I got some feedback on the post I did last week that the guy who pushed beyond the 250 GB data cap threshold with Comcast basically shouldn’t be playing the human rights card. The best responses were that it was a white whine or a “first world problem.” I think that’s a legitimate criticism, but I hadn’t bothered to read the actual report to the U.N. about viewing access to the internet as a human right. So I looked it up and read it. So, is there a case within the report of the Special Rapporteur to the U.N. that data capping is a violation of human rights? Let’s look at it.
The document outlines the following areas of concern in regards to people’s access to the internet in light of the Universal Declaration of Human Rights and other U.N. treaties.
- Arbitrary blocking or filtering of content on the Internet
- Criminalization of legitimate expression
- Imposition of intermediary liability
- Disconnecting users from Internet access, including on the basis of intellectual property rights law
- Cyber attacks
- Inadequate protection of the right to privacy and data protection
- Access to the Internet and the necessary infrastructure
Each of these elements is explained by a page or two, but here is the nutshell version.
- i.e. the great firewall of China.
- Silencing dissent and dissidents.
- Finding third parties culpable for facilitating illegal activities, or requiring their participation in extra-judicial censorship.
- France’s three strikes law and ACTA
- DDoS of any sort, especially when used to silence political opposition
- Facebook, as well as warrantless search of people’s online information
- Allowing systems to be in place as well as to make them cost-effective for general use.
Data capping is not explicitly addressed in the Special Rapporteur’s report. But there are two elements here that one could construct a case against the practice of data capping, the first being point 4 (actually A-4 in the report). While the report focuses on supposed violations of intellectual property law (a point driven by media corporations such as MPAA and RIAA), it merely does so as an example. The point of this section of the report is that disconnection from the internet prohibits one from exercising his/her freedom of expression. Whatever the reason put forth, disconnection from the internet is a violation of a person’s right to engage in contemporary society.
The second element to bear in mind is #3, imposition of intermediary liability. Paragraph 45 engages the private sector actors and businesses to recognize their responsibility to respect human rights, and that the state should actively protect its citizens against private violations.
The framework rests on three pillars: (a) the duty of the State to protect against human rights abuses by third parties, including business enterprises, through appropriate policies, regulation and adjudications; (b) the corporate responsibility to respect human rights, which means that business enterpreises should act with due diligence to avoid infringing the rights of others and to address adverse impacts with which they are involved; and (c) the need for greater access by victims to effective remedy, both judicial and non-judicial.
This framework for social responsibility to safeguard against human rights violations has the State check the corporation, the corporation check itself, and that there be legal recourse for the victims to redress their grievances. This means that the ISP needs to be regulated by the government against abuses of its users, that the ISP should be respectful of its users in the establishment of its policies and the execution of its actions, and that if all else fails the victims can take the ISP to court over the violation. Currently there is little the FCC is doing to regulate this kind of behavior from American ISPs, and if the so-called net neutrality compromises that have been bandied about are any indication, the agency is not terribly interested in regulating on behalf of the consumer. As it stands ISPs can engage in data capping, bandwidth throttling, exorbitantly priced service tiers and absolute shutoffs with little to no repercussions. And given that the user signs a terms of service agreement with whichever ISP s/he uses there is little in the way of legal recourse to retaliate against an ISP lockout if one does wind up violating the ToS, for whatever reason.
So, can the case be made that the 250 GB data cap is a violation of the author’s human rights? Yes. I believe so. Is it as grievous a practice as the great firewall, or complete lack of access? No. But qualitative distinctions aside the facts remain. Someone was cut off from the Internet. The action was carried out by the ISP. The government has not regulated the industry such that it could prevent or reverse such a decision. While the user could seek legal recourse, this requires the capital to engage in the legal battle against a massive corporation (here Comcast) who can afford corporate attorneys. Few people would be willing to step up to that kind of challenge and hope to win. Only in a class action lawsuit would much be likely to happen, and common cause for a class action has been tougher to prove these days.
Is this all just justification for my own self to engage in massive amounts of downloads/uploads? Maybe, but why shouldn’t everyone have that option?