Building a 21st Century Bill of Rights

Institute for Advanced Legal Studies, University of London, 11-12 June 2018
https://www.sas.ac.uk/events/event/14650

The Internet and human rights:

access, shutdowns, and surveillance
Ewan Sutherland†
LINK Centre, University of the Witwatersrand

Abstract
A C21st bill of rights needs to address Internet-related issues such as collection and
dissemination of personal data, lawful interception, provision of access, and government-
enforced shutdowns. However, the uncertain nature of Internet access means firstly that it
ought not to be a right, and secondly that institutions and practices need to be designed to
benefit from the Internet, to be secure from any threats and to be able to be transformed as
technologies change. These complex and evolving challenges call for institutional reforms to
support enforcement of existing rights of freedom of expression, privacy and safety,
combined with good governance and the rule of law in a digital age. In particular, it requires
independent data protection agencies that can share challenges and experiences with their
counterparts and which can publicise data breaches and emerging issues. It requires
openness, with disclosure of governmental and regulatory activities (e.g., impact and threat
assessments), with judicial appeals against decisions and parliamentary oversight of
ministers and agencies. Transparency will not be enough to stop autocratic states from
shutting down parts of the Internet, when faced with real or imagined opponents, such
governments seem able to ignore international protests. Much greater transparency is
necessary on national security and the way it used to curtail rights to privacy and safety, and
the practice of intrusive surveillance. Good governance at national level can be improved
and supported by international cooperation (e.g., peer review, threat assessment, and
training).
Keywords: Governance, Human rights, Internet, Security, Telecommunications.

Introduction
A number of concerns have been raised about the relationship between human rights and
the Internet, about the provision of access, the collection and processing of data, the shutting
down of networks, the surveillance of citizens, and, more generally, about the digitalisation
of economies and societies. These complex issues are both international and national, for
example, with Internet services delivered on markets that are subject to treaties,1 regulated
by quasi-independent national agencies, while governments direct lawful interception and

†http://twitter.com/#!/sutherla http://ssrn.com/author=927092 http://orcid.org/0000-0001-5220-9605

1Notably the International Telecommunication Union (ITU) Radio Regulations (RRs) and WTO General
Agreement on Trade in Services (GATS) and Information Technology Agreement (ITA).

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network coverage.2 Where there is good governance the courts enforce constitutional rights
and hear appeals on individual administrative decisions,3 while the ‘regulatory state’ is
overseen by parliaments. Governments, regulators, intelligence services and police forces, to
differing extents and with differing degrees of accountability and transparency, coordinate
their activities at national, continental and global levels, through international organisations
and regulatory networks, conducting peer reviews, developing best practice and preparing
and monitoring the implementation of treaties. All of this is subject to lobbying by
businesses, plus some engagement with citizens and non-governmental organisations
(NGOs). Global markets supply the underlying technologies, devices, infrastructure, and
network management services, whereas network provision is invariably national in scope,
with extensive obligations set out in licences and general authorisations. The content
accessed over networks is sometimes national, but is often provided by or through
multinational corporations (MNCs).4 The questions addressed in this paper concern how the
continuing technological advances achieved with the Internet can be related to the
formulation and implementation of human rights.
The Internet began as a simple network of local networks, linking a few research institutions
in the USA, growing by adding more networks and gateways to other networks, which later
switched to use Internet protocols (Hafner & Lyon, 1998; Leiner, et al., 2009). Massive
expansion came with the commercialisation of access, using pre-existing telephone
networks. The supposedly technical protocols contained a strong political bias against
regulation, trying to confine that to the underlying telecommunication layers, even when
services began to erode the telephony revenues of operators. A political imperative was
stated in the ‘right to innovate’ (Lessig, 2001; Torrance & von Hippel, 2015), to create novel
end-to-end services, without reference to commercial operators or governments. In parallel,
firms and governments developed standards for mobile networks that added Internet access
then increased its capacity, combined with smartphones that allowed third parties to create
apps. Advances were driven by strong capitalist forces, in particular the race to produce
ever more powerful microprocessors, enabling greater functionality, used by a stream of
new apps and services that generated user data to be sold to advertisers. In hearings before
the US Senate Committees on the Judiciary and on Commerce, Science, and Transportation
(2018) and the House Energy & Commerce Committee (2018), Mark Zuckerberg evaded
explaining how Facebook disregards the privacy of its customers and their friends when
collecting, processing and profiling that data.
Globalisation has been analysed in economics, politics and sociology, despite disagreement
over its definition (Stiglitz, 2002; Holton, 2011; Christensen & Kowalczyk, 2017; Caselli &
Gilardoni, 2018), while the rise of identity politics, nationalism and populism are receiving
greater attention (Post, 2017; Saramo, 2017; Galbraith, 2017; Stockemer & Barisione, 2017).
Opposition has become commonplace, even global, with condemnations of multilateral
trade agreements and of regional economic groupings. By contrast, China supports its own
version of globalisation, notably its Belt and Road Initiative, while remaining authoritarian
and somewhat protectionist at home (Ferdinand, 2016; Rolland, 2017).
For many, the Internet epitomises hyper-globalisation, a single global cyberspace
transcending national borders. The manufacturers of equipment have non-market strategies
(NMSs) pursuing borderless global markets, subject to the least possible regulation, in order
to maximise their economies of scale and profits. These include extensive lobbying at
multiple levels (e.g., United Nations, continental, national and municipal), sometimes

