Article

the International

Towards digital Communication Gazette

2018, Vol. 80(4) 302–319
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Mapping attempts DOI: 10.1177/1748048518757121
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to craft an Internet
Bill of Rights
Dennis Redeker
Bremen International Graduate School of Social Sciences
(BIGSSS), University of Bremen and Jacobs University Bremen,
Germany

Lex Gill
Faculty of Law, McGill University, Canada

Urs Gasser
Berkman Klein Center for Internet and Society, Harvard
University, Cambridge, MA, USA

Abstract
The article develops digital constitutionalism as a common term connecting a constel-
lation of initiatives that seek to articulate a set of political rights, governance norms, and
limitations on the exercise of power on the Internet. We start by reporting on insights
from an analysis of the substantive content of over 30 such documents, and make
reference to the political and technological changes to which they may relate. We
offer an overview of the core actors in the area of digital constitutionalism and a
brief exploration of the processes by which their initiatives aim to entrench rights
into law and practice. We discuss the changing sites of political and legal intervention,
including a more recent focus on domestic and regional initiatives. Finally, we consider
what a future research agenda could entail.

Keywords
Digital constitutionalism, digital rights, human rights, Internet, Internet governance,
multistakeholderism, principles, rights, technology law, technology policy

Corresponding author:
Dennis Redeker, Bremen International Graduate School of Social Sciences (BIGSSS), University of Bremen
and Jacobs University Bremen, Mary-Somerville-Straße 9, Bremen 28359, Germany.
Email: dredeker@bigsss.uni-bremen.de
Redeker et al. 303

Introduction
Efforts to draft an ‘Internet Bill of Rights’ can be traced at least as far back as the
mid-1990s. Though as the form, function and scope of these initiatives has evolved,
the concept has had remarkable staying power, and now—two full decades
later—principles which were once radically aspirational have begun to crystallize
into law. In this article, we propose a unified term to describe these efforts under
the umbrella of ‘digital constitutionalism’ and conduct an analysis of 32 initiatives
spanning from 1999 to 2016. The article proceeds in four parts: first, we introduce
the concept of ‘digital constitutionalism’ as a framework for analysis and distin-
guish it from other uses of the term. We also lay out the criteria for inclusion of a
document within the data set. Second, we present our observations regarding sub-
stantive rights, governance principles, and themes which emerge from the
initiatives studied. Specifically, we analyze the relative occurrence of rights and
principles in our data set and relate these to changes of technology and political
political developments. Third, we explore the perceived targets, the key actors, and
the primary deliberative processes which have informed the character of documents
in the tradition of digital constitutionalism. We then explore a trend towards
national and regional initiatives and suggest avenues for future research.
Our conclusions are obviously limited by our research intentions and the
criteria for inclusion that we set to best define the conversation of digital consti-
tutionalism. Still we hope to contribute useful conceptual additions and empirical
findings.

Digital constitutionalism
In this article, we propose ‘digital constitutionalism’ as a common term to connect
a constellation of initiatives that have sought to articulate a set of political rights,
governance norms, and limitations on the exercise of power on the Internet.
Previous scholarly definitions of ‘digital constitutionalism’ or ‘digital/electronic
constitutions’ provide useful insights but remain either more focused on actual
constitutions for the Internet or are less specifically informed by the transnational
debate we explore in this article (see e.g. Amoretti, 2009; Suzor, 2010; Teubner,
2004). The documents of digital constitutionalism that we include in our data set
can be traced back at least 25 years, produced by actors that include international
political bodies, national governments, technology firms, civil society groups and
some of the most influential leaders in Internet governance internationally. Despite
their enduring nature and potentially vast political implications, there has been
very limited systematic scholarship on the issue. In order to begin to fill this gap,
we have reviewed a set of 32 diverse efforts, each of which seeks to articulate or
advance a set of rights, principles, and governance norms for the Internet. The
purpose of this article is to conduct a mapping of the landscape and to arrive at a
collection of documents from which we can gain preliminary insights about the
potential constitutionalization of cyberspace.
304 the International Communication Gazette 80(4)

