[kictanet] Anti-Shutdown Policy and Human Rights

waudo siganga emailsignet at mailcan.com
Thu May 25 12:39:14 EAT 2017


Thanks.
13.2 Entities to which this policy applies

 1. The actions specified in section 13.3 shall apply to the government
    of the country in which the shutdown is occurring, and to any
    entities in which the state holds greater than 50% shareholding.I am not really an expert on the intersection between human rights and
technology so I can only make a general comment: if resources for
government internet services are denied is it not the ordinary citizen
(the human who requires his/her rights to be observed) who suffers?
Think e.g. of e-government services. 
 
Waudo
 
 
On Thu, May 25, 2017, at 11:00 AM, Andrew Alston wrote:
> Sure,

>  

> The actual revised policy document can be found here:

>  

> https://afrinic.net/en/community/policy-development/policy-proposals/2127-anti-shutdown-02>  

> The human rights declaration that is referred to can be found here:

>  

> http://www.un.org/en/universal-declaration-human-rights/

>  

> Thanks

>  

> Andrew

>  

>  

> From: waudo siganga [mailto:emailsignet at mailcan.com] Sent: 25 May 2017
> 10:38 To: Andrew Alston via kictanet <kictanet at lists.kictanet.or.ke>
> Cc: Andrew Alston <Andrew.Alston at liquidtelecom.com> Subject: Re:
> [kictanet] Anti-Shutdown Policy and Human Rights>  

> Hi Andrew - could you share the document with Kictanet list? I
> personally have not seen it.>  

> W.

>  

>  

> On Thu, May 25, 2017, at 10:06 AM, Andrew Alston via kictanet wrote:>> For me, in Art 12 the word "correspondence" should be replaced with
>> "communication" which is wider and more encompassing, more so when it
>> comes to protection of human rights and matters ICT;>> Agreed on the above point, but we have to work with what we’ve got J
>> Though it would be good to see the declaration of human rights
>> updated to reflect this.>> On Art 19 in my opinion, it should be indicated that you can exercise
>> that freedom subject to your observance of the right of others to
>> protection against unbridled publication of personal opinions. In
>> other words you cannot publish false and defamatory material against
>> me in the name of exercising your freedom of expression/media.>> Agreed – and this is covered in Article 29.3 – which is covered “In
>> the exercise of his rights and freedoms, everyone shall be subject
>> only to such limitations as are determined by low solely for the
>> purpose of securing due recognition and respect for the rights and
>> freedoms of others and of meeting the just requirement of mortality,
>> public order and general welfare in a democratic society”>> On Art 20, the interpretation of the Higher German Court was right in
>> my view. Assembling in the current era of IT advancements must be
>> taken to encompass online assemblies. Indeed people are daily
>> "assembling" more on social media than physical assembling.>> Again – agreed – though the debate about distributed denial of
>> service is a tricky one – because it has collateral damage and if the
>> denial of service were to take place against a blogging site for
>> example, it would run afoul of the clauses in Article 19.>>  

>> Obviously I’m not a lawyer – but these are my interpretations, and
>> I’d love to hear legal analysis on this>>  

>> Andrew

>>  

>> On 25 May 2017 08:07, "Andrew Alston via kictanet"
>> <kictanet at lists.kictanet.or.ke> wrote:>>> Hi All,

>>>  

>>> As some of you may have seen – the latest draft of the anti-shutdown
>>> policy has been published on the AFRINIC lists.>>>  

>>> While once again, the authors need to draw attention to the fact
>>> that we know that the policy isn’t perfect – and we know that it
>>> still needs a lot of revision before it can ever become reality, we
>>> still hope that the dialog created by the policy will continue to
>>> spur the debate until real solutions can be found.  As we have said
>>> in other forums, we also believe that the timing is right for this
>>> debate, especially since there are limited places on the continent
>>> where this debate could be held where the debate itself would not
>>> get instantly shut down – and Kenya is one of those places, since
>>> the Kenyan government has shown a willingness to dialog and discuss
>>> when compared to certain other places.>>>  

