LIFE, , AND ACCESS: IS LOGGING ON A BASIC HUMAN RIGHT?

Jeff Handelsman and Eby Kalantar1

I. INTRODUCTION

Nelson Mandela, speaking in 1995 said, “In the twenty-first century, the capacity to communicate will almost certainly be a key human right. Eliminating the distinction between the information-rich and information-poor is critical to eliminating economic and other inequalities between North and South, and to improve the life of all humanity.”2 The Internet is a unique communications medium. Like no other medium before, it allows individuals to express their ideas and opinions directly to a world audience, while allowing access to more ideas, opinions, and information than previous media have allowed.3 According to Watch, an independent organization dedicated to defending and protecting human rights, the Internet is a “transformative force that can help open closed societies and provide the near-instantaneous flow of information to inform the public, mobilize for change, and ultimately hold institutions accountable.”4 Through the Internet, citizens of repressive regimes are able to find information about matters concerning their own governments and their human rights records that are not available through any other medium, which enables them to denounce the conditions under which they live for the world to hear.5 This power to transmit and receive information, central to any conception of , can be achieved on the Internet as nowhere before.6 Universal, affordable access to high-speed communications networks is essential in today’s society.7 New, high-speed Internet applications create jobs and opportunities for innovation, growth, and e-

1 Jeff Handelsman (J.D., 2011) and Eby Kalantar (J.D., 2011), University of Baltimore School of Law. The authors would like to thank Professor Michael Meyerson, who assisted in formulating this topic, as well as researchers Saba Pervaiz (J.D., University of Maryland School of Law, 2012) and Nikki Mendrinos (J.D., University of Baltimore School of Law, 2012). 2 Internet is a fundamental human right, says world, http://www.techeye.net/Internet/Internet-is-a- fundamental-human-right-says-world (last visited May 13, 2010). 3 Center for Democracy & Technology, http://www.cdt.org/issue/free-expression (last visited May 11, 2010). 4 Global Internet Freedom: Corporate Responsibility and the Rule of Law: Hearing before the Senate Judiciary Committee Subcommittee on Human Rights and the Law, 110th Cong. (2008) (statement of Arvind Ganesan, Program Director, Business & Human Rights Human Rights Watch). 5 Id. 6 Id. 7 Communications Workers of America, http://www.cwa-legislative.org/fact-sheets/speed- matters.html (last visited May 10, 2010).

32 Life, Liberty, and commerce.8 Furthermore, technology allows businesses based in rural and remote communities to compete in the global economy.9 High-speed Internet means more than smooth web videos or fast downloads. Advanced high-capacity communications networks can increase democratic and civic participation, improve the delivery of , education, job training, public safety and other vital services.10 Both the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) were drafted decades before the advent of the Internet, but both contain language that support the establishment of Internet access as a human right.11 Several nations, including , , and , have passed domestic legislation making Internet access a human right.12 took one step further, and became the first nation to legally mandate speed.13 In October 2009, Finland passed legislation requiring that all citizens have the right of access to a one-megabit broadband connection starting in July 2010.14 On March 16, 2010, the U.S. Federal Communications Commission submitted a to Congress.15 One of the main goals of the broadband plan is for every American to have affordable access to broadband service as well as the means and skills to subscribe if they so choose.16 The recent push among many states and international organizations to establish a right to Internet access could pressure other states to do the same. Ultimately, a new human right could develop as customary international law if enough states, under a sense of legal obligation, legislate Internet access as a human right.

II. IS INTERNET ACCESS A HUMAN RIGHT?

A. Support from Sources of International Law

Although not legally binding, the Universal Declaration of Human Rights

8 Id. 9 Id. 10 Advantages of Broadband, http://www.broadband.gov/broadband_advantages.html (last visited May 12, 2010). 11 World Influence of the UDHR, http://www.universalrights.net/main/world.htm (last visited May 12, 2010). 12 Universal Internet access is the new human rights issue, http://www.thenational.ae/apps/pbcs.dll/article?AID=/20100318/OPINION/100315932/1080/NE WS (last visited May 12, 2010). 13 Fast Internet access becomes a legal right in Finland, http://www.cnn.com/2009/TECH/10/15/finland.Internet.rights/index.html (last visited May 10, 2010). 14 Id. 15The National Broadband Plan: Connecting America, http://www.broadband.gov/ (last visited May 12, 2010). 16 Id.

