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A Reality of Vulnerability and Dependence: Internet Access as a Human Right

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Abstract

We are faced with a new reality where our reliance on internet access to fulfil basic civil tasks is threatened by increasing personal and societal cyber vulnerability. This dichotomy of dependence and vulnerability requires a new framework for understanding the legal and human rights status of this evolving technological reality. A number of theories have sought to explain how internet access could attain the status of a human right. These include reliance on the freedom of expression protection offered by the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights. More recent approaches have suggested that international customary law could apply, or that internet access could attain the status of an auxiliary human right. Despite repeated demands by international institutions to address modern cyber challenges through a human rights lens, this assortment of legal approaches has failed to garner a consensus view in the international community. The article reviews the merits of each of these arguments, and grounds the debate in the lens of this reality of dependence and vulnerability. Of the four options surveyed, we find that auxiliary righthood is the most promising approach, but that additional research is required to substantiate the claims.
AREALITY OF VULNERABILITY AND DEPENDENCE:INTERNET
ACCESS AS A HUMAN RIGHT
Ryan Shandler and Daphna Canetti
*
We are faced with a new reality where our reliance on internet access to full basic civil tasks is threatened
by increasing personal and societal cyber vulnerability. This dichotomy of dependence and vulnerability
requires a new framework for understanding the legal and human rights status of this evolving techno-
logical reality. A number of theories have sought to explain how internet access could attain the status
of a human right. These include reliance on the freedom of expression protection offered by the
International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights.
More recent approaches have suggested that international customary law could apply, or that internet
access could attain the status of an auxiliary human right. Despite repeated demands by international insti-
tutions to address modern cyber challenges through a human rights lens, this assortment of legal
approaches has failed to garner a consensus view in the international community. The article reviews
the merits of each of these arguments, and grounds the debate in the lens of this reality of dependence
and vulnerability. Of the four options surveyed, we nd that auxiliary righthood is the most promising
approach, but that additional research is required to substantiate the claims.
Keywords: internet access, human rights, cyber attacks, internet shutdowns
1. INTRODUCTION AND CONTEXT
What are the societal and legal implications of our growing dependence on internet access? We
are faced with a new reality where our reliance on internet access to full basic civil tasks is
threatened by increasing personal and societal cyber vulnerability. This dichotomy of dependence
and vulnerability requires a new framework for understanding the status of this evolving techno-
logical reality. From a social perspective, societys growing digital predominance has facilitated
widespread cultural and political participation. It has changed the nature of modern speech by
lowering the costs of disseminating information, enabling an efcient global transmission of
information, and allowing more people to participate in social discourse.
1
The world has long
awaited the realisation of the budding potential of the internet to democratise communication,
2
*Ryan Shandler, School of Political Science, University of Haifa; ryanshandler@gmail.com. Professor Daphna
Canetti, School of Political Science, University of Haifa.
1
Jack M Balkin, Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information
Society(2004) 79 New York University Law Review 1.
2
Kristina Lerman, User Participation in Social Media: Digg Study(2007) IEEE/WIC/ACM International
Conference on Web Intelligence and Intelligent Agent Technology 255, https://arxiv.org/abs/0708.2414; Ann
Macintosh, Characterizing e-Participation in Policy-making, Proceedings of the 37th Annual Hawaii
International Conference on System Sciences, 2004; Eugene Volokh, Cheap Speech and What It Will Do
(1995) 104 Yale Law Journal 1805.
Israel Law Review 52(1) 2019, pp 7798. © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem, 2019.
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and in 2018 an estimated 3.2 billion people are active on social media alone.
3
However, this trend
also bears risks. The ease of realising basic civic functions through online avenues can at times
supplant its traditional analogue equivalents, which means that citizens who lack internet con-
nectivity are precluded from exercising their rights.
When we discuss the social implications of cyber technology, our focus is often too narrow,
examining the individual pieces of technological development rather than the multidimensional
nature of how the digital revolution is affecting our daily functioning.
4
Rather than focusing on
the manner in which social media platforms inuence patterns of media reporting, for example,
we could look at how digital technology has altered the very nature of free speech and associ-
ation. We argue that more than merely serving as a digital tool to ease the realisation of
human rights, internet access has become inextricably intertwined with the basic capacity of
how human rights manifest in the modern age. If access is indeed a human right, then the dis-
cussion needs to turn from how internet access supports human rights to how public policy
must support internet access and the duties that this right imposes upon governments.
There has been an ongoing debate for decades about the potential of the internet to attain the
status of a human right, and numerous theories have been asserted to justify this claim. The two
most prominent theories argue that the International Covenant on Civil and Political Rights
(ICCPR)
5
or the Universal Declaration of Human Rights (UDHR)
6
already provide sufciently
broad forms of protection. These approaches rely on extending traditional legal and human rights
protection to modern technologies.
7
More recent approaches claim that customary international
law has given birth to a new stand-alone right to internet access as a result of national practice
and culminating in a 2011 report by Frank La Rue, Special Rapporteur for the United Nations,
which provides explicit institutional backing for the notion that internet access impacts upon
human rights.
8
A fourth argument claims that internet access could be an auxiliary or derived
human right in service to various primary rights.
9
The relative strengths and weaknesses of
these competing theories will be discussed below.
Despite repeated demands by international institutions to address modern cyber challenges
through a human rights lens, this assortment of legal approaches has failed to garner a consensus
view in the international community. In the absence of any unanimity, national and regional
legislative bodies and courts have started to implement various solutions that posit internet access
3
Simon Kemp, Digital in 2018: Global Overview,We Are Social, 13 January 2018, https://wearesocial.com/
blog/2018/01/global-digital-report-2018.
4
Susan Perry and Claudia Roda, Human Rights and Digital Technology: Digital Tightrope (Springer 2016).
5
International Covenant on Civil and Political Rights (entered into force 23 March 1976) 999 UNTS 171
(ICCPR).
6
Universal Declaration of Human Rights, UNGA Res 217A (III), UN Doc A/810 (1948) 71.
7
Jason M Tenenbaum, Is There a Protected Right to Access the Internet?,International Journal of Constitutional
Law Blog, 6 June 2014, http://www.iconnectblog.com/2014/06/is-there-a-protected-right-to-access-the-Internet;
Daniel Joyce, Internet Freedom and Human Rights(2015) 26 European Journal of International Law 2.
8
Frank La Rue, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of
Opinion and Expression (16 May 2011), UN Doc A/HRC/17/27.
9
Kate Mathiesen, The Human Right to Internet Access: A Philosophical Defense(2012) 18 International Review
of Information Ethics 9.
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as a protected right under constitutional arguments, relying on equality-based reasoning or sim-
ply on the basis of the economic benets of stimulating higher internet connectivity. However,
the risks of heightened dependence combined with an ever-present sense of digital vulnerability
require a coherent human rights framework. In this article we begin by considering the nature of
our dependence on internet access and question what this means in the context of our growing
vulnerability to cyber disconnection. We continue by evaluating the rationales and merits of the
various human rights approaches that could offer a legal framework to govern this situation. We
conclude by questioning the universal applicability of a human rights approach to internet access
and how it would apply to developing countries, before reecting on how a human right to inter-
net access would manifest in concrete implications and possibly lead to positive government
duties.
2. CYBER DEPENDENCE
The technological leap that is the internet has advanced at an exponential pace over the course of
decades to the point where over 4.02 billion people in the world are connected to the internet.
10
While this still leaves approximately 3.2 billion people without internet access (or roughly 44 per
cent of the global population), the rate of internet usage continues to grow at 9 per cent a year.
11
In the short time that the internet has existed, it has become a central medium of political dia-
logue and has transformed the nature of political participation. The growth in digital penetration
has democratised public communication by allowing individuals to broadcast on a whim their
thoughts and opinions to a global audience with the push of a button. Essentially, digital tech-
nologies and infrastructure have transformed the social conditions through which people
speak.
