[IRP] Additional Reference Material for drafting

[Internet Freedom]

Rebecca MacKinnon, Max were kind enough to point out to me that this group
is working towards a declaration for the upcoming IGF. Having participated
in such efforts in the past, i'd like to share a comment and reference
material that I hope can be used to develop the text.

As for my comments - It would be my preference to build on that document and
work together with those in the human rights community. Too often internet
groups work in isolation and don't connect with mechanisms and  existing
human rights structures that have been agreed on and exist. My fear is that
we might introduce a text that brings a weaker text and weaker set of
protections then currently exist. A variety of Human Rights, Privacy and
legal scholars got together on the eve of the first WSIS summit in Geneva
back in 2003 to develop a declaration. The resulting text they came up with
is below and attached.

Regards,

Robert Guerra <guerra at freedomhouse.org>
Director, Internet Freedom, Freedom House
Tel +1 202 569 1800
---


Statement on Human Rights, Human Dignity and the Information Society
http://www.sqdi.org/volumes/pdf/18.1_-_statementofrights.pdf.

The list of participants is available at
http://www.pdhre.org/wsis/statement.doc. A report of the follow-up seminar
is here: http://www.sqdi.org/volumes/pdf/18.1_-_internationalseminar.pdf.



*STATEMENT ON HUMAN RIGHTS, HUMAN DIGNITY AND THE INFORMATION SOCIETY*

*This statement was elaborated and adopted by consensus by a group of
independent experts from all regions of the world representing a diversity
of backgrounds, expertise, nationalities and perspectives, meeting at the
Palais des Nations in Geneva on 3-4 November 2003, convened by the People?s
Movement for Human Rights Education (PDHRE), with the support of the Swiss
Agency for Development and Cooperation (SDC), the European Commission, the
Office of the High Commissioner for Human Rights, and the Government of
Mali, Chair of the Human Security Network*.

1. In the middle of the 20th century, the world community agreed to human
rights as the common normative framework at the same time as incredible
advances began to be made in digital and genetic information. By the
beginning of the 21st century an invaluable regime of human rights norms and
mechanisms had been established and, through human rights education and
learning broadly understood, a ?human rights culture? had begun to take root
in many parts of the world. At the same time, important advances in
information and communication technologies had created the ?Information
Society? and large segments of the population, primarily in developed
countries, altered the way they communicate and live. These two trends of a
human rights culture and the Information Society are intimately related and
hold the potential for enhancing each other.


*Human Rights Obligations of States in the WSIS Context
*
2. The development of the Information Society and, in particular, the vision
of it articulated by the World Summit on the Information Society (WSIS),
must be built on the reaffirmation of the 1993 Vienna Declaration and
Programme of Action adopted by the World Conference on Human Rights which
stated that human rights are universal, indivisible, interrelated and
interdependent, and that their protection is the primary responsibility of
governments. The human rights obligations States have committed themselves
to in the United Nations Charter, the Universal Declaration of Human Rights,
the International Covenants on Human Rights and all other U.N. and regional
human rights instruments require them to ensure that the Information and
Communication Society does not result in any discrimination or deprivation
of human rights resulting from the acts or omissions of their agents or of
non-State actors under their jurisdiction. They also have human rights
commitments arising out of other international conferences and summits. The
WSIS provides a critical opportunity to reaffirm human rights in the context
of information and communication policy. There is a growing awareness among
WSIS leadership of the importance of human rights in this context and
welcome steps have been taken to include the voice and concerns of civil
society in the WSIS process. Greater commitment to human rights and enhanced
participation and transparency will be necessary for the Summit to achieve
its full potential.


The host country for the WSIS in 2005 must fully respect the human rights
that are essential to the Information and Communication Society - in
particular, freedom of expression, association and information for its own
civil society and visiting NGOs - and respond positively to the concerns of
the international community over its human rights performance. Failure to do
so would justify reconsidering holding the summit in that country.

Consistent with these responsibilities, governments participating in the
WSIS should not only foster the Information and Communication Society as
well as poverty reduction as means of promoting the Millennium Development
Goals, but they should also ensure that it contributes to the promotion of
and respect for all human rights - civil, cultural, economic, political, and
social. Such a human rights framework for the Information and Communication
Society can promote the liberation of all human beings from fear and want,
contribute to human security, advance human and sustainable development, and
support gender equality.

