The Problem with the “Declaration of Internet Freedom” & the “Digital Bill of Rights”

by on July 2, 2012 · 12 comments

We live in an entitlement era, when rights are seemingly invented out of whole-cloth. It should come as no surprise, therefore, that a bit of “rights inflation” is creeping into debates about Internet policy. Today, for example, a coalition of groups and individuals (many of which typically advocate greater government activism), have floated a “Declaration of Internet Freedom.”  My concern with their brief manifesto is that is seems to based on a confused interpretation of the word “freedom,” which many of the groups behind the effort take to mean freedom for the government to reorder the affairs of cyberspace to achieve values they hold dear.

The manifesto begins with the assertion that “We stand for a free and open Internet,” and then says “We support transparent and participatory processes for making Internet policy and the establishment of five basic principles:”

  1. Expression: Don’t censor the Internet.
  2. Access: Promote universal access to fast and affordable networks.
  3. Openness: Keep the Internet an open network where everyone is free to connect, communicate, write, read, watch, speak, listen, learn, create and innovate.
  4. Innovation: Protect the freedom to innovate and create without permission. Don’t block new technologies, and don’t punish innovators for their users actions.
  5. Privacy: Protect privacy and defend everyone’s ability to control how their data and devices are used.

This effort follows close on the heels of a proposal from Rep. Darrell Issa (R-CA) and Sen. Ron Wyden (D-OR) to craft a “Digital Bill of Rights” that, not to be outdone, includes ten principles. They are:

  1. Freedom – digital citizens have a right to a free, uncensored internet.
  2. Openness – digital citizens have a right to an open, unobstructed internet.
  3. Equality – all digital citizens are created equal on the internet.
  4. Participation – digital citizens have a right to peaceably participate where and how they choose on the internet.
  5. Creativity – digital citizens have a right to create, grow and collaborate on the internet, and be held accountable for what they create.
  6. Sharing – digital citizens have a right to freely share their ideas, lawful discoveries and opinions on the internet.
  7. Accessibility – digital citizens have a right to access the internet equally, regardless of who they are or where they are.
  8. Association – digital citizens have a right to freely associate on the internet.
  9. Privacy – digital citizens have a right to privacy on the internet.
  10. Property – digital citizens have a right to benefit from what they create, and be secure in their intellectual property on the internet.

In a recent Forbes column (“We Don’t Need a Digital Bill of Rights“), I expressed some concerns about the Issa-Wyden effort and I have similar feelings about that new “Declaration of Internet Freedom” as well. As I noted in the Forbes column on those “rights”:

It would be hard to be against any of these things. Luckily, at least here in the United States, we already enjoy all these freedoms thanks to the protections provided by our actual Bill of Rights. We are at liberty to participate where and how we choose, to share and be as creative as we desire, and to associate with whomever we wish. The First Amendment alone secures those rights. Likewise, properly construed, the First Amendment ensures the “right to a free, uncensored Internet,” it’s just that lawmakers often  try to evade the Amendment’s unambiguous and comprehensive “Congress shall make no law” prohibition.

But it’s not just that these new efforts aren’t needed, it’s that conflating them with the actual Declaration of Independence or Bill of Rights really bastardizes the true intent of those founding documents. As Cato’s Jim Harper rightly notes:

I’m really hoping that nobody living today gets to define the basic principles by which the Internet is ruled. We’ve got that. It’s a neato collection of negative rights, preventing the government from interfering with society’s development, whether that development occurs online or off.

Of course, Jim and I believe that the original Declaration, the U.S. Constitution, and the original Bill of Rights helped establish a government of limited, enumerated powers that properly safeguarded the most important general right of all: The right of individuals to be at liberty to live a life of their own choosing. It was all beautifully summarized in that simple phrase: you have a right to “life, liberty, and the pursuit of happiness.”

By contrast, if you subscribe to an alternative theory of rights that imagines there exists a litany of goodies to which we all possess an inalienable right, then you will likely be more sympathetic to efforts like the this new “Declaration of Internet Freedom” and “Digital Bill of Rights.” But that’s the problem I have with both documents.  The wonderful thing about the original Declaration, Constitution, and Bill of Rights was that they didn’t create any expensive entitlements that required affirmative state action. Instead, they tightly bound government and curtailed its powers and left the people at liberty. By contrast, these new “Declaration of Internet Freedom” and “Digital Bill of Rights” contain all sorts of aspirational principles that could be construed as “positive rights” that require government to provide some sort of basic underlying service, or to affirmatively and aggressively regulate the information economy to protect some of these amorphous values.

