Not A Human Right
I want to post more later when I have time on the whole notion of giving the US President an Internet kill switch (short review: yuk!)
But I wanted to correct one bit of sloppiness in a number of posts. Access to the Internet is not a human right. If it were, the implication is that some groups of people would have to be coerced to provide Internet access to those who currently don't enjoy it.
The correct way to phrase the issue is "Turning off or blocking the Internet is not a government right."
Tim:
I respectfully disagree. Access to the Internet, or cell phones, or social media sites is a human right. They are simply instances of the fundamental human rights of association, speech, and press.
Just as more traditional reading of 'freedom of the press' doesn't mean that everybody *must* be provided with a printing press, broadcast station, or mimeograph machine; access to other forms of electronic communication doesn't mean that everybody must be provided with it.
The other basic argument against the government being able to 'turn off the Internet' is that the internet infrastructure is private property; and I have a contract with my service providers to entitle me access to their private property in exchange for money. The government doesn't have the right to interfere with that contract. This aligns with your thoughts, however, plain reading of the interstate commerce clause does give the government some leeway to act here.
Defining internet access in terms of the First Amendment provides a much stronger bulwark against the stupid, stupid government doing stupid things.
January 30, 2011, 12:39 pmsmcg:
Tim,
I feel that you draw too long a bow on what should be construed as human rights, including the ones you see as fundamental. At its core, I guess, is the simply the definition of what we mean by "right".
My counter position is that most "rights" are simply artefacts of our living in relatively free liberal (and by that I do not mean leftist) democracies - for most of human history and for most of humans alive today they are clearly not "rights" but things that must be struggled for, or aspired to.
I would suggest that the only real human right is the right to try keep you and your loved ones alive, not matter what ravages the state/government may try to deal you...
January 30, 2011, 1:04 pmTim:
Perhaps, but the DoI's list of rights isn't exhaustive. The First Amendment's restrictions on government action don't create a 'Right of Communication'; they simply defend such an existing right against intrusion.
Could this 'Right of Communication' be a subset of 'Liberty'? Perhaps you could construe it that way. The important issue is to remember that governments are instituted to protect rights; it isn't the existence of government that creates such rights.
I think it's important how you frame this debate; because saying "x, in it's various forms, is a fundamental right" provides a lot stronger conceptual framework to defend against intrusion than "government doesn't have the right to interfere with x". In the latter case, it becomes easier to start carving out exceptions.
January 30, 2011, 1:22 pmJoel:
But Mubarak has a kill switch. Seems hardly fair to Obama.
January 30, 2011, 2:51 pmDr. T:
Tim said: "... Access to the Internet, or cell phones, or social media sites is a human right."
If that's true, then it's amazing that Homo sapiens survived for tens of thousands of years without a single person being granted that right.
Nothing is a human right if it requires something non-human (such as modern technology). Humans have a right to be secure from predation by other humans, but they don't have a right to be secure from flea bites or sunburn. People have a right to life, but they don't have a right to demand free food from groceries or to demand that they be hired by some business. People have a right to communicate with others, but they don't have the right to demand free air time at a TV station or a free computer with free internet and free blogging software.
The existence of a right does not imply that society must provide every person with everything needed to optimally fulfill a right. I have a right to pursue happiness, but that doesn't mean that society must buy me a new car, a new house, and a vacation in Costa Rica (all of which would make me happier).
January 30, 2011, 3:00 pmtraderpaul:
@Dr. T
January 30, 2011, 7:02 pmI think you have missed Tim's point. Everyone has the right to freely communicate without interference of government (you said so yourself). It shouldn't matter if individuals choose to communicate via the internet or with a pair of tin cans and a string. He is not advocating free cell phones, computers, internet connection, etc. He is saying that we should not let government dictate the ways in which we are allowed to communicate, and if we do we are less free. The freedom to communicate via the internet is an instance of the human right of free association.
Ed S:
The Universal Declaration of Human Rights, http://www.un.org/en/documents/udhr/index.shtml , article 19, gives anyone (in signing countries) the right "to seek, receive and impart information and ideas through any media and regardless of frontiers."
Obviously in part of the world this is implemented by allowing the citizenry to travel to the capital city to queue at an Internet terminal in the national library.
January 30, 2011, 7:06 pmDavid:
I think you guys are looking at it all wrong - access to the internet clearly is a human right; free access is not. Similarly, access to food markets is a human right: you have the right to bargain for a fair price with a food merchant, and, by doing so, you will always be able to eat; however, you do not have the right to have the merchant's product provided to you free of cost.
