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Who is the subject of digital rights?

This text is excerpted from Being
Digital Citizens (published London, Rowman & Littlefield International,
2015).  

Edward Snowden calls for a Magna Carta for the Internet, 2014. Wikicommons/Steve Jurvetson. Some rights reserved. Three rights—expression, access, and privacy—have
emerged as the most often debated digital rights. To these, openness and
innovation have recently been added. All together, these five rights have come
to constitute digital rights in cyberspace. … So the question of ‘who’
the subject is of digital rights is both an analytical but also an urgent
political question that requires addressing.

If we use ‘citizen’ as the subject
of these rights, clearly it does not capture how both the enactment of the
political subject and of cyberspace cut across national borders and legal
orders. Today, the citizen functions as a member of a nation-state, and there are
no corresponding rights and obligations beyond the nation-state that can govern
subjects whose acts traverse international spaces. Yet if we use the ‘human’ to
denote the subject of these rights, clearly this is a subject as yet without
digital rights. To clarify this problem, we first turn to the ‘digital rights
movement’. If indeed it is possible to identify a social movement around
digital rights, we want to see how the movement envisages and negotiates
between the figure of the citizen and the human…

Julian Assange, who began his active life as a
hacker, became a conduit to some of the most significant revelations of state
secrets in history through a platform called WikiLeaks. He is languishing in
the Ecuadorian embassy in London. Aaron Swartz began his active life as a
hacker and transformed himself into a digital rights activist through various
involvements and organizations and released a trove of academic articles into
the public domain. In the face of an unrelenting force of the law, he ended his
own life. Edward Snowden, a security contractor for the NSA, released
classified information about how state agencies are involved in massive
surveillance and are spying on their own and other countries’ citizens with
impunity at a scale hitherto unknown. He is now a fugitive in Russia with an
uncertain future. Laura Poitras now lives in Berlin as a digital exile for
making a film about Edward Snowden. … Chelsea Manning is serving a jail
sentence for leaking military secrets, revealing the impunity with which the
wars in Iraq and Afghanistan have been conducted. Peter Sunde, who co-founded
Pirate Bay for free culture, co-invented a digital payment system (Flattr), and
created an end-to-end encrypted messaging system (Hemlis), served several
months of a prison sentence for being a conduit in downloading copyrighted
material.  Ilham Tohti, a former
economics professor at Minzu University of China in Beijing, began a website in
2006, which was closed in 2008 by the Chinese government; he was sentenced to
life imprisonment for inciting youth online with the aim of making domestic
issues international. We can add to this list of names those figures who
continue to have force, such as Richard Stallman, who founded the free software
movement; Jimmy Wales, who not only founded WikiPedia as a free encyclopaedia
but has waged a resilient battle to keep it that way by organizing hundreds of
thousands of contributors; Jacob Appelbaum, who continues to campaign for
anonymous browsing for privacy and security with the Tor Project; and Phil
Zimmerman, who made possible end-to-end encryption in email by fighting off the
FBI’s best efforts to stop his inventiveness.

That
almost all these individuals are men says much about how the heroic figure of
digital rights claims is gendered. But this list is a fraction of the countless
and diverse Internet activists who through sheer inventiveness, creativity, and
autonomy make digital rights claims in or by saying and doing something through
the Internet. It is tempting to interpret them as the members of an emerging
avant-garde technocracy. It is also tempting to interpret them as hacktivists.
But when we interpret their digital acts through the Internet, they embody all
the characteristics of citizen subjects: they enact citizenship as subjects of
power with responsibility in ways that are instantly recognizable and yet
cannot be bounded by their identity as military or security personnel. If the
performative force of their code is louder than their words, the imaginary
force of their words is not so weak, either. …

These observations practically apply to all
political subjects that the digital rights movement has spawned. Anonymous, a
collective group that began its existence as hackers intent on pranks, quite
rapidly transformed into a hacktivist group with political subjectivity. Remarkably,
the public image of hackers has an inverse relationship to their acts. When
hackers were more intent on ‘we do because we can’ politics, their public image
was mysterious, revered, and appreciated. Yet once hackers … turned into
hacktivists with political subjectivity, their public image suffered, and it
became tainted with criminality. There is a lesson to be learned about how new
political subjects encounter criminalization when both the performative and
imaginary force of their acts come up against the force of law. Yet it is not
only Anonymous or Lulzsec, its breakaway version, that the digital rights
movement has produced as its collective subjects. The number of
non-governmental and activist organizations dedicated to various digital
rights, from anonymity to privacy and access, is staggering. They range from
advocacy and lobbying organizations such as the Electronic Frontier Foundation
and the Open Rights Group to activist groups such as Riseup.net and the
Tactical Technology Collective. The large number of digital rights
organizations—large and small—is probably already beyond the climax of
ecological rights or animal rights movements and is as of yet to be
collectively researched and interpreted. Taken together, these individual and
collective bodies begin to give a glimpse of the incipient political subject of
digital rights.

