From Human Rights Aspirations to Enforceable Obligations by Non-State Actors in the Digital Age: The Case of Internet Governance and ICANN.

Author:Zalnieriute, Monika
 
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  1. INTRODUCTION II. WHAT'S SO SPECIAL ABOUT ICANN AND HUMAN RIGHTS? A. A Private Multistakeholder Body B. ICANN--Quasi-Governmental International Organization? C. Global Human Rights Implications of ICANN Policies D. Uncertainty Over Applicability of Human Rights Law and Jurisdiction E. Uncertainty Over Human Rights Obligations Under International Law III. ICANN'S ASPIRATIONS FOR HUMAN RIGHTS A. Applicability of Principles of International Law and International Conventions B. Applicable (Local) Law C. Enforcement Mechanisms for Self-Imposed Commitments? D. No Obligation to Enforce E. So What Has ICANN Promised to Respect in Its Constituent Documents? IV. CRITICAL ANALYSIS OF ICANN'S CSR TO RESPECT HUMAN RIGHTS A. Soft Law Human Rights Instruments and ICANN B. (Non)Profit Motivation in Voluntary Commitments C. Public Confidence and CSR D. Voluntary Commitments and CSR as "Social Branding" E. CSR as a Risk and Information Management Tool F. Would Regulatory and Punitive Action Help? G. Conclusion on ICANN's CSR to Respect Human Rights V. WHY BINDING OBLIGATIONS IN INTERNATIONAL LAW MATTER IN THE DIGITAL AGE A. Existing Imbalance Between Human Rights Obligations and Other Legal Regimes B. Remedy for Individuals C. Future Development of Access to Justice in the Digital Age VI. CONCLUSION 21 YALE J.L. & TECH. 278 (2019)

  2. INTRODUCTION

    The Internet has a human rights problem. This problem, best characterized as a human rights vacuum, occurs because a sizeable portion of the Internet's infrastructure--both material and virtual--is owned and coordinated not by public actors, whose behavior and policies are traditionally bound by human rights law, but by private actors. Various private companies and quasi-governmental bodies control aspects of Internet infrastructure and are able to enforce public and private legal regimes globally via that infrastructure. They therefore exercise enormous influence over the global Internet governance regime. (1) However, the human rights obligations of private actors in the digital era remain rather fuzzy, floating among numerous soft law pronouncements and multistakeholder initiatives. (2) This fuzziness, coupled with the growing power and influence of private actors over public affairs, such as information, voting, and democracy, is increasingly perceived as one the most pressing human right issues of the digital age. (3) The extent to which private actors should be responsible for the promotion and protection of fundamental rights online thus has recently become a hotly debated topic among governments, academics, and civil society. (4)

    The debate has attracted conflicting narratives. On one hand, some scholars argue that voluntary human rights responsibilities by Internet actors might be more appropriate than hard legal obligations. (5) On the other hand, proposals for more sweeping international digital constitutionalist efforts have emerged from the 2018 Cambridge Analytica scandal, as well as from increasing evidence of the capacity of Internet platforms to influence democratic elections and affect fundamental rights more broadly. (6) Traditionally, constitutionalist analyses and the human rights doctrine have focused on the exercise and limits of power by nation-states, (7) but more recent attempts aim to confront the practices of private companies and quasi-governmental policymaking bodies. (8)

    Building on these efforts, in this Article I focus on safeguards against the abuse of private power in the changing institutional context of Internet policy and governance. In particular, I examine the human rights vacuum and the necessity for binding obligations in the digital age by focusing on one of the core Internet governance institutions--the Internet Corporation for Assigned Names and Numbers (ICANN)--which coordinates a critical Internet infrastructure: the global Domain Name System (DNS). (9) Few have investigated ICANN's problematic relationship with human rights law, despite the wide-ranging human rights implications of ICANN's policymaking and the co-option of the DNS by governments and private actors to enforce private or public law (or particular policies and legal rights of certain groups). (10) On issues ranging from governmental surveillance to censorship, and from Internet blackouts during political uprisings (11) to economic concerns around copyrights and trademarks, (12) the DNS and ICANN have been at the center of numerous political and economic battles, with serious human rights implications. (13)

