Freedom of Expression in Distributed Networks

Abstract

This paper proposes the following question: Is it possible to transfer human rights like the freedom of expression – or at least to preserve the formal protections guarding speech acts from arbitrary suppression – in a post-national setting? The question arises as an urgent matter in the context of our global system of connected markets and distributed telecommunications networks – the Internet – since, as many academics and policy makers have noted, the two tend to undermine nationals boundaries, putting into question the power of individual states to continue function as the traditional legal and identity-generating entities of last resort.

If this analysis is reliable the dialectical union between the autonomous individual citizen and the legally regulated nation state is broken. In this paper I will draw the consequences of that supposed break, exploring the question of the extent to which it makes sense to accord “rights” – freedom of expression – to entities that are not classical autonomous humans, and to confer them by entities that no longer bear the marks of nation-state sovereignty. The question thus is: Is it possible to transfer the normative approach of the classic liberal nation states into a global system?

The paper explores this question through an elaboration of problems for the preservation of the human right to freedom of expression: On the one hand communication on the Internet is regulated by an immense legal body, but on the other hand, the machinery for enforcement controlled by this legal body is dependent on various agencies that don’t necessarily recognize its legitimacy. I will then explore whether a more technologically oriented approach could be a more fruitful approach in defining the actual limitations to freedom of expression in the new global system. My answer is that ultimately the control paradigm fails, because it is too clumsy at incorporating self-correcting measures. Thirdly, I suggest that the best solution to the challenges to freedom of expression in the global system must be a Global Government of the Internet, a government that is defined by (i) democratic elections, (ii) a constitutional body, and (iii) deliberative institutions.