33 Life, Liberty, and Internet Access contains several provisions that support the possibility of Internet access as a human right.17 Some of the rights delineated in the UDHR include the , the right to freely participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.18 Also included is the right to freedom of opinion and expression.19 Article 19 provides the strongest support for Internet rights when it states that everyone has the right to “hold opinions without interference and to seek, receive, and impart information and ideas through any media regardless of frontiers.”20 The International Covenant on Civil and Political Rights, Article 19 (2), is almost identical to the UDHR Article 19.21 Unlike the UDHR, the ICCPR is a legally- binding multilateral treaty.22 The ICCPR allows individuals, not just states, to lodge complaints with the about human rights violations.23 This gives citizens of repressive states the ability to seek international assistance in combating human rights violations. Would the current United Nations General Assembly include Internet access as one of these universal human rights? Is Internet access necessary in order to participate in cultural life of the community or to be an educated person? The UN answers these questions in the affirmative as evidenced by their supporting the idea of making Internet access a human right.24

B. The Role of Regional Organizations

17Association for Progressive Communications, http://www.apc.org/node/5677#1 (last visited May 12, 2010). 18 Universal Declaration of Human Rights, G.A. Res. 217A, at 71, U.N. GAOR, 3d Sess., 1st plen. Mtg., U.N. Doc. A/810 (Dec. 10, 1948). 19 Id. 20 Id. 21 BARRY CARTER, INTERNATIONAL LAW SELECTED DOCUMENTS 427 (2009). “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.” Id. 22 A Human Rights Glossary, http://www1.umn.edu/humanrts/edumat/hreduseries/tb1b/Section3/hrglossary.html (last visited May 12, 2010). 23 World Influence of the UDHR, http://www.universalrights.net/main/world.htm (last visited May 12, 2010). 24 Fast Internet access becomes a legal right in Finland, http://www.cnn.com/2009/TECH/10/15/finland.Internet.rights/index.html (last visited May 10, 2010). See also World Summit on the , http://www.unesco.org.uk/world_summit_on_ the_information_society_(wsis) (last visited May 10, 2010). The World Summit on the Information Society (WSIS) was a series of two United Nations-sponsored conferences, taking place in 2003 and 2005, on information and communication and their impact and potential in the 21st Century. One of WSIS’s chief aims was to develop proposals to help bridge the among and within countries by spreading access to the Internet, particularly within the developing world. Id.

34 Life, Liberty, and Internet Access

Regional organizations have tremendous influence over many issues, and could majorly influence the direction of a guaranteed right to Internet access.25 These organizations might serve to pressure other states to ease their restrictions on citizens’ access to the Internet. Regional structures now operate throughout the world, such as human rights organizations in Europe, the Americas, and Africa.26 The European Parliament has stated that access to the Internet is a basic human right.27 Last year, the European Parliament passed a telecommunications reform package that paved the way for stronger consumer rights, an open Internet, and high-speed Internet connections for all citizens.28 Two key provisions of the package include accelerating broadband access for all Europeans, and encouraging competition and investment in next generation access networks.29 In a more recent move to strengthen Internet rights, the European Union (EU) recently launched the Internet Freedom Provision, whereby EU citizens are entitled to a "fair and impartial procedure” before any measures can be taken to limit their Internet access.30 Telecoms commissioner Viviane Reding stated that "this Internet freedom provision is unprecedented across the globe and a strong signal that the EU takes fundamental rights very seriously, in particular when it comes to the information society."31 The Internet Governance Forum (IGF), a multi-stakeholder forum for policy dialogue on issues of Internet governance, was established by the United Nations in July 2006.32 One of its objectives is to advise all stakeholders in proposing ways and means to accelerate the availability and affordability of the Internet in the developing world.33 The IGF, along with the African Union and a group of Development Financial Institutions such as the World Bank Group, has set out to establish the East African Submarine Cable System, which would radically reduce the cost of international bandwidth to countries on the east coast of Africa.34 By investing in Internet infrastructure on a multi-national scale, these