The collection spans two and a half decades, from the oldest document in 1999
to the most recent in 2016. Rather than produce an exhaustive directory, we map
the field based on a set of five criteria for inclusion, which we derive from our
understanding of the, more or less intentional, process of constitutionalization of
the Internet. A number of initiatives fell through these methodological cracks,
including influential documents such as John Perry Barlow’s Declaration of
Independence of Cyberspace (Barlow, 1996) or the Madrid Privacy Declaration
(Public Voice, 2009). These documents continue to represent and influence the
global Internet community’s thinking about digital rights and principles, though
they may require a different place for thorough analysis.
First, it is important to establish that there is some utility to the framework of
digital constitutionalism rather than mere ‘digital rights charters’. Constitutions
define the fundamental rules and processes of a political community. Classically,
the term refers to those mechanisms which control, limit, and restrain state
power—though constitutions also serve an empowering function, establishing insti-
tutions that enable coordination and collective action (Waldron, 2010). In the
documents explored in this article, these substantive values, problems and prin-
ciples of constitutionalism are undeniably present. Of course, the other core dimen-
sion of constitutional rules is a foundational and primary position within a hierarchy
of legal norms (see e.g. Hart, 1998; Waluchow, 2014). It is therefore important
to state at the outset that our use of the term ‘constitutional’ is not intended to
describe how these documents are situated within a set of legal authorities, nor is it
meant to suggest that the documents studied are in fact ‘constitutions’ in the clas-
sical legal sense. Rather, the term has been adopted here as a powerful shorthand to
capture the common thread which binds a set of otherwise divergent initiatives;
that each one seeks to engage with political rights, governance norms, and limita-
tions on the exercise of power on the Internet in some fundamental way. In today’s
political economy of the Internet, states and private corporations alike can either
limit or contribute to the realization of perceived digital rights. Efforts toward
digital constitutionalism may aim to limit the power of both public authorities
and private corporations through the recognition of rights.
The initiatives grouped together in this study as digital constitutionalism might
turn out to be, to follow Gunther Teubner, examples of ‘societal constitutionalism.’
Building on Niklas Luhmann, Christoph Graber argues that ‘social institutional-
isation of constitutional rights is to be distinguished from their legal institutional-
isation’ (2017: 3). Teubner’s concept of societal constitutionalism describes a
process of constitutional rule-making that arises from social groups like civil soci-
ety or transnational business corporations (2012). This process can be subdivided
into three phases: an initial phase of coming to an agreement about a set of norms
by a specific group; a second phase in which these norms become law; and a third
phase in which reflection about this builds up to achieving constitutional character
(Teubner, 2012). We consider the documents studied to be intellectual building
blocks for the constitutional material of the digital sphere, though most yet lack
any preeminent status within a hierarchy of legal rules (i.e. they come short
Redeker et al. 305

of Teubner’s second or third phase). As we show in this article, over time the
character of the documents changes from purely normative statements by a par-
ticular set of actors to (attempts of) legal codification. Such juridification (even if
not enshrined in the constitution) represents the second stage of societal constitu-
tionalism (Graber, 2017; Teubner, 2012). Still, most of the documents in our data
set represent societal constitutionalism, i.e. an embodiment of normative stances of
civil society and other groups, lacking formal codification. Even in this nascent
stage, however, these initiatives have powerful political and symbolic value to
governments, the global community, and those engaged in Internet governance.
Moreover, we observe that Brazil’s Marco Civil—along with others that seek to
follow in its footsteps—may signal that the values advanced in these documents
will tend toward legal entrenchment at the level of the nation state. While it
remains to be seen whether this trend towards formalization is in fact beneficial
for the normative discourse, it speaks to a fundamental tension between the desire
to govern the Internet and the imperative to impose limitations on the power of
those who seek to do so (cf. De Minico, 2015).
Naturally, different definitions of digital constitutionalism give rise to varying
data sets and, perhaps, another emphasis in the analysis. It is thus paramount to be
most transparent concerning our criteria for inclusion. Five criteria help us to
define the types of efforts, which belong to the shared conversation of digital con-
stitutionalism. The first (and most important) criterion is that their substantive
content addresses broad and fundamental political questions that have an inherently
constitutional character; they explore rights (whether collective or individual),
articulate limits on state power, and advance a range of governance norms.
These efforts may involve the extension of established civil rights to the digital
sphere, the translation of existing legal principles to the digital environment in
novel ways (e.g. the right to be forgotten), or the articulation of ‘new’ rights and
freedoms which appear native to the digital environment (e.g. net neutrality or the
right to access the network itself). Governance norms and debates surrounding the
limits of state and corporate power—including issues of participation, rule of law,
democracy, stakeholder representation or political accountability—also help to
form the substantive basis of digital constitutionalism. While more process-
oriented issues of governance are sometimes more subtly expressed when compared
to explicit affirmations of individual rights and freedoms, they are doubtlessly
present and critical to the literature.
Second, the initiatives we include in the data set speak to a particular and
defined political community, whether explicitly or implicitly. In most cases, the
identity of this community can be derived from the nature of the actor or type
of document. While the Internet is not neatly bound by national borders, we have
found that even in cases where the scope of intended applicability is not explicit, a
contextual reading makes it clear that the document’s authors simply perceive the
principles to be universal and global in scope.
Third, the principles advanced by these efforts aspire toward a formalized polit-
ical recognition and legitimacy within that political community. This element
306 the International Communication Gazette 80(4)

