Jusletter IT

Information and communication technologies (ICTs) are bringing about a pervasive economic, social, anthropological transformation. They are changing productive processes, substituting the production of physical commodities by mean of other physical commodities with the production of information by means of information, i.e., new productive processes where information is both the rough stuff and the outcome (consider for instance, the creation of software, digital goods, and web services such as searching, mining, filtering, aggregating, hosting and organising data, etc). ICTs involve new ways of organizing economical activities: distances become largely irrelevant, flexible organisation is enabled by the adaptable informational infrastructures, the enhanced capacity to produce and communicate enables new forms of cooperation. They support the integration between industry and culture, production and socialisation, in the interlocked development of software and digital contents, though commercial firms, individual endeavours, or peer-based networks. ICTs drive the convergence between different technologies, such as hardware, software, telecommunication, electronics, biotechnology, etc. Being based on knowledge, ICT provide the environment for producing new knowledge, in all other domains of culture, science and technology, including first of all ICTs themselves.

This emerging technological, economic and social framework (the so-called information society, or knowledge society, see for all Castells 2000), offers new huge opportunities for individual and social development, as well as serious risks. Many issues pertaining to the development of the information society have been addressed in Schweighofer (2008), which provides a comprehensive account of legal and technical issues pertaining to e-government. Here I shall adopt a much more limited focus, only addressing the potential role of human rights.

First of all, ICTs provide many new opportunities for economic development. ICTs enable a vast increase in productivity, in industrial production as well all in related administrative and commercial processes. As machines for processing matter enabled a huge increase in productivity during the industrial revolution, so informational machines (the innumerable virtual machines realised by putting software on top of the hardware) enable a similar increase in information-processing productivity, an increase that also affects the computer-driven production of material objects. Moreover, the fusion of computing and telecommunication makes innovation and development be rapidly transmitted and distributed, transcending geographical barriers. While centuries were necessary for industrial technologies to spread outside of Europe, ICTs have conquered all continents in a few decades.

Second, ICTs can contribute to the efficiency of public organisations, reducing the administrative costs involved in delivering public services, and providing more information, transparency and accountability, so favouring equal access. Workflows can be redesigned and accelerated, mechanical activities can be automated, citizens’ interactions with the administration can be facilitated, documents can be make publicly accessible, participation in administrative proceedings can be enhanced, and so can controls over the exercise of administrative and political functions.

Third, ICTs can contribute to deliver information, education and knowledge to everybody. There is the possibility of packaging information and education as digital goods that can distributed at zero marginal costs: once information goods are made available (and the cost for their creation has been sustained) providing them to additional on-line users is costless. This makes a significant difference as compared with traditional hardware-based media, where each new copy had production, transportation and commercialisation costs. Moreover, new technologies dramatically reduce costs involved in the production of intellectual goods (e.g., typesetting, recording, revising, modifying, processing data, etc.).

Fourth, ICTs deliver unprecedented opportunities for individual creativity. Not only individuals can communicate more easily, but ICTs also provide new creative tools for producing information goods. Now it is possible to engage in publishing, making movies, recording music, developing software at a much smaller cost, and with much greater effectiveness than ever before. An increasing section of humanity can contribute to the decentralised production of culture, creating contents that can be made accessible to everybody.

Fifth, ICTs enable the aggregation of individual efforts into social knowledge. In the so-called web 2.0 (O’Reilly and Battelle 2009) contents are mainly provided by the users, though platforms delivering and integrating their contributions. This happens in the simplest way through the non-organised «crowd-sourcing» in the content repositories available on the web (YouTube, Twitter, etc.), which constitute collective works by aggregating separate individual contributions. More self-conscious kinds of participation in collaborative efforts are provided by open source projects for the production of software (Linux, Firefox, OpenOffice, Tex and Latex distributions, etc.), intellectual works (like Wikipedia), and peer-production of artistic or scientific contents (Benkler 2006). The results of individual actions can be aggregated into collective goods even without individual intentions, as it happens when individual choices are aggregated into outcomes relevant to others (blogs get clustered around relevant hubs, individual preferences are combined into reputation ratings, spam filtering systems aggregate user signals, links to web-pages are merged into relevance indexes, etc.).