25 DAVID WEISSBRODT, INTERNATIONAL HUMAN RIGHTS 23-25 (2001). 26 Id. 27 Telecoms package conciliation: MEPs and Council representatives agree on Internet access safeguards, http://www.europarl.europa.eu/news/expert/infopress_page/052-63798-309-11-45- 909-20091105IPR63793-05-11-2009-2009-true/default_en.htm (last visited May 11, 2010). 28 Agreement on EU Telecoms Reform paves way for stronger consumer rights, an open Internet, a single European telecoms market and high-speed Internet connections for all citizens, http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/09/491 (last visited May 13, 2010). 29 Id. 30 European 'Internet freedom' law agreed http://www.zdnet.co.uk/news/networking/2009/11/05/european-Internet-freedom-law-agreed- 39860587/ (last visited May 12, 2010). 31 Id. 32 Internet Governance Forum, http://www.intgovforum.org/cms/aboutigf (last visitied May 12, 2010). 33 Association for Progressive Communications, Reducing the Cost of International Internet Connectivity (2007), www.intgovforum.org/Substantive_1st.../APC_IGC_IIC_final.pdf. 34 Id.

35 Life, Liberty, and Internet Access organizations are facilitating the future growth of Internet usage in poorer societies. These types of projects will help establish Internet access as a human right internationally.

III. COMPARATIVE APPROACH: LAWS AROUND THE WORLD

A. Finland

As previously noted, Finland has taken a leading role in the advocacy of Internet rights. On October 14, 2009, the Finnish Ministry of Transport and Communications made Finland the first country to declare one-megabit broadband Internet access a legal right.35 According to the legislative counselor for the Ministry of Transport and Communications, Laura Vilkkonen, Finland plans to provide all citizens with even faster broadband speeds, 100 megabits, by 2015.36 “We think it’s something you cannot live without in modern society. Like banking services or water or electricity, you need Internet connection,” Vilkkonen said.37 She went on to state that "universal service is every citizen's subjective right."38 Finland, with a population of roughly 5.2 million, is already one of the most connected countries in the world. Ninety-five percent of its citizens already have access to some form of Internet connection.39 The Finnish government said the move was aimed at improving broadband penetration in rural areas.40 The national government will cover up to one-third of the projected €200 million cost of the plan through an action of unused or under-utilized slices of the radio spectrum.41 Local municipal regions and telecom operators will cover the remaining cost.42 Indeed, Finland’s dedication to broadband access has set the path for other countries to follow.

B. Right to Access Elsewhere in Europe

In 2000, several years before Finland enacted its Internet law legally mandating speed, Estonia’s parliament passed a law declaring Internet access a

35 Fast Internet access becomes a legal right in Finland, http://www.cnn.com/2009/TECH/10/15/finland.Internet.rights/index.html (last visited May 10, 2010). 36 Id. 37 Id. 38 Id. 39 Finland makes fast broadband a legal right, http://www.telegraph.co.uk/technology/broadband/6337698/Finland-makes-fast-broadband-a- legal-right.html (last visited May 11, 2010). 40 Id. 41 Finland declares 1Mbps broadband to be a legal right, with 100Mbps to come, http://apcmag.com/finland-declares-1mbps-broadband-to-be-a-legal-right.htm (last visited May 12, 2010). 42 Id.