Also, governments have powers, not rights and I'm having a hard time finding a justification for a kill switch or a scenario where such a right can be invoked in such a way as to benefit the general public.
Or, pretty much - what traderpaul said :)
January 30, 2011, 8:08 pmdovh49:
I concur with Tim. I don't know if he said it also, but it deals with private property also. Government can't take private property (or at least in a free society they wouldn't).
January 30, 2011, 8:39 pmJeremy:
I think the point being missed is that free speech, if we consider it a right, does not require anything to be exercised. It does not, of course, guarantee a means of conveyance or an audience. If the human right were instead those means, then we should all have pens, printing presses, and a T1 line from birth. The human right (such as life, liberty, pursuit of happiness) was ours to begin with, not to be stripped by government. I didn't start life with an internet connection, so it can't be a human right.
January 30, 2011, 8:42 pmTim:
My point is more expansive than just 'speech', it's communication. I have a fundamental right to access that theoretical 'marketplace of ideas'. In the framer's time, that was via the press and assembly. In the 1930s-1990s, that added radio, television, and cable. Now, it's connectivity.
To follow Jeremy's argument -- if free speech doesn't require anything to be exercised; then cases like Citizens United were decided wrong. If what you theorize is true; then the government can very reasonably restrict anti-incumbent campaign material to you standing on the street corner on a soapbox.
Please don't confuse *access to* a communications medium with *being provided* that medium. Being provided has *never* been part of a theory of rights; and simply because something isn't natal doesn't mean that your fundamental rights don't extend to it.
You weren't born with property, either; but you have a fundamental right to secure what property you do own from the government.
January 30, 2011, 9:45 pmNeoWayland:
With all due respect, individuals have rights.
Governments have powers.
The two should not be confused.
The only reason government powers exist is to protect individual rights.
January 30, 2011, 9:46 pmiron308:
Well said NeoWayland.
January 30, 2011, 10:32 pmJeremy:
Tim: The point is that in both cases the right being infringed isn't really connectivity, it's our right to engage in free business between consenting humans. If the government provided the internet infrastructure and sole connection, as it does in many countries, am I right to say that the government is obliged to maintain that connection? Probably not, although they may find that their population dislikes their actions if they do "flip the switch." But do they have the right to step in and prevent a third party from providing it? Of course not. So the connectivity is not the right. The freedom is our ability to engage in that transaction without interference. So to rebut where you misinterpret me, just as they don't have the right to impede me speaking, they don't have the right to prevent someone from listening. But they certainly don't have to provide the bus to get people to the corner where I'm standing and talking.
January 31, 2011, 11:14 amDr. T:
traderpaul said: "@Dr. T, I think you have missed Tim’s point."
No, I didn't. Tim specifically stated that access to cell phones and the internet is a human right. I disagree: human rights are independent of technology. Tim's statement is equivalent to claiming that every person has the right to receive the best medical care at the most prestigious hospital in the world. That's obviously incorrect. Every person has the right to life, which includes obtaining food, clothing, shelter, medicines, etc. But, the right to life does not include the right to forcibly acquire food, clothing, shelter, etc. from others and it does not include the right to receive goods or services that are locally unavailable.
What Tim seems to mean is that if people already have the ability to communicate via technology, then the government should not have the power to block such communications. That is a debatable statement, and it is more about government powers than human rights.
January 31, 2011, 4:31 pmJohn Moore:
The ability to turn off the internet is most certainly a legitimate government power. It falls under the general heading of public safety. The only real question is when it can be invoked, and how widely.
If the government has the power to quarantine an individual or a city (and it legitimately does), then it certainly has the power to interdict the internet.
January 31, 2011, 8:30 pmTim:
I think Dr. T and Jeremy are mis-representing my statements a bit; or, more probably, I'm not making my point clearly enough. Let me try again.
Yes, I agree that human rights are independent of technology. However, where technology can be used to exercise those rights; the assertion of those rights extend into that technology. For example, people have the right of free exercise of speech. That right extends into electronic media, where they are available. Just like people have the right to defend their lives against threats, and that right extends into the ability of people to own arms.
Where my message may have really met a disconnect -- just because people have a fundamental right doesn't mean that it becomes the responsibility of governments or society to provide all means of exercising that right. People have a fundamental right to life; that doesn't mean that *governments* have to provide 'the best medical care at the most prestigious hospital', it simply means that if people choose to avail themselves of such care, governments can't become an impediment. When I said "access to"; I did not mean "provided with", I meant "access to".