12
By lowering the cost of participation, citizens with few resources, who were otherwise
excluded from the centralised corridors of political discourse, can participate in public dialogue.
13
On the structural level, cyber participation overcomes the obstacle of geographical dispersion and
is entirely asynchronous compared with traditional forms of media and participation (i.e. one can-
not attend a physical protest once it has ended or question a politician in a public forum after
question time ends).
14
By facilitating lateral peer-to-peer discourse, the internet pivots from
the traditional few-to-many form of communication to a more inclusive structure that empowers
a wider audience. Digital activities such as web forums and interactive media enable more active
engagement compared with the traditional outlets that allowed only for passive participation.
15
10
Kemp (n 3).
11
Darrell West, Digital Divide: Improving Internet Access in the Developing World through Affordable Services
and Diverse Content, Center for Technology Innovation at Brookings, February 2015, https://www.brookings.
edu/wp-content/uploads/2016/06/West_Internet-Access.pdf.
12
Jack M Balkin, Old-School/New-School Speech Regulation(2014) 127 Harvard Law Review 2297.
13
Balkin (n 1).
14
Stephen Coleman and Jay G Blumler, The Internet and Democratic Citizenship: Theory, Practice and Policy
(Cambridge University Press 2009).
15
ibid.
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This trend bears risks, as the ease of realising basic civic functions through online avenues can
at times supplant its traditional analogue equivalents, with the result that citizens who lack internet
connectivity are precluded from exercising their rights. Where this becomes most problematic is
where basic civil and human rights become entangled with a need for internet connectivity. The
most visible revolution in the practical manifestation of modern human rights is among the primary
three speech-based rights: freedom of expression, freedom of association and freedom of informa-
tion. In our analysis of the interplay between these rights and digital connectivity, we note that
there are times when technological improvements simply increase convenience, and there are
times when evolving technologies fundamentally alter the underlying nature of the right, thus
creating a complete dependence on internet access to engage in modern civic life.
Freedom of expression the ability to communicate ideas and opinions is the cornerstone of
democracy and is thought to grant substance to all other civil liberties. Though this is an individ-
ual right, its underlying purpose is not only self-actualisation and personal autonomy, but rather
the preservation of democracy, and the right of a people, as a people, to decide what kind of life it
wishes to live.
16
In this area, the digital revolution has not affected the content of free speech, but
has had a transformative impact on its medium in other words, the process of speaking freely.
In the short time that the internet has existed, it has become a central medium of political dia-
logue. In an American study, 66 per cent of social media users, constituting 39 per cent of
American adults, engaged in civic or political activities through social media. Similarly,
73 per cent of adult internet users (representing 54 per cent of all US adults) went online to obtain
news or information during the 2010 congressional elections or to become involved in political
campaigns.
17
This migration of discourse is taking place in all matters of substantive discourse
and not just in media. The increasing predominance of digital journalism,
18
the transition of
academic journals to internet-based formats,
19
the role of digital interfaces in promoting public
opinion and the evolution of online receipt of letters to the editor a symbol of popular partici-
pation in political discourse all offer stark insight into the vital role played by the internet in
enabling modern speech.
This link between political discourse and internet access was perhaps best expressed by
Justice Kennedy in the 2017 US Supreme Court case of Packingham v North Carolina. In unani-
mously striking down a law that limited access to social media, the court made clear how the
internet has transformed civic life and assumed the role of the modern public square:
20
16
Owen Fiss, Free Speech and Social Structure,Faculty Scholarship Series, 1986, Paper 1210, http://digitalcom-
mons.law.yale.edu/fss_papers/1210.
17
Aaron Smith, The Internet and Campaign 2010,Pew Research Center, 17 March 2011, http://www.pewinter-
net.org/2011/03/17/the-internet-and-campaign-2010.
18
Jim Conaghan, Newspaper Digital Audience Peaks,News Media Alliance, 9 October 2015, https://www.news-
mediaalliance.org/newspaper-digital-audience-grew-twice-fast-internet-past-year; Ian Cram, Citizen Journalists:
Newer Media, Republican Moments and the Constitution (Edward Elgar 2015).
19
Donald W King and others, Patterns of Journal Use by Faculty at Three Diverse Universities(2003) 9(10)
DLib Magazine,http://www.dlib.org/dlib/october03/king/10king.html; Judy Luther, White Paper on
Electronic Journal Usage Statistics(2002) 41(2) Serials Librarian 119.
20
Packingham v State of North Carolina 151194 US (2017).
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By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars
access to what for many are the principal sources for knowing current events speaking and listening
in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.
These websites can provide perhaps the most powerful mechanisms available to a private citizen to
make his or her voice heard. They allow a person with an internet connection to become a town
crier with a voice that resonates further than it could from any soapbox.
Similarly, for freedom of association, another fundamental pillar of democracy, the internet plays
a key role in easing and facilitating traditional forms of assembly by facilitating instantaneous
communication and targeted recruiting. Today, [i]n a world where citizens are increasingly con-
nected to the internet, assemblies are not only planned and organised online, assemblies can
occur entirely online.
21
Modern protest movements can comprise millions of participants who
are able to express support from the comfort of their homes, although this has also raised ques-
tions about the relative value of modern participation in protests.
22
Face-to-face human inter-
action has become culturally archaic in light of efcient online forums that amplify attendance
and ensure anonymity. The inuence of internet forums on the conduct of popular assemblies
and gatherings was most pronounced during the Arab Spring. Digital channels and electronic
media were central to the organisation, facilitation and recruitment processes that brought hun-
dreds of thousands of people to the streets.
23
It is commonly accepted that the mass gatherings
would not have converged without internet access and social media.
24
This is equally so for
the border-transcending nature of the protests and their instantaneous relay to other protesters
and countries.
Perhaps most reective of the importance of internet access to free association is the acceler-
ating use of cyber shutdowns by governments who are looking to disperse demonstrations and
stymie protests. During a one-year period in 2015 to 2016, a study tracked 81 different instances
of internet shutdown in 19 countries.
25
The fact that governments immediately target online con-
nectivity to disperse protests is telling. These new digital avenues for civic engagement have
done more than offer technological shortcuts for an internet savvy generation they have signi-
cantly reshaped our democratic processes and structures such that internet access is now a
21
Henrik Almstrom and Joy Liddicoat, The Rights to Freedom of Peaceful Assembly and Association and the
Internet, Submission to the UN Special Rapporteur by the Association for Progressive Communication, 2012,
https://www.apc.org/sites/default/les/APC_Submission_FoA_Online.pdf.
22
Henrik Christensen, Political Activities on the Internet: Slacktivism or Political Participation by Other Means?
(2011) 16 First Monday 2.
23
John Pollock, Streetbook: How Egyptian and Tunisian Youth Hacked the Arab Spring(2011) 114 Technology
Review 5; Anupam Chander, Jasmine Revolutions(2011) 97 Cornell Law Review 505.
24
Mohamed Arafa and Crystal Armstrong, ‘“Facebook to Mobilize, Twitter to Coordinate Protests, and YouTube
to Tell the World: New Media, Cyberactivism, and the Arab Spring(2016) 10 Journal of Global Initiatives:
Policy, Pedagogy, Perspective 1.
25
Darrell M West, Internet Shutdowns Cost Countries $2.4 Billion Last Year, Center for Technology Innovation
at Brookings, October 2016, https://www.brookings.edu/research/internet-shutdowns-cost-countries-2-4-billion-
last-year.
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prerequisite for participation in civic life. However, this centralisation of democratic participation
through a cyber funnel also offers unparallelled opportunities for governments to limit access.