Sixth, information technologies enable individuals to interact with their peers, regardless of physical distance. Here the focus is on the integration of computing and telecommunications for human communication, which diminishes the cost of telecommunications, makes them ubiquitously available (though digital phones, Internet connections, etc.), and consequently facilitates the interaction between individual (from e-mail, to social network, to chats and voice over IP, etc.). This has expanded each one’s chance to find and exchange opinions, and freely establish associative links having different degrees of intensity. In particular, it provides new opportunities for those belonging to minorities (in culture, ethnicity, attitudes, interests, etc.), enabling them to enter social networks where they can escape solitude and discrimination. In a way, ICTs realise the dream of Nozick (1974), i.e., the idea of a polity resulting from a network of multiple freely formed associations, built by the unconstrained choices of the concerned individuals.

Seventh, ICTs (and in particular the Internet) have enabled the formation of a new public sphere, where individuals merge their opinions and build social knowledge in a variety of ways. Not only individual can engage with one another, as they have always done in face-to-face interaction and debate. New ways of political communication have emerged, where one can post one’s contribution to an unlimited number of hearers, or people can merge their cognitive efforts in a variety of discussion. In a way the Internet realises the dream of Habermas (1999), namely, the idea of polity whose choices result from open uncoerced dialogues, under conditions of equality. Political dialogues can avail themselves of the evidence accessible through ICTs and of the insights obtainable by processing such data.

Eight, ICT may favour moral progress: by overcoming barriers to communication, offering people new ways of collaboration, reducing costs involved in engaging in creative activities, it may favour attitudes inspired to universalism, (reasonable) altruism, and participation, beyond what may be expected from a merely self-interest person (Benkler and Nissenbaum 2006). In fact, when costs are removed, or limited to a minimum, then performing a creative activity without expecting a direct monetary reward may become more attractive, even to those having only moderate moral (altruistic) motivation. Moreover the idea of benefiting others through one’s own work can become more appealing when the work to be done is rewarding in itself, there are little costs attached to it, and a universal audience can access it. Similarly, the idea of reciprocity can become more attractive (and freeriding on others less so) when reciprocation becomes easier, being included in a broader set of interactions. Altruism and reciprocation may indeed merge (as in the so-called indirect reciprocity), so that one may expect some reward from one’s participation in a community, but this reward is not conditioned to one’s contribution, and comes from people different from the those that have benefited from that contribution (as is the case for open source software, Wikipedia, etc.).

The ICT opportunities I have been picturing need to be combined with the awareness of the risks related to use of information technologies. I shall summarise and emphasise these risks by linking them to some literary works, which gave fantastic reality to dystopian perspectives.

The first risk isOrwell’s nightmare , i.e., the use of technology for surveillance, from the story in the novelNineteen Eighty-Four (Orwell, 2004), where surveillance, exercised through telescreens and microphones located in houses and streets provided control over every aspect of human life, so that people were forced not only to behave according to the expectations addressed to them but also to assume corresponding attitudes and beliefs. ICT has made surveillance much easier than before, since costs and accuracy of surveillance have dropped enormously. This is brought about by the increased possibility of using information technology for uploading information from life scenes, with or without human supervision, both in real and virtual scenarios (consider for instance street cameras, and the possibility of monitoring e-mail communication as well as any Internet-mediated activity). AsDobrzeniecki (2008) observes, this nightmare may viewed as a society-wide realisation of Bentham’s Panopticon (a prison where inmates would be always potentially visible to the invisible guardian in every moment of their life), whichFoucault (2005) sees a paradigm of the «disciplinary» power (based on surveillance and control). In fact, information automatically uploaded from life scenes can be stored in digital form and processed automatically, enabling those in power to detect any unwanted behaviour. New forms of surveillance can be brought about by the combination of neuroscience and computing, such us the possibility of identifying states of mind on the basis of the electric activity of the brain.

The second risk isKafka’s nightmare , i.e., the use of technologies for cover control and judgment, from the novelTrial (Kafka, 2007) where a man is prosecuted (and in the end executed) for a crime whose nature is never revealed to him (for the idea of a Kafka’s nightmare, see Solove 2007). As the trial goes on, the man progressively loses his autonomy and self esteem, the very sense of his dignity. ICT may contribute to this nightmare, since the information collected and stored can be used for assessing individual behaviour, according to any criteria, and make decisions on the concerned individuals (from minor one, such as those on giving a loan or an insurance policy, to those involving access to work or even to criminal prosecution or political repression).

