Promoting Internet access as a human right is a popular way to frame digital spaces as essential to a dignified life. It has become the rallying cry of those battling against States that intentionally disrupt or shut down Internet access to maintain and wield power during civil unrest.
The unfortunate reality is that formal recognition of Internet access as a human right, even by influential human rights organizations, is insufficient to incentivize behavior change. We have seen this to be true in the aftermath of several UN Resolutions recognizing such a right, which had no effect on the implementation, frequency, or duration of State-sanctioned Internet shutdowns.
Governmental use of this suppressive tactic has grown exponentially and shows no sign of slowing—with some shutdowns lasting years at a time—resulting in devastating effects on democracy, political activism, and, tangentially, regional economies.
Worse, the popularity of this rallying cry for a human right to the Internet has unintentionally obscured a more actionable, practical, and effective way of securing Internet access and mitigating State-sanctioned shutdowns: bringing legal claims against these States for violating already established human rights.
The Advantages of a Legalistic Approach
First, this approach creates a tangible legal expectation that States cease shutdowns or risk enforcement by human rights supervisory bodies. This removes the ambiguity of existing non-binding resolutions condemning Internet shutdowns by codifying them as a legally recognized human rights violation.
Second, a successful case can result in sanctions against the offending State, further incentivizing the State’s behavior change and establishing remedies for victims.
Third, it establishes a generalized precedence for applying established human rights law to novel technology-based violations. This is increasingly important as governmental access to biometric, surveillance and autonomy-violating technologies may challenge traditional notions of how human rights can be violated.
Now is a Particularly Ripe Time to Bring Human Rights Violation Claims Against Shutdown-implementing States
The COVID-19 pandemic significantly accelerated institutional discourse on Internet shutdowns as a violation of human rights and a violation of the non-derogable right to life.
A non-derogable right cannot be violated, even temporarily or limitedly, such as during national emergencies or war. Contrast this to freedom of expression, discussed above, which is an absolute right that can be limited under exceptional circumstances.
This new consideration that Internet shutdowns may violate the right to life provides an unprecedented path forward for impactful legal action against shutdown-implementing States. It is significantly advantageous compared to historically available legal theories for holding States accountable for shutdowns.
For an entire decade preceding COVID-19, Internet shutdowns were considered violations of the freedoms of expression or assembly. Freedom of expression and freedom of assembly are absolute rights, meaning they may be proportionally limited under extreme circumstances such as national emergencies or war. This may be why there have been so few legal claims related to Internet shutdowns and why they have had mixed successes.
States nearly always initiate Internet shutdowns by invoking wartime laws, declaring a national emergency, or asserting that the shutdown is proportional to dangers that the State claims are imminent. Thus, determining which or when shutdowns resulted in violations that a human rights court may recognize as such was a gamble of case-by-case details—both in whether it would be successful and in the legal precedent the cases may set.
For example, a case addressing Internet shutdowns in Togo obtained court recognition of an Internet shutdown violating the human right of freedom of expression. However, the case is limited in impact: although the Court recognized the violation, it merely asserted that the shutdown was disproportionate–not outright impermissible. Although this stance is aligned with the international human rights standards regarding absolute rights, this kind of outcome solidifies the justifiability of States’ enacting Internet shutdowns in the future. Simply put, cases like these don’t deter Internet shutdowns from occurring. They only pressure States to justify the scale of the shutdowns they enact.
In contrast, the right to life allows no such exceptions. The right to life is a non-derogable right that cannot be violated under any circumstances, even temporarily or in extreme situations. This makes for a more straightforward argument tying the State’s actions to victims’ harms. It also inhibits a State’s ability to justify enacting the shutdown in the first place. If the action violated the non-derogable right to life, a State cannot justify the shutdown as legal in its proportionality. The complaint most likely to be successful in Court would be one where the State’s disruption of the Internet directly hindered a victim from obtaining immediate, life-saving medical care, resulting in a loss of life. A pre-COVID example would be the real-life instance of a pregnant Pakistani woman who lost her child due to being unable to communicate with doctors during an Internet shutdown.
To be clear, the identified harm in a proposed case need not be specific to COVID-19. The pandemic shifted the conversation around what rights an Internet shutdown may violate, thus creating a new avenue for complaints against shutdown-sanctioning States. Such a complaint can point to several statements by Intergovernmental Organizations indicating the dangers to life that an Internet shutdown presents, even—or especially—during a national emergency.
Furthermore, it is legally advantageous that an Internet shutdown caused the loss of life. Typically, cases related to violations of the right to life are the result of an atrocity committed at the specific behest of a governmental agency or military. Two typical and significant difficulties in arguing a violation of the right to life are:
- The inaccessibility of governmental records or related information (if there is any or if it hasn’t been destroyed) and
- When there is no proof of the loss of life (such as when a person has disappeared).
A scenario where an Internet shutdown resulted in the loss of life is more likely to be supported by extrinsic evidence, simplifying the legal argument before the Court.
It is Time to Move on From the Belief That a Recognition of Internet Access as a Human Right Will Result in a Reduction of State-sanctioned Internet Shutdowns
Consistent and open Internet access is vital, but without judicial pressures that incentivize behavior change, such recognition is ineffective. Taking a more actionable, legalistic approach by strategically bringing shutdown-based human rights claims before human rights supervisory courts is a more effective avenue for ensuring the Internet ‘stays on’ when we need it most.
For more on this topic, please read “A New Right is the Wrong Tactic: Bring Legal Actions Against States for Internet Shutdowns Instead of Working Towards a Human Right to the Internet (Part 2)“.
Jay T. Conrad is a legal scholar specializing in technology public policy.
The views expressed by the authors of this blog are their own and do not necessarily reflect the views of the Internet Society.