The same holds true for all other technological extensions to exercise human rights. I have a right to obtain arms to defend my human right to life. I do not have an obligation to do so. I have a right to freely publish my thoughts without government impairment. I do not have an obligation to do so using any particular means, or even an obligation to do so.
As to why it's important, just look at John Moore's comments. It perfectly illustrates my thoughts that say if communication access is only protected by "It's an agreement between private adults" of what can happen. Proper government functions like public safety, regulation of commerce, and national defense can suddenly run contrary to what the real fundamental right is -- the right to communicate your ideas; because proper government functions can do that to any private agreement.
The correct answer Mr. Moore's first question should be "It can never be invoked, because that would represent a prior restraint on the human right of speech".
February 1, 2011, 8:25 amJohn Moore:
To answer Tim, note the comparison to a quarantine. Is there not a fundamental human right to travel - a right as important as the right to speech? And yet governments have long had the power to restrict travel for quarantine, or for other public safety measures.
If the *purpose* of the cutting the internet is to stop legitimate free speech, that is clearly not within the government's appropriate powers. However, if the loss of that form of speech is merely incident to proper and necessary cutting the internet for other reasons, then the interdiction is appropriate.
February 1, 2011, 10:05 amTim:
Yes, and that quarantine/travel restriction worked out really well for people of Asian descent who just happened to live on the West Coast during the years of 1941-1946. (Or, for that matter, the freedom fondles/naked scanners to board an airplane fall under this same 'public safety measure' exclusion.)
Now, when I say "I have an absolute right to travel"; exceptions to restrict my movement now require due process -- they have to show cause. And, because they can't show cause; they don't get to touch my junk when I want to board my flight.
So, what's your preference? A reading of human rights that's expansive, with the understanding that it does not obligate provision of new mechanisms at public expense; or one that allows an almost infinite number of exceptions whittling away at your ability to actually exercise those rights?
February 1, 2011, 10:41 amJohn Moore:
My preference is one that recognizes that the Bill of Rights and the Constitution is not a suicide pact, as Courts have long recognized.
In other words, in extreme circumstances, rights we take for granted may be abrogated.
Quarantine is one that we haven't seen in a long time, but it has long been held that the government can use deadly force to keep infected people (or potentially infected people) from traveling where they might infect others. Right now, there are people held against their will in quarantine because they have multi-drug-resistant TB.
That's the sort of exigency I'm talking about.
It is simply not possible to both take an absolutist view of human rights, and to produce realistic policies.
BTW, if you think those Asians were discomfited, how about the millions of Americans who were drafted in that same war? Where do you put their rights? I was subject to the draft, and I went to Vietnam (volunteered, but would have been drafted otherwise). When you've had almost all your rights taken away by the military, you get a better understanding of the real trade-offs that are necessary in the real world.
So, under your understanding - does the government have a legitimate power to draft people into the military? Does it have a legitimate power to quarantine people with dangerous, untreatable infectious diseases?
February 1, 2011, 10:15 pmTim:
@John Moore The draft? Sure, because one legitimate function of government is to provide for security of the citizens. However, I would argue that the draft for Korea and Vietnam were not legitimate because those wars didn't fit under that criteria. Of course, I was I was never eligible for those drafts.
Quarantine? Sure, but the government mush show cause. Is that person *actually* a danger to others, or are you willing to let the government have the power to hold, indefinitely, people who 'could be' infectious?
And that gets back to my initial point. There is no theoretical or real case where the government can use prior restraint to restrict the speech of the whole country.
February 2, 2011, 7:16 amJohn Moore:
In World War II, the closest thing to the internet was Ham Radio. It was prohibited during the war.
There are theoretical cases where the government may use prior restraint to shut down a transportation or communications medium - for national security. That gets back to my point: the "prior restraint of free speech" is an incidental effect, not the goal of the action. Which gets to my other point: the Constitution is not a suicide pact.
So: critical point: cutting off the Internet to suppress speech is a no no; cutting it off for valid national security reasons (terrorists are in country with parts for a nuke, and use the internet to coordinate) is completely legitimate.
BTW, the Supreme Court has never held that prior restraint is forbidden in national security cases - because they too understand that the Constitution is not a suicide pact.
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As for national security and Vietnam/Korea. There is a strong case to be made that both were important for national security. I believe they were, although the way Johnson and Westmoreland botched the early years of Vietnam was tragic.
Since both wars were waged with the approval of all three branches of government, they were clearly an act of a democratic nation; they were clearly within the enumerated Constitutional powers; hence, the government clearly had the right to draft people.
February 2, 2011, 11:18 am