2 These may take the form of both obligations to cover certain percentages of the population and state aid to
cover part of the capital costs of extending networks into areas that are not commercially viable.
3 In some countries regulatory authorities will reconsider decisions, while in others initial appeals are heard by

specialist tribunals.
4 A rare instance of cross-border content regulation is provided by the EU Audio-Visual Media Services Directive

2010/13/EU.

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supported by national or municipal litigation, but only token efforts at corporate social
responsibility (CSR) and the observance of human rights (Sutherland, 2014; 2016). Activists
support a unitary global Internet, superseding national political and regulatory processes,
envisaging the obsolescence of Westphalian nation states (Fraser, 2007; Eriksson &
Giacomello, 2009; Liaropoulos, 2017). At the other extreme is China, which maintains a
separate national Internet, behind its Great Firewall (Ensafi, Winter, Mueen, & Crandall,
2015; Ensafi, et al., 2015; Roberts, 2018). This blocks incoming content, both as censorship
and as a trade barrier, excluding foreign providers, while their protected Chinese
counterparts are required to engage proactively in sophisticated censorship (Lee, 2016; King,
Pan, & Roberts, 2017). Many other governments wish to have such national controls, with
some seeking an extraterritorial reach to monitor dissidents and émigrés using advanced
surveillance technologies (PI, 2017).
Human rights are codified and recognised at multiple levels, in international treaties, such
as:
 United Nations Universal Declaration of Human Rights (UN, 1948);
 European Convention on Human Rights (CoE, 1950); and
 European Union Charter of Fundamental Rights (EU, 2000).
These have been expanded in a range of specialist conventions. The rights are also
recognised at the national level, for example:
 US Bill of Rights 1789;
 Constitution of South Africa Act of 1996; and
 United Kingdom Human Rights Act 1998.5
Enforcement of these treaties and laws varies enormously, often being ignored by
authoritarian governments. There are intergovernmental discussions, for example at the
United Nations Commission on Human Rights and the Council of Europe, reviewing
implementation. International enforcement is generally limited and ineffective, with the
exception of the European Court of Human Rights (ECtHR) and the Court of Justice of the
European Union (CJEU). Businesses are supposed to observe human rights (UN Global
Compact, 2018), but many avoid difficult countries and controversial problems. Several
projects seek to measure the state of human rights, the rule of law and the fragility of states,
albeit incompletely and not uncontroversially (Freedom House, 2017; WJP, 2017).
In the 1970s, the growing use of computer systems gave rise to concerns that data might be
misused by corporations and governments, infringing the right of citizens to a private life,
resulting in legislation in the USA and a number of European countries (González Fuster,
2014). Data privacy was codified in the OECD (1980) Guidelines and Council of Europe
(1981) Convention, and the subsequent Data Protection Directive 95/46/EC, now replaced by
the General Data Protection Regulation (EU) 2016/679 (GDPR). While these rules have
diffused far beyond Europe, implementation is often pro forma, there being few effective data
protection authorities, only rarely the option of civil ligation and almost no effective
network governance to link supervisory authorities (Guadamuz, 2000; Greenleaf, 2014;
Makulilo, 2016; Wolfson, 2017). One important addition to the original principles has been
the ‘right to be forgotten’, to have some set of data about an individual expunged,
generating extraterritorial issues, with service providers reluctant to ensure global deletion
(Rosen, 2012; Neville, 2017).
While it was never planned, the Internet now enables individuals to exercise other rights, to
associate, to communicate, to participate in political processes, even to pursue a family life.
However, it is a double-edged sword, being also used for bullying, fraud, and a range of
domestic and international crimes, even for warfare, requiring the courts, the police, the