The most tangible application of civic life is the nature by which governments interact with
their citizens. This includes citizens accessing information that the government holds on trust for
them, the provision of basic public services, and the manner in which citizens interact with their
elected representatives. The free ow of information and ideas is at the very heart of the princi-
ples of democracy and is essential for human rights. Democracy requires that all individuals pos-
sess the capacity to participate in decision making and assess the performance of their
government.
26
Internet access has grown to be the predominant intermediary between citizens
and governments. Governments across the world are adopting E-Government strategies
whereby public services and information portals are migrated to the internet. Simply stated,
E-Government is the use of technology to enhance the access to and delivery of government ser-
vices to benet citizens, business partners and employees.
27
All of this represents a drastic transformation in the nature of political participation. Traditional
forms of political participation are replaced by modern equivalents such as political consumerism,
internet activism and viral campaigning.
28
In trying to isolate the precise nature of this evolving
relationship, research has sought to identify whether online political participation supports, sup-
plants or exists in tandem with their ofine equivalents, but this has produced equivocal results.
29
To resolve this question, a new experiment was developed which used a controlled, randomised
methodology to gauge the ability of participants to complete political activities under the conditions
of internet access and deprivation.
30
Participants received rewards for completing tasks that simu-
lated the realisation of freedom of expression, association and information. Participants were
divided into a control group, which had full access to environmental tools, while a treatment
group was denied access to the internet through any medium. The results revealed that internet
access signicantly affected the distribution of success in the realisation of freedom of expression
(χ2(df = 1) = 6.46, p = .011) and freedom of association (χ2(df = 1) = 14.59, p < .001), and had
a slightly less signicant effect on the realisation of freedom of information (χ2(df = 1) = 4.66,
p = .031). A series of logistic regression analyses reinforced these ndings, showing that the inter-
net access condition was the sole variable to signicantly predict success for each of the three tasks
even after demographic and other variables were added to the model. This experiment adds empir-
ical evidence to the heretofore normative discussion on the dependent relationship between internet
access and human rights.
26
Toby Mendel, Freedom of Information: A Comparative Legal Survey(2nd edn, UNESCO 2008).
27
Rachel Silcock, What is E-Government?(2001) 54 Parliamentary Affairs 1.
28
Sara Vissers and Dietlind Stolle, The Internet and New Modes of Political Participation: Online versus Ofine
Participation(2014) 17 Information Communication and Society 937.
29
ibid; Rachel Gibson and Marta Cantijoch, Conceptualizing and Measuring Participation in the Age of the
Internet: Is Online Political Engagement Really Different to Ofine?(2013) 75 The Journal of Politics 3, 701.
30
Ryan Shandler, Measuring the Political and Social Implications of Government-Initiated Cyber Shutdowns
(2018) 8th USENIX Workshop on Free and Open Communications on the Internet (FOCI 18).
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3. MODES OF CYBER VULNERABILITY
Involuntary internet deprivation is not a theoretical phenomenon. It affects millions of people in
developed and developing countries alike, and takes place in vastly different contexts. It can be
imposed by external authorities or it can transpire as a result of personal circumstances. It can be
initiated by private actors and government actors, by known institutions or by anonymous hack-
ers. It can take place with advance warning for a limited amount of time, or by surprise for a
prolonged period. The possibility of a cyber-extinction event causing a widespread internet
blackout is becoming a distinct possibility. We review below four concrete mechanisms that
lead to internet disconnection: (i) cyber attack; (ii) digital divide; (iii) government shutdown;
and (iv) criminal sanction. These modes of deprivation are not exhaustive. Among other possi-
bilities, citizens can also choose to disconnect from the internet in response to privacy concerns
relating to surveillance or censorship; and religious groups can encourage members to avoid
internet connection for moral or communal reasons. These mechanisms are differentiated from
the modes of disconnection reviewed below as they are anticipated and preferred by those
affected.
3.1. CYBER ATTACKS
The most visible danger related to internet deprivation is the risk of cyber attack. A key charac-
teristic of cyber-offensive tools is that this is an asymmetric resource a resource with low entry
costs that allows both small and large states and organisations to exercise signicant power.
Sophisticated cyber tools that were once the domain of government agencies are now commonly
utilised by domestic and international cyber criminals that target businesses and individuals.
Government-sponsored cyber warfare has allowed even countries with relatively weak military
strength to employ and utilise asymmetrical military tools, the results of which are spilling
over into civilian life. The anonymity of cyber attacks, or at least the difculty in ascribing attri-
bution, means that contrary to classical military conicts, governments appear more willing to
employ offensive cyber tools. In addition to the myriad targeted cyber attacks that focus on intel-
ligence gathering or sabotage, and are limited to isolated institutions, there is evidence of cyber
attacks targeting civilian networks, such as the alleged Russian attack on the Ukraine in March
2014 which shut down mobile phone networks and hampered internet connection for millions of
Ukrainians.
31
The rise of a one billion dollar ransomware industry has added further antagonists to the cyber-
offensive eld, with international criminal organisations identifying a low-cost modern variation of
extortion. High-prole ransomware attacks, such as WannaCry and Petya, infected more than half a
31
David Lee, Russia and Ukraine in Cyber Stand-off”’,BBC News, 5 March 2014, https://www.bbc.com/news/
technology-26447200.
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million computers in over 150 countries.
32
Commercial espionage has also adapted to the cyber age
with approximately 47 per cent of US companies experiencing a ransomware attack or other online
intrusion during a recorded 12-month period.
33
In the future, with the new frontier of the internet
of things, we will see an intertwining of the internet with aspects of daily life that are not tradition-
ally associated with digital connectedness. In contrast to the human-to-human interactions that the
internet has historically facilitated, this advancement will facilitate human-thing and thing-thing
communication.
34
Predictions abound of more than twenty billion connected devices by 2020
offering a vast new avenue for cyber attacks. Currently hackers have succeeded in denying access
to major platforms like Twitter, Netix and Facebook for hours by harnessing vulnerabilities in
household items such as WIFI-connected baby monitors and CCTV cameras.
35
3.2. THE DIGITAL DIVIDE
The digital divide refers generally to disparities in internet access among segments of population
groups, both internationally and within countries. This multidimensional phenomenon can be
subdivided into three primary areas: (i) a global digital divide relating to the divergence in con-
nectivity among industrialised and developing countries; (ii) a social divide between groups
inside each society; and (iii) a democratic divide between those who do and do not take advan-
tage of the full spectrum of digital resources to participate in public life.
36
For the purposes of this
article, we focus primarily on the social and democratic digital divides, of which we can sub-
divide the social divide further into variables relating to age and income. Age is strongly related
to greater internet connectivity. In a Dutch study, a country renowned for its high rate of connect-
ivity, 19 per cent of those aged 65 and older were found to lack regular internet access at home,
compared with rates of 5, 1 and 10 per cent among younger age brackets.
37
In Britain, 51 per cent
of the elderly population were found to lack internet access at home in 2013.
38
Income levels, for
obvious reasons, can signicantly impact on connection rates owing to the cost of computer
equipment, internet connection fees, mobile phones, and more. Indeed, a series of studies
have pinpointed income levels as the primary predictor of internet access both in terms of
32
Yellepeddi Vijayalakshmi and others, Study on Emerging Trends in Malware Variants(2017) 117
International Journal of Pure and Applied Mathematics 22.
33
Osterman Survey, Understanding the Depth of the Ransomware Problem, August 2016, https://www.malware-
bytes.com/surveys/ransomware.
34
Lu Tan and Neng Wang, Future Internet: The Internet of Things, 3rd International Conference on Advanced
Computer Theory and Engineering, 2022 August 2010, vol 5, 376.
35
Hannah Bryce, The Internet of Things Will Be Even More Vulnerable to Cyber Attacks, Chatham House,
18 May 2017, https://www.chathamhouse.org/expert/comment/internet-things-will-be-even-more-vulnerable-
cyber-attacks.