36 Life, Liberty, and Internet Access fundamental human right for its citizens.43 That same year, Estonia became the first country in the world to adopt a system of e-governance, changing its cabinet meetings to paperless sessions using a web-based document system, affording ministers the ability to take part from anywhere.44 Just last year, France’s highest court, the Constitutional Council, declared access to the Internet to be a basic human right.45 The web is “an essential tool for the liberty of communication and expression,” according to the Council.46 Following in Finland’s path, has codified a legal right to broadband Internet access of at least one megabit per second for its citizens.47 “Universal service” will be guaranteed starting in 2011 by establishing a regulated price wherever one lives. Similar to that of Finland, the Spanish law focuses on unprofitable rural areas whose users would not otherwise have access to broadband service.48 Part of the mandate is that the access be affordable, especially in rural parts of the country.49

C. Right to Access in the United States

Internet speeds in the United States are widely criticized as being slow by global standards.50 According to the FCC, 35 percent of U.S. citizens do not have access to high-speed Internet in their home, and 14 million Americans do not have access to broadband even if they want it.51 According to the Organisation for Economic Co-operation and Development (OECD), as of June 2009 there were 26.7 broadband Internet subscriptions in the United States for every 100 Americans, ranking the United States 15th out of 30 OECD member nations.52

43 Linnar Viik -- Estonia's Mr. Internet, http://www.eubusiness.com/europe/estonia/040420021538.qhs3vusx (last visited May 12, 2010). 44 Id. 45 CC decision no. 2009-580DC, Jun. 10, 2009, Journal officiel du 13 juin 2009 p.9675, available at http://www.conseil-constitutionnel.fr/decision//2009/decisions-par-date/2009/2009-580- dc/decision-n-2009-580-dc-du-10-juin-2009.42666.html. See also Internet Access is a Fundamental Human Right, rules French Court, http://www.dailymail.co.uk/news/worldnews/article-1192359/Internet-access-fundamental- human-right-rules-French-court.html (last visited May 20, 2010). 46 Id. 47 Spain govt to guarantee legal right to broadband, http://www.reuters.com/article/idUSLH61554320091117 (last visited May 12, 2010). 48 Id. 49 Id. 50 Fast Internet access becomes a legal right in Finland, http://www.cnn.com/2009/TECH/10/15/finland.Internet.rights/index.html (last visited May 10, 2010). 51 FCC: 35% of Americans Lack Broadband, http://www.pcmag.com/article2/0,2817,2360263,00.asp (last visited May 10, 2010). 52 The U.S. ranks 15th in broadband access, http://rankingamerica.wordpress.com/2009/12/26/the- us-ranks-15th-in-broadband-access/ (last visited May 10, 2010).

37 Life, Liberty, and Internet Access

Until recently, the United States has been the only industrialized country without a national plan for high-speed broadband.53 This changed on March 16, 2010, when the FCC released a $15 billion national "broadband plan" which aims to give 90 percent of Americans access to affordable, high-speed Internet by 2020.54 Although the United States has not gone so far as to declare Internet access a human right, the government has nonetheless taken a major step towards universal access and evidence of Internet access as a human right. Some of the plan’s highlights include:

• 100 megabits per second download speed and 50 megabit upload speed in 100 million homes by 2020;

• Building the fastest wireless network in the world;

• Affordable broadband, though no definition of “affordable” is given;

• Community facilities, such as schools, hospitals and government buildings, should have one-gigabit access;

• Public safety first responders should have access to wireless network that is interoperable with commercial and private broadband public safety network.55

"This is not something that is nice for us to do; it is everyone's right," FCC Commissioner Michael Copps said at a recent commission meeting.56 The FCC has recognized that if the U.S. fails to improve Internet connections, and make them accessible to more people, the economy will suffer and unconnected Americans will be left without the information they need to function in a digital society.57 Many job applications, for example, no longer exist in paper form. The National Broadband Plan is a roadmap to “spur economic growth and investment, create jobs, educate our children, protect our citizens, and engage in our democracy,” says FCC Chairman Julius Genachowski.58 Additionally, the

53 FCC feels the need for Internet speed, http://www.cnn.com/2009/TECH/10/15/finland.Internet.rights/index.html (last visited May 10, 2010). 54 FCC releases 'Connecting America: The National Broadband Plan', http://www.zdnet.com/blog/government/fcc-releases-connecting-america-the-national-broadband- plan/7936 (last visited May 10, 2010). 55 Id. 56 FCC releases plan to improve U.S. Web access, http://www.cnn.com/2010/TECH/03/16/national.broadband.plan/index.html (last visited May 12, 2010). 57 Id. 58 Id.

