Struggles for a global Internet constitution: protecting global communication structures against surveillance measures

Abstract

Abstract:In 2014, the UN Human Rights Committee published its Concluding Observations on the United States’ fourth periodic report on the progress of the implementation of the International Covenant on Civil and Political Rights (UN Doc CCPR/C/SR/3061), in which also the US surveillance practices are criticised. The Committee’s insistence on the right to privacy and its exterritorial effect is an important first step, but it is not comprehensive, as by remaining within the individual rights framework the UN Human Rights Committee fails to sufficiently take into account the systemic challenges in play. Developing a constitution of the Internet would necessitate not only protecting individual fundamental rights against state interference, but protecting communicative spheres by guaranteeing institutional autonomies and subjecting all social spheres to democratic control; this also requires opening up spaces for a critical public, including whistleblowers, and establishing a right to cryptography – a crucial refraction in the polycentric panoptic schema.

Authority conflicts in internet governance: Liberals vs. sovereigntists?

“…Particular developing countries criticise these efforts to keep the dominant liberal sphere under-legalised and underinstitutionalised and thus dominated by large Western powers and large Western firms. This is also seen as a refusal of formalised specific rights and obligations, which are characteristic of the very idea of constitutionalisation (Fischer-Lescano 2016).…”

“…With its dramatic rise in importance, the analysis of internet governance increasingly moves from predominantly technical analyses to general conceptual lenses such as constitutionalisation (Celeste 2019;Fischer-Lescano 2016;Pernice 2018), the evolution of norms (Finnemore and Hollis 2016) or the role of state interests (Drezner 2007). We contribute to this mainstreaming by analysing conflicts between spheres of authority in internet governance over the last 20 years.…”

Bound by the Economic Constitution: Notes for “Law and Political Economy” in Europe

“…The first set of approaches recognizes that the constitutional question has moved beyond the containment of state interference in individual freedoms, to the simultaneous protection and limitation of the autonomy of functionally differentiated social systems, including the economy (Teubner 2012;Fischer-Lescano 2016). Contesting modernity's fixation on a singularity of Reason and embracing the functional differentiation of contemporary society, Gunther Teubner's societal constitutionalism rejects the complete reliance on the state for projects of social transformation, stressing the impossibility of comprehensive ex ante regulation (Teubner 2011a, 5;Streeck 2009, 236).…”

“…Rather, the horizontal effect of human rights captures their potential to become a shield of protection of societal spheres of autonomy against the destructive effects of the expansion of social systems. In essence, human rights prevent one single rationality, for instance the economy, from dominating society (Teubner 2006(Teubner , 2011cFischer-Lescano 2016;Viellechner 2020).…”

Theorizing Order(s) on the Internet

“…Or, as Fischer-Lescano writes, "principles of democracy and of public control need to be anchored and, if necessary, legally enforced within the polycentric patterns of order themselves. " 229 In any case, the "constitutional moment" 230 seems to have passed. Commonly understood as a specific time when a shift can occur toward constitutionalization, or constitutional reform, because of extra-constitutional dynamics (e.g.…”