5 There have been proposal that the UK withdraw from the ECHR in favour of domestic rights legislation.

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intelligence services, the military and the government to protect citizens. It requires a digital
transformation of government and governance, just as businesses need to undergo
digitalisation, for example, restructuring, retraining, and rethinking police forces and their
work (HMIC, 2015; Mason & Seng, 2017). The archetypal political use of social networks is
captured in the phrase: “The President is up and tweeting”, providing a means to connect
with large number of his past and future voters. Social networks offer immediacy, openness
and transparency that would be very difficult by other means.
The following section addresses the question of Internet access as a potential right. The
following sections examine in turn security, censorship and network shutdowns. Finally,
conclusions are drawn and issues identified for further research.

Internet access
Vint Cerf (2012), a ‘founding father’ of the Internet, argued access was not a human right.
The nature of access has been constantly and intentionally changing, a feature not a bug,
with massive corporate and governmental investments in research and development and
changing business models, making it very difficult to formulate the text. Moreover, it would
entail picking technologies, deciding on the pace of network deployment, shaping market
competition and defining interventions, against the background of, seemingly unending,
change. Accelerating development is often part of industrial policies, creating some future
Internet, for example, with nations aspiring to lead the deployment of the Internet of Things
(IoT) and fifth generation mobile (5G).
Internet access is being extended to ‘things’, including coffee machines, fridges and
electronic tattoos. A person might conceivably have a right to Internet access, but not their
chattels and effects, even ‘smart’ underwear cannot have rights, though its owner might be
entitled to connect (Mashable, 2018). A yet more complex issue concerns the data from the
smart underwear that might be transmitted to a home server, a fitness service provider or to
the manufacturer, data that are personal and potentially sensitive and thus should be
protected. The smartness of buildings and cities brings significant challenges for privacy and
data protection, for example, with CCTV cameras linked to face and gait recognition
software and databases.
The problem of setting rates for services first arose for railroads in the USA in the nineteenth
century, resolved by creating an independent regulator (MacAvoy, 1965; Stone, 1991).
Subsequently, policy was made by the administration, laws were scrutinised and adopted
by the legislature, decisions were taken by the regulator, subject to appeals to the judiciary,
creating the ‘regulatory state’ (Anderson, 1962).6 The global diffusion of this model for
telecommunications occurred late in the twentieth century (Guislain, 1997), with the
liberalisation of markets and the privatisation of state providers, often flawed by lack of
accountability and oversight, and intermittently by corruption.
Assuming Internet access remains with markets, then an expert agency is considered the
best option for governance, within a regulatory state (WTO, 1996; Laffont & Tirole, 2001). Its
roles being to:
 Analyse prices;
 Examine qualities of experience and of service;
 Adjust for technological changes; and
 Oversee any subsidies and cross-subsidies.7

6Parts of this were later codified in the Administrative Procedure Act 1946, Pub.L. 79–404, 60 Stat. 237.
7Cross-subsidies arise under universal service obligations, where flat, non-geographic tariffs allow an operator to
take money from cheaply supplied customers to pay for those in more expensive locations.

