Rights 2.0 Is Unrestricted Internet Access a Modern Human Right?

By Rothkopf, David | Foreign Policy, January-February 2015 | Go to article overview

Rights 2.0 Is Unrestricted Internet Access a Modern Human Right?


Rothkopf, David, Foreign Policy


NATIONAL CONSTITUTIONS ARE SUPPOSED TO enshrine fundamental rights for everyone--and for generations. Such documents are also products of moments in time and reflect perceptions of life in those moments. That's why the best of them, like the U.S. Constitution, contain the seeds of their own reinvention. Indeed, the secret to a sustainable constitution is that it both captures what is enduring and anticipates the need to change.

Over the years, the U.S. Constitution has been amended 27 times--the first 10 being the Bill of Rights, of course--to ensure that it stays current with prevailing views of what is fundamental or best for the United States. Among the finest examples of the Constitution's adaptability to shifting and maturing norms are the 13th Amendment, which ended slavery, and the 15th and 19th amendments, which guaranteed voting rights for everyone, regardless of race or gender, respectively.

Because it is meant to be malleable, the original Constitution included references to very few technologies. In fact, America's founders were so sure that technologies would evolve over time that they even included protection of the rights of innovators in Article 1, Section 8 (the Copyright Clause). The technologies that were mentioned were ones that by the late 1700s had become so ingrained in day-to-day life that they were seen as natural to the course of human existence, or at least critical to the functioning of government: money, for instance, and a military. In at least two cases in the Bill of Rights, the unfettered use of technologies was seen as necessary for citizens' freedom--those technologies being the press and arms. The press was more than three centuries old when the Constitution enshrined the right to freedom of expression. Meanwhile, the arms referenced were not specified, but no doubt included the firearms of the day that were essential to the upkeep of a militia, which was the express rationale (even if today it is generally overlooked) for the right to bear arms in the first place.

To be sure, technological progress challenges the assumptions that underlie even the best-conceived documents. This has been evident recently in the debate over whether Fourth Amendment guarantees against illegal searches and seizures, which explicitly pertain to the main information technology of the late 1700s ("papers"), cover technologies that have developed subsequently, such as email and metadata. And, surprisingly, there has not been more meaningful debate about whether the Constitution protects the use of arms that Madison & Co. could not possibly have foreseen--namely, modern assault weapons--and how the Second Amendment applies in a world without militias.

Arguing that people cannot assert rights beyond the imagination of the Constitution's framers is an absurdity, and a dangerous one. As the metadata instance shows, it is hazardous not to bring the American conception of rights in line with the ways and means of modern life. Just as it took the invention of the printing press to trigger a deliberation on freedom of expression, technological changes today are so profound that they demand a reconsideration of what constitutes a fundamental right.

In recent years, more people have maintained that the right to unfettered Internet access is the modern equivalent of the right to the comparable technologies of centuries ago. The U.N. special rapporteur on freedom of opinion and expression has argued that disconnecting people from the Internet constitutes a human rights violation. A number of countries, including Costa Rica, Estonia, Finland, France, Greece, and Spain, have asserted some right of access in their constitutions or legal codes, or via judicial rulings. …

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Rights 2.0 Is Unrestricted Internet Access a Modern Human Right?
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