Who is the subject of digital rights?

Digital rights organizations already number more than ecological rights or animal rights movements at their height. Together, these bodies give us a glimpse of the incipient political subject of digital rights.

Evelyn Ruppert Engin Isin
15 June 2015

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.

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 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.

Had enough of ‘alternative facts’? openDemocracy is different Join the conversation: get our weekly email


We encourage anyone to comment, please consult the oD commenting guidelines if you have any questions.
Audio available Bookmark Check Language Close Comments Download Facebook Link Email Newsletter Newsletter Play Print Share Twitter Youtube Search Instagram WhatsApp yourData