Subject: Re: [hrpc] Freedom of Association on the Internet

From: Niels ten Oever <[email-masked]>
Date: Tue, 6 Feb 2018 14:20:56 +0100

Hi,

On Wed, Jan 24, 2018 at 02:45:56PM -0500, Andrew Sullivan wrote:
> > But the users (who are always the rights holders), do need the Internet to associate. This brings about obligations for the network. When users use the Internet to associate, it is also the Internet that should be protected. 
> >  
> 
> The point that I think Melinda is making, and that I have certainly
> already tried to make before, is that this use of "the Internet" is
> missing what the Internet is.  "The Internet" is a noun more like "the
> traffic" than "the table": a mass rather than count noun.[1] These two
> examples are emergent things made up of many other kinds of
> behaviour, each contributing to but not making up the whole.
> 
> On the Internet, the emergence is (partially) because of individuable
> networks -- "Autonomous Systems" -- that each voluntarily participate
> in the network of networks to make the Internet.  But there's an
> important caveat: each network is operated exclusively by its
> operators, and participates for locally-defined benefit according to
> locally-defined needs and desires.
> 

Not completely, right? There are rules ASes need to abide by to be able to receive an ASN. That is the bare minimum. Next to that other ASes also need to _want_ to peer with you, else you're still not connected. So there are pre-conditions. Including use of IP. So there are simple rules that ASes need to abide by to join the Internet. 

> In the meat-world, your freedom of association does not extend so far
> as to require me to associate with you: it's a negative, not a
> positive, right.  

Gisela already adressed the problems with positive and negative rights, so I won't repeat the issues here.

> If the Internet is made up entirely of ASes
> participating freely with one another, and if each AS's participation
> is defined according to locally-defined needs and desires, then it
> follows that it is _impossible_ to "protect" the Internet in terms of
> users' associational abilities.  For that would create a positive
> obligation on participating ASes out of a negative right on the part
> of any given user.  And since at a low level there is nothing
> signified by "the Internet" except the emergent behaviour of those
> independent ASes (and other networks that could be ASes but aren't
> yet), there is no other thing to protect and no other obligation that
> can accrue.
>  

The ASes agree to engage in a collaboration/association/internetwork which forms the Internet. It is not something that happens randomly, or as an unintended side-effect. What you describe as emergent, I think is the exact goal of the action. So I do not think it is an emergent faculty.  

> > I think the argument we're developing here … touches on the question
> > of how to build a public space on private infrastructure.
> 

Yes - fully agree. 

> It does rather more than touch on this.  To make that argument work
> _at all_, you are either going to need to make some other kind of
> argument:
> 
>     • Claim that there is a social need that trumps the private nature
>       of the participating ASes.
> 

Such as human rights, right?

>     • Work in somehow the always-tricky issue of collective rights and
>       obligations without individual obligation.
> 

You mean collective responsibility and voluntary norms?

>     • Define into existence some new network of last resort that has
>       the positive obligation to carry traffic when nobody else does.
> 

Why?

>     • Define "the Internet" to be something other than the emergent
>       propery of those individual networks participating voluntarily,
>       and explain what that is.
> 

Challenge accepted (but I feel this is gonna lead down a real deep (but probably exciting) rabbithole.

> As it stands, I do not think the draft makes any attempt to do any of
> those, and I think that may be the core problem.
> 

That might be right, we're working hard on re-drafting according to all extremly helpful e-mail. But I couldn't help myself but to respond :)

> In addition, I don't know how you do any of these without make a
> pretty strong distinction between "network operator" and "everyone
> else", where "everyone else" is going to include very large network
> operators that have an AS and do routing selectively.  But, of course,
> we already _had_ a network that had those properties.  It was the
> telephone network, with rights, obligations, and roles carefully
> delineated by regulations and government-granted monopoly rights.  We
> can observe some of that in, for instance, the "last mile" networks in
> many places.  But I am pretty far from convinced that any right to
> freedom of association would be made more operative by reinventing the
> legal and regulatory regime that made possible telco monopolies the
> world over; or by revivifying the bureaucratic,
> government-and-insiders-only nature of international telegraphy
> treaties.  The lowest-level Internet infrastructure operations club is
> undoubtedly hard to join, and the club certainly doesn't accept that
> others have a right of association. It is still worlds easier to join
> than the club of governments, whose members are even more hostile to
> new applicants.
> 

I am not sure whether a legal and regulatory regime, treaties or joining the infra ops club are the only options. But let's further dissect the problem before we try to come up with solutions.

Thanks again.