Can we
say something general about the political subjects that spawn making digital
rights claims? …  It is really
difficult to know where to start, but Richard Stallman’s manifesto for free
software proved resilient in its imaginary force. What he considers as a
‘golden rule’ requires, in his words, ‘that if I like a program I must share it
with other people who like it.’ For Stallman, ‘software sellers want to divide
the users and conquer them, making each user agree not to share with others.’
By contrast, Stallman ‘refuse[s] to break solidarity with other users in this
way. [He] cannot in good conscience sign a nondisclosure agreement or a
software license agreement. That Stallman acts with conscience and declares
solidarity with users is the imaginary force of this declaration and has
retained its resilience remarkably well over the past twenty years. One feels
this force when Laura Poitras credits various free and open-source software for
making possible her film on Edward Snowden, Citizenfour.
… One also feels this force in Edward Snowden’s open letter to explain his act
when he emphatically states that ‘citizenship carries with it a duty to first
police one’s own government before seeking to correct others.’ Obviously, he is
not speaking here as an American citizen as such. Yet the source of authority
for enacting this subject citizen is ambiguous. When Snowden continues to
declare that ‘I understand that I will be made to suffer for my actions, and
that the return of this information to the public marks my end. I will be
satisfied if the federation of secret law, unequal pardon, and irresistible
executive powers that rule the world that I love are revealed for even an
instant.’  This is, then, roughly the
ethical stance of that ambiguous subject citizen who speaks. Similarly, when
Aaron Swartz states in his Guerrilla Open Access Manifesto that ‘there is no
justice in following unjust laws’, one feels that he is moved by this imaginary
force. For Swartz, ‘all of this action [of sharing] goes on in the dark, hidden
underground. It’s called stealing or piracy, as if sharing a wealth of
knowledge were the moral equivalent of plundering a ship and murdering its
crew. . . . There is no justice in following unjust laws. It’s time to come
into the light and, in the grand tradition of civil disobedience, declare our
opposition to this private theft of public culture.’ The United States legal
authorities apparently used this manifesto to lay charges against him. …

These declarations have similar imaginary but very
different performative force from Magna Carta-like collective declarations. A
recent and powerful Declaration of Internet Freedom (also referred to as a Magna
Carta for the Internet or The Internet Bill of Rights’) states, ‘We stand for a
free and open Internet.’ Its signatories include Aaron Swartz, Ai Weiwei,
Amnesty International, Digital Sisters, Electronic Frontier Foundation, John
Perry Barlow, openDemocracy, Tim Berners-Lee, and hundreds more signers.

These
individual and collective declarations—of which we could give many more
examples—are often dismissed for their lack of legal, if not performative,
force. We believe that their imaginary force is not so easily dismissed.
They not only create a cumulative force but also disseminate this force into
other practices and acts. A case in point is the growing political struggle
over governing the Internet pursued through international law and institutions.
Often named as ‘governing the Internet,’ scholars have focused on sovereignty
games, including those among states staking their claims to the Internet, the
actions of international bodies, and negotiations over various protocols. It is
well worth considering the international digital rights regime that has been
emerging, especially over the past decade and especially centred on the World
Summit on the Information Society (WSIS) and the Internet Governance Forum
(IGF), both organized by the United Nations. …  [Yet] It is true that any human digital
rights-based declarations would suffer from the same criticisms as other human
rights declarations, such as their lack of enforceability (perlocutionary
force) and effectiveness (illocutionary force) to influence states. Moreover,
human rights also suffer from a performative contradiction in that they end up reinforcing
the very system of states that they seek to protect people from while often
leaving corporations largely outside their purview. … 

[However,] Our primary concern is a different
one. The figure of the citizen, which is a fundamental figure for conceiving
politics and rights in cyberspace, is practically absent from the digital
rights discourse. The key question, ‘Who is the subject of digital rights?’
goes amiss. … The bills, conventions, charters, and declarations claiming
rights—with all the symbolic dates associated with them of 1689, 1776, 1789,
1835, 1945—are largely about enacting repeatedly the legality, performativity,
and imaginary of rights as a contested field of social and political struggles
whose both cause and effect are the figure of the citizen. Yet, ironically,
this figure disappears from the charters claiming digital rights and instead is
replaced by the human rights of ‘individuals’. We think that this is radically
reducing the imaginary force of these declarations to affirm and assert the
figure of the citizen as both the subject and agent of these rights, not merely
as a subject of nationality (nation-state), or a subject of humanity (human
rights), or a bearer (or holder) of rights but as a historical subject that we
inherit and who has a right to claim rights.

Thanks go to Rowman & Littlefield International for permission to publish these excerpts from Being Digital Citizens, by Engin Isin and Evelyn Ruppert.