The human rights of particular importance to the Information and
Communication Society are: freedom of expression and information; freedom
from discrimination; gender equality; the right to privacy; the right to a
fair administration of justice; the right to the protection of moral and
material rights over intellectual creations; the right to participate in
cultural life; minority rights; the right to education; and the right to an
adequate standard of living, including the right to health, the right to
adequate food, and the right to adequate housing. All of these rights belong
to the corpus of internationally recognized human rights and should be
furthered through the Information and Communication Society.


*Challenges to Human Rights from the Information and Communication Society *

6. Several trends that characterize information and communication in most of
the world today constitute challenges to and, in many cases, serious dangers
for a human rights-based Information Society. Central to these challenges is
the exclusion of most people in developing countries from the advantages of
advances in digital and genetic information, the commoditization of
information and knowledge, and the growing concentration of ownership and
control of the means of producing and disseminating information and
knowledge. Equally important are limitations, surveillance and censorship by
the State or private parties, especially in the post-September 11th, 2001
environment.

7. The massive disparities in access to information and to the means of
communication, known as ?the digital divide,? are a result of the unequal
distribution of wealth among and within countries. The digital divide is, at
the same time, a cause and a consequence of the unequal distribution of
wealth in the world and within countries. Poverty, with which it is closely
connected, severely diminishes the capabilities of people to enjoy their
human rights. Information and communication technologies (ICTs) enable and
empower individuals and groups, particularly those who are exposed,
marginalized and vulnerable. Unless ICTs are made available on a vast scale
to those who are at the losing end of the digital divide, the Information
and Communication Society will remain a force of relative impoverishment for
large swaths of the world?s population and, consequently, a source of
instability and deprivation.

8. The digital divide results in unequal access to information and to the
means of communication and information, thus producing massive exclusion.
All avenues must be explored to ensure to all equal and affordable access to
information, means of communication, and the necessary technology and
infrastructure. Public authorities, the private sector, and civil society in
developed countries have a special responsibility to share the benefits of
the Information and Communication Society with peoples in developing
countries.

9. The Information and Communication Society offers unprecedented
opportunities to advance shared knowledge in areas critical for human
development. In particular, ICTs are invaluable to the realization of the
rights to health, education and adequate food through a wide range of
technologies. Special attention must be paid to using the Information and
Communication Society to advance gender equality, consistent with the
principle affirmed in the Vienna Declaration and Programme of Action that
women?s rights are human rights. The human rights of traditional cultures in
the emerging Information Society require special measures of conservation
and protection of their traditional knowledge and culture. Special measures
are also required to improve the situation of those who are vulnerable,
exposed or excluded, in particular, children, the elderly, people with
disabilities, minorities, refugees, and asylum seekers.


*Human Rights Education and Learning *

The Information and Communication Society benefits from new technologies
which can serve critical functions for human rights education and learning,
and more generally contribute to social change through the realization of
human rights.

ICTs must be put to the service of education and lifelong learning for all.
In particular, as privileged instruments of human rights education and
learning, they should help to enable and empower humans across the world and
across generations and cultures to know, claim and own their human rights
and to respect and promote those of others in a spirit of solidarity. ICTs
will make a major contribution to societal development on the basis of a
commonly shared culture of human rights.

*Freedom of Expression and Information *

Full respect for freedom of expression and information by State and
non-State actors is an essential precondition for the building of a free and
inclusive Information and Communication Society. ICTs must not be used to
curtail this fundamental freedom. There must be no censorship and no
arbitrary controls or constraints imposed on participants in the information
process, that is, on the content of information, its transmission, or its
dissemination. Pluralism of sources of information and media must be
safeguarded and promoted. Any restrictions on the freedom of expression and
information must pursue a legitimate aim under international law, must be
prescribed by law, be strictly proportionate to such an aim, and be
necessary in a democratic society for the respect the rights or reputation
of others, or for the protection of national security and public order, or
of public health or morals. National security legislation to combat
terrorism must respect freedom of expression and information standards and
be subject to judicial review, as well as international scrutiny.

Article 19 of the Universal Declaration of Human Rights and of the
International Covenant on Civil and Political Rights is of fundamental
importance to a human rights-based Information and Communication Society,
not only by requiring that everyone have the right to freedom of opinion and
expression and the right to seek, receive and impart information and ideas
through any media source, regardless of frontiers, but also because it
implies the free flow of information, free circulation of ideas, freedom of
the press, and availability of the tools to access information and share
knowledge.

