Beutz: Protecting Rights Online

Molly K. Beutz (New York Law School) has posted Protecting Rights Online (Yale Journal of International Law, forthcoming). Here's the abstract:

Although the human rights and access to knowledge movements share many of the same goals, their legal and regulatory agendas concerning Internet regulation have historically had little in common. While state censorship online has been a central concern for human rights advocates, this issue has largely not been a focus of the access to knowledge movement. Likewise, human rights advocates have failed to examine the cumulative effect of expanding copyright protections on education and culture, an issue of critical importance for access to knowledge. These disparate agendas reflect fundamentally different views about the nature of the harms associated with state regulation of online content - and thus the solutions that might be implemented to address these harms. Overcoming this divide is critical to ensuring the movements can draw on their respective strengths to address the pressing issues we face at the intersection of access to knowledge and human rights.

This article bridges the "human rights/access to knowledge divide" in two ways. First, it explores how the origin of each movement has led to such different conceptions of the harms associated with regulatory authority in the online context. The article maintains that this divide reflects a deeper unresolved debate about the proper division of authority between state and international institutions and that lack of agreement on this issue has inhibited coherent regulation of the Internet. Second, building on recent literature concerning the design of international institutions, the article develops a model of "flexible harmonization" - employing imprecise but binding international norms - that responds to the regulatory concerns of both movements. The article uses this model to evaluate two proposed frameworks for Internet governance and examines the conditions under which a model of flexible harmonization can be employed in other contexts.