Course Syllabus

LAW 987 - Research Seminar: Human Rights, Corporate Responsibility, and Information Communications Technology

Fall 2013, Thursdays, 4:30 - 6:30PM, Tanenbaum Hall 320

(Last revised November 10, 2013 )

IMPORTANT SCHEDULING NOTE: The classes originally scheduled for Nov. 14 and Nov. 21 have been re-scheduled. Makeup classes have been scheduled for November 18 and December 4 at 1:30pm. Both makeup classes are in Tanenbaum 253, Rare Book Room.

 

Course Description and Requirements:

In light of recent revelations on NSA surveillance and the ensuing global debates about their implications, this new research seminar is especially timely.

How can Information Communications Technology (ICT) companies meet their responsibility to respect human rights around the world in the face of national laws, regulations, and law enforcement demands related to surveillance and censorship that often contradict international human rights law? This research seminar examines such cutting-edge questions - from an analytical as well as a practice-oriented perspective - at the intersection of emerging communications technologies, national law, international human rights law, and corporate responsibility.

New information and communications technologies like the Internet and networked devices can connect and empower people in unprecedented ways. Yet companies’ business practices, engineering and design decisions, and government relationships can also result in serious violations of citizens’ right to free expression, assembly, and privacy by governments as well as private commercial entities. International human rights norms related to this problem are only just emerging: in 2011 the UN affirmed that while states have a duty to protect human rights, companies also have a responsibility to respect human rights. In 2012 it further affirmed that protection of human rights in the digital sphere is now essential to the protection and realization of physical rights. The multi-stakeholder non-governmental Global Network Initiative has developed global principles for ICT companies on upholding free expression and privacy rights. But what do these emerging digital human rights norms mean in practice for individual companies operating in specific markets?

Lecturers Cynthia Wong (Human Rights Watch) and Rebecca MacKinnon (Senior Research Fellow at the New America Foundation and Visiting Affiliate at Annenberg's Center for Global Communications Studies) are both active practitioners in the field of ICTs, human rights, and corporate responsibility.

This research seminar will be open to graduate students from across the university. The first several weeks will be devoted to readings and discussions of core concepts, followed by exploration of initiatives, issues and cases. Students will conduct in-depth research projects focused on specific companies operating in specific markets, examining difficult questions of how these companies can uphold their human rights obligations in the face of commercial pressures and government demands that contradict international human rights law.  Research conducted for this course can potentially be submitted to academic or law journals, considered for integration into Human Rights Watch publications, or published as a white paper for the Ranking Digital Rights project (http://rankingdigitalrights.org)

 

Course objectives:

The course aims to equip students with a practical understanding of the relationship and frequent contradictions between domestic laws and regulations governing ICT sector businesses on the one hand, and international human rights law related to free expression and privacy on the other.

Students should come away from this course with: a grasp of relevant international human rights principles particularly in relation to free expression and privacy; an understanding of general concepts and developments related to business and human rights; a specific understanding of free expression and privacy related challenges faced by the ICT sector around the world; a working knowledge of existing efforts to address these challenges; experience conducting multi-disciplinary research that addresses specific questions related to these challenges as faced by specific companies in specific jurisdictions; experience communicating the results of that research - and its real-world implications - both verbally and in writing.

 

Course Format:

This course has 13 sessions. The first 11 weeks will be devoted to lectures and class discussion of weekly readings, starting with a broad overview and growing increasingly specific over the course of the semester.

By the middle of the term, students will select the topic and format of their reseach papers (details below).   The last 2 classes will be devoted to student presentations on research findings and major questions encountered during the research process. Final papers are due at the end of exam period.

Students should come to class prepared to discuss issues raised in the readings. Each week, students will take turns as discussion leaders, pointing out key questions that have arisen from assigned readings as well as any relevant developments that have arisen in the news that week. The day before class the week’s designated discussion leader(s) will e-mail a concise memo (500-800 words) to the class e-mail list summarizing their key reactions and questions from the readings, and sharing any recent, relevant news items or links that they have identified.

Guest speakers will be invited via Skype or in person as feasible and appropriate.

 

Research papers:

By Week 2, students will be provided with a list of possible research topics and several possible formats: academic paper, advocacy white paper, or company case study. Depending on which option the student chooses and the nature of the research (technical research tends to result in shorter papers while social science/law research tends to result in longer papers), the length can be anywhere between 15-30 pages, pending discussion and agreement between student and instructor once the student's choice of topic is finalized.

Students must submit a proposal for their chosen topic and format by the beginning of class in Week 6.  