should be interpreted with some flexibility, as it is not our intention to argue that
only formalized legislative proposals constitute digital constitutionalism. Rather,
the initiatives must at least seek to advance the principles they espouse into the
realm of political legitimacy in some concerted way. They need not be drafts to be
codified in verbatim, but there must be the sense—whether an international dec-
laration or a global activist manifesto—that its authors seek both a formalized
recognition of its contents and some mode of remedy or enforcement. In this
article, we have limited the site of formal recognition to the state and the global
governance community, though in some cases, the desired site may in fact be
corporate policy. Such efforts such as the Bill of Rights for Users of the Social
Web and the Social Network Users’ Bill of Rights (Gagnier and Margossian,
2011) are discussed briefly in this article but have not been included in our collec-
tion of thirty-two initiatives.
Fourth, efforts toward digital constitutionalism exhibit a degree of comprehen-
siveness. Exercises in digital constitutionalism are often aspirational rather than
descriptive, and tend to articulate broad moral, philosophical and legal principles
rather than a narrow policy agenda. Statements focused on a singular issue (e.g. net
neutrality, freedom of expression) have therefore been excluded—both from our
definition and from our data set—in favour of those which attempt to address
digital rights and principles in some comprehensive manner. Examples of advocacy
efforts or policies that we excluded for this reason include the Madrid Privacy
Declaration (Public Voice, 2009), Norway’s Guidelines for Internet Neutrality
(Norwegian Communications Authority, 2013) and the Electronic Frontier
Foundation’s Bill of Privacy Rights for Social Networks (2010). At the same
time, we have been careful to ensure that this criteria does not inadvertently
exclude efforts that remain meaningfully comprehensive while strategically prior-
itizing the visibility of certain rights over others (for reasons of urgency or political
salience, for example). By requiring that the effort strive for some manner
of comprehensiveness, we have also been able to better compare what has been
intentionally included and excluded from various initiatives, appreciate small
differences, and evaluate trends over time with greater accuracy.
Lastly, in determining the boundaries of inclusion for the purposes of this art-
icle, we have also sought to evaluate the nature of each document’s source for
practical reasons. Thus, the initiatives we have selected were included on the
basis that they represent the views of an organization, coalition, state or other orga-
nized group of some kind. This distinction was made to narrow the scope of the
study and to avoid lending undue space to the views of singular individuals when
weighed alongside larger collective efforts. While we anticipate that future work
will refine these boundaries further, the five criteria set out above provide a helpful
framework to evaluate whether an initiative can be meaningfully described as an
exercise in digital constitutionalism. We decided not to include in our data set the
constitutive documents of Internet governance organizations like the articles of
incorporation and bylaws of the Internet Corporation for Assigned Names and
Numbers (ICANN). We recognize the demands of Weber and Gunnarson (2013)
Redeker et al. 307

that standards of constitutional law should be applied to the accountability regimes

of ICANN and the comparison of the ICANN’s governing documents to a con-
stitution. However, in this study, we focus on documents that aim at transforming
Internet governance per se—even if limited by some documents’ spatial focus,
rather than a document defining the rules governing one particular organization,
however great the importance of the organization for the governance of the
Internet.
With this framework set out, we conducted a review of relevant material from a
range of sources, including search engines, academic databases, digital archives and
previous research efforts at the Berkman Klein Center. Over 60% of the initiatives
are from 2012 or later, likely in part due to the practical reality of poor digital
archiving—alongside a burgeoning engagement in the area of digital rights.
The end result is a collection of 32 initiatives (see Table 1), which continue to
vary widely in terms of their authorship, procedural aspects, style and substance.
The list strives to be meaningfully representative of the available material, rather
than exhaustive. Like all exercises in categorization, this analysis at times involved
a degree of nuance, judgment, and interpretation. You can view the full table of the
data summarized in this article at http://bit.ly/2lSCA2u.