The third risk isHuxley’s nightmare , i.e., technologies for discrimination and exclusion, from the novelBrave New Word (Huxley, 1994), which delineates a word where humans are divided into castes, produced by applying certain technologies to human foetuses (genetic was not yet knows, so that Huxley considered differentiation being produced by giving foetuses different substances, and putting in different temperatures, etc.). Each caste would be specifically destined and confined to a particular occupation and kind of life. This dystopia raises two issues concerning ICTs. The first issue concerns the possibility that the emerging combination of ICTs and biotechnologies may be used in the future not for therapeutic purposes, nor even for enhancing human possibilities but rather for limiting and constraining the very biological bases of human freedom and equal dignity. The second aspect, which has a more concrete bearing for the issues here addressed concerns the possibility that the information stored in computer systems (e.g. genetic or health information) is used for distinguishing and discriminating individuals, by classifying them into stereotypes without regard for their individual features, or taking into invidious consideration certain features of them, subjecting them to unjust treatment with regard to employment and other social goods.

The fourth risk isBradbury’s nightmare , i.e., technologies causing ignorance and indifference, from the novelFahrenheit 451 (Bradbury, 1996), which describes a world where books are forbidden, and people are only fed the information power wants to provide them, in order to produce pleasurable emotions while preventing any critical thinking. One may argue that this is what is happening in the television domain, at least to some extent and in some places. Advanced ICTs could enable malevolent political-economic powers to achieve such an outcome to a higher extent: advanced technologies for the identification of content could allow unwanted materials to be tracked and eliminated, and at the same time, people could be provided with whatever information was considered to be useful for distraction or indoctrination.

The fifth risk isCapek’s nightmare , from the playR.U. R (Rossum’s Universal Robots,Capek 2004) , the first text where the word «robot» was used (from the Czechrobota , meaning work, orrobtnik , meaning servant). The play describes how artificial «men» are constructed, first with the intention of helping humans, but then with the purpose of substituting them. The widespread use of the robots makes human work redundant, and with work also the engagements and commitments that give meaning to human life are lost. In the end the Robot slaves will rebel and wipe our humanity. This idea can be traced back to the famous pages of Hegel’sPhenomenology of Mind (Hegel 1931), where the Master, after delegating all work to the Slave, loses the ability to interact with nature and with his fellows, the capacity to act as the intermediary between his desires and their satisfaction. By becoming dependent on ICTs we may similarly lose our ability to think and act on our own, become completely passive, mere «desire machine», relying on machines for all productive and communicative initiatives. This idea can also be found in Asimov’s Robot-Saga (see in particular Asimov 1985), where peoples who have decided to rely on robots progressively become so dependent on them that they will lose the ability to act on their own, as well as their initiative and interest in life.

I reserve the name ofAsimov’s nightmare for the sixth risk, i.e., technologies causing separation and loss of communication between humans, from the novelFoundation and Earth (Asimov 1996), where a planet (Solaria) is described whose culture rejects every physical contact. Its inhabitants (humans transformed through genetic engineering) engage in face-to-face contacts only with their robots, which whom they have developed a symbiotic interdependence. Their supreme moral ideal of individual autonomy requires refusing all contacts with other humans, and in the few instances where this is necessary, to use telecommunication tools (a similar future has been described more recently in Houellebecq 2006). This social arrangement corresponds indeed to some present trends: Internet surfing and the solitary access to digital contents, games and other interactive programs, can become a substitute of face-to-face human interaction (as in the case of the reclusive young Japanese called hikikomori, who remain in their computer-connected rooms, rejecting any social contact). The separation dystopia may also take a group rather than individual-based perspective. In a flexible information infrastructure, individuals (at least those empowered to do that) may establish with whom to interact, what kind of information to access, in what social networks to participate. The possibility of engaging in social interaction transcending geographic limits may lead us to rejecting physical proximity as a source of social bonds. Thus, individuals may be lose contact with their broader social environment, with the political and social problems in which their fellows are involved, to avoid unanticipated encounters and unfamiliar topics or points of views. Sunstein (2001) has argued that democracy may be at risk under such conditions, and that an active (though not authoritarian) public intervention may be justified to promote a broader exposure to information and social interaction.