Examples of possible topics and formats include:

  • Examination of legal and regulatory obstacles faced by [insert up to 3 companies here] if they wanted to protect user/customer rights to free expression and privacy in [insert name of country here]. Suggest what sort of legal/regulatory reform would be necessary to better protect the digital rights of citizens in that country.

  • Case study of TeliaSonera (the Swedish-Finnish telecommunications company) [or another telco] in its home market and at least two other markets where it operates. If the company wanted to adhere to basic criteria on free expression and privacy grounded in international human rights norms, what are the main obstacles to doing so?

  • Advocacy white paper on Blackberry’s [or another company’s] policies and practices related to free expression and privacy as it operates across a range of different markets and regulatory regimes. Provide concrete recommendations for what Blackberry should do to remedy problems surfaced by the analysis.

  • Transparency reporting and telecommunications companies: Why aren’t any telecommunications companies publishing data about government demands for data pertaining to user communications? What are the unique challenges that might make it harder for telcos than it is for Internet companies to issue transparency reports?

  • What changes in laws, corporate structures, and business norms would be required in order for companies in [insert country here] to publish regular transparency reports?

  • Comparative analysis of Samsung and Apple smartphones based on free expression and privacy criteria. (For a student with strong technical background.)

  • Examination of the privacy-related choices that a company committed to maximizing privacy protections could make in the deployment and use of IPv6 (for an engineering student).

A longer list of suggested topics will be provided in September. Students are naturally welcome to come up with their own topics. More details about required specifications of the written paper will be provided in early September. Work of sufficient quality may be considered (if the student wishes) for publication by the Ranking Digital Rights project, submission to an academic journal, or integration into Human Rights Watch publications.  

In the final 2 classes, students will present the results of their research and raise key questions for discussion.  Final written papers are due on December 20, the final day of exam period.

 

Presentation format:

This component of the class is an opportunity to gain valuable experience giving presentations similar to those that are commonly made at academic and professional conference panels. The class will be divided in half, with half of the students presenting on Week 12 and the other half presenting on Week 13. Each 2-hour class will be divided into two 1-hour panel sessions.  Each presentation should be no longer than 10 minutes, focusing succinctly on key research findings as well as questions that surfaced during the course of research. Time remaining will be devoted to Q&A and discussion.

Students can choose whether to use Powerpoint, Keynote, Prezi or other common presentation software/platforms, or whether they prefer to use a paper flipchart, whiteboard, or refer to printed handouts, or some combination thereof. Further parameters and guidelines for presentations will be issued by the middle of the semester. Presentations will be evaluated on the clarity of their content, professionalism, and effectiveness of delivery - which is not necessarily the same thing as having the most elaborate graphics or using the most advanced software features.

 

Course readings:

Two textbooks have been assigned for the class: MacKinnon’s Consent of the Networked and John Ruggie’s Just Business. Other weekly readings - most if not all in digital format - will be assigned via the syllabus or through the class e-mail list. In addition, students may be asked to consult various Internet websites. The materials listed on the syllabus will be updated or changed and the topics altered to reflect current events, new publications, and guest speaker opportunities that may arise.

 

Potential modifications of/additions to listed assignments:

The readings listed on the syllabus should be regarded as tentative. Because this course is about rapidly-developing issues across multiple disciplines and technologies, we may need to add subjects and/or substitute newer materials during the semester, or change the order in which certain subjects or cases are addressed. Students will be notified by the preceding Friday at the latest about changes and additions to reading assignments for any given week.

 

Grading:

Final research paper - 60%

10-minute research presentation (delivered in Week 12 or 13) - 20%

Class participation including each student’s turn as discussion leader - 20%.

 

Student input and participation:

We believe that active and thoughtful class participation will contribute directly to the success of students’ research presentations and final papers.

While this is a law school class, graduate students from all parts of UPenn are encouraged to apply. We hope that students with diverse academic backgrounds including not only law, but also possibly including engineering, business, communications, economics, political science, and regional studies can learn from one another. Active participation of students from different disciplines with different perspectives will enhance everyone’s understanding of the issues.

Discussion will also help us to determine how readings and lectures should be modified in future weeks to address specific cases and issues that students may be interested in pursuing for their research papers.

We welcome student ideas for improving the course and enhancing the learning experience. If class members decide that a current development, concept, or issue not on the present syllabus deserves attention, this can be taken into account. Among other things, when students identify informative source materials, websites, and speakers, they are invited to bring these to the attention of the class and the lecturers.