36
Pippa Norris, Digital Divide: Civic Engagement, Information Poverty, and the Internet Worldwide (Cambridge
University Press 2001).
37
Alexander van Deursen and Ellen J Helsper, A Nuanced Understanding of Internet Use and Non-use among the
Elderly(2015) 30 European Journal of Communication 2, 171.
38
William H Dutton and Grant Blank, with Darja Groselj, Cultures of the Internet: The Internet in Britain,
Oxford Internet Survey 2013, Oxford Internet Institute, University of Oxford.
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international comparisons and within individual countries.
39
While widespread internet access is
considered an equalising force in society, this income generated digital divide raises the spectre
of the benets of internet access being concentrated among socio-economic elites.
40
To combat this phenomenon, authorities are investing considerable resources into making
internet services more accessible for at-risk populations.
41
As far back as 2002, the United
Kingdom government acknowledged:
42
While the market has successfully delivered internet access to most citizens, take-up among the most
disadvantaged groups in society those on low incomes, the elderly and people with disabilities is
lower. These groups are traditionally heavy users of public services but without access to the internet
or the skills to use it condently, these groups may face further social exclusion.
New research has claimed that the elderly should not be treated as a homogeneous group in
understanding the variables contributing to low levels of connectivity. Various types of
(dis)engagement from the internet can be moderated by gender, attitudes towards age, perception
of difculty of internet use, internet attitudes, and more.
43
3.3. GOVERNMENT SHUTDOWN
The production of a centralised gateway for modern communication offers states unprecedented
possibilities for surveillance and intervention. Dozens of governments across the world, typically
but not always characterised by autocratic governance features, have at times initiated some form
of internet blackout, relying on a series of justications that include safeguarding government
authority, reducing public dissidence, ghting terrorism, maintaining national security, or pro-
tecting local businesses. Authorities are increasingly utilising this tool to control the information
landscape and the ability of citizens to mobilise in recognition of the manner in which the internet
has become the fundamental tool to facilitate mass social participation.
44
Shutdowns can range
from a complete closure of the underlying internet infrastructure to the closure of mobile internet
services, or even particular subnational apps or services such as ViOP or WhatsApp.
45
39
See, eg, Javier Corrales and Frank Westhoff, Information Technology Adoption and Political Regimes(2006)
50(4) International Studies Quarterly 911; Bo Kinney, The Internet, Public Libraries, and the Digital Divide
(2010) 29 Public Library Quarterly 104; Xiaoqun Zhang, Income Disparity and Digital Divide: The Internet
Consumption Model and Cross-Country Empirical Research(2013) 37(67) Telecommunications Policy 515.
40
La Rue (n 8).
41
Doria Pilling and Heike Boeltzig, Moving Toward E-Government: Effective Strategies for Increasing Access
and Use of the Internet among Non-Internet Users in the US and UK, Proceedings of the 8th Annual
International Conference on Digital Government Research, Bridging Disciplines & Domains,2023 May
2007, 35, https://dl.acm.org/citation.cfm?id=1248460.1248467.
42
ibid.
43
Van Deursen and Helsper (n 37).
44
Dionne Searcey and Francois Essomba, African Nations Increasingly Silence Internet to Stem Protests,
The New York Times, 10 February 2017, https://www.nytimes.com/2017/02/10/world/africa/african-nations-
increasingly-silence-internet-to-stem-protests.html.
45
West (n 25).
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In terms of pure numbers, the level of temporary government-initiated internet shutdowns has
risen exponentially in recent years. A study conducted by University of Washington researchers
identied 606 instances between 1995 and 2011 when 99 different governments deliberately
interfered with internet operations.
46
Compared with a single disruption in 1995 and four disrup-
tions in 1996, the number rose to 111 in 2010. During a one-year period between 2015 and 2016
a Brookings Institute research project, led by Darrell West, tracked 81 different instances of inter-
net shutdown in 19 countries.
47
His research observed a cumulative total of 753 days of affected
internet services, causing some USD 2.4 billion in economic damage to the respective countries.
The most cited modern illustration of an internet shutdown was by Egypt during the Arab
Spring protests during 2011. In response to increasingly violent street protests that threatened
the stability of the Mubarak regime, authorities adopted harsh steps to dispel protesters and
end the popular uprising. It is notable that one of the primary steps taken to disperse the protests
that were being publicised online was to order all [internet service providers (ISPs)] to shut
down all international connections to the internet.
48
In light of the relatively few ISPs in the
country at the time with international digital connections, this had the effect of severing internet
services for civilians. Other notable recent examples of government shutdown include Turkey in
2015 following a terrorist bombing at a public rally,
49
India throughout 2016 and 2017 in
response to frequent street protests,
50
and Brazil following corruption protests in 2016.
51
While
the justication for most of these occurrences rely on maintaining law and order and protecting
public safety, several countries including Uganda, Algeria, India and Iraq have disrupted
internet services on the ground of concerns about students cheating in national exams.
52
3.4. CRIMINAL SANCTION
States have long restricted internet access to prisoners most commonly for sex offenders and
accused terrorists.
53
The rationale for this deprivation is public safety: sex offenders could
46
Philip N Howard, Sheetal D Agarwal and Muzammil M Hussain, The DictatorsDigital Dilemma: When Do
States Disconnect Their Digital Networks?,Brookings Institution Issues in Technology Innovation, 5 October
2011, https://www.brookings.edu/research/the-dictators-digital-dilemma-when-do-states-disconnect-their-digital-
networks.
47
West (n 25).
48
Ramesh Subramanian, The Growth of Global Internet Censorship and Circumvention: A Survey(2011) 11
Communications of the IIMA 2.
49
Lizzie Dearden, Ankara Terror Attack: Turkey Censors Media Coverage of Bombings as Twitter and Facebook
Blocked”’,Independent, 10 October 2015, https://www.independent.co.uk/news/world/europe/ankara-terror-
attack-turkey-censors-media-coverage-of-bombings-as-twitter-and-facebook-blocked-a6689036.html.
50
Nivedita Dash, Jat Reservation Protest in Haryana: Mobile Internet Services Blocked in Rohtak,India Today,
18 February 2016, https://www.indiatoday.in/india/story/jat-reservation-protest-in-haryana-mobile-internet-ser-
vices-blocked-in-rohtak-309472-2016-02-18.
51
Brazil Judge Orders WhatsApp Blocked, Affecting 100 Million Users,Reuters, 2 May 2016, https://www.reu-
ters.com/article/us-facebook-brazil-whatsapp-idUSKCN0XT1KB
52
West (n 25).
53
Adam Wagner, Is Internet Access a Human Right?,The Guardian, 11 January 2012, https://www.theguardian.
com/law/2012/jan/11/is-internet-access-a-human-right
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ostensibly continue to offend over the internet, even behind bars, and members of terrorist groups
and organised crime could continue to direct operations. Some of the most notorious examples of
targeted internet deprivation for prisoners who claimed that their rights were being infringed
include Kevin Mitnick, convicted of various computer crimes in the United States 1995. He
was refused access to the internet or any communications device for fear that his technical genius
was such that he could start a nuclear war by whistling into a pay phone.
In recent years, the phenomenon of internet deprivation for prisoners has raised questions
about the balancing of public safety with the right of free expression a right that is not robbed
of prisoners. This practice of deprivation has led to multiple legal battles in state and federal
courts of the United States, and also in countries as diverse as India and the United Kingdom
(UK). Reected most prominently in the US Supreme Court ruling in Packingham v North
Carolina,
54
the courts have consistently struck down internet deprivation laws on the basis
that they disproportionately harm the realisation of free expression and other rights. Similar rul-
ings have been handed down by the New Jersey Supreme Court, which overturned a complete
internet ban on a convicted sex offender and instructed the state to nd a less restrictive way
to meet the legitimate public interest of preventing re-offending.