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The principal alternative is a monopoly, long out of favour, whether direct state provision or
a concession assigned to a commercial operator. These are seen as inefficient and wasteful,
responding poorly to rapid changes in consumer demand, equipment and services.
In the European Union access to the Internet has been part of its universal service obligation
(USO) (EC, 1997; 1998). The EC (2000) dropped access to older technologies in favour of an
obligation of:8
… data rates that are sufficient to permit functional Internet access (EC, 2002).
Subsequent reviews excluded broadband, since the majority of consumers relied on dial-up
(EC, 2006; 2008). Member states could require universal broadband, provided it was funded
from general taxation, rather than having operators levy the money from customers, though
even by 2011 only Finland, Malta and Spain had done so (EC, 2011).
The legislative proposal, presently before the European Parliament and the EU Council,9
adds broadband to the USO. A minimum speed is to be defined by a list of basic services
that should be enabled, which will be amended to keep pace with developments, but
presently includes banking, education and government (EC, 2016).10 Whereas, expanding
geographic coverage is expected to be addressed by means of coverage obligations in
spectrum licences and public investment in conformity with state aid rules.11 Additionally,
there should be financial support from governments allowing operators to provide social
tariffs for those with low incomes or special social needs (i.e., disabilities).
The use of the essential facility doctrine in competition law has been suggested as a means to
regulate platforms such as Facebook and Google (White, 2018). This arose from the case of a
railway bridge over the Mississippi River (United States v. Terminal R.R. Association, 1912),
that would have been costly and difficult to replicate (Werden, 1987; Areeda, 1989). While
doubtless opposed by providers, this doctrine has a solid basis in economics and law,
allowing the courts to settle any appeals.
The principal-agent problem describes circumstances in which a person or entity as the
‘agent’ makes decisions or take actions on behalf of another person or entity as the
‘principal’ (Eisenhardt, 1989). Agents are motivated to act in their own best interests, which
may be contrary to those of their principal. This problem arises with the electorate and MPs,
MPs and ministers, ministers and regulators, regulators and regulated firms, and investors
and managers of those firms. A major challenge for regulators and policymakers is to have a
sufficient understanding of technological developments and the likelihood and strength of
their adoption by consumers and business users.
These issues become more complex because of lobbying by regulated firms, the
manufacturers supplying them and their trade associations. In some countries there are
measures to provide transparency, such as the publication of lists of meetings with ministers
and regulators, and of gifts and political donations. In most countries lobbying goes
unreported and may be supplemented by gifts and travel for ministers, or replaced by bribes
and cronyism. There is a risk of regulatory capture by operators, or capture by the
government, when the regulator can be reduced to a façade, with only the appearance of
independence (Dal Bó, 2006).
One reason for the liberalisation and privatisation of state providers of telecommunications
was to shift the risks of the massive investments needed to upgrade networks from
government and taxpayers to private investors. This has been substantially reversed by

8 This provided two 60 kbps channels on each telephone line.

9 http://www.europarl.europa.eu/oeil/popups/ficheprocedure.do?reference=2016/0288(COD)&l=en
10 It will also remove the provision of legacy services: public payphones, comprehensive telephone directories

and directory enquiry services.

11 Subject to Article 117(1) TFEU.

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lobbying, with operators and manufacturers increasingly arguing that new technologies
should be part of national industrial strategies, because they contribute to economic growth
and improve productivity. Later, when networks have been deployed in more populated
areas, operators argue for state aid to extend them into areas they consider uneconomic.
They even persuaded the EC to modify its definition of state aid to allow the funding of the
‘next generation’ of network technologies in areas where networks already exist (EC, 2013).
It is very difficult to define and implement USOs other than by national mechanisms. The
EC tried for decades to create a pan-EU ‘single’ regulator in the face of bitter resistance from
national governments, while receiving little support for industry (Sutherland, 2010).
Nonetheless, the EU has provided structural funds for network construction in poorly
provided areas. Developing countries have access to funding from the World Bank and its
Chinese counterpart, but there is declining demand, since operators can borrow on
commercial markets.
In the United Kingdom a court faced with a challenge concerning a hypothetical right to
Internet access would have to identify a remedy that it might compel one of the following to
execute:
 Secretary of State for Digital, Culture, Media & Sport (DCMS);
 Office of Communications (OFCOM);
 Openreach; or
 One or more of the operators.
As in the Clientearth case it might require HMG to adopt a policy that would deliver a
programme, or it might strike down an existing policy (Clientearth v Secretary of State for
Environment, Food & Rural Affairs, 2017). It would not be able to write a new policy and
very unlikely to force HM Treasury to spend specific sums. In picking a technology it would
create a path dependency, as happened with Openreach, potentially constraining policies for
years into the future.
Two cases have been brought against monopoly telecommunication providers, arguing that
the insufficiency of provision infringed the right of freedom of expression, resulting in the
licensing of alternative providers in Dominica and Zimbabwe (Retrofit (Pvt) Ltd v. Posts &
Telecommunications Corp, 1995; Butler, 1997; Cable and Wireless v. Marpin Telecoms &
Broadcasting, 2000).
Internet access has increasingly become necessary to exercise other rights, such as freedom
of expression and is deeply entangled with the right to privacy, perhaps even with the right
to a family life, but access per se is too changeable and ephemeral to be a right itself. Today,
there can only be limited understandings of the future markets for Internet of Things or 5G
mobile, with even vaguer visions of 6G. It is essential to recognise the drivers and pace of
change and to have governance, institutions, laws, policies and practices that are able to
keep up. It is important to ensure good governance, with transparency in processes, in
access, in meetings, in payments, in data and statistics, and so on.

