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54 Harv. Int'l L.J. 393 (2013)
Toward an International Law of the Internet

handle is hein.journals/hilj54 and id is 405 raw text is: VOLUME 54, NUMBER 2, SUMMER 2013

Toward an International Law of the Internet
Molly Land*
The members of the Commission must take into account the fact that their work
concerned the future and not the past; no one could foresee what information media
would be employed in a hundred years' time.
- French Delegate to the Sixth Commission on Human Rights, discuss-
ing the media clause of the article on freedom of expression in the
draft human rights covenant on May 2, 1950, Comm'n on Human
Rights, 6th Sess., 165th mtg. at 10, U.N. Doc. E/CN.4/SR.165
(May 2, 1950).
This Article presents the first in depth analysis of Article 19 of the International Covenant on Civil
and Political Rights as it applies to new technologies and uses this analysis to develop the foundation for
an international law of the Internet. Although Article 19 does not guarantee a right to the Internet
per se, it explicitly protects the technologies of connection and access to information, and it limits states'
ability to burden content originating abroad. The principles derived from Article 19 provide an important
normative reorientation on individual rights for both domestic and international Internet governance
Article 19's guarantee of a right to the technologies of connection also fills a critical gap in human
rights law. Protecting technology allows advocates to intervene in discussions about technological design
that affect, but do not themselves violate, international human rights law. Failure to attend to these
choices-to weigh in, ahead of time, on the human rights implications of software code, architecture
design, and technological standards-can have significant consequences for human rights that may not he
easily undone after the fact.
The Article also argues that technology companies are key partners in implementing Article 19. First,
Article 19 directly binds these actors in some instances. Article 19's drafting history demonstrates that it
does not have a state action requirement for dominant private actors. Second, as a pragmatic matter,
technology companies can play an important. role in enforcing Article 19 because of their central involve-
ment in technology development and standard setting. Decisions about technology can make it easier or
harder for states to violate international law, and technology companies should embed human rights
defaults into their technology by designing it in ways that make it harder for states to violate interna-
tional human rights.
* Associate Professor of Law, New York Law School. My thanks to Derek Bambauer, Paul Schiff
Berman, Troy Elder, Stephen Ellmann, Doni Gewirtzmann, James Grimmelman, Dan Hunter, Paul
Kahn, Margot Kaminski, Eddan Katz, Rebecca Roiphe, James Silk, and Peter Yu for invaluable feed-
back. This Article benefitted greatly from the questions and comments of participants in the Yale
Human Rights Workshop and the Yale Information Society Project's 15th Annual Reunion Conference
as well as from presentation to the faculties at New York Law School and the University of Connecticut
School of Law and Human Rights Institute. Special thanks to Karen Grushka and all of the librarians at
New York Law School for unfailing support in the historical research for this article and to Patrick Boyle
for outstanding research assistance.

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