    Nonetheless, both the mainstream digital rights discourse as well as the business and human rights movement have tended to overlook ICANN. (14) Some have even mistaken it for the equivalent of a private arbitral institution in Internet governance. (15) Digital constitutionalist efforts have instead focused largely on human rights implications stemming from the rising power of Internet platforms. (16) This focus is unfortunate given that ICANN represents one of the very few centralized points of control on the Internet, a "decentralized network of networks," whose policies have global human rights implications. Moreover, ICANN has recently announced new aspirations for human rights as part of its ongoing institutional reforms, known as the "IANA transition" (IANA standing for Internet Assigned Numbers Authority). ICANN's activities (including IANA) have been supervised by the U.S. government, specifically the National Telecommunications and Information Administration, which has occurred under a contract with the U.S. Department of Commerce. Because of growing international tensions after the 2013 Edward Snowden revelations about extraterritorial surveillance by the U.S. government, in 2016 the U.S. decided to cease its supervision of ICANN. (17) The ongoing transition of ICANN's accountability from the U.S. government to a global mulstistakehodler community could be seen as the climax of a long history of controversy over U.S. government control and supervision over DNS administration. (18) While it is beyond the scope of this Article to discuss the IANA transition in detail, (19) it is notable that as part of that transition's "accountability package," ICANN adopted a bylaw stipulating a "Core Value" of "respecting internationally recognized human rights as required by applicable law" within its scope of mission. (20) In this context, important questions arise as to what kind of ethical and legal obligations ICANN may have to address human rights. What is the applicable law, and which internationally recognized human rights does that applicable law respect? To answer these questions, the ICANN community has developed a framework of interpretation (FOI) for how the aforementioned "Core Value" should be understood, interpreted, and ultimately manifested in ICANN's policies and procedures; this framework is awaiting final approval by the ICANN Board. (21)

    This Article does not scrutinize specific ICANN policies from a human rights perspective; it has been noted elsewhere that many of these policies seem to be in conflict with various human rights norms. (22) Concerns include data privacy issues in the WHOIS policy, (23) due process and limits on freedom of expression in protecting trademark rights under the Uniform Dispute Resolution Policy (UDRP), (24) as well as excessive personal data retention requirements contained in the IcANN Registrar Accreditation Agreements. (25) Instead, by scrutinizing ICANN's changing institutional commitments and its relationship with soft approaches to human rights protection, this Article illuminates the human rights vacuum that results when the commercial obligations of private actors are codified either in binding contracts or in international hard law, while human rights obligations of private actors are "secured" via soft law. Hard law is generally understood as obligations that are binding on the parties and can be enforced by the courts, while soft law refers to instruments, such as declarations or principles, which lack a binding nature. I suggest that the human rights vacuum appears to exist wherever hard law commercial obligations collide with soft law human rights pronouncements in Internet governance in the international context.

    Grounded in a business and human rights discourse, the Article argues that economic incentives either act against or are insufficient for the voluntary protection of human rights in the digital age by private actors under the prevalent principle of corporate and social responsibility (CSR). (26) I argue that market forces have not been favorable for human rights protection within ICANN in particular, not least because ICANN is not a traditional corporation--it is a non-profit corporation, which has no direct customers in the traditional sense, nor does it really compete with any other organization for market share in the assigned names and numbers of the Internet. While some scholars have suggested that domestic private law could be used to better enforce this responsibility, (27) in this Article, I focus on the role that international law can play in these efforts. Indeed, domestic law and domestic courts could and do play a role in the enforcement of human rights obligations of private actors, especially in areas of labor standards, anti-discrimination and data protection law. (28) However, given the global nature of ICANN policymaking, as well as its recent breakaway from formal oversight by the U.S. government and move toward accountability to a "global stakeholder community," (29) it has become less appealing to use domestic law as an instrument to further the development of global regulatory process in Internet governance. Other scholars have suggested that self-imposed commitments could also be enforced using foreign investment treaties (30) or international trade agreements. (31) This Article supplements the search for international law solutions by looking to international human...

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