Security
In the Weberian state, governments have the exclusive right to the legitimate use of force
(Weber, 1919). The state thus has to protect citizens against cyberattacks, whether from
domestic or foreign criminals, terrorists or foreign powers. This means protecting the life
and the exercise of rights of its citizens, for example, attackers have tried to disable the
French TV5 channel, the Ukrainian electricity grid and the UK National Health Service
(NHS). It should also assist businesses and citizens in protecting themselves, for example, by
encouraging the use of more secure passwords, antimalware software and keeping offline
and offsite backups of data.

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Interception by the state dates back to opening of letters in ancient times, belatedly given a
legal basis as part of postal monopolies in early modern times.12 Lawful interception was
extended as new technologies came into use, first telegrams and telephone calls, then
Internet communications. It was embedded in telecommunication standards and
technologies, but not in Internet equipment and software, with some providers emphasising
their systems were above interception. Democratic governments maintained a degree of
secrecy about their capabilities for interception and decryption, to discourage criminals and
terrorists from adopting more secure communications. More authoritarian regimes often
emphasised they were listening and watching.
There is little, if any, dispute over the need for lawful interception in the investigation of
crimes. Whereas, there is considerable disagreement over the level and nature of the
necessary approval, whether by a senior police officer, a government official or a judge, and
the level of justification required for that approval.13 Similarly, there is disagreement about
the nature of transparency through mandatory reporting and accountability to independent
tribunals and parliaments. In addition to the right to privacy there are issues of good
governance of the processes that breach privacy.
While the right to privacy is well established in the Universal Declaration of Human Rights
and the European and Inter-American conventions, procedures and observance vary
enormously between countries, reflecting administrative, cultural, legal and political
differences. However, the evolution of the right has been slow, given rapid technological
advances in interception, drones, IMSI-catchers, and intrusive malware. Even statutory law
lags on many of these issues.
From the 1960s, the rise of administrative and commercial data processing, especially for
censuses, caused concerns about the collection of data, the combination of databases and
transborder data flows. This prompted work in a number of countries, including the USA,
and in international organisations, leading to the adoption of:
 Guidelines on the Protection of Privacy and Transborder Flows of Personal Data
(OECD, 1980; Gassmann, 2010); and
 Council of Europe (1981) Convention for the Protection of Individuals with regard to
Automatic Processing of Personal Data.
The European Community, like the OECD, was concerned that divergent data protection
laws would inhibit economic growth, with the EC (1981) proposing that member states
(MSs) sign and ratify the Council of Europe Convention. Most MSs set out what were to
become data protection principles and institutions in the Schengen Convention (1985), in
respect of the Schengen Information System (SIS). It was only much later that the EC (1990;
1992) produced a legislative proposal,14 which became the Data Protection Directive
95/46/EC, with the dual objectives of:
 Ensuring that Member States protect the fundamental rights and freedoms of natural
persons, especially privacy; and
 Forbidding any restrictions of the free flow of personal data between Member States.
It was to create a single European market for personal data with a high level of protection
for individuals, with transfers to third countries permissible only where there was an
adequate level of protection. MSs had to create supervisory authorities that were
represented in the Article 29 Working Party, a European regulatory network (ERN)
producing formal opinions, improving harmonisation and facilitating informal discussions.