I think that’s pretty clear with some of the principles listed in the documents. Consider “Access” (“Promote universal access to fast and affordable networks”); and “Openness” (“Keep the Internet an open network where everyone is free to connect, communicate, write, read, watch, speak, listen, learn, create and innovate”). I suppose you could claim that those values do not represent calls for government action, but I hope you can imagine how easy it would be to convert both into an affirmative mandate to subsidize or regulate.

Similarly, I like the sound of the “Innovation” bullet (“Protect the freedom to innovate and create without permission. Don’t block new technologies, and don’t punish innovators for their users actions”), but is that protecting the freedom to innovation and creation without permission from the government or does this entail something more? After all, as I document in this book chapter (“The Case for Internet Optimism, Part 2: Saving the Net from Its Supporters“), there exists a large number of academics and advocacy groups today who believe that “openness” and “innovation” are values (even rights) that are most at risk from private, not public action. I invite you to read the works of Tim Wu, Dawn Nunziato, or Frank Pasquale (among others) to see what I am talking about. These new “Declaration” and “Bill of Rights” proposals don’t offer a detailed answer to that question, but I can’t help but raise this concern when at least the former effort was led by the far-left radicals at the Free Press, which was founded by America’s leading media Marxist (yes, Marxist — read about it all here).

Until the advocates who came up with these statements are willing to unpack these principles a bit more and explain their theories of rights and government, we really don’t know what these manifestos would mean if they came to influence public policy. But I suspect that they would both just result in more legislative meddling and regulatory adventurism.

Finally, I know that a few of my friends here at the TLF have come up with their own “Declaration” to push back against this other one, and I agree with many of the principles that they have articulated in their counter-manifesto. (Hell, Wayne Crews and I once even came up with a sort of Declaration of our own back in 2001).  But I think we now need to impose a moratorium on all these new “Declarations” and “Bill of Rights” proposals until we get a hell of a lot more serious about honoring the originals.

JUST SAY NO to new “Declarations” and “Bill of Rights” proposals, and JUST SAY YES to the real deals!

____________

P.S. For a light-hearted take on the excesses of our entitlement age, you might enjoy my old essay: “Broadband as a Human Right (and a short list of other things I am entitled to on your dime)

  • http://www.techliberation.com Adam Thierer

    Over at Google+, Derek Slater asks me [https://plus.google.com/u/0/107734895193166429976/posts/iZdbKB44fXr] whether I might be able to find any common ground with these groups when it comes to their Declaration.  Here’s my response:

    Am I willing to “find common ground” with these groups and individuals over these principles?  There’s no need to try; we already have it: I think they are all great principles.  But, in the end, it’s all about how these principles are applied. And when the preamble of the Declaration says that the principles apply equally to “communities, industries and countries,” then that gives me a bit of heartburn because there exists a world of difference with how a company or community deals with these matters and how countries do. 

    To be clear: I think there is value to holding companies and communities to most of these standards, but I simply do not want most of them to become legal standards. You’re not going to keep the Internet truly free by having the government regulate it even more — even when it is for supposedly noble intentions. And I suspect many of those signatories are open to that more regulatory interpretation of these principles because I have spent the last 15 years fighting many of their efforts to convert (potentially) sensible social and market norms into coercive regulatory standards. 

    So, here’s an easy way to find common ground: Amend each principle of the Declaration to clearly state “free from government regulation” and then ask who among them would agree that is a good idea. 
     

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  • Larry Rosenthal

    yep

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  • http://lippard.blogspot.com/ Jim Lippard

    When a nation’s telecommunications infrastructure is controlled by a complex web of public and private entities, some of which are highly regulated and others of which are not, some of which have received special privileges in the form of monopoly, rights of way, and subsidy, and others of which have not, what sense does “free from government regulation” make?  The regulation is already there, it’s pervasive, and it’s part of the baseline institutional structures we’re talking about, it’s part of the “code” in Lessig’s terms.  The status quo is not one in which there is a clear distinction and separation between public and private (another category is private, using the power of the government through regulatory capture, for example).

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  • http://www.hcgdietkits.com/ Kalai

    These are the 2 facts of the Internet:

    1. More than 2 billion people now go online. Nearly half of them are under the age of 25.

    2. Kansas City is about to receive, courtesy of an experimental Google project, Internet service 100 times faster than the US
      national average. The city was chosen from among 1,100 who applied.
      Kansas City expects the ubiquitous, fast connection will make it a
      hotbed for start-up companies and all other manner of innovation.

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  • http://www.merchantcashinadvance.com/ Annmarie Velasco

    But I suspect that they would both just result in more legislative meddling and regulatory adventurism.

  • http://www.medicationcard.net/ Britney Cutler

    Protect the freedom to innovate and create without permission. Don’t
    block new technologies, and don’t punish innovators for their users
    actions.

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