38 Life, Liberty, and Internet Access broadband plan calls for a "digital literacy corps" to help Americans, especially those who are now underserved, build their online skills.59

IV. THE ROAD TO EXPANDING GLOBAL ACCESS

A. Customary International Law

The comparative view of states’ domestic laws demonstrates that there is a push among many states and international organizations to establish a right to Internet access. At the same time, many states, such as and , that are capable of providing open Internet access to many of their citizens, have made a strong push in the opposite direction, restricting access at many levels.60 Might the conduct and rhetoric of more “open” countries, like Finland and France, have an effect on these restrictive countries? In other words, to what extent does the collective conduct of the open states, on a domestic and regional level, create international legal obligations as a matter of custom? Customary international law, according to §102 of the Restatement on the Foreign Relations Law of the United States, results from a general and consistent practice of states followed by them from a sense of legal obligation.61 While it is unlikely that the actions of a few countries, like those of Finland and Estonia, constitute the requisite general and consistent practice, it is worth evaluating where customary international law may be in its creation should the trend established by these countries continue. The evidence to support the creation of customary international law concerns the two elements provided by the Restatement definition: state practice and a state’s sense of legal obligation, or opinio juris.62 Most pertinent to this paper’s discussion is the state’s domestic laws which are only relevant to customary international law insofar as they might seek to describe the state’s practices and obligations under international law.63 Finland, Estonia, France, and Spain are all members of the EU.64 The European Court of Justice ruled that European Community (EC) law is superior to national

59 FCC Plan Can Help Restore US Standing in High Speed Broadband, http://www.cwaunion.org/news/entry/FCC_Plan_Can_Help_Restore_US_Standing_in_High- Speed_Broadband (last visited May 14, 2010). 60 U.S. human rights report hits China, Iran, http://www.reuters.com/article/idUSTRE62A3IO20100311 (last visited May 16, 2010). 61 RESTATEMENT (THIRD) OF THE LAW, FOREIGN RELATIONS LAW OF THE UNITED STATES, §102(2) (1987). 62 CARTER, supra note 21, at 123 (2007). 63 Researching Customary International Law, State Practice and the Pronouncements of States regarding International Law, http://www.nyulawglobal.org/globalex/Customary_International_Law.htm#_State_Law (last visited May 16, 2010). 64 European Coutntries, Member States of the EU, http://europa.eu/abc/european_countries/eu_members/index_en.htm (last visited May 16, 2010).

39 Life, Liberty, and Internet Access laws.65 Where a conflict arises between EC law and the law of a Member State, EC law takes precedence such that the law of a Member State is no longer applicable.66 This doctrine emerged from the European Court of Justice in Costa v. ENEL, and establishes the supremacy of European Community law.67 Consequently, Member States should be more hesitant to pass conflicting legislation and would likely place themselves in greater harmony by conforming to both treaty obligations and normative principles. Opening up Internet access as a legal right domestically is in accord with some of the policies discussed above, such as the European Parliament’s statement that access to the Internet is a basic human right and its passage of a telecom reform package that paves the way for stronger consumer rights, an open Internet, and high-speed Internet connections for all citizens.68 According to the Restatement, "international agreements constitute practice of states and as such can contribute to the growth of customary law under Subsection (2)."69 The United States, in addition to Finland, Estonia, France, and Spain, is a party to the UN Charter as well as the ICCPR. The treatment of Internet access as a fundamental right domestically is evidence that even non- binding, normative principles within the treaty obligations have permeated state level law-making. FCC Commissioner Michael Copp’s statement, detailed above, that the US broadband plan is “not something that is nice for us to do; it is everyone's right,” suggests that a sense of legal obligation, at least in part, is present in the United States.70 The Commissioner’s statement is vague in that he does not provide a legal source for this right. But it remains plausible that this opinion falls within general principles such as “freedom of opinion and beliefs” and “right to freely... participate in the cultural life of the community” that were propagated by the United Nations Charter, by way of the UDHR’s interpretation, and the ICCPR.71 Official pronouncements by states that undertake to promote a rule of international law are among the best places to find evidence of international custom, as they can describe both elements of the Restatement definition of custom. Strong rhetoric by officials, such as French politician and diplomat Bernard Kouchner, support the notion that there is increased support for a right to Internet access at the international level. In a May 2010 statement, Mr. Kouchner pointed out that “no fewer than 180 countries meeting for the World Summit on

