[kictanet] Anti-Shutdown Policy and Human Rights

Thu May 25 13:21:36 EAT 2017

Good idea – but unfortunately – which institutions.

There are many international courts in the Hauge for example, but I’m not sure that any of them deal with international human rights abuses.

For example, the ICC has a limited mandate dealing with crimes of genocide, crimes against humanity and war crimes.

It could be argued that the ITU may have the most power to act here – but its murky – and as I said – I’m no lawyer, so I’d love to hear the legal thoughts on this

Andrew

From: waudo siganga [mailto:emailsignet at mailcan.com]
Sent: 25 May 2017 13:13
To: Andrew Alston <Andrew.Alston at liquidtelecom.com>; Andrew Alston via kictanet <kictanet at lists.kictanet.or.ke>
Subject: Re: [kictanet] Anti-Shutdown Policy and Human Rights

How about a proposal to refer these people who abuse human rights to existing institutons like the Hague? Just a thought.

W.

On Thu, May 25, 2017, at 12:42 PM, Andrew Alston wrote:

Waudo,

As we have stated as the authors – we KNOW the punitive measures in the policy are flawed and draconian – and we don’t expect the policy to pass in it’s current form.  What we want from this policy is to generate more and more debate until we come up with ways that WILL work that don’t have the same level of collateral damage.  The policy in the form it is in is meant to generate discussion and debate to finding the real solution – and without putting anything in there – the debate would never have gotten to where it is now.

So yes, we know the current policy is flawed – but we are hoping as time goes on and the debate rages that we will find solutions that will have the same effect and these shutdowns will end.

Andrew

From: waudo siganga [mailto:emailsignet at mailcan.com]
Sent: 25 May 2017 12:39
To: Andrew Alston <Andrew.Alston at liquidtelecom.com<mailto:Andrew.Alston at liquidtelecom.com>>; Andrew Alston via kictanet <kictanet at lists.kictanet.or.ke<mailto:kictanet at lists.kictanet.or.ke>>
Subject: Re: [kictanet] Anti-Shutdown Policy and Human Rights

Thanks.

13.2 Entities to which this policy applies

a.   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<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/<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<mailto:kictanet at lists.kictanet.or.ke>>
Cc: Andrew Alston <Andrew.Alston at liquidtelecom.com<mailto: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 ☺ 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<mailto: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

_______________________________________________
kictanet mailing list
kictanet at lists.kictanet.or.ke<mailto:kictanet at lists.kictanet.or.ke>
https://lists.kictanet.or.ke/mailman/listinfo/kictanet<https://lists.kictanet.or.ke/mailman/listinfo/kictanet>
Twitter: http://twitter.com/kictanet<http://twitter.com/kictanet>
Facebook: https://www.facebook.com/KICTANet/<https://www.facebook.com/KICTANet/>

Unsubscribe or change your options at https://lists.kictanet.or.ke/mailman/options/kictanet/fmwangangi1%40gmail.com<https://lists.kictanet.or.ke/mailman/options/kictanet/fmwangangi1%40gmail.com>

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.

_______________________________________________

kictanet mailing list

kictanet at lists.kictanet.or.ke<mailto:kictanet at lists.kictanet.or.ke>

https://lists.kictanet.or.ke/mailman/listinfo/kictanet<https://lists.kictanet.or.ke/mailman/listinfo/kictanet>

Twitter: http://twitter.com/kictanet<http://twitter.com/kictanet>

Facebook: https://www.facebook.com/KICTANet/<https://www.facebook.com/KICTANet/>

Unsubscribe or change your options at https://lists.kictanet.or.ke/mailman/options/kictanet/emailsignet%40mailcan.com<https://lists.kictanet.or.ke/mailman/options/kictanet/emailsignet%40mailcan.com>

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.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <https://lists.kictanet.or.ke/pipermail/kictanet/attachments/20170525/a8a895d8/attachment.htm>