55
Other states, such as
Indiana and Nebraska, have enacted similar laws, many of which were ultimately struck down
for being overly restrictive.
56
In 2017 the Indian Supreme Court struck down a law that prohibited
internet searches on pre-natal sex determination on the basis that citizens have an unfettered right
to access the internet.
57
Opinio juris was also provided by the UK Court of Appeal in 2012 in the
case of R v Smith & Others. It was held in this case, in discussing the restrictions on internet
access for convicted sexual offenders, that the internet was an essential part of everyday living
and therefore a complete ban on its use in this case would be disproportionate.
58
4. THE NEED FOR A HUMAN RIGHTS APPROACH TO INTERNET ACCESS
This new dichotomy of cyber dependence and vulnerability requires a coherent human rights
framework. A demand to address modern cyber challenges through a human rights lens has
been echoed by international institutions, national legislative bodies and courts around the
world. The most prominent calls have come from the United Nations and the European
Union. In his landmark report in 2011, Frank La Rue, the Special Rapporteur on the
Promotion and Protection of the Right to Freedom of Opinion and Expression, proclaimed
that the Internet has become an indispensable tool for realizing a range of human rightsin
light of which states should develop a concrete and effective policy to make the Internet
54
(n 20).
55
JI v New Jersey State Parole Board 223 NJ 555 (2017).
56
Elizabeth Tolon, Updating the Social Network: How Outdated and Unclear State Legislation Violates Sex
OffendersFirst Amendment Rights(2016) 85 Fordham Law Review 1827.
57
Sabu Mathew George v Union of India and Others 341 SCC 08 (2017).
58
R v Smith & Others [2011] EWCA Crim 1772.
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widely available, accessible and affordable to all segments of the population.
59
The United
Nations Human Rights Council built on this foundation with a follow-up report in 2016,
which afrmed the importance of applying a comprehensive human rights-based approach
when providing and expanding access to the Internetand called upon states to formulate and
adopt national Internet-related public policies that have the objective of universal access and
enjoyment of human rights at their core.
60
Similarly, in Europe, declarations by the
Committee of Ministers called on states to take specic measures to facilitate access to the inter-
net in light of the link between cyber connectedness and the realisation of particular human
rights.
61
In a 2015 report by the Councils Committee of Experts on Cross-Border Flow of
Internet Trafc and Internet Freedom, the Committee identied that one of the central challenges
in protecting the right to freedom of assembly lies in the lack of clear guidance in the face of the
transition to online assemblies.
62
This call for a human rights framework has also resonated at the national level. The foremost
judicial statement on the topic is a strongly worded decision in 2009 by the Constitutional
Council of France.
63
The court concluded that given the diffusion of online services and their grow-
ing importance to participation in democratic life, freedom of expression must include freedom to
access online networks.
64
The judges tempered their decision by noting that strengthened regulatory
protection is required, but left open the nature of this protection. In Packingham v North Carolina
the US Supreme Court recognised that the new digital landscape is altering the way in which we
think and express ourselves, thus requiring new thinking on how to employ existing law to apply it
to the modern internet.
65
Similar cases in the United Kingdom
66
and India
67
have struck down laws
that restrict internet access on the ground that they restrict the exercise of human rights, yet they too
have equivocated in their description of the nature of this relationship.
In the absence of a comprehensive human rights approach to internet access, individual coun-
tries have adopted local solutions that entrench internet access within legislative and constitu-
tional frameworks. In Greece, a 2001 constitutional amendment inserted a clause stating that
59
La Rue (n 8).
60
UN Human Rights Council, The Promotion, Protection and Enjoyment of Human Rights on the Internet
(18 July 2016), UN Doc A/HRC/RES/32/13.
61
Council of Europe, Declaration by the Committee of Ministers on the Protection of Freedom of Expression and
Information and Freedom of Assembly and Association with regard to Internet Domain Names and Name Strings,
(adopted by the Committee of Ministers, 21 September 2011) para 3, https://wcd.coe.int/ViewDoc.jsp?id=
1835805; Council of Europe, Committee of Experts on Cross-Border Flow of Internet Trafc and Internet
Freedom (MSI-INT), Draft Report on Freedom of Assembly and Association on the Internet (11 May 2015),
https://rm.coe.int/draft-report-on-freedom-of-assembly-and-association-on-the-internet/1680744cfb.
62
Council of Europe (2015), ibid.
63
Conseil constitutionnel [Constitutional Council], Decision No 2009-580DC, 22 June 2009, relative à la loi
favorisant la diffusion et la protection de la création sur internet, 13 June 2009, Journal Ofciel de la
République Française [Ofcial Gazette of France] 9675.
64
Nicola Lucchi, Access to Network Services and Protection of Constitutional Rights: Recognizing the Essential
Role of Internet Access for the Freedom of Expression(2011) 19 Cardozo Journal of International and
Comparative Law 645.
65
Packingham v State of North Carolina (n 20).
66
R v Smith (n 58).
67
George v Union of India (n 57).
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[a]ll persons have the right to participate in the Information Society. Facilitation of access to
electronically transmitted information, as well as of the production, exchange and diffusion
thereof, constitutes an obligation of the State.
68
Finland took this approach a step further by
legislating that, in addition to mere access, high-speed broadband internet is a legally enforceable
human right. Even though internet diffusion is extremely high in Finland (96 per cent of the
population has internet connectivity), the government explained that the law was important to
protect the rights of rural citizens and minorities.
69
Among these different forums we can observe a series of foundations upon which a right to
internet access could be based. Some are based on the importance of internet access to free
speech; another is founded on education rights; and yet another is derived from equality-based
reasoning. Combined together, we can see the vague outline of a rights-based approach to inter-
net access, but the individual rationales fail to identify a unifying foundation or consistent legal
framework. What is consistent is a recognition of the need to view cyber advances through a
human rights lens and a desire for a more uniform approach.
5. APPROACHES TO INTERNET RIGHTS IN THE ACADEMIC LITERATURE
Multiple schools of thought have offered theoretical groundings for a right to internet access.
They rely on a broad range of philosophical and legal framings which range from information
rights to public accommodation laws to access to knowledge theories, and more. What these
theories share in common is that they are attempting to build a legal-philosophical foundation
on which a right to internet access could rest. We begin this section by reviewing some of
these theoretical groundings, before contemplating some of the practical avenues by which inter-
net access could attain human rights status.
One of the most transformative theories in the eld of human rights in recent decades has
been the capabilities approach to human rights, proposed by Amartya Sen and Martha
Nussbaum.
70
This approach stems from an underlying dissatisfaction with traditional theories
of human rights, which emphasise access to goods and resources, and notions of subjective util-
ity.
71
In contrast, Sen and Nussbaum assert that rights emanate from the humanity of each indi-
vidual, borne from a concept of human dignity. What is important, then, is not the underlying
utility or value, but the actual capabilities, or set of functionings, that enable human dignity.
The capabilities that fall within this category are human capabilities that can be convincingly
argued to be of central importance in any human life, whatever else the person pursues or
68
Syntagma (Syn. 2008) [Constitution] 5a (Greece).
69
Bobbie Johnson, Finland Makes Broadband Access a Legal Right,The Guardian, 14 October 2009,
https://www.theguardian.com/technology/2009/oct/14/nland-broadband.
70
Among a long list of articles on the topic by Sen and Nussbaum see, eg, Amartya Sen, Human Rights and
Capabilities(2005) 6 Journal of Human Development 151.
71
Justine Johnstone, Technology as Empowerment: A Capability Approach to Computer Ethics(2007) 9(1)
Ethics and Information Technology 73.
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chooses.
72
Scholars, not least among them Sen and Nussbaum, have argued that information
communication technologies (ICTs) in general and internet access in particular play a key role
in advancing human capabilities.