The seventh risk isNozick’s nightmare , i.e., technologies for illusion and artificial pleasure, from the story of theExperience Machine , contained in Nozick (1974), where «super-duper neuropsychologists» have figured out a way to stimulate a person’s brain to induce pleasurable experiences, which that person cannot distinguish from real ones (as in the Matrix movie or in the early science fiction taleThe Chamber of Life, see Wertenbaker 1929). Thus virtual experience could become a substitute for real experience, providing easier and deeper satisfaction than real life, it could become an electronic drug susceptible of taking possession of human minds. Humans indeed may become indifferent to their natural and social environment (the landscape, the art, the architecture around them), to their relations with other people (e.g., friendships and even sexual relationships), substituting them with virtual experiences. The idea of a technology-induced exchange illusion for reality can also be found is various science fiction works, such as Philip Dick’s novelWe Can Remember It for You Wholesale (originally published in 1966, see Dick 2002b, to which the movieTotal Recall is inspired).

The eighth risk isVonnegut’s nightmare , i.e., technologies causing class division and exclusion, from the novelPlayer’s piano (Vonnegut 1952), which depicts a society where technology, by substituting most human labour, divides society in two separate classes. An upper, well educated class includes those having the knowledge and skills for operating in the new technological environment, governing the machines and addressing the problems of a technological society, while the rest of the people (those whose work could be substituted by a computer or a robot) would be made redundant, deprived of meaningful life and forced into the army or in most menial jobs. In fact, there are many new work opportunities opened by ICT, but unless everybody is enabled to profit of them, through education and social organization (unless the digital divide, broadly understood, is addressed) Vonnegut’s dystopia remains a likely outcome.

The ninth risk isDick’s nightmare , i.e., ICT technologies for war and human destruction. From the many dystopias emerging from the work of Philip Dick the extreme one is probably provided by his short storySecond Variety (see Dick 2002a, originally published in 1953, to which the movieScreamers is inspired), where intelligent killer weapons developed for global warfare acquire the ability to construct and perfection themselves, become more and more similar to humans, and end by wiping out humanity. The recent developments in intelligent weapons may be just the beginning of a new arm race, based on ICTs: warfare (but not its impacts on innocent human lives) will be increasingly delegated to technological devices, of growing destructive power and precision, with outcomes engendering not only the lives of particular individuals and communities, but potentially the very future of humanity.

The opportunities and the dangers we have so described raise a fundamental issue: what range of action do we have, as individuals and as societies, when facing the information technologies? Are they a destiny, which will be imposed upon as, following its inescapable internal logic, or rather they constitute a very broad window of opportunities, where humanistic as well as non-humanistic choices are possible? I think that, when facing informational technologies we should avoid the risks of inventing another philosophy of history, falling back on what Karl Popper called the «poverty of historicism» (Popper 1959), i.e., the pretension of detecting a necessary and inescapable trend in the technology-driven social development. On the contrary, ICTs open the broadest range of possibilities for individual and social choices, most of which we cannot yet imagine, since we cannot image the outcomes emerging from the aggregation of infinite individual choices nor the creative responses of individual minds to the complexity of their social and technological environment. In fact many uses of the information technologies, opening new unpredictable opportunities for individual and social action were not anticipated by the very people building those technologies (the inventors of computer did not imagine that each of us would have multiple computers at his or her disposal (in one’s personal computer, in the mobile phone, in the car, in the kitchen, etc.), as the constructors of the Internet did not think about it many applications (e-mail, chats, web-browsing, electronic commerce, Wikipedia, cloud computing, social networks, etc.).

Uncertainty concerning technological and social development does not eliminate our responsibility for governing the technology-driven social development, profiting of opportunities and preventing at least the most serious dangers. It also does not exclude the attempt to anticipate change, prospecting future scenarios and advancing possible solutions, even though we should be cautious since our forecasts (and moral-political judgments based on them) may be mistaken, and even the obvious assessments may be contradicted by reality. What if only a few decades ago, somebody would have said that the future informational infrastructure of humanity would not be controlled by any political body and would be run by an weird mixture of associations, working groups, and companies? Who could have imagined the spread of mobile phone in African countries, the development of Internet centres in Brazilian favelas, the activity of bloggers during the Iranian protest or the Iraqi war?