The trend to provide public access to the information produced or maintained
by governments and protected under ?freedom of information? legislation
should be extended to all countries that do not have such legislation,
ensuring that government-controlled information is timely, complete, and
accessible in a format and language the public can understand.

Freedom of expression should be protected through the Internet in the same
way it is protected offline and Internet service providers should be guided
by this freedom rather than by codes of conduct that are not based on human
rights.


*The Human Right to Privacy *

Modern technology can and should be used to protect privacy; at the same
time, it provides unprecedented possibilities for massive violations of the
human right to privacy. The use of increasingly invasive means of
surveillance and interception of communications, of intrusive profiling and
identification, and of biometric identification technology, the development
of communication technologies with built-in surveillance capacities, the
collection and misuse of genetic data, genetic testing, the growing invasion
of privacy at the workplace and the weakening of data protection regimes
give rise to serious concerns from the point of view of respect for human
dignity and human rights. New means must be developed to protect the human
right to privacy, such as the right to know about one?s personal data held
by public and private institutions and to have them deleted where not
strictly necessary for a legitimate purpose in a democratic society. The
development, transfer, and use of technology permitting illegitimate
invasion of privacy must be controlled and curbed.

It is fundamental to an understanding of the Information Society to
recognize that information is power. Control of personal information and the
deprivation of the right of privacy are ways of exercising power over
individuals. The protection of personal information and privacy is central
to the autonomy of the individual and for the respect of human rights. The
considerable experience with the elaboration of laws and national and
international case law to protect privacy should be studied and applied in
countries where the right to privacy is not adequately protected and best
practices should be emulated.

The development of a communications infrastructure and ubiquitous computing
threatens privacy in new and intrusive ways. It is nevertheless possible to
develop and adopt privacy enhancing behaviours, technologies, and
infrastructures consistent with privacy law. These choices must be favoured
through national law, deontology codes for developers, and market
incentives. Steps to preserve privacy - at the international, regional,
national, community, institutional, and individual levels must start with
the establishment of national data protection laws to protect individual
rights with respect to the collection, use, and disclosure of personal
information, with independent oversight and access to effective redress.
Education across all sectors of society with respect to privacy rights and
the risks inherent in the technology is vital so that individuals can take
the necessary steps to enforce legal rights.

Certain measures taken in combating terrorism and cyber crime have eroded
civil liberties and abrogated privacy rights. Cooperation in the field of
criminal investigation techniques must be accompanied by adequate
enforcement of civil liberties and independent oversight of data collection.



*Cultural and Linguistic Rights and Diversity *

The international community has increasingly come to regard plurality of
identities, including cultural diversity, as an asset and a fundamental
value to be defended and promoted. Fostering diversity is crucial to
respecting cultural rights, promoting tolerance and fighting discrimination
at all levels of society. The preservation and promotion of cultural and
linguistic diversity and interaction must be hallmarks of a thriving
Information Society. ICTs can and must be used to promote diversity and
respect for cultural rights and identity, including indigenous knowledge,
rather than for their restriction or suppression. This diversity is
reflected positively by community radio, indigenous means of communication,
and local media.

People in the Information Society are more than consumers; they are also
providers of information and of creativity. Steps must therefore be taken to
give them access to infrastructure under acceptable economic conditions
through proactive measures by governments, under cultural and linguistic
exceptions to international trade agreements.


*The Public Domain and Intellectual Property Rights *

22. A rich public domain is an essential element for the growth of the
Information Society and provides the reservoir from which new knowledge is
derived. Everyone, therefore, should enjoy the right, reaffirmed in Article
27 of the Universal Declaration of Human Rights, to freely participate in
the cultural life of the community, to enjoy the arts, and to share in
scientific advancement and its benefits while at the same time having an
equal right to the protection of the moral and material interests resulting
from any scientific, literary, or artistic production. International
agreements and treaties and national policies concerning the creation,
sharing, and trade of intellectual goods and cultural creations must be
aligned according to these competing needs.  Facilitating meaningful
participation by all, in particular by civil society organizations in
developing the intellectual property framework, is a fundamental part of an
inclusive information society.

23. Initiatives for high-quality open-source and public domain software,
technologically neutral platforms, and the development and use of open,
interoperable, non-discriminatory and demand-driven standards that take into
account needs of users, consumers, and the underprivileged should be
promoted. Furthermore, a fixed percentage of spectrum, satellite and other
infrastructural bandwidth capacity
should be reserved for educational, humanitarian, community and other
noncommercial use.