73
The capabilities approach theory, applied to internet access,
views the capability of human communication as being of central importance to human life
a capability that we found to be highly dependent on internet access. An analysis by William
Birdsall connected ICTs with each of the capabilities enumerated by Nussbaum including
life, bodily integrity and emotional development.
74
A related approach, which is also predicated
on opposition to the view of human rights as natural rights derived from a universal human
nature, is a theory by Charles Beitz.
75
Beitz offers a political theory of human rights that empha-
sises the specic political role each right is expected to play in the international community, and
takes into account changing political realities.
76
Applied to internet access, Beitz would posit that
a human right to internet access exists if its use would signicantly contribute to the protection of
basic social and political interests, or if its absence would endanger the exercise of these funda-
mental interests.
77
In attempting to apply Beitzs theory to internet access, scholars argue that its
emancipatory character and contribution to political life is inarguably sufcient.
78
One of the most explicit attempts to ground a human rights theory of internet access was
offered by Michael Best in a short essay in 2004.
79
Even at that time Best argued that information
technology was implicitly linked to communication, information and national development.
However, rather than sufcing with his identication of a causal nexus between internet access
and information rights, Best went one step further to offer one of the earliest proposals for a
stand-alone human right to internet access. Best argued:
80
However, I am making a stronger claim, which is that a symmetric information right to some extent
requires the Internet, and thus access to the Internet itself has become a human right Thus to be
excluded from this information technology is, effectively, to be excluded from information, full stop.
While Bests assertion was a decade ahead of its time, identifying at an early stage the extent of
the relationship between internet access and modern life, he was unable at that time to offer a
systemic basis for a human rights claim.
81
72
Martha C Nussbaum, Women and Human Development: The Capabilities Approach, Vol 3 (Cambridge
University Press 2001).
73
William F Birdsall, Human Capabilities and Information and Communication Technology: The
Communicative Connection(2011) 13(2) Ethics and Information Technology 93.
74
Birdsall, ibid.
75
Charles R Beitz, The Idea of Human Rights (Oxford University Press 2011).
76
ibid.
77
Xiaowei Wang, Time to Think about Human Right to the Internet Access: A Beitzs Approach(2013) Journal
of Politics and Law 6, 67.
78
ibid.
79
Michael L Best, Can the Internet Be a Human Right?(2004) 4 Human Rights & Human Welfare 23.
80
ibid 24.
81
Wang (n 77).
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Not all theories of internet rights derive from a connection with human communication and
political participation. A novel theory by Colin Crawford highlights the implications of internet
exclusion.
82
In light of what he called the propertization of cyberspace, Crawford argued that
the best avenue to protect against exclusion of access is to articulate a right to internet access.
In contrast to competing theories, Crawford identied public accommodation law as the ideal
legal vehicle to ground a right to internet access. A similarly legalistic approach, from another
direction, is offered by Molly Land. Land forcefully argues that the multitude of international
forms of legal protection for freedom of expression and freedom of information is already applic-
able to the internet.
83
This applicability is founded on language in various treaties (such as Article
19 of the UDHR and ICCPR), which explicitly protects the mediaof expression and informa-
tion, and applies this protection to later developed technologies. While this would not activate an
individual right to internet access per se, the effect would be the same. Land also proposes a sep-
arate pathway to rights status by suggesting that the access to knowledge movement could form
an appropriate vehicle to impose obligations related to internet access.
84
Land reviews a range of
existing legislation that ensures access to information for disadvantaged and disenfranchised
populations in elds as diverse as healthcare, education and culture. By reconciling this move-
ment with the evolving role of internet as a knowledge dispensary, Land suggests that it could
lead to the imposition of strong obligations via imprecise norms ensuring access while main-
taining exibility.
85
6. POSSIBILITIES WHEREBY INTERNET ACCESS COULD BECOME A HUMAN RIGHT
Over the course of two decades, these theories have offered competing philosophical bases for a
right to internet access. While varying in their reliance on legalistic interpretations and capabil-
ities or interests-centred analyses, what the theories possess in common is a shared view of the
central role of internet access in realising modern rights. Stemming from these analyses, we can
now observe four concrete legal approaches by which internet access could become a human
right. The rst approach relies on Article 19(2) of the ICCPR, which declares:
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive
and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print,
in the form of art, or through any other media of his choice.
The argument here is that the language used in this clause is sufciently broad to apply to new
technologies that facilitate the protected activities. Indeed, in his review of the legislative history
and intent of this clause, Tenenbaum argues that the broad language was inserted in order to
82
Colin Crawford, Cyberplace: Dening a Right to Internet Access through Public Accommodation Law(2003)
76 Temple Law Review 225.
83
Molly Land, Toward an International Law of the Internet(2013) 54 Harvard International Law Journal 393.
84
ibid.
85
ibid.
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cover precisely this kind of future development.
86
During the drafting phase, two motions were
rejected that would have constrained the scope of the protection offered to communications. The
word seekwas preferred over the word gather, as the drafters wanted to protect active steps to
procure and study information.
87
In addition, a motion to replace the phrase through any media
with the more restrictive phrase by duly licensed visual or auditory deviceswas rejected on the
ground that it would be contrary to the general principle of freedom of information to adopt
the restrictive formula.
88
In reviewing the Commission on Human Rights Summary Record of
the session, Land contends that the more expansive phrase regardless of frontierswas specic-
ally included to ensure that the protection would be extraterritorial a recognition of the inter-
national nature of this right. This expansive intent was well summarised by the French delegate to
the drafting committee in his famous argument that [t]he members of the Commission must take
into account the fact that their work concerned the future and not the past; no one could foresee
what information media would be employed in a hundred yearstime.
89
The legislative history
shows a clear intent for a broad application that offers protection to all proactive pursuance of
information and the expression of ideas regardless of location essentially internet communi-
cations.
90
Although this direction possesses merit, it relies on a legalistic interpretation of particu-
larly ambiguous language and so the argument that it supports a stand-alone right has not gained
traction.
91
This is compounded by the fact that the argument lacks support from the UN Human
Rights Committee, which has failed to take up this interpretation.
The second approach to a human rights framework for internet access is based on Article 19
of the Universal Declaration of Human Rights, which guarantees that [e]veryone has the right to
freedom of opinion and expression; this right includes freedom to hold opinions without interfer-
ence and to seek, receive and impart information and ideas through any media and regardless of
frontiers. As with the ICCPR argument, this claim relies on an expansive interpretation of the
clause to read into it a right to internet access. The ambiguous phrasing of regardless of frontiers
can be understood to indicate that the clause should apply to any medium that is central to facili-
tating the distribution of ideas and information. This argument was most popular during the
1970s and 1980s in the context of a proposed right to communicationthat was being debated
at international forums. Though the internet itself was not yet born at that time, a series of new
technologies, such as satellite technology, had drastically altered the communications landscape.
In this context, debate centred on whether the UDHR clause gave rise to a right to communicate
through the new technologies, or whether it required an additional vote and the establishment of a
new treaty. The discussions took place against the backdrop of Cold War tensions, which
86
Tenenbaum (n 7).
87
Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (NP Engel 1993) 343.
88
UN Commission on Human Rights Summary Record, 6th Session (2 May 1950), UN Doc E/CN.4/SR.165, para 59.
89
Land (n 83).
90
For an in-depth history of the drafting of this clause, see Land (n 83).
91
Hans Haugen, Is Internet Access a Human Right for Everyone, or Only for Persons with Disabilities?(2014)
40 Kritisk juss,2651.
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inuenced the debate, yet it was actively decided that an additional statute and body would be
required to entrench the right to communicate.