While we need to respect and promote the so-called generativity of the Internet, namely, the fact that in its open environment new ideas, technologies, ways of interacting emerge through accumulation of free individual initiatives (Zittrain 1994), some governance is needed. Addressing the issues of the information society requires the integration of different legal measures (concerning issues such as data protection, security, electronic commerce, electronic documents, etc.), as well as appropriate public policies (addressing economical, political, social, educational issues), combined with self-regulation by the involved social actors and groups of them. Here I shall focus on an aspect having a limited, but not unimportant scope, that is,human rights . Human rights are important since they provide us with a framework for articulating some basic normative structures for the governance of the information society, in the awareness of the human values at stake. It is true, authoritative formulations, doctrinal developments and social understanding of human rights cannot provide us with a complete regulatory framework: economical and technological consideration must be taken into account, while legal traditions, and political choices play a decisive role in many regards (even with regard to the very understanding of human rights and their balance). However, the human-rights discourse still play an important role: it identifies some basic fundamental needs and entitlements, it links our understanding of such needs and entitlements to successes and failures of human history, it enables us to provide a context for our analyses of the new issues emerging in the information society, linking such analyses to a rich background including legal cases as well as social, political and legal debates.

Even a superficial reading of the main human rights sources reveals that number of human rights are involved in the opportunities and risks of the information society. Here I shall only focus on the 1948 Universal Declaration of Human Rights, of which we have celebrated the anniversary just one year ago, and I shall limit myself to some general considerations (for a detailed account of the connection between human rights and new technologies, see for instance Joergensen 2006 and Klang and Murray 2005).

In article 1 of the Declaration («All human beings are born free and equal in dignity and rights») we find two broadest (though most vague and controversial) rights, the right to freedom and the right to dignity. Freedom, broadly understood as the opportunity for self-determination, and dignity, broadly understood as the opportunity to enjoy the consideration and respect that each human deserves, identify the fundamental, though largely undetermined, references for assessing the opportunities and risks above considered. These two rights provide background justifications for more specific rights, having a high and specific relevance in the information society, such the right to freedom of expression and the right to privacy. These justifications provide the deepest rationales for such specific rights, even though these rationales are often controversial, multifaceted, and pulling into opposite directions (e.g. by exercising the freedom to collect information and express facts and views about other people, one may violate their privacy, whose protection, in its turn, may be a conditions for the freedom of action of the concerned people).

The combination of freedom and dignity may provide a reference (though a very partial and undetermined one) for approaching issues that go beyond specific individual rights and which can only be addressed through collective action, such as the need to provide virtual resources that enable multiple activities and engagements as well as the integration between the virtual and physical reality, so favouring human flourishing and commitment, rather than isolation and escape in virtual illusion.

The ideas of liberty and dignity are coupled with the further right mentioned in art. 2, the right to non discrimination («Everyone is entitled to all the rights and freedoms ... without distinction of any kind ...»). This is relevant with regard to the exclusion from access to the Internet, when some groups or kinds of persons are differentially affected. It impinges also on limitation of access to informational resources, when this can increase the underprivileged status of communities and peoples. Non-discrimination can also sometimes justify (though this is highly controversial, and differently appreciated in different legal and political cultures) some limitations to other rights (as enabled by ICTs) such as in particular freedom of expression, when used to incite to hatred and discrimination against particular groups or communities.

Art. 3 of the Declaration grants the right to the «Security of person» («Everyone has the right to life, liberty and security of person»), which may be understood as covering not only the body of a person, and not only his «embodied» mind (what one has stored inside one’s head), but also one’s «extended mind», that it the computer memory where one has stored one’s thoughts and memories, and the tools one uses for developing one’s cognitive efforts, alone or with others. This is an idea that has been developed by epistemologists, philosophers and experts in cognitive science, which have observed how human cognition (and memory) does not take place only inside one’s head, but by interacting with external tools (see Clark and Chalmers 1998). It is true, there is nothing new in this idea (consider for instance how detainees in prisons or concentration camps could be hit by the prohibition to read, or to take notes), but in the information age we tend to work in symbiosis which automatic tools, so that interference with them is going to deprive us of a part of our mind, not only in a figured sense. In fact I shudder if I imagine that my computer and my backups were destroyed. I would lose all my work, the thoughts and projects I have stored, the links to people I know, etc. Besides the idea of security also the idea of property could be relevant in this connection, and the protection of property provided by art. 17 («Everyone has the right to own property alone as well as in association with others»).