Substantive content
Trends in content over time
Our data set provides the groundwork to conduct a quantitative analysis of the
frequency with which different rights and principles are cited and to analyze those
trends over time. At the outset, it is essential to state that the frequency with which
a right or principle appears will not fully capture its importance in all cases; for
example, the right to be forgotten—a hotly contested topic in the Internet govern-
ance community—appears only four times in the full set of initiatives. Nevertheless,
as a general rule, the values, which occur most frequently, are more likely to rep-
resent the rights and principles, which is perceived to be most fundamental, and
may help to uncover areas of emerging consensus. In this section, we present
findings which highlight those rights, which are most frequently articulated,
those which appear to be areas of emerging interest and development, and those
that have failed to gain momentum over time.
Of the 30 documents analyzed, three distinct rights stand out most prominently
by far. We observe that (1) freedom of expression and (2) privacy rights are
addressed the most frequently (29 and 28 times respectively) closely followed by
the right of access to the Internet (26 occurrences). These issues are rooted in some
of the earliest initiatives studied, and continue to persist even in the most recent
documents. Transparency and openness, both of Internet governance processes
and of networks, were also cited as core principles in over two-thirds (24) of the
documents. Given its intimate connection to freedom of expression, it is not sur-
prising that more than two-thirds (23) of the initiatives also explicitly seek to
Table 1. List of documents included in the data set.
308

Year Title of Document Scope Origin Type URL

1999 People’s Communication Charter Global Civil society Advocacy http://www.pccharter.net/charteren.html

statement
2003 Declaration of Principles: Building Global Multistakeholder Advocacy http://www.itu.int/wsis/docs/geneva/offi-
the Information Society statement cial/dop.html
2006 Internet Rights Charter Global Civil society Advocacy https://www.apc.org/node/5677
statement
2008 Seoul Declaration to the OECD Global Civil society Advocacy http://thepublicvoice.org/events/seoul08/
Ministerial Conference on the statement seoul-declaration.pdf
future of the Internet economy
2008 Global Network Initiative (GNI) Global Civil society Advocacy http://globalnetworkinitiative.org/sites/
Principles on Freedom of statement default/files/GNI-Principles-2008.pdf
Expression and Privacy
2009 Principles for the Governance and Global Multistakeholder Advocacy https://www.cgi.br/resolucoes-2009-003-
Use of the Internet - Brazil statement en/
2010 Geneva Declaration on Internet Global Civil society Advocacy http://www.genevasummit.org/outcome/2/
Freedom statement 2010
2010 Charter for Innovation, Creativity, Global Civil society Advocacy http://fcforum.net/en/charter
and Access to Knowledge statement
2011 Declaration on Internet governance Regional Government Official position https://wcd.coe.int/ViewDoc.jsp?id=
principles (Europe) 1835773
2011 Communiqué on Principles for Global Government Official Position http://www.oecd.org/internet/innovation/
Internet Policy-Making 48289796.pdf
2011 Joint Declaration concerning the Global Government Official position https://www.oas.org/en/iachr/expression/
Internet showarticle.asp?artID=848&lID=1
2011 Internet Rights Are Human Rights Global Civil society Advocacy https://www.apc.org/en/pubs/briefs/inter-
statement net-rights-are-human-rights-claims-apc-
the International Communication Gazette 80(4)

human-
(continued)
Table 1. Continued

Year Title of Document Scope Origin Type URL

Redeker et al.

2012 Declaration of Internet Freedom Global Civil society Advocacy http://www.internetdeclaration.org/

statement freedom
2012 Declaration of Internet Freedom Global Civil society Advocacy http://declarationofinternetfreedom.org/
statement
2012 Post-WCIT statement: Governing Global Civil society Advocacy http://bestbits.net/post-wcit-statement/
the Internet statement
2012 Digital Citizen’s Bill of Rights (USA) National Government Proposed http://keepthewebopen.com/digital-bill-of-
legislation rights
2012 Informed Societies: Towards a Code Global Private Official position http://www3.weforum.org/docs/WEF_
of Conduct for Government GAC_InformedSocieties_Code
Leaders ConductGovernmentLeaders_
Summary_2012.pdf
2013 Global Government Surveillance Global Private Advocacy http://www.reformgovernmentsurveil-
Reform statement lance.com/
2013 (Mashable) Crowdsourced Digital Global Civil society Advocacy http://mashable.com/2013/08/12/digital-
Bill of Rights statement bill-of-rights-crowdsource/
2013 Marco Civil da Internet (Brazil) National Government Law https://www.publicknowledge.org/docu-
ments/marco-civil-english-version.
2013 Magna Carta for Internet Freedom National Government Proposed http://democracy.net.ph/full-text/
(The Philippines) Legislation
2014 Charter of Human Rights and Global Multistakeholder Official position http://www.ohchr.org/Documents/Issues/
Principles for the Internet Opinion/Communications/Internet
(4th ed) PrinciplesAndRightsCoalition.pdf