>>> There are however some interesting parts in the new draft which I
>>> thought I’d elaborate on a little bit, specifically the fact that in
>>> the introduction paragraph, we have opted to make reference to the
>>> Universal Declaration of Human Rights.  My thanks to the individuals
>>> who contributed and drew our attention to certain parts of this.>>>  

>>> Specifically – I thought that for the sake of discussion, I’d point
>>> out certain things here and see what the rest of the KictaNet
>>> community thought about the interpretation we are using when we
>>> apply these clauses to our thinking.>>>  

>>> So, firstly, Article 12 reads “No one shall be subjected to
>>> arbitrary interference with his privacy, family, home or
>>> correspondence, nor to attacks upon his honour and reputation.
>>> Everyone has the right to the protection of the law against such
>>> interference or attacks.”>>>  

>>> Now, the most interesting part of that is where it reads “or
>>> correspondence”, because it can certainly be argued that internet
>>> communication is a form of correspondence.  Email, whatsapp, social
>>> media, all of them amount to methods of correspondence between
>>> individuals.>>>  

>>> Then, moving to Article 19.  “Everyone has the right to freedom of
>>> opinion and expression; this right includes freedom to hold opinions
>>> without interference and to seek, receive and impart information and
>>> ideas through any media and regardless of frontiers.”>>>  

>>> Again, the Internet is a form of media – and by stating that
>>> individuals have the right of expression through any media, this can
>>> be extrapolated to say that the removal of a form of media in an
>>> attempt to remove freedom of expression is a violation of the
>>> declaration of human rights.>>>  

>>> Finally, moving to Article 20, specifically Article 20.1, it reads:
>>> “(1) Everyone has the right to freedom of peaceful assembly and
>>> association.”>>>  

>>> This is probably the most contentious assertion – can a virtual
>>> online meeting place be considered an assembly and hence protected
>>> under this right.  I did a fair amount of research into this and
>>> there is some very interesting case law about this.>>>  

>>> Specifically – In 2001, a guy called Andreas-Thomas Vogel ran a
>>> website in Germany that called for action against Lufthansa Airlines
>>> (basically denial of service) – he was arrested on charges of
>>> coercion, and initially a lower court in Frankfurt found him guilty,
>>> primarily due to the economic losses suffered by Lufthana Airlines
>>> during the online campaign.  However, on appeal, a higher court
>>> overturned this ruling, stating that the online demonstration did
>>> not constitute a show of force, but was intended to the influence
>>> public opinion – effectively stating that online demonstrations were
>>> both a legitimate form of protest and real.  Effectively, the attack
>>> that was encouraged was viewed as a form of virtual sit-in against
>>> the airline. A Libertad spokesperson then went on to say “Althought
>>> it is virtual in nature, the Internet is still a real public space”>>>  

>>> Now, obviously, that’s in Germany and not in a lot of other
>>> countries, indeed in the US, under the CPAA they have taken a
>>> completely opposite approach to things like denial of service –
>>> however, it does raise an interesting question.  If you can in fact
>>> have a virtual sit-in online – then it stands to reason that the
>>> right of peaceful assembly extends to the virtual world – and would
>>> include virtual assembly on the Internet – and hence an internet
>>> shutdown would be a violation of Article 20.1>>>  

>>> I’d love to see more interpretations and debates on this issue
>>> though – and I’m hoping to see some debate on this at the PDP
>>> meeting on Nairobi on the 31st – all of you are welcome at that PDP
>>> meeting by the way, at the Boma Hotel, starting at 9am and running
>>> through to 5:30pm where we will be debating a whole range of
>>> policies including the anti-shutdown policy.>>>  

>>> Hope to see you all there!

>>>  

>>> Andrew

>>>  

>>>
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>> The Kenya ICT Action Network (KICTANet) is a multi-stakeholder
>> platform for people and institutions interested and involved in ICT
>> policy and regulation. The network aims to act as a catalyst for
>> reform in the ICT sector in support of the national aim of ICT
>> enabled growth and development.>>  

>> KICTANetiquette : Adhere to the same standards of acceptable
>> behaviors online that you follow in real life: respect people's times
>> and bandwidth, share knowledge, don't flame or abuse or personalize,
>> respect privacy, do not spam, do not market your wares or
>> qualifications.
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