Art. 12 of the Declaration sets out a cluster of rights particularly significant with regard to information technologies: the rights to privacy, to correspondence, honour and reputation («No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation»). Here one aspect of the right to privacy broadly understood is at issue, i.e., informational privacy, understood as one’s right to have control over information concerning oneself (the right that this information is processed only when needed for legitimate purpose, that one can assess it and control its accuracy, and so on), the right underlying data protection legislation. It has also been argued that this right can be assimilated to the «habeas corpus», i.e., the right to our bodily integrity and freedom, since we have not only a physical dimension, but also an informational dimension, an «information shadow», i.e., the aura of data which accompanies each one of us and is constitutive of our social personality (determining how others see ourselves). In the information society our information shadows have become larger, thicker and more connected, as an increasing amount of personal information can be automatically captured, stored, linked, and processed in multiple ways. Information privacy is related through a complex web with other human rights, sometimes being in conflict with them (e.g. with the right to access and impart information) and sometimes, on the contrary, providing the background for their exercise (again, right not to be discriminated, to hold opinion, etc.). The right to communication (to the respect of correspondence) needs obviously to apply also to electronic correspondence, which has now almost completely substituted the traditional exchange of messages through paper. The right to reputation is also highly relevant, considering that today one’s reputation can be interfered by publishing information on line, and how this information is going to be on accessible for ever, even if false or inaccurate, or no longer corresponding to the identity of the person.

Art. 19 of the Declaration addresses the relation between humans and information contents, by granting freedom of opinion, expression and access to information («Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers»). The Internet has indeed expanded unprecedentedly our ability to express and transmit opinions, by enabling everyone to reach a universal audience through web pages, blogs, discussion groups, and other ways of delivering one’s communications and intellectual creations. Recently the so-called web 2.0 has emerged, a new socio-technological framework where everyone can, and often does, contribute to the creation of online contents, expressing one’s opinion and making it accessible to a universal audience. This expanded liberty has often been countered oppressive regimes, which have restricted this liberty for purpose of political control. Sometimes, however, this liberty has clashed with the limitations provided by art. 29 of the declaration, i.e., «the just requirements of morality, public order and the general welfare in a democratic society», or rather with the different ways in which these limitations are understood in different societies and by different people (consider for instance how limitations concerning pornography, glorification of violence and terrorist propaganda have been invoked against particular contents posted online).

The exercise of right to «receive and impart information» (art. 19) is hugely facilitated by the Internet, which allows costless universal distribution of information, as well by computer technologies for producing digital contents. Similarly the right to participate in culture and science (art. 27: «Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits»), is supported by ICTs, which facilitate access to existing intellectual and artistic contents, as well as the creation of new contents to an unprecedented level.

By enabling the reproduction and the modification of existing content, ICTs interfere with the rights of authors and inventors (art. 27: «Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author»). In particular there is a tension between participation in culture and exclusive copyright, namely, the entitlement currently attributed to authors to authorise duplication and distribution of their works (though copyright is not mentioned in the Universal declaration, and many have observed that its current regulation fails to protect adequately the rights of authors). How to enable the widest access to digital contents (software, texts, music) and the widest opportunities for creation (also reusing and modifying contents produced by others) while recognising the rights of the authors (and the role of cultural industry) still is a very controversial. Many interesting initiatives, such as open source software, and creative common licences show that innovative ways are possible to promote access and enhance participatory aspects. It should be noted in this regard, that besides the tension between copyright and access to culture, there is a conflict that is intrinsic to copyright itself. This is related to the authors’ exclusive right over the modified versions of their works, which may impede others from exercising their creativity in elaborating and developing preexisting work (Lessig 2008). Similar considerations also apply to the right to education (art. 26): by facilitating the production and worldwide distribution of educational resources (textbooks, e-learning materials, on-line courses), ICTs can contribute to the provision of knowledge and education to everybody. Implementing the right to education in the information society requires making this opportunity real, while taking into account the interests of the authors of educational resources, courses and tools (even providing them with new incentives). A beautiful example of how much can be achieved by combining ICTs, and human creativity and generosity is provided by Wikipedia, the largest encyclopedia now available, containing a huge range of high quality content. Wikipedia results from the cooperative efforts of millions of authors and is freely available through the Internet, to anyone in the world. Though the Wikipedia model may be extensible to a limited extent (since the need to provide an adequate remuneration to authors and educators must also be taken into account) it shows how ICTs in the educational-cultural domain can provide outcomes beyond all expectations.

