputes, cybersquatting, and e-commerce practices.
  3. new category of crimes cybercrimes such as, hacking, identity theft and cyberbullying, malware, spyware, phishing, and pharming.
3.5.2 Recognition before the law

Recognition means adequate treatment. What’s adequate in a state context might be inadequate in a global context.

Recognition before the law means not only recognition of a human being as a person and a citizen but also the recognition of the specific circumstances in which one resides, here as digital personas and digital citizens.

The criteria for the approval of granting rights are: True, valid, legal, and worthy of consideration.

Laws, regulations and behavior concerning digital existence must respect the (global) borderless residence of our digital beings.

3.5.3 Arbitrary Acts and Acts of Omission

Digital providers, or any other digital stakeholder, should not be able to arbitrarily introduce rules or demand the use of unjustified standards and norms that harm the rights of users by exclusion or by threatening sanctions.

Many of the violations of UNHRD rights in the digital domain are based not on acts of commission but also based on acts of omission. In order to enable and sustain predatory digital business practices, the necessary technological tools that protect the privacy and security of digital citizens have not been implemented. Much of data security has to do with the holder of the appropriate data ensuring that it is not accessed by competitors or cyber criminals.

Arbitrary acts and overly broad laws can impose the blunt force remedy of removing individual and entire household access to Internet services, which results in a form of digital exile. Terminating users’ internet access, along with content filtering and “stay down” regimes without due process protections for citizens, results in unjust digital exile.

Digital citizens experiencing digital exploitation and manipulation have the right to engage in peaceful acts of civil disobedience. The right of assembly to protest peacefully has long been accepted as essential. In the context of the UN, peaceful is defined as the absence of war based on international law. Peaceful means not just the absence of physical violence. Many forms of violence exist that are not physical but mental and psychological, and they may target the individual, the group, or the social fabric of society.

3.5.4 Justice and Independent Judiciary

States have their own jurisdiction and sovereignty and will exercise control over domestic Internet Governance. Much like domestic human rights governance, based on the principles of the UDHR, those policies and behaviors should respect the principles behind global digital rights. There will never be a global cyber state in the sense of an independent digital state with sovereignty over its digital territory. But the digital rights of empowered digital citizens require the principles of a global universal declaration of digital rights, backed by an international judiciary, empowered by signature states, and operating with its own jurisdictional independence. This is where the separate but inseparable overlap. Stakeholder engagement in global dialogue, as well as dialogue within existing national and international bodies, is necessary to agree upon the principles and mechanisms for international agreements around the rights (and obligations) of digital citizenship, establish appropriate judiciary institutions and processes, and inform behavioral integrity.

3.5.5 Legislation

To preserve ability of digital technologies to improve the human experience and to prevent them to be abused, the digital domain needs rules and regulations that govern the processes, and balance the rights of the individual against those of the community, and vice versa.

Digital technologies, by their very nature, enable malicious behavior that subjects digital citizens to many forms of online cruel, inhuman or degrading treatment. The development of digital governance structures will be charged with putting instruments and measures into place that prevent such behaviors. Main task is the protection against takeovers by practices that use digital technologies, not as a means to realize a world of freedom from fear and want for all.

There is a pressing need for a dialogue between all digital citizens for the formulation of policies and for oversight in policy implementation. States must take care of how they approach cybercrime and security and the presumption of misuse just because the possibility of misuse exists. All legislation needs to be evidence-based, rights-sensitive and motivated by public interest and the common good. It cannot be based on bolstering strategic economic and political power self-interests at the expense of digital rights.

3.5.6 Digital policy making Mechanisms and Tribunals

There exists no specific judiciary body for cyberspace. States are trying to fill the void and extend their sovereignty into cyberspace by making the activities of their citizens in cyberspace subject to nation-based laws, some with elements of extraterritoriality. These efforts can only result in inadequate applications of law and expressions of justice. They do not consider the special characteristics of cyberspace and transpose territorially based concepts of law and justice into the digital realm of borderless, universal and inclusive activities and behavior. There is an urgent need to define cyber law, establish mechanisms of enforcement, and create dispute resolution tribunals, all developed through legitimate policy-making processes. To establish legitimate cyberlaws and create competent tribunals, digital citizens must be empowered and engaged in policy-making processes.

3.5.7 Multistakeholderism

Much of the discussion around Internet governance embraces the notion of multi-stakeholder engagement in governance processes.

Given the character of the Internet as a shared global resource created and maintained by the private sector, multi-stakeholderism seems an appropriate principle for its governance. A potent manifestation of the belief in multi-stakeholder policy-making processes was the 2016 U.S. Government transition of control of the Internet Assigned Numbers Authority (IANA), manager of key Internet domain name functions, to a global multi-stakeholder community.

However, the reality of current digital policy-making tells another story, as multi-stakeholderism seems to be unable to adequately address current digital governance challenges. The reasons for the weakness of multi-stakeholderism when it comes to digital governance become obvious when we compare stakeholderism with citizens in a democracy.

Multi-stakeholder structures, as part of digital governance, need to fulfill the fundamental requirements for just governance of equality, fairness, independence, impartiality, and competence. Stakeholder groups lack these requirements. Not all stakeholder groups are treated or see themselves as equal with others; they are organized around special interests and topics and not primarily the common good; they are not determined by periodic and genuine elections of all digital citizens, neither are they clearly separated from the institutions they govern over, and/or are in their maintenance dependent on support from the same institutions.

Multi-stakeholder engagement in digital governance mistakes fulfilling crucial functions for establishing and maintaining digital domain for citizenship.