65 Case 6/64, Flaminio Costa v E.N.E.L., 1964 ECR 585. 66 Id. 67 Id. 68 Agreement on EU Telecoms Reform paves way for stronger consumer rights, an open Internet, a single European telecoms market and high-speed Internet connections for all citizens, http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/09/491 (last visited May 13, 2010). 69 RESTATEMENT, supra note 61, at §102(2). 70 FCC releases plan to improve U.S. Web access, http://www.cnn.com/2010/TECH/03/16/national.broadband.plan/index.html (last visited May 12, 2010). 71 UDHR art. 27.

40 Life, Liberty, and Internet Access the Information Society acknowledged that the Universal Declaration of Human Rights applies fully to the Internet, especially Article 19, which establishes freedom of expression and freedom of opinion . . . and yet, some fifty countries fail to live up to their commitments.”72 In March 2010, Finnish Foreign Minister Alexander Stubb joined twenty-six other European ministers who condemned Iranian media censorship, denouncing its blocking of Internet access by political activists and others.73 He even pushed for “real sanctions through the UN Security Council,” failing a “move towards unilateral EU sanctions”.74

B. The Role and Importance of Customary International Law

The state of international custom vis-à-vis a right to Internet access, like the Internet itself, is still at a relatively young stage. Though practice and opinio juris of the states discussed above appear significant, practice has not been widespread. Widespread acquiescence is needed, though it need not be universal, and may occur within a short period of time.75 In addition, there is no formula indicating how prevalent a practice must be, and widespread acceptance among the states specially interested in the issue can give rise to meeting this standard.76 While there is disagreement as to when a rule has ripened into a norm, a consensus that a norm in fact has evolved must emerge, as discussed by the U.S. Court of Appeals for the Second Circuit in regards to the issue of in Filártiga v. Peña-Irala.77 France’s decision on the right to Internet access mirrors this process. Should the trend in Europe and the United States continue, followed by large blocks of African, Asian, and South American countries, such action could give rise to new international legal norms regarding Internet access. Such a legal norm can be used to realize, globally, the important benefits of free Internet access, particularly in the most restrictive countries. The U.S. State Department’s 2010 survey of human rights in 194 countries singled out Iran and China for having increased their human rights abuses, particularly regarding the free flow of information.78 While Iran and China do not have laws explicitly denying access to citizens, the two countries have become notorious for tightly

72 The Internet: a critical issue in the international policy, by Bernard Kouchner, http://www.diplomatie.gouv.fr/en/france-priorities_1/Internet-multimedia_2347/the-Internet- critical-issue-in-the-international-policy-by-bernard-kouchner-may-10-2010_13945.html (last visited May 16, 2010). 73 EU ministers vow to act against Iranian media censorship, http://www.eubusiness.com/news- eu/iran-media.3qo/ (last visited May 16, 2010). 74 Id. 75 IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 6-7 (1979). 76 RESTATEMENT, supra note 61, at §102, cmt. b. 77 See Filártiga v. Peña-Irala, 630 F.2d 876 (2d. Cir. 1980). The court ruled that torture was a violation of the law of nations and the US did have jurisdiction via the Alien Tort Statute, which allows US courts to hear tort claims for violations of the law of nations and US treaties. 78 U.S. human rights report hits China, Iran, http://www.msnbc.msn.com/id/35820074/ (last visted May 16, 2010).