The Internet is also having an impact on political participation (art. 21: «Everyone has the right to take part in the government of his country, directly or through freely chosen representatives»), providing new form of political communication between citizens, with their representatives and with the administration, new opportunities for civic engagement and participation. Even though results in e-democracy are so far limited and often disappointing, there are solid hopes for an increased informed participation of citizens to political and social debates and to legislative and regulatory procedures. In fact, the Internet, coupled with various technologies for producing and delivering contents and for social networking enables everyone to communicate his or her view and interact with others. The political arena has been so enriched by discussion forums, blogs, and interactive debates and comments. Where political debate and communication are constrained by repressive Government, the Internet and various ICTs (from setting up web sites and blog, to using encryption for having secrete communications and hacking techniques for overcoming informational barriers and monitor governmental activities) have enabled citizens to exercise at least partially their right to know about Governmental behaviour, to comment, diffuse criticisms, and build political action. However, as it has often been observed, new technologies also allow more intense political control over the Internet for curbing oppositions and restricting communications (web sites can be closed, Internet traffic can be filtered, on-line behaviour can be monitored, etc).

The Internet and ICTs produce various impacts on other rights and dimensions of them, such as the right to work (Art. 23): ICTs create new jobs, but make many traditional work activities redundant, undermining the lives of those practicing them; they enhance human creativity and productivity, but also enable new forms of monitoring and control endangering workers’ freedom. Similarly, ICTs facilitate cultural, technological and economic development, by enabling a costless world-wide distribution of knowledge and a borderless articulation of productive activities, but also create new dependencies from the owners of the relevant technologies and infrastructures (this dependencies, however, are alleviated for the broad availability of open source software and digital resources, and by the decreasing cost of development tools). Also with regard to the protection of minorities, ICTs may provide a significant contribution: by facilitating the production and distribution of knowledge, as well as the articulation of social networks, they enable ethnic, cultural or social minorities to articulate their language and self-understanding, This is indeed happening in Internet domain, where rather than the feared cultural homogenisation, we are seeing an increasing diversity of linguistic and cultural expressions.

In the circumstances of the information societies, human rights may be in conflict. Here I shall only mention a few cases that show the difficult and controversial choices involved in adjudicating such conflicts.

The case Eldred v. Ashcroft, decided by the US Supreme Court in 2003, concerned the legislative extension of copyright from 50 to 70 years after the death of the author, i.e., a conflict between intellectual property (the rights of authors and cultural industry) and participation in culture. The Court decided in favour of intellectual property (or in favour of the political autonomy of the legislator), arguing that «Beneath the facade of their inventive constitutional interpretation, petitioners forcefully urge that Congress pursued very bad policy … The wisdom of Congress’s action, however, is not within our province to second guess.»

In the Marper v. UK decision of the European Human Rights Court (2008), concerning genetic samples collected during police investigation (samples which provide data to be processed through ICTs), the conflict between information privacy and security was at issue. The Court decided in favour of privacy, by concluding that such samples could not be kept for an indefinite time, even after the concerned person was acquitted.

The conflict between freedom of speech and non-discrimination has been at the core of various recent judicial decisions such as Warman v. Kulbashian decided in 2007 by the Canadian Human Rights Tribunal, concerning the diffusion of hate-contents through the Internet. In this case the conflict between freedom of speech v. non-discrimination was decided in favours of the latter, and the Tribunal ordered the accused to cease and desist from communicating or causing to be communicated through the Internet, any matter «that is likely to expose a person or persons to hatred or contempt by reason of the fact that the person or persons are identifiable on the basis of a prohibited ground of discrimination».

Finally, the Phorm case (Commission v. UK), now pending in front of the European Court of Justice concerns tracking and monitoring Internet users (without their explicit consent) in order to send individualised advertising. The EU Commission has referred the case to the EU judges considering that this conflict between citizen’s and economic rights of advertisers should be decided in favour of the first, according to EU law.