24. Concentration of ownership in the hands of a few major corporations
limits the opportunities for information and communications technologies to
adequately reflect the pluralism of perspectives and diversity of cultures.
Legislative and other measures should avoid excessive media concentration
and ensure that the media and ICTs respond to the principle of public
service and guarantee equal opportunity of access to media ownership for all
social sectors. Public service broadcasting is an essential means of
counter-balancing the commercial motivation of the media and ensuring the
enjoyment of the right of everyone to participate in cultural life and the
right of political participation.

25. The regime of knowledge ownership and management includes patents,
copyright, trademarks and other legal and technical monopolies on knowledge
granted by society, and public domain, fair use and other instruments to
enable access.  The primary goal of this regime is to strike a balance that
will both maximize access and use of this knowledge and, at the same time,
encourage creativity as widely as possible within society. International
agreements, treaties, and national policies concerning the creation, sharing
and trade of intellectual goods and cultural creations must comply with this
principle.

26. Intellectual property regimes and national and international agreements
on patents, copyright and trademarks should not prevail over the right to
education and knowledge. This right must indeed be exercised through the
concept of fair use, that is, use for non-commercial purposes, especially
education and research. Moreover, intellectual work and ideas, including
programming methods and algorithms, should not be patentable. The production
and use of free and open-source software and content must thus be encouraged
and covered by adequate public policy.

27. Human knowledge is the heritage and property of all humankind and the
reservoir from which new knowledge is created. The Information and
Communication Society will not contribute to human development and human
rights unless and until access to information is considered a public good to
be protected by the State and promoted by the market. Information in the
public domain should be easily accessible to support the Information
Society. Intellectual property rights should not be protected as ends in
themselves, but rather as means to an end that promote a rich public domain,
shared knowledge, scientific and technical advances, cultural and linguistic
diversity and the free flow of information. Public institutions such as
libraries and archives, museums, cultural collections and other
community-based access points should be strengthened so as to promote the
preservation of documentary records and free and equitable access to
information.

Scientists, universities, academic research and other institutions have a
central role in the development of the information society and the sharing
of research results, scientific knowledge, and technical information.

*Democratic Governance *

Good governance in the Information and Communication Society must be based
on the values of participation, transparency, accountability, and the rule
of law. These principles apply to the democratic management of international
bodies dealing with ICTs. Given the borderless characteristics of ICTs,
decision-making bodies should ensure the respect of principles of democracy
and openness, as well as of legality and sovereignty. In particular, the
management of the core resources of the Internet, which are the Internet
protocols, standards, and identifiers - such as domain names and IP
addresses - must serve the public interest at the global, national, and
local levels. Furthermore, any decision made on protocols, standards, and
identifiers should be compatible with international human rights standards,
and especially the rights to freedom of expression, privacy, and the
principle of non-discrimination. Such decisions should also allow a
better-balanced flow of information.

The proper use of ICTs can strengthen democracy by improving the means and
access for civil society to participate fully in public affairs. ICTs can
improve access to justice and make public services more responsive,
transparent and accountable. The rule of law is essential for the
Information Society to become a space of confidence, trust and security
where human rights are fully respected.

Both State and non-State actors have a duty to respect and promote human
dignity and human rights in the building of the Information Society. Any
regulation and self-regulation regarding communication and information must
be based on a strict respect for human rights and must contribute to their
promotion. Private and public services, community media, as well as
journalists - whose independence and access to information must be protected
- have major responsibilities in the Information and Communication Society
as a means to preserve and advance democracy.

*Monitoring Mechanisms *

31. In preparation for the WSIS in Tunis in 2005, an Independent Commission
on the Information Society and Human Rights, composed of highly qualified
experts with a broad geographical representation, should be established to
monitor practices and policies and submit recommendations to the Summit. Its
mandate could include a review of national and international ICT regulations
and practices to verify their conformity with international human rights
standards, the governance of current decision-making bodies in the ICT
field, and the potential applications of ICTs for the realization of the
right to development and the essential human rights for sustainable human
development, including the right to health, the right to adequate food and
the right to education.

32. Furthermore, the importance of the issues of human rights of the WSIS
justifies the establishment, within the procedures of the Commission on
Human Rights or its Sub-Commission, of a position of Special Rapporteur on
Human Rights and the Information Society, with a mandate to monitor
developments in this area, including threats to privacy, freedom of
expression, freedom from surveillance, and applications of ICTs for the
realization of economic, social and cultural rights and to human rights
education, and recommend measures conducive to advancing human rights in the
Information Society.
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