(continued)
309
Table 1. Continued
310

Year Title of Document Scope Origin Type URL

2014 International Principles on the Global Civil society Advocacy https://en.necessaryandproportionate.org/

Application of Human Rights to statement text
Communications Surveillance
2014 Multistakeholder Statement Global Multistakeholder Advocacy http://netmundial.br/wp-content/uploads/
statement 2014/04/NETmundial-Multistakeholder-
Document.pdf
2014 Green Party’s Internet Rights and National Government Proposed https://home.greens.org.nz/sites/default/
Freedom Bill (New Zealand) legislation files/internet_rights_and_freedoms_
bill_accompanying_document_0.pdf
2014 Declaration of Internet Rights (Italy) National Government Resolution http://www.camera.it/application/xmana-
ger/projects/leg17/commissione_inter-
net/testo_definitivo_inglese.pdf
2014 iRights Global Multistakeholder Advocacy http://5rightsframework.com/
statement
2014 African Declaration on Internet Rights Regional Civil society Advocacy http://africaninternetrights.org/declaration-
and Freedoms (African Union) statement container/declaration/
2014 The Charter of Digital Rights (EU) Regional Civil society Advocacy https://edri.org/wp-content/uploads/2014/
statement 06/EDRi_DigitalRightsCharter_web.pdf
2015 Magna Carta for the Digital Age Global Civil society Advocacy http://www.bl.uk/my-digital-rights
(My Digital Rights, 10 Clauses) statement
2015 Internet Bill of Rights Proposal National Government Proposed http://www.libdems.org.uk/protecting-
(United Kingdom) legislation your-data-online-with-a-digital-rights-bill
2016 Charter of Digital Fundamental Rights Regional Civil society Advocacy https://digitalcharta.eu/wp-content/
of the European Union (EU) statement uploads/2016/12/Digital-Charta-EN.pdf
the International Communication Gazette 80(4)
Redeker et al. 311

recognize freedom of information as a distinct right. Conversely, certain rights

which would appear fundamental in a broader human rights context (such as
freedom of religious belief, which appears only twice) receive little attention in
the digital constitutionalism conversation.
We have also explored trends over time in order to better understand the possi-
bility of historical change. In some cases, time-based trends are inconclusive. We
notice, for example, that the right to freedom of religious belief was cited only twice
over the 16-year timeframe of this study: once in 2003 and once again in 2014.
Similarly, a right to Internet access in the workplace appears sporadically: once in
2002, a second time in 2008, and finally in 2014. However, in other cases, we see a
much clearer development over time. For example, 2009 was the first year that
intermediary liability was mentioned as an issue or principle in any of the documents,
but it has appeared frequently and consistently since. Similarly, device-related rights
arise several times in the data set, but were only first explicitly mentioned in 2010. We
also observe certain relationships between themes: the right to control and self-
determination over one’s personal data first appeared in 2010 and has consistently
increased in prominence in the years that followed. The right to be forgotten, in some
ways a logical extension of that self-determination principle, emerged for the first
time in 2014, seemingly in parallel. We also observe that certain rights and principles
appear to coincide with the nature of the documents in question; for example, the
right to due process is most likely to appear in documents that aspire to become or
instigate domestic and regional legislation and policy.

Impact of political developments

There is a relationship between the political contexts from which an initiative arises
and the shape, scope, and form it ultimately takes, including its substantive con-
tent. Because efforts toward digital constitutionalism seek to change or influence
the policy landscape in some fundamental way, we expect that certain substantive
rights and principles will be more clearly articulated at critical historical junctures.
We predicted that we would see such a trend following one case in particular: the
disclosures in 2013 by Edward Snowden. Interestingly, while we observe little
discernable trend in the number of initiatives which seek to advance generalized
privacy rights following the 2013 Snowden disclosures, our data indicate substan-
tial increases in a number of ‘peripheral’ privacy rights and principles. In particu-
lar, we see marked overall increases in the occurrence of the right to data control
and self determination, the right to anonymity, the right to use encryption, and the
right to explicit protection from government surveillance. Our hypothesis, borne
out at least in a preliminary way by this data, is that while the perceived importance
of privacy rights (already high in 2013) was not substantially affected, they are now
being articulated in much more specific, sophisticated and nuanced ways than they
have been in the past.
This historical moment also provides an excellent case study to examine the
underlying motivations which drive efforts of digital constitutionalism.
312 the International Communication Gazette 80(4)