In the above section the connection between human rights and ICTs has been addressed in general «political» terms, without considering the strictly legal dimension of such rights, namely, the extent to which they provide justiciable constraints over public and private action. I believe that indeed a merely legalistic understanding of such rights would fail to grasp their relevance as moral and political guidelines for a humanistic information society, for realising the opportunities indicated in Section 2 while avoiding the risks mentioned in Section 3. On this point I will follow Sen (2004) who argues that human rights are primarily ethical demand, concerning human freedoms or opportunities which satisfy some «threshold conditions», with regard to their importance for the concerned individuals and their social influenceability. According to this author human rights may generate different kinds of obligations. Firstly such obligations may be only moral or also legal. Secondly they may have different degrees of stringency: in Kantian terms they may be imperfect duties, i.e., duties to consider the right in deliberation, or perfect duties, i.e., duty to perform certain actions or omissions (this distinction corresponds to Alexy’s 2002 distinction between rules and principles or to the distinction between action-duties and goal-duties in Sartor 2010). By adopting Sen’s idea of a human rights, we can understand how ICTs not only provide new ways of satisfying human rights or of interfering with them, but they also contribute to the very existence of certain human rights or at least to the identification of their content. ICTs themselves can indeed sometimes transform a mere human opportunity into a moral human right, in two complementary ways: (1) by endowing a certain human opportunity with importance and (2) by making it socially influenceable.

Let us consider, for instance, the right to have access to the Internet under fair conditions. It seems to me that this right indeed satisfies the condition for it to be at least a moral human right. Firstly, this right concerns a liberty or opportunity greatly important for each individual, i.e., participating in the network that unifies humanity and provides unique opportunities for information, communication, and participation. Obviously, the importance of this opportunity does not pre-exist the Internet, but it is constituted by the Internet itself: according to the so-called network effect, the value of a network for its participants increases (in an accelerated way) as the number of participants increases. The Internet has already reached billions of people, embracing a huge amount of cultural/educational content and providing opportunities to communicate and publish to everybody, thus being able to access the net has become greatly important for each human being, and being excluded from it appears to be an unacceptable diminution/discrimination. Secondly, the recent technological evolution has made the realisation of this right socially influenceable, with a moderate effort, in all parts of the world: now that the web has spread over the whole earth and the costs for cables, machinery and software have gone down, we really have the means for giving everybody the opportunity of enjoying Internet access. The moral obligation for the realisation of this right would fall upon the State whose citizens need access, but also other states, organisations, and individuals would have an obligation to contribute and support its realisation.

Let us now consider whether this right may be considered just a moral right or whether it is a legal right, and a legal rightde lege lata , that should already today influence institutional decision-making, rather than only a rightde lege ferenda , i.e., something we would like to make legal through future legal instruments. I think that in this regard one has to distinguish the negative dimension of this right, namely its protection through an obligation not to impede Internet access, and its positive dimension, namely, its protection through the obligation to provide the means for access (to those who are unable to obtain them). With regard to the negative dimension one could argue for the existence of a perfect and enforceable obligation: forcefully excluding somebody from the Internet would amount to depriving him or her the most effective way to participate in culture, and express opinion (end exercise other fundamental liberties, such as the liberty of association, political liberty, etc.). The issue has recently emerged not only when the use of the Internet for political criticism has been met with repression (as in China, and in some countries in Northern Africa and in the Middle East), but also when exclusion from the Internet is imposed as a sanction against repeated copyright violation (as in French and British legislations).

With regard to the positive dimension of the right, ensuring the means for universal Internet access may be viewed as an imperfect obligation upon States, namely, as a goal that needs to be duly taken into account in political decision-making (alongside with other goals, in the opportunity space determined by the available resources). Failure to take it in consideration, giving it the importance it deserve, may still involve a human-rights violation (though the discretion of the legislature in articulating and prioritising human rights should be duly considered).

Similar considerations on how ICTs contribute to constitute new human rights or new dimensions of them can be developed for other human rights but these will be left to future investigation.

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Giovanni Sartor, European University Institute, Law Department, Villa Schifanoia, Via Boccaccio 121, I-50133 Florence, Italy,giovanni.sartor@eui.eu, www.iue.it/LAW/People/Faculty/CVs/sartor.shtml

CIRSFID, Faculty of Law, University of Bologna, Via Galliera 3, 40121 Bologna, Italy,www.cirfid.unibo.it/~sartor