Promoting Internet access as a human right is a popular way to frame digital spaces as essential to a dignified life. It has become the rallying cry of those battling against States that intentionally disrupt or shut down Internet access to maintain and wield power during civil unrest.
The unfortunate reality is that formal recognition of Internet access as a human right, even by influential human rights organizations, is insufficient to incentivize behavior change. We have seen this to be true in the aftermath of several UN Resolutions recognizing such a right, which have had no effect on the implementation, frequency, or duration of State-sanctioned Internet shutdowns.
Governmental use of this suppressive tactic has grown exponentially and shows no sign of slowing—with some shutdowns lasting years at a time—resulting in devastating effects on democracy, political activism, and regional economies.
A more actionable, practical, and effective way of securing Internet access and deterring States from enacting shutdowns has been unintentionally obscured by the popularity of demanding increased recognition of a human right to the Internet: it’s time to take legal action against these States for violating already established human rights.
The Advantages of a Legalistic Approach
First, this approach creates a tangible legal expectation that States cease shutdowns or risk enforcement by human rights supervisory bodies. This removes the ambiguity of existing non-binding resolutions condemning Internet shutdowns by codifying them as a legally recognized human rights violation.
Second, a successful case can result in sanctions against the offending State, further incentivizing the State’s behavior change and establishing remedies for victims.
Third, it establishes a generalized precedence for applying already established human rights law to novel technology-based violations. This is increasingly important as governmental use of biometric, surveillance, and autonomy-violating technologies may challenge traditional notions of how human rights can be violated.
The COVID-19 Pandemic Generated New, More Effective Pathways for Taking Legal Action Against Shutdown-implementing States
Now is a particularly ripe time to bring legal claims against shutdown-sanctioning States. The COVID-19 pandemic significantly accelerated institutional discourse on Internet shutdowns as a violation of human rights and, importantly, as a violation of the non-derogable right to life.
This new consideration that Internet shutdowns may violate a non-derogable right provides an unprecedented path forward for impactful legal action against shutdown-implementing States. It is significantly advantageous compared to the historically available legal theories for holding States accountable for shutdowns.
For an entire decade preceding COVID-19, Internet shutdowns were deemed violative of human rights—but solely the freedoms of expression and assembly were considered violated. Both freedom of expression and freedom of assembly are absolute rights, meaning they may be proportionally limited under extreme circumstances such as national emergencies or war. This may be why there have been so few legal claims related to Internet shutdowns and why they have had mixed successes: States nearly always initiate Internet shutdowns by invoking wartime laws, declaring a national emergency, or asserting that the shutdown is proportional to dangers that the State claims are imminent. Thus, determining which or when shutdowns have resulted in violations that a human rights court may recognize as such has historically been a gamble, both in whether it would be successful and in the legal precedent the cases may set.
For example, a case addressing Internet shutdowns in Togo successfully obtained court recognition of an Internet shutdown violating the human right of freedom of expression. However, the case is limited in impact. Although the Court recognized the violation, it asserted that the shutdown was disproportionate—not outright impermissible. Although aligned with the international human rights standards regarding absolute rights, outcomes like this solidify the justifiability of States’ enacting Internet shutdowns now and in the future. Simply put, cases like these don’t deter Internet shutdowns from occurring. They only pressure States to justify the scale of the shutdowns they enact.
In contrast, the right to life allows no such exceptions. The right to life is a non-derogable right that cannot be violated under any circumstances, even temporarily or in extreme situations. Legally, this significantly inhibits a State’s ability to defend the shutdown. If the action violated the non-derogable right to life, a State cannot justify the shutdown as legal in its proportionality. The complaint most likely to succeed in Court would be a straightforward one showing the State’s disruption of the Internet directly hindered a victim from obtaining immediate, life-saving medical care, resulting in a loss of life.
To be clear, the identified harm in a proposed case need not be specific to COVID-19. A pre-COVID example of an optimal case would be the real-life instance of a pregnant Pakistani woman who lost her child due to being unable to communicate with doctors during an Internet shutdown. It is just that the pandemic shifted the conversation regarding what rights an Internet shutdown may violate, thus creating a new avenue for complaints against shutdown-sanctioning States. Such a complaint can now point to several statements by Intergovernmental Organizations indicating the dangers to life that an Internet shutdown presents, even—or especially—during a national emergency. These resources did not exist before.
Move on From the Belief That a Recognition of Internet Access as a Human Right Will Result in a Reduction of State-sanctioned Internet Shutdowns
Consistent and open Internet access is vital, but without judicial pressures that incentivize behavior change, such recognition is ineffective. Taking a more actionable, legalistic approach by strategically bringing shutdown-based human rights claims before human rights supervisory courts is a more effective avenue for ensuring the Internet ‘stays on’ when we need it most.
For more on this topic, please read A New Right is the Wrong Tactic: Bring Legal Actions Against States for Internet Shutdowns Instead of Working Towards a Human Right to the Internet (Part 2).
Jay T. Conrad is a lawyer, policy advisor, and legal scholar specializing in technology public policy. They recently obtained their Master of Law in Technology Law & Policy from Georgetown University Law Center, where they clerked in the U.S. Senate.
The views expressed by the authors of this blog are their own and do not necessarily reflect the views of the Internet Society.