Vint Cerf, the “father of the Internet,” has given very confusing reasons for his view that Internet Access Is Not a Human Right. First, he says that Internet access, unlike freedom of speech and access to information, is not a human right. Cerf’s stance on the debate boiled down to this: ‘Technology is an enabler of rights, not a right itself.'”
Hunh? What does “access to information” even mean? It seems to be some unlibertarian positive right. And if such things can be “rights,” why can’t access to the Internet? Because of the contextless, ad hoc assertion that “Technology is an enabler of rights, not a right itself.”
He goes on to try to elaborate on his shaky view of rights:
In order for something to be considered a human right, it must be among the things a person needs to lead a healthy and meaningful life, such as freedom from torture or freedom of thought, Cerf argued.
Well we need education and food to lead a healthy life, so if you are going by this standard you open the door to any number of welfarist, socialist positive rights, such as social security, employment, equal pay for equal work, vacation time, food, housing, medical care and education, as I discuss in Intellectual Property as Socialistic “Human Rights”.
The better approach is to recognize that there are no positive rights at all, since a positive right implies a positive duty on behalf of others to provide you with the thing you have a “right” to, such as food, education, and so on. The idea of positive rights implies that others are your partial slaves. If the positive rights are universal, that means we are all each others’ slaves. (The one exception is to this prohibition on positive obligations or duties is those that are voluntarily assumed by the obligor, such as the parental obligation to children, the obligation of a criminal or tortfeasor to help or make amends to his victims, and so on. See How We Come to Own Ourselves.)
I argue in Internet Access as a Human Right for a different approach to this issue. First, we need to be skeptical of the very term “human rights.” Common conceptions of “human rights” tend to hold that human rights include socialistic, positive welfare rights. This is why it is better for libertarians to refer to “natural” rights, or just plain rights or “libertarian rights.” Human rights can be seen as including three different things:
- natural rights or related negative rights (right to free speech, etc.);
- positive, socialistic welfare rights;
- procedural or prophylactic/civil rights (i.e. rights that are not natural but that are good fictional standins for limitations on state power).
The first is of course to be welcomed, though it’s usually just an atrophied subset of the full panoply of real libertarian rights. For example human rights contemplate the legitimacy of governments, and taxation (conception #2 above requires it), and imprisonment and other punishments for violating state decrees, while libertarians recognize that these things violate rights. (The right to free speech is not really a fundamental natural right, actually, but only a consequence of more fundamental basic libertarian rights to have one’s body be free of aggression. See Rothbard, “Human Rights” As Property Rights. But at least it indicates an aspect of, or consequence of, a real libertarian right. Not that this somewhat unclear view of rights doesn’t lead to trouble–if you view “free speech” as an independent right, unanchored from bodily and property rights, then they can be used to trump real property rights, as in the cases where state courts have “deemed” shopping malls to be “public spaces” and “therefore” they must allow people to engage in protests etc., in the name of “free speech.”)
The second set of rights are completely unlibertarian. There are not positive welfare rights.
The third are not “real” rights but are valuable so long as there are states, as fictions that help limit state power. For example, consider the idea of the “presumption of innocence.” This is the idea that the state has the burden of proving someone committed a crime before convicting them. This implies that someone is “innocent” if the state cannot prove he is guilty, and that it is unjust to punish him unless the state’s court can prove him guilty. In the libertarian conception, this is not quite right. If someone actually committed a (real) crime (such as assault and battery), then it is not unjust for the victim to punish or administer (proportional) force against the aggressor.1 Now, in a free society, if the victim does not go through established procedures and instead acts as a vigilante, there are various dangers and risks: he may punish someone who is actually innocent, and thus incur liability; he may be seen as reckless and suffer consequences like ostracism or shunning or increased insurance rates. But if a victim retaliates against a person who actually did aggress against him, even if the victim does not go through due process or reliable procedures first to prove his guilt, the aggressor’s rights are not actually violated. And yet the “presumption of innocence” is contrary to this understanding. Should we libertarians thus oppose it? Should we reject subset 3 above, as we reject subset 2? No, not usually. So long as the state is around, “fake” prophylactic civil or procedural rights, like the presumption of innocence, due process, etc., are good, as they help to limit state power.
So, does an actualy guilty person actually have a right to be presumed innocent? No. But should we libertarians want the state to be bound and limited as if he has this right? Yes. For the state is a much worse criminal than the accused private aggressor. Ultimately, fake, prophylactic rights are libertarian because they act as limits on state power, which helps reduce violations of rights of innocent people accused of crimes by the state (or of people accused of commiting non-crimes, like tax evasion or drug use), and also helps make the state less dangerous overall. It partially declaws the state. Thus, the fiction of prophylactic procedural and some civil rights are in the service of real rights since they are aimed at keeping the greatest violator of rights–the state–at bay.
And this is why, in my previous post, I argued that there could be some good from viewing Internet access as a “human right”–though there is some danger in it, too. To the extent it acts as a prophylactic right (type 3) or even an aspect of real rights (type 1), that is good. This means the state may not restrict people’s access to the Internet. It would be seen as an aspect of or consequence of free speech and related rights, which are themselves mere implications of the basic natural rights to self-ownership and ownership of property. But there is a danger it could be seen as a positive right (type 2)–that the state has to provide taxpayer-funded Internet access to people. As I noted in my previous post:
one has to be wary of the catch-phrase “human rights” as it can sometimes mean positive welfare rights. But not always. In fact, the UN Human Rights Council has recently opined that denying Internet access or related penalties–via laws such as “three strikes” laws in France and the United Kingdom that boot users off the Internet for repeated copyright infringement, as well as ACTA and the DMCA–can violate human rights to free speech and related rights. In other words, the idea is that Internet access is a human right, and state regulations and laws that impair this are illegitimate.
Now, is Internet access really a human right–or, as we would say, an individual right, or libertarian right? Is free speech even a legitimate human right? No. As Rothbard explains, all human rights are property rights. But in a state legal system, a legal right simply acts as a limitation on state power. For the libertarian, who sees all or most state power as bad precisely because it infringes on real libertarian rights, any limitation on state power, even if it is labeled as a “right” but is really not a genuine libertarian right, is to be welcome. With one exception: that of positive rights, such as a right to food or a job; such “rights,” instead of being limitations on state power, are disguised grants of power to the state: it is then authorized to take from A to provide B with his “right.” But for other negative rights, such as a right to free speech, even though these are not real, independent rights (in libertarian theory, the right to free speech is merely a consequence of the more fundamental right to one’s body), it is still useful to have them seen as limits on the state. Other examples include constitutional and other “rights” that are not really natural rights, but merely “civil” rights, such as the right to due process, rights against double jeopardy, and so on. Any libertarian should favor these “rights” being imposed as limitations on state power.
And so it is with Internet access. There is no doubt that the Internet has become one of the most important weapons against the state, and use of the Internet crucial to survival in the modern world. Anything that restricts the power of states to hamper the Internet or to harm individuals by limiting their access to the Internet is good. And this is why I am not opposed to the UN implicit recognition of Internet access as a human right. (But please, don’t impose a global tax to set up municipal “free” wifi in poor communities around the world!)
Update: See the recent decisions of various local courts and regional and international tribunals in this ASIL International Law in Brief, for a sample of how these courts tend to be better than the policies of the states. See also The UN, International Law, and Nuclear Weapons.
In any case, regardless of his somewhat confused views about the nature of rights, he is a heroic opponent of the evil SOPA.