 

Attendance policy & make-up work:

Regular attendance is necessary for active and thoughtful class participation.  Should you need to miss class due to illness, religious observance, or other unexpected and unavoidable circumstance, please notify us via email.  In addition, if you miss class, we ask that you email us a short response (300-500 words) to the readings within one week of the missed class, to be considered as your participation for the missed class. The short response could include your reactions to the readings or identification of key, unanswered questions raised by the readings.

 

Contact information & office hours:

The best way to reach us is via email:

Both instructors are based in Washington DC and travel to UPenn only on teaching days, or in MacKinnon’s case also on one or two other days per month when project meetings are scheduled. We will not hold regular on-campus office hours and email will be the best way to reach us with questions or concerns. However, it is possible to arrange to meet on-campus before class (or on one or two other days each month when MacKinnon will be visiting campus for project meetings) or to discuss issues by phone or Skype, as needed. Please contact us via email to set up a time.  

 

Academic integrity & citations

For reference, here are links to relevant law school and university-wide policies on academic integrity.  If you are not a law student, please also consult other program-specific policies that may apply to you.  

When using or building on the work of others, we expect acknowledgement and clear attribution of third party sources, even when not quoting such sources directly.  Exact citation format is flexible. However, if a source is available online, please include a URL in your citation to facilitate ease of access. Law students considering future academic publication of material developed in this class may wish to use Bluebook format by default.  

 

Syllabus:

(Note: on some weeks both instructors will be present and on other weeks the class will be led by either Wong or MacKinnon. Weeks that do not indicate the instructor name in the subject description will either be taught by both, or a final determination has yet to be made.)

Week 1 (Sept 5) - Introduction. When we combine international human rights norms, international and domestic laws, growing public and market demands for corporate responsibility, and globally networked ICT sector companies, what are the key challenges for practitioners in business, government, civil society and technical communities? What are the major research questions for scholars and educators across the fields of law, business, computer science and engineering, social science, and communications among others? We offer an overview of the key issues to be addressed and how these issues are becoming increasingly important for scholars and practitioners in a wide range of disciplines. Instructors Wong and MacKinnon will also describe how the issues addressed in this course relate to their own work as advocates and researchers.

◦       http://www.nytimes.com/2008/11/30/magazine/30google-t.html?pagewanted=all

◦       http://www.newrepublic.com/article/113045/free-speech-internet-silicon-valley-making-rules

Also:

  • Peruse and bookmark these websites and subscribe to their updates:

◦       http://www.hrw.org/topic/free-speech/internet-freedom

◦       http://rankingdigitalrights.org/

◦       http://advocacy.globalvoicesonline.org/

 

Week 2 (Sept 12) - The Internet and human rights: It’s complicated. The Internet has empowered citizens all over the world to speak out and organize to defend their rights and fight injustice in (sometimes literally) revolutionary ways. At the same time, new networked technologies do not automatically produce a more human rights-compatible world. Networked technologies can also be used to promote terrorism, commit crimes, and facilitate the violation of rights. The dynamics of digital power among citizens, governments, and ICT companies are complex and contentious.

 

Week 3 (Sept 19) - Networked sovereignty vs. nation-state sovereignty (MacKinnon) What new challenges are created by the globally interconnected Internet - and the companies that provide the products, services, and platforms that make it function and create much of its value? Are modern-day domestic and international legal frameworks capable of addressing questions of defending and protecting human rights across globally interconnected networks that are mostly owned and operated by private sector companies?

Optional resources for students interested in learning more about Bitcoin:

 

Week 4 (Sept 26) - Business and human rights:  Emergence of global norms, codes, multi-stakeholder initiatives, and other soft-law governance structures (Wong) This week we examine the emerging field of business and human rights across a number of sectors, industries, and issues. The rise of multi-national corporations created new governance challenges, especially where companies expanded to markets with fragile regulatory regimes or weak human rights protections. Laws that regulated corporate practices in “home countries” failed to address corporate abuses of rights in “host countries.” We will examine the factors that lead to the creation of the UN Guiding Principles on Business and Human Rights as a base-line standard for how companies should respect human rights around the world, along with key critiques from members of the human rights community who believe they are too weak. We will also look at several voluntary corporate responsibility initiatives created to close gaps in regulation and governance.

 

Week 5 (Oct 3) - Freedom of expression: domestic law, international law, soft law, and emerging standards. (Wong) This week we take a close look at emerging legal standards and the challenges of regulating speech on the Internet. Historically, governments could easily regulate expression within a country’s borders through laws that governed print and broadcast media. The Internet now enables instant, cross-border communications and access to information in a way that defies territorial boundaries. In addition, social media, blogging websites, and other platforms for “user-generated content” have empowered individual users to become publishers themselves. Governments are increasingly seeking to reign in online expression, for both legitimate and illegitimate reasons, and are often doing so by enlisting the help of the private sector. We will examine global trends around “intermediary liability” and the pressure placed on companies to address “bad speech” online. What role should Internet and telecommunications companies play in policing user content or behavior?

