Toward an International Law of the Internet

The Internet has an international law problem. International institutions are becoming increasingly involved in setting technological standards for the Internet. This regulation, however, is proceeding without any attention to existing international law on freedom of expression or the consequences of these regulatory decisions for human rights. Without consideration of international human rights law and values, decisions about regulation will be driven by government and industry interests. The result is likely to be standards on issues such as data privacy and censorship that are inconsistent with, and even harmful to, international human rights. This Article responds to this problem by developing a foundation for an “international law of the Internet” based on Article 19 of the International Covenant on Civil and Political Rights (ICCPR). It presents the first comprehensive articulation of the obligations the ICCPR imposes on states and intermediaries with respect to the Internet. In this Article, I argue that the ICCPR guarantees a “human right to the Internet” by protecting freedom of choice with respect to the medium of expression and a right of access to information. The ICCPR also provides a robust foundation for responding to some of the most challenging issues we face today in Internet governance by guaranteeing a right to seek information and to remain anonymous online, limiting states’ ability to prevent information and ideas from crossing their borders, and regulating the activities of private actors that substantially burden freedoms of expression and information. Using insights from cyberlaw scholarship, the Article also develops a theory of “human rights defaults” for software code designed to bolster compliance with this emerging international law of the Internet. Given a choice between software code that makes it easier or harder for states to violate human rights, the defaults established in software code and adopted in international standards should be more, rather than less, protective of human rights. In other words, human rights must be embedded directly into the software code itself. The Article concludes by calling on states and software engineers alike to implement human rights defaults as part of international standardization processes and software development