Overwhelmingly, the initiatives published following the leaks speak either explicitly
or implicitly to the issue of mass surveillance, pointing to the idea that there is
perhaps the greatest interest in digital rights and freedoms when they are perceived
to be at risk. Of the 15 documents published from 2013 onward in our study, 13 of
them address the topic of mass online surveillance directly; for example, the coali-
tion behind Global Government Surveillance Reform demands that ‘enforcement
and intelligence efforts are rule-bound, narrowly tailored, transparent, and subject
to oversight’. Similarly, the Charter of Human Rights and Principles for the Internet
insists that ‘everyone has the freedom to communicate without arbitrary surveil-
lance or interception (including behavioural tracking, profiling, and cyber-
stalking), or the threat of surveillance or interception’. The International
Principles on the Application of Human Rights to Communications Surveillance is
even more explicit, arguing that human rights law must adapt to modern surveil-
lance technology, and that ‘[n]othing could demonstrate the urgency of this situ-
ation more than the recent revelations confirming the mass surveillance of innocent
individuals around the world’.
This tendency to reflect pressing political issues is not unique to the Snowden
revelations; other critical debates in the history of Internet governance also emerge
at predictable moments. For example, the principle of network neutrality is first
asserted in 2006, just as major institutions in the United States including the
Federal Communications Commission, the Supreme Court and the Senate begin
to tackle the issue (Public Knowledge, 2015). Similarly, the World Economic
Forum explicitly names ‘Wikileaks and other forced transparency initiatives,’ as
an influential factor underlying issues of transparency and openness in the digital
age following a major series of critical diplomatic cable leaks (Informed Societies:
Towards a Code of Conduct for Government Leaders). Issues at the core of Internet
governance—whether debates surrounding digital copyright reform, trends in
cybersecurity, and the relationship between technology firms and the state—all
invariably find their way into these documents over time, forming milestones
along the path of digital constitutionalism.

Actors in digital constitutionalism

By examining the actors behind the documents, we better understand the origins
and function of documents of digital constitutionalism. About two-thirds of the 32
documents can be characterized as advocacy statements, seeking to influence offi-
cial policy and legislation, five represent current or proposed legislation and
another five are best described as non-binding official positions or policy state-
ments from state, regional, or international governmental bodies (see Table 1).
We examined the actors that are behind the documents in more detail. While a
large proportion of the sponsoring parties are civil society organizations, coalitions
of state actors or public international institutions, a smaller number of the docu-
ments have been drafted by private sector organizations and industry consortia.
Certain actors stand out as exceptionally engaged in efforts toward digital
Redeker et al. 313

constitutionalism, such as the Electronic Frontier Foundation (EFF) and the

Association for Progressive Communications (APC). They have each acted as
major sponsors for two of the documents examined for this study, and have
been signatories and stakeholders for other initiatives, which is perhaps unsurpris-
ing given the nature of their mandates.
A broad and transnational set of actors engages in the conversation around
digital constitutionalism. We see documents like the Charter for Innovation,
Creativity and Access to Knowledge emerge from a 70-member transnational
forum of civil society actors, and, more recently, the development of the
NETMundial Multistakeholder Statement. The Internet Governance Forum has
also classically acted as a venue for convergence and consensus-building around
Internet rights and principles, in particular through the leadership of its Dynamic
Coalition on Internet Rights and Principles, formed following the Hyderabad IGF
in 2008. This coalition has been responsible for drafting the 2014 Charter of Human
Rights and Principles for the Internet and includes over 320 members worldwide. In
addition, the Internet governance ecosystem is enriched by working groups and
conferences of the Council of Europe, the OECD, the OAS, and the United
Nations are present alongside specific fora for issues of Internet policy (outcomes,
inter alia: Seoul Declaration to the OECD Ministerial Conference on the future of the
Internet economy; Declaration by the Committee of Ministers on Internet governance
principles; Joint Declaration Concerning the Internet). Similarly, the African
Internet Governance Forum convened dozens of actors on the continent, incubat-
ing relationships that ultimately resulted in the African Declaration on Internet
Rights and Freedoms. Among private economic actors, we see participation from
the World Economic Forum in the form of their Informed Societies: Towards a
Code of Conduct for Government Leaders report and their increasing engagement in
the Internet governance arena through NETmundial. We also observe willingness
from private actors in the ICT sector to engage in coalition building on specific
issues—the best example of which is likely the Reform Government Surveillance
coalition behind Global Government Surveillance Reform.

Sites of intervention: The changing role of the state

Fundamentally, we observe that initiatives in the vein of digital constitutionalism
target the most relevant perceived sites of power, regardless of whether those sites
correspond neatly to preordained political boundaries. As issues of power on the
Internet have become more complex, global and diffuse, the target of initiatives
toward digital constitutionalism has shifted in parallel. By the late 1990s and early
2000s, we observe a proliferation of documents with an explicitly focus on global
governance rather than inter-state relations, including the People’s Communications
Charter in 1999, the first draft of the Internet Rights Charter in 2001–2002, and the
Declaration of Principles in 2003. These documents evoke the language of inter-
national treaties, conventions, and formal declarations, speaking to the broad
policy implications at the intersection of digital technology and human rights.
314 the International Communication Gazette 80(4)