12 In the UK the Post Office (Revenues) Act 1710.

13 For example, the ‘Nunes Memo’ alleges that the US Department of Justice failed to disclose to the FISA Judge
the nature of the material presented as the basis for surveillance warrants.
14 Encouraged by the Bangemann Report (Bangemann, 1994)

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There were also the usual regular reports from the EC on progress, including periodic
privacy Eurobarometers (Poullet, 2006).
The Comité des Sages (1996) proposed rights be incorporated into the acquis communitaire,
including addressing threats from technological advances. The EC appointed a further
Expert Group on Fundamental Rights (1999) that proposed adopting all the ECHR rights
and adding the right to determine the use of personal data. The inclusion of a data
protection right was supported by the Article 29 Working Party (1999), by the European
Group on Ethics in Science and New Technologies (2000), and was taken up by the
Convention preparing a European Constitution. With the assent of the European Parliament
the Charter of Fundamental Rights was proclaimed in 2000, but only had legal force from
the Lisbon Treaty in 2009.
The Charter (EU, 2016) restates in Article 7, the right to a private life, and in Article 8 the
right to protection of personal data: 15
i) Everyone has the right to the protection of personal data concerning him or her.
ii) Such data must be processed fairly for specified purposes and on the basis of the
consent of the person concerned or some other legitimate basis laid down by law.
Everyone has the right of access to data which has been collected concerning him
or her, and the right to have it rectified.
iii) Compliance with these rules shall be subject to control by an independent
authority.
These have to be read with Article 52, explaining that any limitation of the rights must be by
means of law, and respect the “essence of those rights and freedoms” and the principle of
proportionality. This right was novel in international law, but was based on a range of
previous legal instruments. (González Fuster, 2014)
An area of contention is the trans-Atlantic transfer of data, with MEPs complaining that
inadequate safeguards allowed the US government to access sensitive data about EU
citizens. The EU-US Safe Harbour Agreement was struck down by the CJEU, to be replaced
by the disliked Privacy Shield. This has become more contentious with the adoption of the
US Cloud Act (HR 4943), requiring providers to transfer data from foreign servers to the US
authorities.
Yet more controversial is the use of mass surveillance from the ePrivacy Directive
2002/58/EC, which replaced Directive 97/66/EC, empowering MSs to direct operators to
retain communications data that could subsequently be used to investigate serious crimes
and terrorism (Breyer, 2005; Ripoll Servent, 2013). The limitations of retention have been
addressed extensively by the CJEU and ECtHR, with ongoing litigation (Burke, 1981; Tele2 v
PTS, 2016; Home Secretary v Watson & Ors, 2018). Arguments concern the lack of
transparency in the process and the disproportionate collection of data that governments
argue is essential to counter terrorism.
Some of these issues were taken up at the UN Human Rights Council,16 which appointed a
Special Rapporteur on the promotion and protection of the right to freedom of opinion and
expression.17 The overwhelming majority of countries lack effective checks and balances on
mass surveillance powers (Korff, Wagner, Powles, Avila, & Buermeyer, 2017, p. 8), even
those with constitutional provisions or that have incorporated human rights into their laws.
Protection is sometimes limited to citizens within the boundaries of the state, not being
extended to foreign visitors or residents, let alone foreign citizens, which may be extended

15 The exclusion of the Charter from the EU Withdrawal Bill is one of many contentious aspects of Brexit.
16 http://www.ohchr.org/en/hrbodies/hrc/pages/hrcindex.aspx
17 http://www.ohchr.org/EN/Issues/FreedomOpinion/Pages/OpinionIndex.aspx

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by the sharing between intelligence agencies (e.g., Five Eyes), not always subject to
oversight. Many authoritarian states systematically ignore constitutional protections.
There is somewhat limited reporting of lawful interception by operators and service
providers, often under prohibitions against describing the arrangements or the scale of
activity. This is complicated in some countries by senior politicians and their families
owning operators, which greatly eases interception and surveillance. There have been efforts
by the Telecommunications Industry Dialogue (2018) and Global Network Initiative (2017)
to increase transparency, but most operators and providers decline to participate. It is
difficult to see how effective pressure can be brought on such governments to become more
transparent.
National security is, generally, defined in very wide terms and its use to justify collection of
data or exclude processing from data protection rules has rarely been tested in constitutional
courts. Intelligence services are not pursuing individuals who have performed specific
criminal acts, but foreign agents, spies and terrorists, where the issues have rarely been set
out in terms of human rights.

