The internet, governance and fundamental rights We at the Association for Progressive Communications (APC), along with other civil society commentators, have been calling for the reinvigoration of the ‘internet access debate’, placing primacy once again on those who are excluded from participation, and on the implications of internet access for securing rights, such as the rights to education and health and to the benefit of science. There is a need for this debate, particularly in developing countries, and a need to renew thinking on the potential impact the internet can have on our lives and society. APC has also been engaged in advocacy that pushes for internet access to be recognised as a human right, as part of the global human rights framework. It is with regard to this second concern, the internet and human rights, that the idea of what the internet is and what it means to us has shifted. By advocating for the internet to be integrated within the human rights framework, we are implicitly pointing to its ubiquity and pervasiveness in our everyday lives, and the need to understand it in this context. Surveillance and proportionality An internet rights discourse has been provoked by recent evidence of state and private sector surveillance of the internet.1 In South Africa, the monitoring of two investigative journalists by state officials has shown how civil liberties are easily undermined, despite constitutional guarantees to the contrary (Duncan, 2014). As Duncan writes: ‘South Africa is not a terrorist target, yet growing social protests mean that the temptation is there for less principled members of the security apparatus to abuse the state’s surveillance capabilities’ (ibid). Zimbabwe, like many countries that covertly or brazenly push through surveillance laws, similarly shows how these laws can stand in contradiction to basic rights, often creating legislative incoherence: ‘And as things stand there is discord in the legislative framework caused by disharmony between the statutes and the constitution, providing fertile ground for violation of citizens’ basic liberties including their right to privacy’ (Ngwenya, 2014). In Bangladesh, Sarker and Hasan argue that an alternative to an ‘authoritarian’ model of surveillance is one that seeks to ‘make people aware of the risks, to develop their capacities and to set down punitive measures that require proper evidence and respect individual rights’. However, ‘Bangladesh is often swinging between these two models, and there is a sense in which it is addressing the situation on an ad hoc basis’ (Sarker and Hasan, 2014). And, to take a non-Commonwealth South Asian neighbour as an example, in Nepal, internet service providers are pushed into filtering content, and monitoring high-bandwidth internet users (Pradhan, 2014). Two things are apparent from these reports. Firstly, as with the orientation of the internet within a human rights framework, the emphasis by states on surveillance is symptomatic of how ubiquitous the internet has become in our lives. Secondly – and it feels unlikely that this could have been anticipated or desired by those doing the surveillance – this surveillance has reinvigorated fundamental ethical debates about how we interact as a society. What kind of society do we want? These debates are fundamental in that they have been around far longer than the internet, and are about the necessary boundaries of human interaction that make society possible – or the kind of society we may want. They are less about the internet, and more about us. What seems noticeable in some of these discussions is that there appears to be a careful re-thinking of why some rights matter in the first place. A good example of this is Glenn Greenwald’s recent talk ‘Why Privacy Matters’, in which he said: There’s a reason why privacy is so craved universally and instinctively. It isn’t just a reflexive movement like breathing air or drinking water. The reason is that when we’re in a state where we can be monitored, where we can be watched, our behaviour changes dramatically. The range of behavioural options that we consider when we think we’re being watched severely reduce. This is just a fact of human nature that has been recognised in social science, literature, religion and virtually every other field of discipline. There are dozens of psychological studies that prove that when somebody knows that they might be watched the behaviour they engage in is vastly more conformist and compliant. Human shame is a very powerful motivator, as is the desire to avoid it. For this reason when people believe they’re being watched, they make decisions based on the expectations that others have of them or the mandates of societal orthodoxy rather than as a byproduct of their own agency. States have been slow to engage with internet-related human rights discussion. Public policy-making in this area is fraught with difficulty. Legislators and policy-makers must work at the interface of telecommunications infrastructure regulation, national legal frameworks and the fast-paced nature of technological development, alongside rapid innovation on how citizens are using technology in their everyday lives. When combined with the legacies of colonial legislative frameworks, the challenges of parliamentary law-making processes and a lack of best practice guidance, the task of policy-makers is complex and challenging. In Jamaica, where there is a high rate of violent crime, powers to intercept and to request telecommunications information, including internet-related communications data, may be critical to criminal investigations and prosecutions. However, as Dunn and Brown show in their article on a high profile court case in Jamaica, legislation imposing obligations on telecommunications companies Commonwealth Governance Handbook 2014/15 79 Alan Finlay and Joy Liddicoat
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