Niels

> Best regards,
> 
> A
> 
> [1] That is not to say that "internet" is a mass noun.  You can have
> two internets.  But all the internets are the Internet, and if you add
> more internets you still have one Internet.
> 
> -- 
> Andrew Sullivan
> [email-masked]
> 
> _______________________________________________
> hrpc mailing list
> [email-masked]
> https://www.irtf.org/mailman/listinfo/hrpc

-- 

Niels ten Oever
Researcher and PhD Candidate
Datactive Research Group
University of Amsterdam

PGP fingerprint	   2458 0B70 5C4A FD8A 9488  
                   643A 0ED8 3F3A 468A C8B3

---

From: Andrew Sullivan <[email-masked]>
Date: Wed, 7 Feb 2018 00:30:52 -0500

Hi,

On Tue, Feb 06, 2018 at 02:20:56PM +0100, Niels ten Oever wrote:
>  Not completely, right? There are rules ASes need to abide by to be
> able to receive an ASN. That is the bare minimum.Next to that other
> ASes also need to _want_ to peer with you, else you're still not
> connected. So there are pre-conditions. Including use of IP. So
> there are simple rules that ASes need to abide by to join the
> Internet.

If you join a semi-public conversation in a bus, you have to speak
that vernacular, not creep people out, and so on.  Also, you need to
want to participate, which presumes that you are getting something out
of it.  Do you have a _right_ to join the conversation?  I rather hope
not, or else I rather hope that the meaning of "right" is considerably
weaker than it seems to be in contemporary socio-political discourse.

> Gisela already adressed the problems with positive and negative rights, so I won't repeat the issues here.

Well, to be fair, my reading of Gisela's response was "this isn't
academically fashionable right now, so you're wrong," but here's what
she actually said:

> the division between positive/negative rights has been left behind
> for almost a decade now in human rights law theory and practice.
> Traditionally, civil and political rights were deemed as "negative
> obligations" for the State (mainly respecting, not interfering)
> whereas economical, social and cultural rights were "positive
> obligations" (fostering, paying, etc). Now we understand that
> freedom of expression should be respected by states, but also
> fostered in positive ways.

I still don't understand how any of that responds to the main point I
was making.  The draft as it stands appears to me to conjure into
being the requirement that any given AS -- or maybe only some ASes, I
am not sure -- MUST route the packets of (some?) other ASes as a
matter of the right of association.  This strikes me as the sort of
massive elevation of political preference to "a right" that underpins
Bentham's original description of natural rights.  I simply do not see
how anything in the Internet architecutre allows someone to insist on
the right of free packet passage.  I really _want_ that passage, and
think it is an unalloyed good thing.  But I do not see why (and the
draft provides, as far as I can tell, zero argument for why) this is a
"right" as opposed to the collectively self-interested way by which
everyone gets a global Internet.

I don't see anything in the UDHR that requires association with anyone
else; indeed Article 20(2) says that I can't be compelled to
associate.  If the Internet is an association, then if all the
associates refuse to associate with one another they are exercising
their right under 20(2).  This means that the right to association in
20(1) and non-association in 20(2) can't provide an even minimally
coherent story about internetworking-as-association.  It _might_
provide some story about association _using_ the Internet (over email
or file shareing or Facebook or YouTube or whatever).  None of that
has anything to do with "protocol considerations", however, unless
I've missed something pretty important in the last year.

I suppose what I am saying is that, in my view, the global Internet
(in the protocol-layers sense) is a permanently unstable political
fact of self-interest, rather than something that anyone is owed by
right.  That doesn't mean that there are no rights that accrue to
users of applications as those applications become part of the wider
social reality, nor even that high-level uses of the Internet might
not entail something for users covered bu the UDHR.  What is
mystifying to me is how to transform any such candidate right into
something that constrains the UDHR 20(2) right of non-association in a
way that means the Internet can't fall apart.
 
> The ASes agree

No.  In the moment of routing, one AS "agrees" with another AS.  Your
phrase makes it sound like a permanent or at least somehow
nominatively stable arrangement.  But for a lot of AS-AS pairings (not
always in direct relation), that's simply not true.  This is not a
contract universe.  "Best efforts" isn't a joke.

> to engage in a collaboration/association/internetwork which forms
> the Internet. It is not something that happens randomly, or as an
> unintended side-effect. What you describe as emergent, I think is
> the exact goal of the action. So I do not think it is an emergent
> faculty.

You describe this as a static thing, but I think it's emergent
_exactly_ because of how dynamic it is, and how few explicit
agreements there are.  I wonder whether you have a circuit-ish picture
of the Internet.  See Fred Baker's message elsewhere on list for a
quite good outline of why circuit-ish is wrong.