Shutdowns
In 2008, the then Mubarak regime in Egypt began planning for the shutdown of Internet
access in the event of political unrest. Its implementation in 2011 was to be a watershed, with
other authoritarian governments following its example (see Table 1). Cameroon is one of the
most extreme, where the Biya regime has closed Internet access in its Anglophone region,
sometimes for several months. The approach has also been used extensively in South Asian
countries, often in particular provinces (Internet Shudowns, 2018).

Table 1 Recent network closures in Africa18

Country Dates Reasons given
Algeria June 2016 To stop students cheating in examinations.
Cameroon January-April None, but believed to be during suppression of protests in English
2017 speaking regions.
Chad April 2016 For elections.
Congo March 2016 For reasons of national security and to stop the publication of illegal
results of the elections.
DRC Early 2015, late To help in stop and prevent protests in Kivu provinces and in the capital.
2016 & early To limit protests when the President’s term of office expired, and
2018 subsequent protests.
Gabon 2016 Evening for two weeks prior to the election
Gambia Late 2016 Closed during immediate election period.
Ethiopia 2016 To stop protests against the government, especially in Oromia region
Gabon September Four day shutdown, then 12-hour-a-day internet curfew due to political
2016 tensions
Uganda February & May For the election period and again prior to his re-inauguration.
2016
Zambia August 2016 During protests at re-election of president.
Zimbabwe July 2016 To stop the ‘Shut down Zimbabwe’ protests.

Some short outages, for minutes or hours, are seen as technical measures, when
governments are installing the latest hardware and software to improve their interception
and surveillance. Indeed, this may signal to citizens that they are using the latest
interception technologies. Other outages are caused by cable faults, notably affecting North
Africa, since the continent is slowly moving northwards as a result of plate tectonics.

18 For subsequent outages see Access Now, CIPESA, and Paradigm Initiative.

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Some organisations have calculated the costs, arguing that governments should not damage
their economies (OECD, 2011; West, 2016; Kathuria, Kedia, Varma, Bagchi, & Sekhani, 2018).
In Egypt a legal case for damages was brought for the 2011 shutdown, with the Supreme
Administrative Court fining as follows:
 Hosni Mubarak (President) EGP 200 million
 Ahmad Nazif (Prime Minister) EGP 300 million
 Habib al-Adly (Interior Minister) EGP 40 million
However, the decision and the fines were later set aside (Alaraby, 2018).
Demand from governments led to the development of a wide variety of software and
hardware that could be used to enforce bans on specific sites or topics. For example, the
Ethiopian government used software intended to filter out unsolicited commercial messages
(i.e., spam) to block the sending of text messages about demonstrations and protests. The
Egyptian government has had its telecommunications regulator operate a facility for deep
packet inspection (DPI), allowing it to block the use of services such as voice over Internet
protocol (VoIP), which would have evaded its more conventional surveillance systems.
These technological advances were made independently from or beyond the sight of those
protecting human rights.
The operation and fairly high level of encryption in the Telegram messaging system was
designed to avoid and evade lawful interception. It has caused driven a number of
governments to suppress the service or to require users to register with them, for example,
Iran, Philippines, and Zimbabwe. Ironically, although a Russian company, the service has
been banned there by court order, because it would not allow the government to intercept
messages, but is proving difficult to block because of ‘domain fronting’ through Google.
Internet shutdowns are easily detected, often within minutes, opening governments to early
criticism (IODA, 2018). However, the administrations concerned have shown themselves
inured to protests, willing to persist, either in silence or by offering justifications in terms of
the threats to public order and the risk to citizens from riots and communal violence.
International pressure has made no discernible difference. The economic argument has been
wasted on regimes more concerned with survival than with economic damage or hardship
for citizens. The absence of administrations, courts and parliaments that will uphold rights
of communication and free speech are the central problem, with the Internet merely
highlighting deep-seated problems of authoritarianism.