In a democracy, who is a citizen and their rights and responsibilities in well-defined policy-making processes are based on fundamental common human rights values, such as equity, inclusiveness, and transparency. The common goal is to enable the well-being of all. We miss all of this in multi-stakeholderism.

Stakeholderism - No generally accepted definition of, or right to:Citizenship - Generally accepted definition of, and manifest right to:
Who or what is a stakeholderCitizenship
What constitutes a multi-stakeholder process and what are its parametersDemocratic processes and their parameters well defined
Right to participation not defined and dependent on other stakeholdersWell defined universal right, (duty), to participation, universal franchise, without interference by other stakeholders
Founded in particular interestsFounded in human rights
Centered on process and outcomesCentered common good
Not all stakeholders seen as equalAll citizens are equal
Participation is dependent on ability, available time and resourcesDuty of policy making process to enable participation of all citizens.
No generally defined right to informationDuty to provide information and transparency,
No fundamental right to inclusionInclusion a fundamental value
Lack of accountability. No generally accepted checks and balances, independent review, or judiciaryAccountable to all. Established and binding checks and balances, independent review, and judiciary

Democracy, and in particular representative democracy, undoubtedly has its shortcomings and can always be improved. Still, at least we have a large body of experiences and standards that give it a strong foundation. Multi-stakeholder processes are defined mainly by processes and those who implement and maintain them. The ambiguities of multi-stakeholderism often result in policy-making processes that are heavily weighted to achieve the desired outcomes of powerful stakeholders, whilst maintaining the false impression of fairness and legitimacy.

The argument that multi-stakeholderism results in quicker, easier and more effective policy-making processes is contradicted by many processes where a minority stakeholder group, powerful or not, uses the ambiguities of the process to prevent or delay unwanted majority consensus decisions.

Cynics might be tempted to see multi-stakeholderism as an attempt by the private and governmental sectors to wind back the clock on human rights-based citizenship. Reality does not support that point of view. A closer look shows that multi-stakeholderism has served the governmental and private sectors badly.

The private sector is averse to regulation, so it might look tempting to influence policy-making through multi-stakeholderism. Tempting as it might seem, it is like making a deal with the devil. Whilst a corporation should act ethically, deciding what is ethical is simply not their business. Not only do they lack legitimacy, but without proper “rules of the game”, they can also only lose. Unfair competitive advantages destroy markets and undermine the foundations of capitalism and stifle innovation. Short-term gains can result in long-term irretrievable losses. When corporations are perceived to put their interest over the common good, they lose their most important capital: trust. Trust is one of the most important and valuable assets in the digital age. Digital business is trust business. Lose customers’ trust, and they may never return. If the governments don’t trust businesses, regulations can be stifling or force them out of business.

3.5.8 Commerce in the service of human rights and digital governance.

We all know that this is not our reality. Innovation in digital marketplaces does not want to be hampered by pesky questions about rights and responsibilities. Equally, there is growing evidence that consumers, out of a justified concern for their privacy and security, are losing trust in digital technologies and might ultimately refuse to adopt digital identities and wallets.

We can see a demand for trust and integrity at work in the marketplace. Consumers went “green” and started to pay for their physical health and the health of the planet by buying biological products at a higher price than non-biological ones. Private sector companies that offer products that demonstrably do not violate their customers’ digital integrity are able to charge a price and make a profit without having to resort to practices that are harmful to their customers. Like the “green industry, a “digital integrity industry” emerges. We are just the beginning of a movement that is gaining momentum.

Change does not just happen; it requires a reason or motive. It’s not enough to establish human dignity values; they must show a clear return on investment to motivate stakeholders to implement them. Only in strategies where digital integrity and profits align will the necessary investments be made. We need to demonstrate human dignity as an integral element of digital innovation and demonstrate that it is more profitable than exploiting other people’s data. To affect positive changes toward digital dignity and integrity, we must make human rights profitable or create benefits. Only when digital integrity turns, a profit will the necessary investments be made to establish human rights as an element of digital business plans and policy-making.

Digital engineering created the opportunity for big tech corporations to gain an advantage over the rest of the world. The moment we gain an advantage of any kind over others, we try everything to retain and somehow justify it.

Big tech justifies this behavior with the benefits “unregulated innovation” has brought to humanity while doing everything to gloss over the unspeakable harm misguided digital technologies do to that excluded part of humanity at the bottom of the digital food chain.

Digital dignity is good business. We see a clear demand for digital integrity at work in the digital marketplaces. Private sector companies that offer products that demonstrably do not violate their customers’ digital integrity can charge a price and make a profit without resorting to practices that are harmful to their customers. Each new “digital integrity business contributes to the reform of the digital marketplace.

Human rights will only be adopted when we are able to communicate them as instruments that offer tangible benefits for all. Internet governance needs to write a new play based on a plot that contains digital campaigns, education, products and services that combine the need for digital integrity with the human desire to gain an advantage.

The private sector’s profit motive is sustained and secured as the technologies themselves are sustainable Ongoing harmful digital technologies put digital sector companies on the way to self-destruction. This is why the private sector should support and advise digital governance policy-making processes but not try to influence them. In this case, restraints ensure sustainable profits. Uncontrolled competition, like unregulated liberty, does not mean real freedom. Industries governed by the law of greed threaten the integrity of human civilization.

By Klaus Stoll, Digital Citizen

Klaus has over 30 years’ practical experience in Internet governance and implementing ICTs for development and capacity building globally. He is a regular organizer and speaker at events, advisor to private, governmental and civil society organizations, lecturer, blogger and author of publications centering empowered digital citizenship, digital dignity and integrity.

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