Periodic efforts targeting the global community have continued to develop over
time, emerging from small technical working groups and global conference audi-
ences alike. Sir Tim Berners-Lee, the inventor of the World Wide Web, has also
publicly called for a ‘global constitution’ for the Internet as part of a global initia-
tive called the Web We Want [emphasis is the authors’].
More than two-thirds of the initiatives reviewed in this study are global or
international in scope (22 of 32) and they continue to be by far the most prominent
and widely available efforts toward digital constitutionalism. Given the nature of
the private sector leadership and the lack of state regulation in the early days of the
Internet, Internet governance had time to develop a transnational and multi-
stakeholder character. Benefits of a global approach are evident for both multi-
national corporations and civil society advocates in various countries. Thus, the
desire to reject a fragmented approach in favor of a set of generalized and universal
principles makes a certain practical common sense. Similarly, the perception that
these rights and principles are fundamental to Internet governance tends to run in
parallel to the sense that they should transcend national borders. However, two
trends suggest that the perceived sites of power—and, correspondingly, the respect-
ive targets of efforts toward digital constitutionalism—are neither as universal nor
as global in scope as they may have been in the early 2000s. First, we see a relatively
recent emergence of initiatives which specifically target the private sector. Second,
we observe a new trend toward efforts to articulate digital rights and principles at
the level of domestic and regional politics.
By the late 2000s, we observe the emergence of several ‘Bills of Rights’ docu-
ments tailored specifically toward these new private actors. These documents
identify corporations as the central locus of power and users—rather than citizens
or another constituent community—as primary rights-holders. We see this in
examples such as the Bill of Rights for Users of the Social Web (McCrea,
2007), and in the 2010 Social Network Users’ Bill of Rights, a document triggered
by major privacy policy changes at Facebook and Google that year (Gagnier and
Margossian, 2011). By 2012, even major international bodies had begun to direct
considerable effort toward understanding the complex relationship between
human rights and the privately mediated digital sphere (Council of Europe,
2012). The Electronic Frontier Foundation (EFF) has also been a leader in
this arena, with a pair of aspirational ‘Bill of Rights’ documents demanding
greater privacy for social network users in 2010, and for mobile application
users in 2012 (Electronic Frontier Foundation, 2010, 2012). These documents
are concerned with the exercise and limits on private power in virtual commu-
nities and private social networks, in the spirit of what Nicolas Suzor has also
called ‘digital constitutionalism’—though the definition he sets out is markedly
narrower than the one adopted in this article (2010; see also Fitzgerald, 1999).
We observe that initiatives directed toward private sector actors are more
likely to be issue-specific rather than meaningfully comprehensive, seeking to
address and remedy particular grievances. Moreover, the rights articulated by
such documents tend to be thematically in line with what Todd Davies has
Redeker et al. 315

described as ‘user data freedoms,’ those rights which are managed by the (typic-
ally private) software platform or environment, e.g. privacy or creative control
(2014).
In addition to these private targets, in recent years, we have observed a new and
somewhat remarkable phenomenon. Of the 32 documents in our data set, four
initiatives have a distinctly regional scope (specifically, the African Declaration
on Internet Rights and Freedoms, the Council of Europe’s Declaration of Internet
Governance Principles, The Charter of Digital Rights and the Charter of Digital
Fundamental Rights of the European Union), and six speak to specific national
constituencies (Marco Civil da Internet; Magna Carta for Philippine Internet
Freedom; Declaration of Internet Rights; Green Party’s Internet Rights and
Freedom Bill; A Digital Citizen’s Bill of Rights; Internet Bill of Rights
Proposal). From Brazil to the Philippines, national political actors have begun
to codify these formerly visionary, aspirational principles into binding legislation
and state-level declarations. This trend represents the full departure from the
libertarian demands of activists of the early days of the Internet and particularly
of the ‘Declaration of Independence of Cyberspace’ (Barlow, 1996). Proposals to
enshrine digital rights and freedoms in law and state policy have spanned the
ideological spectrum: from Pirate Party members in the European Parliament
and Greens in New Zealand to UK Liberal Democrats and US Republican
Congressmen (Anderson, 2009; Green Party’s Internet Rights and Freedom Bill;
Internet Bill of Rights Proposal; A Digital Citizen’s Bill of Rights). In Italy, where
a ‘constitution for the Internet’ had been proposed at least as early as 2006, the
development and adoption of the Declaration of Internet Rights (Dichiarazione
dei diritti in Internet) as a resolution by the Italian parliament have been an
ambitious and far-reaching state endeavor (Rodotà, 2006). This trend suggests
that states are increasingly perceived as a site of power and influence over
Internet governance, and that more intervention at the level of domestic policy
is to be expected. Along with an increased codification of Internet rights at the
state level, the ability to make a distinction between ‘legally binding standards’
and ‘aspirational principles’ will invariably have an impact on the digital con-
stitutionalism landscape (Jørgensen, 2013).
In Europe, recent regional attempts to entrench digital rights include the Charter
of Digital Fundamental Rights of the European Union. That initiative aims to estab-
lish itself alongside already existing regional guarantors of civil rights, like the
Council of Europe’s European Convention of Human Rights and the Charter of
Fundamental Rights of the European Union. The document is characterized by a
strong emphasis on the rule of law and goes beyond aspirational principles toward
a legalistic approach. Another European initiative, the Charter of Digital Rights,
seeks to embed digital rights into EU legal frameworks. Drawn up by a group of
civil society organizations led by European Digital Rights (EDRi) and including
Article 19, EFF, and Digitale Gesellschaft, the document sought pledges from EU
candidates ahead of the 2014 election to adhere to 10 principles set out in the
Charter (on the website wepromise.eu).
316 the International Communication Gazette 80(4)