Conclusion
A bill of rights for the 21st century needs to remain workable for decades, thus it should
avoid issues that are already or will soon become obsolete or archaic. While the Internet may
be inextricably linked to other rights (e.g., expression and privacy), it is difficult to conceive
of access as a right in itself, being changeable and inconstant. For reasons of economic
growth, geographical cohesion, social equity and to support the achievement of other rights
governments, regulators, parliaments and the courts have pressed operators to extend their
services geographically to remote areas and socially to poorer citizens and to the disabled.
To boost economic growth and improve productivity a range of legislative, policy and
regulatory tools have been devised to facilitate the introduction and adoption of new
technologies. Central questions for electorates and governments concern how quickly they
want such technologies to be deployed, how extensively, and how much of their tax
revenues they will pay towards such networks. It is not obvious that the processes of rights
would provide better answers to such questions.
Misuse of the Internet presents growing cybersecurity problems for businesses, citizens and
governments, with threats originating from criminals, hacktivists, foreign states, terrorists,
the sociopathic and the insane. At the abstraction of rights the primary issue has been

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 THE INTERNET AND HUMAN RIGHTS: ACCESS, CENSORSHIP, SHUTDOWNS, AND SURVEILLANCE

privacy, from which flowed legislation for data protection to minimise data breaches and to
avoid the abuse of personal data, together with laws to criminalise attacks on computer
systems. The European Union created data protection as a separate right. Perhaps, the
creation is more important than the right, reflecting a system of governance that identified a
problem requiring changes to institutions, legislation and rights, an area where the EU has
had considerable success in the work of the EC, EP and the Article 29 Working Party.
Outside the EU, few countries have the governance systems needed to constrain the
collection of data by firms, or its sale and transfer to other firms or to political parties, let
alone bulk transfer to the secret police. Given their weaknesses in governance and rule of
law, it may be easier to define a more technical right to data protection, than to try to enforce
privacy. Ideally, data protection authorities should be working in international networks to
address complex and emerging problems, echoing the Article 29 Working Party. A major
advance would be an international treaty-based organisation for data protection, with the
UN General Assembly having already unanimously adopted a resolution recognizing the
right to personal data protection on the Internet.19
Claims by service providers that self-regulation is sufficient are self-serving and false, firms
have written incomprehensible terms and conditions, permitted but not reported data
breaches, transferred data to other jurisdictions and supplied data to secret police. Their
efforts at multistakeholderism, just lobbying by another name, have proved entirely
insufficient to contain spam, trans-border data flows or to provide a culture of cybersecurity.
This is unsurprising, since commercial drivers are not aligned with the rights of citizens,
only the serving of their wants where it is sufficiently profitable. In particular, the business
model of hoovering up data in the hope of future monetisation, through sale of the data,
supported by multistakeholderism, has created a Facebook monster that is proving very
difficult to tame. Multistakeholderism is grossly inadequate as a substitute for domestic
rights, antitrust and sectoral regulation.
There are severe challenges concerning the exemption for reasons of national security from
rules concerning privacy. Often the practice of surveillance and wire-tapping is not specified
in law, while the supposed constitutional constraints are frequently ineffective. The
challenge is not the bill of rights, but to devise and implement practical measures for what is
permitted, what must be reported and how this can be brought under the oversight of the
courts and parliaments, and to make these effective. It is equally important that the threat
assessments are carefully evaluated and subject to scrutiny and oversight, for example, the
threat of terrorism to public safety and the consequent need for censorship and surveillance.
The institutions dealing with constitutions and bills of rights must recognise the continuing
digitalisation of society, initially in the means to devise the bill of rights and then in the
ways in which it is implemented. It is necessary to engage with Internet-based technologies,
requiring the transformation of government, police, regulation, parliamentary oversight and
systems of appeals. Digitalisation and the use of the Internet requires considerable work in
governance and in metagovernance, in the creation and periodic reform of institutions,
including the training of officials, parliamentarians, police, prosecutors and judges. It
requires mechanisms for the digital transformation of the police, the courts, public
administration and parliaments, to ensure that they are fit for purpose. These processes will
never end − there will need to be constant rounds of reviews and transformations.
Further research into the availability and use of surveillance technologies is necessary, to
establish patterns of its development and diffusion. The adoption of artificial intelligence is
raising new issues about the use of data and requires careful consideration.

19http://www.loc.gov/law/foreign-news/article/u-n-human-rights-council-first-resolution-on-internet-free-
speech/

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 THE INTERNET AND HUMAN RIGHTS: ACCESS, CENSORSHIP, SHUTDOWNS, AND SURVEILLANCE

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