ISN_FINAL (DO NOT DELETE) 10/24/2013 6:04 PM SUPER-INTERMEDIARIES, CODE, HUMAN RIGHTS IRA STEVEN NATHENSON* Abstract We live in an age of intermediated network communications. Although the internet includes many intermediaries, some stand heads and shoulders above the rest. This article examines some of the responsibilities of “Super-Intermediaries” such as YouTube, Twitter, and Facebook, intermediaries that have tremendous power over their users’ human rights. After considering the controversy arising from the incendiary YouTube video Innocence of Muslims, the article suggests that Super-Intermediaries face a difficult and likely impossible mission of fully servicing the broad tapestry of human rights contained in the International Bill of Human Rights. The article further considers how intermediary content-control pro- cedures focus too heavily on intellectual property, and are poorly suited to balancing the broader and often-conflicting set of values embodied in human rights law. Finally, the article examines a num- ber of steps that Super-Intermediaries might take to resolve difficult content problems and ultimately suggests that intermediaries sub- scribe to a set of process-based guiding principles—a form of Digital Due Process—so that intermediaries can better foster human dignity. * Associate Professor of Law, St. Thomas University School of Law, inathen-
[email protected]. I would like to thank the editors of the Intercultural Human Rights Law Review, particularly Amber Bounelis and Tina Marie Trunzo Lute, as well as symposium editor Lauren Smith. Additional thanks are due to Daniel Joyce and Molly Land for their comments at the symposium. This article also benefitted greatly from suggestions made by the participants of the 2013 Third Annual Internet Works-in-Progress conference, including Derek Bambauer, Marc Blitz, Anupam Chander, Chloe Georas, Andrew Gilden, Eric Goldman, Dan Hunter, Fred von Lohmann, Mark Lemley, Rebecca Tushnet, and Peter Yu.