92
Most scholars accepted that the decision not
to recognise a right to communicate following extensive debate in policy and government circles
ended the claim that the UDHR guaranteed a right to communicate. Yet others, notably Antonio
Pasquali, continue today to claim that this debate was tainted by Cold War rivalries and that a fair
reading of the text offers implicit support for a right to communicate in general, using the internet
in particular.
93
A third and more recent approach claims that national practice and rising levels of institu-
tional support at the international level are sufcient to comprise customary international law
and so grant internet access the status of a human right. The key piece of evidence on which pro-
ponents rely to support this claim is the 2011 report by Frank La Rue, Special Rapporteur, on the
Promotion and Protection of the Right to Freedom of Opinion and Expression,
94
and a 2016 reso-
lution of the UN Human Rights Council calling for a human rights-based approach to facilitating
Internet access.
95
In the 2011 report La Rue declares:
96
Given that the internet has become an indispensable tool for realizing a range of human rights, combating
inequality, and accelerating development and human progress, ensuring universal access to the Internet
should be a priority for all States. Each State should thus develop a concrete and effective policy
to make the Internet widely available, accessible and affordable to all segments of the population.
This suggestive phrasing triggered an enormous level of media attention and a torrent of news
articles with headlines proclaiming exaggerated claims such as United Nations Report
Declares Internet Access a Human Right.
97
Beyond the popular media, however, it is clear
that these arguments do not meet the legal criteria for proving a human right under customary
international law. Beyond the absence of sufcient state practice, the precise wording of the
reports constitutes a call to adopt more expansive policies for increasing internet accessibility
and affordability not a claim that internet access has become a human right.
In contrast to the approaches reviewed above, a fourth argument claims that internet access
has become an auxiliary human right in support of a series of primary rights. Internet access
does not emanate from the human condition and, to this end, Cerf is right in arguing that internet
access is not a primary right.
98
Yet not all rights ow from a persons inherent humanity; nor
need they transcend the social conditions in which we live. According to rights theorist Carl
Wellman, primary rights can give birth to either derived or auxiliary rights:
99
92
Joyce (n 7).
93
ibid.
94
La Rue (n 8).
95
UN Human Rights Council (n 60) para 5.
96
La Rue (n 8) para 85.
97
Jenny Wilson, United Nations Report Declares Internet Access a Human Right,Time, 7 June 2011, http://tech-
land.time.com/2011/06/07/united-nations-report-declares-internet-access-a-human-right.
98
Vince Cerf, Internet Access Is Not a Human Right,The New York Times, 4 January 2012, 2526.
99
Carl Wellman, The Proliferation of Rights: Moral Progress or Empty Rhetoric? (Westview Press 1999).
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Derived rights may be either more specic forms of some generic right, as the freedom of the press is a
special case related to the right to free speech; or auxiliary rights that serve to protect some primary
right, as the right to habeas corpus serves to prevent a violation of the individuals right to liberty.
An auxiliary right is a secondary human (or civil or political) right with all of the protection and
limitations of the primary human (or civil or political) right that it serves. What makes it a sec-
ondary right is not its import or authority, but simply that it is borne out of its connection with a
primary right. Just as the right to liberty can be frozen in certain situations and so the right to
habeas corpus would be automatically denied, so too would an auxiliary right to internet access
rely on the authority and applicability of any primary rights with which it is connected. The value
of this right is that it recognises modern manifestations of particular rights, thus preventing a
scenario where society protects human rights while forbidding people from engag[ing] in the
concrete activities of exercising those rights.
100
An example of this contextual extension of rights
is the right to a free press, which was only born following the invention of the printing press, but
without which today the right to free expression and the exercise of autonomy would be com-
pletely hollow.
101
In the case of internet access, the claim is that a number of human rights have become entirely
intertwined with internet access, and that in the absence of internet access the right would lose
substance and value. In this case, the primary rights with which it could connect include freedom
of expression, freedom of information, freedom of association, the right to national development,
the right to education, the right to employment, and more. This article reviewed above how mod-
ern forms of expression, association and political participation are becoming dependent on inter-
net access, and if it can be shown that the rights cannot be effectively realised in the absence of
internet access, as the empirical experiment above has attempted to do, then this would be suf-
cient to activate a claim of auxiliary righthood. This theory also recalls elements of the
approaches of Sen, Nussbaum, Best and Beitz, who argued that the exercise of human rights,
manifesting in their modern capabilities and interests, requires internet access in the most
basic sense.
7. DISCUSSION AND POLICY IMPLICATIONS
We began our analysis by observing a concerning paradigm of digital dependence and vulner-
ability. This paradigm is premised on the idea that the internet has become central to the realisa-
tion of our basic rights and civil functioning, while being simultaneously characterised by a sense
of vulnerability. Ironically, it is the very openness of the global internet infrastructure that pro-
vides both its utility and its susceptibility to inltration. As internet penetration continues to
extend both vertically (new users) and horizontally (additional uses such as the internet of
things), this vulnerability will only deepen. The insecurity of the technology is complicated
100
Mathiesen (n 9).
101
James Grifn, On Human Rights (1st edn, Oxford University Press 2009); Mathiesen (n 9).
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by the fact that disconnection can be caused by government and non-government actors, through
targeted attacks or as a result of collateral damage, and via digital means or because of nancial
circumstances.
Yet, despite this phenomenon, we should be wary of anointing any technology as a human
right. A seminal op-ed in The New York Times by Vince Cerf, commonly referred to as the father
of the internet, asserted that technology is an enabler of rights, not a right itself.
102
Cerf is cor-
rect in that internet access does not emanate from a persons inherent humanity, and is not a nat-
ural right equivalent to life, liberty and freedom. However, not all rights need transcend the social
conditions in which we live.
103
Human rights are commonly understood as the inalienable rights
to which each person is entitled by virtue of being human.
104
For an individual claim to con-
stitute a human right it must be fundamental, universal, denable in justiciable form (in other
words, capable of judicial interpretation and application), and the actor designated responsible
for implementation must possess the necessary capability to full the obligation in question.
105
Our analysis indicates that we have grown dependent on internet access to full basic social
and political tasks and to realise basic human rights. This dependence will continue to grow for as
long as internet-based activities supplant and replace the original methods through which we ori-
ginally realised our rights. After many years of debate, there is an emerging consensus that inter-
net access is a human right and the demand to formulate a consistent human rights framework
has been echoed by the United Nations,
106
by courts in the United States, Europe and Asia,
107
and
by a series of states.
108
The remaining question is not whether internet access is a right, but under
what framework the right manifests.
Each of the four pathways that we reviewed has its proponents in the literature, and each
option possesses advantages and weaknesses. The advantage of options one and two relying
on Articles 19 of the ICCPR and UDHR respectively is the simplicity of the argument. At
its core, this argument proposes the extension of a universally accepted right, anchored in mul-
tiple international instruments, to a modern technology. The phrases regardless of frontiersand
through any mediaappear to imply a clear intent for an expansionist interpretation. Opposing
this trend is the fact that it has gained no international traction. Despite ample opportunity, no
state or international body has taken up this interpretation, and the argument has largely fallen
from the international agenda. Another weakness is that this option ties a right to internet access
only to freedom of expression (and possibly information), ignoring the strong nexus with other
rights. The third option, proposing international customary law, is the most expansive pathway.
With the sheer number of legislative, legal, constitutional and international proposals that anchor
102
Cerf (n 98) 25.
103
Wellman (n 99).
104
Alexander Timmer, Report State-of-the-art Literature Review: Human Rights, Democracy and the Rule of
Law(2013), Frame (Fostering Human Rights Among European Policies), Large-Scale FP7 Collaborative Project,
GA No. 320000.
105
Stephen Tully, The Human Right to Access Electricity(2006) 19 The Electricity Journal 3, 3039.
106
La Rue (n 8); UN Human Rights Council (n 60).
107
Packingham v State of North Carolina (n 20); Conseil constitutionnel (n 63); George v Union of India (n 57).
