Human Rights based Model Law Proposal for Internet Shutdowns and Platform Blockings

Standard model

• Access Now (2016, Primer): “ICCPR 3-part test sufficient. Just need guidance. No single internet shutdown meets the test”

• Legality – Legitimate aim – Necessary and Proportionate
• 2011 UN HR Committee’s GC 34, para 34 – “must be content-specific”, “generic bans not allowed on certain sites and systems”

• UNHRC “online=offline” (2012, 4, 6, 8) – what does it mean? Existence of online ”as a precondition”? Not helpful. Maybe interpretable in reference to risk of water-tight prior prior censorship online which is not possible offline
• 2016 UNHRC “should not prevent or disrupt access to info dissemination in violation of int’l law”
• UN & regional FOX Special Rapporteurs – mainly condemning from N/P angle and protecting access to knowledge–> Maybe clear on internet shutdowns, NOT specific enough to provide litigational support or abate platform blockings with granular normativity

Difficulty – so many laws cf. stopping shutdowns

• 2019 UK shutdown London underground to stop climate protests

• 2011 SF shutdown of mobile internet in subway to control a protest

• GNI 53 countries survey + Freedom on Net (2017-8) 66 countries survey –> 47/55 laws enabling shutdowns and 52/57 blockings

Challenges of drafting a “Model (soft international) Law” on Internet shutdowns

• Definitional: internet shutdown vs platform blockings
  • What are we fighting for? PB can be damaging as IS but PB bleeds into blocking-type content moderation which we cannot completely ban
• Legal: ITU Constitution Ch. IV-4, Article 34(2) – States reserve the right to cut off private telecommunications dangerous to national security
• Structural: ISPs receiving grant of public goods – bandwidth and easement on underground conduits and electric poles –> “public interest obligations” –> who decides what is in public interest –> open up legal room for govt to engage in internet shutdown

2nd-order Objectives 

• How to support litigations against internet shutdowns – procedural and statutory roadblocks more effective than substantive (Rathi & Basu, ”Dialing in the Law”, APC, 2020)
• How to support ISPs in challenging shutdown orders –appeals to internet shutdown order – ex post/ante judicial orders
• How to support states trying to make granular legislations that support necessity and proportionality – prevent “hammer-nail” thinking• Web pages (URL) v. web sites (TLD) • Content v. URL/TLD • Blocking v. Takedown
  • ISP v. CP • General purpose platform v. Special purpose platform
• How to support states trying to balance between ISP’s public interest obligations and free speech –> ISP’s public interest obligations enforced through shutdown v. fines

Recommendations for model law

• Shutdown & general purpose platform blocking – not allowed at all times even regionally unless consented to by users (no more subway WIFI shutdown)
• Special purpose platform blocking (Akdeniz) & non-platform blocking (& takedown)– judicially ordered – Manilar Principles for Intermediary Liabilityàif urgent, administrative appeal (Germany)
• Judicial standard must N/P and must include ‘prior censorship’ analysis (Inter-American Com HR)and ‘retaliatory ban’ analysis (Brazil Whatsapp ban)
• ISPs disciplined only civilly, should not involve shutdown of serviceà if license taken away, public “taking”

Big question

• Will a model law invite more internet shutdowns?

Gregorio & Stremlau, “Internet Shutdowns and the Limits of Law” International Journal of Communication 14(2020), 4224–4243

Tomiwa Ilori, “Life Interrupted”, GNI (2020)