Conclusions and research agenda

In this article, we have examined an ongoing conversation regarding the scope of
rights and freedoms on the Internet, proposing the concept of digital constitution-
alism as a shared framework. We understand such documents to seek to compre-
hensively articulate a set of political rights, governance norms, and limitations on
the exercise of power on the Internet. The initiatives are authored in an inter-
subjective process and aim to entrench rights into a global, regional or national
order, including but not limited to international treaties and national legislation.
Our conclusions are obviously limited by our research intentions and the criteria
for inclusion that we use to define the conversation of digital constitutionalism.
We noticed that the relative quantitative occurrence of certain rights could
provide us with tentative insights concerning the mindset of the documents’
authors and their situation. Changes in the body of rights and principles are
likely driven by the political and technological realities of the day, as we demon-
strated. In general, instead of dealing with the nuts and bolts of drafting legisla-
tion, digital constitutionalism as a societal constitutionalism allows to think about
the ‘ideal’ Internet (see e.g. Graber, 2017; Teubner, 2012). The discourse thus
provides an opportunity for action-oriented political philosophizing, having to
collectively weight often-conflicting rights and principles. Even if non-binding,
these documents can be influential, as they become a rallying point for civil society,
media and politicians, and judges can take them as a point of orientation where no
legislation exists.
We offered an overview of the core actors and deliberative processes driving
efforts toward digital constitutionalism and noted the tendency toward open, par-
ticipatory, and multistakeholder fora throughout the data set. These deliberative
processes, the values embedded within them, and how those values connect to
policy outcomes are all issues which merit further study. In particular, while we
see a trend toward openness and inclusion, there are nevertheless challenges around
issues of meaningful representation and democracy in a multistakeholder context
(see e.g. Chenou, 2011; Doria, 2014). In order to better understand the outcomes,
i.e. the text body of the documents, it will be necessary to study the genesis of such
initiatives critically and from a close distance. In other words, a careful examin-
ation of which voices are excluded, marginalized, or perhaps artificially amplified
through these processes is required (Gasser et al., 2015). An examination of the
motivations and strategies of various actors as well as the degree to which the
constitutionalization of the Internet is intended, requires in-depth and focused
qualitative research.
We sought to identify historical trends in digital constitutionalism, observing
that efforts seek to intervene in a way, which generally conforms to perceived sites
of power and authority. We have seen a trajectory from informal, non-binding and
aspirational initiatives toward more concrete, sophisticated proposals, some of
which have ultimately taken the form of binding legislation or state declarations,
Redeker et al. 317

illustrating Teubner’s three phases of societal constitutionalism (2012). An explor-

ation of how these initiatives fit into existing hierarchies of legal norms and prin-
ciples over time will also support a more developed understanding of where digital
rights are best situated in the human rights landscape.

Acknowledgements
We would like to thank our two anonymous reviewers and the guest editors for their helpful
comments. We are thankful for valuable feedback from Wolfgang Schulz, Rosemary Leith,
Christoph Graber, and the participants of a workshop on digital constitutionalism at the
Association of Internet Researchers Conference 2016 in Berlin. In addition, we would like to
recognize previous efforts to collect digital bill of rights by Rebekah Heacock Jones, Claire
McNear and Mayukh Sen at the Berkman Klein Center for Internet & Society.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, author-
ship, and/or publication of this article.

Funding
The author(s) received no financial support for the research, authorship, and/or publication
of this article.

Note
This article is a conceptually reworked and expended follow-up on a working paper of the
same title, in which we first introduced this definition (cf. Gill et al., 2015).

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