108
Tully (n 105).
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some form of internet rights in national practice, there may well come a time when internet access
could become a stand-alone human right as a matter of customary international law. At this stage
it is too early to conclude this, and we will need to see additional international and state-based
implementation before it can be further scrutinised.
As such, we contend that auxiliary righthood has the strongest claim both on account of its
own merits and because of deciencies in the alternative pathways. A structure of auxiliary rights
is suitable for the nature of internet access as it views internet access as tied to the realisation of
other primary rights. The empirical data reviewed above supports the notion of internet access as
an auxiliary human right as it reveals a direct correlation between connectivity and the ability to
realise basic civil rights. This solution of an auxiliary right offers both the concrete protection of
human rights and exibility as digital connectivity develops. This discussion would benet from
future research which expands this method and experimentally tests the relationship between
internet access/deprivation and additional human rights, such as the rights to education, develop-
ment and employment.
A common refrain and potential limitation on the notion of internet access as a human right is
the absence of internet penetration among developing countries. Can we claim in good faith that
internet access is a universal human right where access is so skewed towards developed coun-
tries? This argument is especially potent in advocating auxiliary righthood, as dependence cannot
be shown where access is absent. While there is merit in this argument, we suggest three
responses as to why internet access still bears a claim to human rights status. First, the acceler-
ating rate of internet penetration will soon make this point moot. The reason for this is that even
in countries with relatively low levels of internet penetration, it is only a matter of time until they
too achieve digital saturation. To illustrate this point, the most recent internet tracking report indi-
cates that more than 250 million new users logged on to the internet for the rst time during
2017.
109
Global internet penetration is already at 53 per cent, with the fastest growth taking
place in Central Africa and Southern Asia, driven by more affordable smartphones and mobile
data plans.
110
Second, we can consider an analogous situation with regard to other accepted
human rights, such as the right to healthcare. Realising the right to healthcare relies upon the
presence of doctors, clinics, medical supplies and hospitals. In countries without access to doc-
tors or medical equipment, society claims that the right to healthcare is going unrealised. This is
despite the fact that the country may never have had widespread access to hospitals. This asser-
tion reects the fact that modern healthcare is associated with modern manifestations of the right.
The same goes for the right to education and schools, and the right to due process and a func-
tioning judicial system. Thirdly, we should be careful about accepting the rationale that those
without access to the internet have no need for it, as this will serve to perpetuate the global digital
divide.
111
109
Kemp (n 3).
110
ibid.
111
Mathiesen (n 9).
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8. ACTUALISING A RIGHT TO INTERNET ACCESS
Granting internet access the status of a human right would have far-reaching social implications
and would drastically affect the cyber status quo in a number of areas. Such a determination
would affect public policy, cyber regulation, and the inherent tensions between national security
considerations and civil liberties. It could moreover impose signicant positive obligations upon
a government to ensure this right for its citizens, in contrast to the past where digital governmental
obligations have been cast as negative rights.
112
A common misconception about a human right to internet access, expressed among others by
Vince Cerf in his famous New York Times op-ed,
113
is that governments would be compelled to
supply every person with a computer and internet connection. This misconception is based on a
misunderstanding of the sorts of obligations that human rights impose on states.
114
Among
developing countries, recognising a reality of limited resources and competing priorities, the
United Nations has made clear that states are only obliged to progressively full such rights
to the best of their ability.
115
Among developed countries, where internet accessibility already
tends to be high, a right could manifest in efforts to minimise the digital divide. For example,
a study in Glasglow demonstrated that public libraries could play a role as a provider of public
internet access.
116
In other cases, the market could be encouraged to offer more affordable inter-
net access in recognition of its social value. In Spain, for example, broadband services are legis-
latively compelled to offer reasonably priced broadband services at speeds of at least one megabit
per second.
117
Similar forms of legislative, constitutional and legal protection have emerged in
countries such as Finland,
118
Greece,
119
Costa Rica
120
and France.
121
Individual policies would
need to be tailored to the requirements of particular countries, but these are just some of the
possible responses to a positive duty to ensure internet access.
Beyond positive duties to guarantee simple connectivity, states could accrue additional social
responsibilities. The ability of states to restrict internet access (to the entire population or specic
persons such as prisoners and security threats) would be limited. The proportionality calculus
during offensive cyber attacks would be altered seeing as any cyber attack that deprived a civilian
population of internet access would prima facie infringe their rights and increase the damage
112
Andrew T Hopkins, Right To Be Online: Europes Recognition of Due Process and Proportionality
Requirements in Cases of Individual Internet Disconnections(2010) 17 Columbia Journal of European Law 557.
113
Cerf (n 98).
114
Mathiesen (n 9) 17.
115
ibid.
116
Gillian Anderson and Jason Whalley, Public Library Internet Access in Areas of Deprivation: The Case of
Glasgow(2015) 32 Telematics and Informatics 521.
117
Sarah Morris, Spain Government to Guarantee Legal Right to Broadband,Reuters, 17 November 2009, https://
www.reuters.com/article/spain-telecoms/spain-govt-to-guarantee-legal-right-to-broadband-idUSLH61554320091117.
118
Johnson (n 69).
119
Syntagma (n 68).
120
Guzm, Fallas and Vila v Ministry of Environment, Energy and Telecommunications, Judgment 12790 of the
Supreme Court, File 09-013141-0007-CO, 30 July 2010 (Costa Rica).
121
Conseil constitutionnel (n 63).
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caused. A new question would be raised regarding a duty to protect civilians from crippling cyber
attacks that inhibit their access to the internet. On a practical basis, such a nding is unlikely to
spur a ood of new legislation, since governments do not necessarily respond to developments in
human rights theory. Multiple governments and international institutions are already enacting
protection for internet accessibility because of its connection with economic development and
educational outcomes.
9. CONCLUSION
The demand to address modern cyber challenges through a human rights framework has echoed
through national legislative bodies, international institutions, courts and the halls of academia.
Rather than merely serving as a digital tool to facilitate the realisation of human rights, internet
access has become inextricably intertwined with the basic capacity of how human rights manifest
in the modern age. As digital means of political participation supplant their traditional analogue
equivalents, this demand for a human rights framework will become more urgent.
Yet, despite a burgeoning discourse in the academic and legal communities, there is no con-
sensus about the best human rights framework that covers this complex situation. This article
considered four prominent contenders for the throne. While each has its merits, we contend
that auxiliary righthood bears the strongest claim. A structure of auxiliary rights suitably reects
the modern nature of internet access by granting exibility in its application as the technology
evolves and the social implications become clearer. The empirical data, what little there is, simi-
larly supports this conception by tying internet access to particular human rights such as freedom
of expression, freedom of association and freedom of information.
Looking ahead, regardless of which legal framework the international community coalesces
around, the next challenge will be to develop practical policy measures that reect this new per-
spective. This is likely to impose positive duties on governments to guarantee internet connect-
ivity through some form, and perhaps even to ensure high speed connectivity and secure
connectivity. While many governments are already doing this as a result of economic incentives,
a human rights motivation may manifest differently. Lastly, we reiterate that though the debate on
the role of technology in civic life has developed signicantly, there is a stark absence of empir-
ical knowledge with regard to the effect of internet access on political participation or our
dependence on such access to realise our basic civil rights. In the context of our growing vulner-
ability to disconnection, understanding this relationship will take on growing importance. We
encourage additional research that attempts to isolate the precise contribution of digital connect-
ivity to political participation and human rights generally, and individual rights in particular.
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... This led to a new form of dependence on internet access, namely 'cyber dependence' to realise basic civil rights. 49 Furthermore, dependency structures in the setting of asymmetric power relations, as the case in digital government, are common vulnerability drivers. While "few relationships are completely level in power," 50 citizen-government relations are characterised by strong power asymmetries. ...
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