41 Life, Liberty, and Internet Access controlling information to those users who do have access to the Internet.79 As the report described, China specifically “increased its efforts to monitor Internet use, control content, restrict information, block access to foreign and domestic Web sites, encourage self-censorship, and punish those who violated regulations.”80 The establishment of international legal norms gives the legal basis upon which other states can apply pressure to states in violation of the rule, and also provides a clear basis upon which activists and international organizations can organize and denounce repressive regimes. Iranian journalist Omid Memarian testified before Congress regarding Internet freedom in Iran in March 2010, affirming that many fellow activists, bloggers, and journalists believed that any kind of support to give Iranians more access to the Internet is “supporting human rights and democracy in the country.” He also testified on behalf of his colleagues, stating that by supporting internet rights, foreign governments and organizations are “saving the lives of many people threatened by restrictions on information that allow the Iranian government to operate behind closed doors as it violates their basic rights.”81 Omid Memarian’s testimony evidences the way in which the language of human rights treaties and custom has permeated the lexicon of men and women in his position.

C. Criticisms

State control of information in the interest of self-preservation is a major hurdle in the development of customary international law on Internet access. Within the larger theoretical context of international law, positivists and those who rely on might disagree on the legal effect of widespread practice, belief, and agreement on such an international norm. Positivists, who argue that the binding force of international law is based on consent, would be unwilling to accept a right to Internet access as applicable to states that may not consent, such as Iran, China, North Korea, and others.82 This, in essence, regards the actual behavior of states as the basis of international law.83 Natural law proponents will argue that human beings possess inalienable rights,84 and in this context, Internet freedom activists have a stronger argument against states that wish to defy a right to Internet access.

79 Id. 80 Id. 81 Global Internet Freedom and the Rule of Law: Hearing Before the Human Rights and Law Subcommittee, 111th Cong. (2010) (testimony of Omid Memarian), available at http://www.c- spanarchives.org/program/ID/220384&start=4332&end=6540 (last visited May 16, 2010). Omid Memarian was arrested by Iranian forces and held in solitary confinement for using the Internet to share information, as a blogger and journalist, following the June 12, 2010 presidential elections. 82 See CARTER, supra note 21, at 27-32. 83 See CARTER, supra note 21, at 125. 84 See CARTER, supra note 21, at 32-33.

42 Life, Liberty, and Internet Access

Another strong criticism is based on practicality. Even if wealth is relative in time and place, how can developed countries pressure poor and developing nations to treat Internet access as a right? Ultimately, though, the issue of practicality should not detract from a push for this right, as it does not diminish the importance of Internet access to poor and rural areas. For Finland and Spain, much of the reason these states have passed legislation to guarantee Internet access is to connect the people in the more rural areas with those in more urban areas. The same motivation exists for the economic push to improve telecommunications infrastructure throughout Africa. This notion accords with the higher ideal that everyone has the right to freedom of opinion and expression, which includes the right to seek, receive, and impart information and ideas.85 Furthermore, where this is promoted, we may not see the effects for decades. Despite a creation of any international norm, there will always be a delay in its adoption, however strong.86

V. CONCLUSION

The drafters of the UDHR and ICCPR recognized several fundamental human rights, such as the right to education, the right to freedom of expression, and the right to “hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers.”87 The right to Internet access encompasses all of these rights that have been deemed to be so fundamental. As individual states begin to recognize Internet access as a human right, a strong argument can be made for the development of emerging customary international law. While global attitude appears to be in the early stages of recognizing such a right as a matter of custom, organizations such as the UN still have an opportunity to promote a human right to Internet access. This development would allow for states and other international organizations to pressure both neutral and restrictive societies to take measures to increase Internet access domestically.

85 Universal Declaration of Human Rights, supra note 18, at art. 27. 86 Examples of this delay might include women’s and apartheid. See Women’s Suffrage, A World Chronology of the Recognition of Women’s Rights to Vote and to Stand for Election, http://www.ipu.org/wmn-e/suffrage.htm (last visited May 16, 2010). 87 Universal Declaration of Human Rights, supra note 21, at art. 27.

43