> Such as human rights, right?

I am unaware of any UDHR provision that takes some individual's (not
government) property -- or even certain corporations' property -- and
guarantees others use of it.  It still seems a stretch.
> You mean collective responsibility and voluntary norms?

If the document is about collective, voluntary norms to support
voluntary participation in the network according to local voluntary
criteria, what is it adding to the Internet?  If instead the idea is
that any Internet-participating node Must Be This Tall, I want to know
who appointed the arbiter and how I know it is decent.  And so on.

I fear that the draft is foundering on an extraordinarily naïve
interpretation of "the Internet".

A

-- 
Andrew Sullivan
[email-masked]

---

From: Gisela Perez de Acha <[email-masked]>
Date: Wed, 14 Feb 2018 17:36:28 -0600

>> fostered in positive ways.

1) Well, to be fair, your reading is wrong. Let me expand. National and
international courts, as well as broad international consensus between
countries (the basis of international law itself) have left behind the
distinction between positive and negative rights for about 25 years now.
So rather than about "fashion" or "trends" it's about rules.

In fact, all rights bear similar features but were thought to have a
different nature when both the ICCPR and the ICESCR were drafted.

a) On one hand, "negative rights" were seen as clasical liberal freedoms
which embody negative duties of the state; a set of prohibitions for the
government; a doit être expressed as a "passive" attitude of respect
towards them: freedom of speech, the right to a fair trial, freedom of
religion, assembly and association indeed, and voting rights. These
rights mostly stem from the 1948 Universal Declaration of Human Rights
that identified them as rights which every human being should enjoy just
because of their human nature. They were mostly encoded in the
International Covenant on Civil and Political Rights (ICCPR) in 1966
which was conceived as a body of rules of hard and fast law, to be
implemented without any delay.

b) On the other hand "positive rights" were seen as actions that must be
taken to allow for the fullfilment of certain other set of rights
including labour rights and the right to health, the right to education,
water and the right to an adequate standard of living. These are mostly
encoded in the International Covenant on Economic, Social and Cultural
Rights (ICESCR) which was rather viewed as an instrument enunciating
promotional obligations, to be implemented progressively, step by step.

c) Human rights bodies at international level have evolved a doctrine
according to which it is not enough for a state to abstain from
interfering with the rights it has pledged to respect and observe. In
1993 the Vienna Declaration of the World Conference on Human Rights
affirmed that ‘[a]ll human rights are universal, indivisible and
interdependent and interrelated
[http://www.ohchr.org/EN/ProfessionalInterest/Pages/Vienna.aspx]. Then
again at the Millennium Declaration of 8 September 2000
[http://www.un.org/millennium/declaration/ares552e.htm] the heads of
state and government pledged to ‘strive for the full protection and
promotion in all our countries of civil, political, economic, social and
cultural rights for all, and the same language was repeated in the World
Summit Outcome of 2005. In other words, the tendency in the
international rights arena is to "promote, protect, respect and fulfill"
all rights equally [See here
http://www.ohchr.org/EN/ProfessionalInterest/Pages/InternationalLaw.aspx].
Judges follow this tendency, the will of states, and eventually this
idea has bought a place in nacional and international jurisprudence.

d) Let's think of an example. Classical so-called "negative rights",
like free speech or freedom of religion, presuppose the protective
machinery of the state –e.g. actions from the police, judiciary system
or certain public policies that requiere the spenditure of money. In
other words, a government can never lean back, remaining entirely
passive: just in order to maintain law and order, a considerable effort
is necessary, expenditure both in financial and human terms. The same
happens with classical "positive rights": the right to health must not
only be positively fostered, but also respected in a non-regresive fashion.

(There's tons of bibliography on the topic, if anyone is interested in
going further)

> everyone gets a global Internet.

2) I think you are mixing concepts. In the draft we say

"In international law, the right to freedom of assembly and association
protects any collective, gathered either permanently or temporarily for
"peaceful" purposes. We will later expand on the definitions and limits
of "peacefulness" within these rights. For now it is important to
underline the propery of "freedom" because the right to freedom of
association and assembly is voluntary and uncoerced: anyone can join or
leave a group of choice, which in turn means on should not be forced to
either join, stay or leave."

Forced association is prohibited because it's a freedom, but that has
nothing to do with positive or negative rights. Plus, we are already
working on the new draft to address the issues os public/private
properties and obligations between ASes and internet(s).

