Land: Toward an International Law of the Internet

Molly Land (New York Law School) has posted Toward an International Law of the Internet (Harvard International Law Journal, forthcoming). Here's the abstract:

This Article presents the first and only analysis of Article 19 of the International Covenant on Civil and Political Rights as it applies to new technologies and uses this analysis to develop the foundation for an “international law of the Internet.” Although Article 19 does not guarantee a right to the “Internet” per se, it explicitly protects the technologies of connection and access to information, and it limits states’ ability to burden content originating abroad. The principles derived from Article 19 provide an important normative reorientation on individual rights for both domestic and international Internet governance debates.

Article 19’s guarantee of a right to the technologies of connection also fills a critical gap in human rights law. Protecting technology allows advocates to intervene in discussions about technological design that affect, but do not themselves violate, international human rights law. Failure to attend to these choices — to weigh in, ahead of time, on the human rights implications of software code, architecture design, and technological standards — can have significant consequences for human rights that may not be easily undone after the fact.

The Article also argues that technology companies are key partners in implementing Article 19. First, Article 19 directly binds these actors in some instances. Previously undiscovered portions of Article 19’s drafting history demonstrate that it does not have a state action requirement for dominant private actors. Second, as a pragmatic matter, technology companies can play an important role in enforcing Article 19 because of their central involvement in technology development and standard setting. Decisions about technology can make it easier or harder for states to violate international law, and technology companies should embed “human rights defaults” into their technology by designing it in ways that make it harder for states to violate international human rights.