Hope this helped clarify a bit more

Cheers,

Gisela

---

From: Andrew Sullivan <[email-masked]>
Date: Wed, 14 Feb 2018 21:12:52 -0500

Hi,

On Wed, Feb 14, 2018 at 05:36:28PM -0600, Gisela Perez de Acha wrote:
> 
> 1) Well, to be fair, your reading is wrong.

That is probably not even the first time that day I was wrong, so I'm
not too surpised.  I do understand the ways that a distinction between
positive and negative rights is problematic when the distinction is
applied to government action.  And as you note, the literature around
rights is mostly about what governments may, must, and may not do.  

But the point I was trying to make (on which more below) is that the
rights-based defence of the Internet on the basis of assembly is
creating a positive obligation that can only operate on almost
entirely private entities.  This seems like a big step.  So, the point
isn't positive and negative rights -- I really don't care how we
qualify this -- but rather that the architecture of the Internet makes
any right to freedom of association into a constraint on a right of
_dis_association.

> 2) I think you are mixing concepts. In the draft we say

I don't see how.

> properties and obligations between ASes and internet(s).

The problem as I see it, however, is that the Internet is not, as I
keep pointing out, a single space.  It is a collection of networks
each of which operates under its own rules.  Since, as you point out,
there can be no forced association because of association being a
freedom, then it cannot possibly be the case that I can be forced to
carry the traffic of someone on my network.  But if my network is a
critical path between two people who want to associate on the
Internet, then their right of freedom of association and my right not
to associate with one of them are necessarily in conflict.  In this
case, I don't actually see what it gains us to claim that there is a
right to associate freely on the Internet, since as a practical matter
such a right is _always_ in conflict with the right of someone else
not to so associate.  So either this claim of a right is empty, or
else it imbalances the scale towards individuals' rights to associate
with one another at the expense of private operators' rights not to so
participate.

Now, maybe your point is merely that there is an interesting academic
question of whether there is this right, and then the question of how
to balance that right against the other private rights of network
operators.  But if that's the point, it's by no means clear to me in
the draft.

Best regards,

A

-- 
Andrew Sullivan
[email-masked]

---

From: Stephane Bortzmeyer <[email-masked]>
Date: Fri, 23 Feb 2018 14:59:35 +0100

On Wed, Feb 07, 2018 at 12:30:52AM -0500,
 Andrew Sullivan <[email-masked]> wrote 
 a message of 110 lines which said:

> What is mystifying to me is how to transform any such candidate
> right into something that constrains the UDHR 20(2) right of
> non-association in a way that means the Internet can't fall apart.

About the issue of "mandatory peering" (not a good term, but I'm too
lazy to find a better one), HRPC participants may be interested by the
bolivian law of 2011 <https://www.lexivox.org/norms/BO-L-N164.xhtml>
"Artículo 50. (INTERCONEXIÓN ENTRE PROVEEDORES DE INTERNET). Los
proveedores de internet, deben obligatoriamente establecer y aceptar
interconexiones entre sí, dentro del territorio nacional, a través de
un punto de intercambio de tráfico, a fin de cursar el tráfico de
internet, de acuerdo a las condiciones establecidas mediante
reglamento." I translate it very roughly "Article 50 (interconnection
of Internet access providers). Internet access providers MUST set up
interconnections between them, inside the country, through an Internet
exchange point, to exchange Internet traffic. The precise conditions
will be described in a regulation." [AFAIK, this regulation is being
drafted currently.]

Before evaluating this law, remember that Bolivia is the poorest
country in Latin America and, outside OECD countries, the default
behavior of IAP is to interconnect outside of the country.

---

From: Andrew Sullivan <[email-masked]>
Date: Fri, 23 Feb 2018 10:38:35 -0500

Hi,

> bolivian law of 2011 <https://www.lexivox.org/norms/BO-L-N164.xhtml>

I think the example is an interesting one.  The danger from a
technical point of view, of course, is that the Internet could be
transformed into a country-based catanet if everyone did this.

> behavior of IAP is to interconnect outside of the country.

There are indeed good arguments for why to do it in that case.  But
many regulatory regimes have good arguments behind them, but in
practice turn out to have technical consequences people didn't
understand and that they find undesirable.

And of course none of this addresses the question of whether there are
rights involved here.  It does appear to suggest that, in Bolivia, you
give up your right of disassociation from others if you want to carry
traffic on behalf of some other set of others.  Without a lot of
study, it's hard to say whether such an arrangement is good for the
Internet in Boliva, and I doubt I am qualified to do such a study
because of how weak my knowledge of local language and markets is.

Best regards,

A

-- 
Andrew Sullivan
[email-masked]