Readings

  • Frank La Rue, Report of the Special Rapporteur to the General Assembly on the right to freedom of opinion and expression exercised through the Internet, A/66/290 (2011),http://www.ohchr.org/Documents/Issues/Opinion/A.66.290.pdf

  • Frank La Rue, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression - hate speech, A/67/357 (2012), [PDF available in files sectionPreview the documentView in a new window, and also here: http://www.ohchr.org/EN/Issues/FreedomOpinion/Pages/Annual.aspx]

  • Articles 19 and 20 of the ICCPR: http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

  • Jillian York, Policing Content in the Quasi-Public Sphere, https://opennet.net/policing-content-quasi-public-sphere

  • CDT, Shielding the Messengers (v.2 2012 update), https://www.cdt.org/files/pdfs/CDT-Intermediary-Liability-2012.pdf

  • Saul Levmore, Martha C. Nussbaum, The Offensive Internet: Speech, Privacy, and Reputation. Cambridge: Harvard University Press 2010; chapters 9-10, available as PDF in files sectionPreview the documentView in a new window [trigger warning: chapter 9 contains direct quotations of offensive language and racist, misogynistic, and anti-Semitic speech].
  • Optional reading: for a history of Internet filtering and other means of controlling expression and access to information online, see Ronald Deibert, John Palfrey, Rafal Rohozinski, and Jonathan Zittrain, ONI, Access Contested, chapter 1: Toward the Fourth Phase of Cyberspace Controls,http://access.opennet.net/contested/chapters/

Case studies: For the last hour of class, we will be discussing two case studies. Each half of the class will be responsible for researching and coming to class prepared to discuss one of the case studies.  I have arbitrarily assigned the cases according by the first letter of your last name.  I have not provided an exhaustive reading list for these cases, nor do you need to read everything below---instead, I have provided some introductory links to materials and each student should research the case further from an angle that you find most interesting.  

**note about trigger warning: Case study #2 involves a campaign organized by feminist groups to convince Facebook to take down “gender-based hate speech.”  This content involves violent and misogynistic imagery and language, which can be disturbing.  If you are assigned this case study and would prefer to cover case study #1 instead, please feel free to do so.  Also, the discussion of case study #2 will be confined to the last half hour of class. Please contact me if you have concerns about participating in the discussion.

 

Week 6 (Oct 10) -  Privacy in an age of pervasive surveillance. (MacKinnon) Why is it particularly difficult to balance the protection of human rights with security and law enforcement needs in a digitally networked and interconnected world? Is it possible to constrain the abuse of surveillance power by governments through legislative reform at the national level - or do solutions need to be coordinated globally? If the latter, how?

(Note: The case study readings for this week will be divided up and assigned to two different groups of students and two different discussion leaders.)

 

 

(NOTE: This journal issue contains a series of articles about surveillance laws in specific countries which will be very useful for some students’ research projects.)

 

 

 

 

Case Study: NSA surveillance:

 

Case Study: Privacy regulation and litigation in the U.S. and Europe

 

Week 7 (Oct 17) - Public event: “Scholarship After Snowden” - Implications of the NSA surveillance revelations for the Academy Penn Law and Annenberg’s Center for Global Communications Studies are co-organizing a 2-hour event at the same time of day as this class on what the latest revelations about pervasive NSA surveillance mean for research, teaching, and professional practice across the many disciplines taught at Penn: Law, Communications, Engineering, the various Arts & Science departments, etc. Students are required to attend and participate actively in conference discussion in lieu of class.

NOTE LOCATION: Gittis Hall 214 Haaga Classroom

Event link: http://cgcs.asc.upenn.edu/events.html#153

 

Below are writings by several of the speakers:

 

 Week 8 (Oct 24) - Software, hardware, and human rights (MacKinnon - with visitor Ben Wagner) How can companies do a better job of preventing their software and hardware from being used by governments to violate human rights? What can engineers and programmers do? What is the appropriate - and feasible - role of law and regulation in addressing and preventing abuses?

(Note: Case study readings for this week will be divided up and assigned to 3 different groups of students and 3 discussion leaders. See this week's announcement for details.)

Case study: Cisco in China:

Case study: abuse of security products - Finfisher:

Case study: abuse of security products - BlueCoat:

 

Week 9 (Oct 31) -  Protecting rights in the privately-run quasi-public sphere: Law versus voluntary mechanisms (Wong) What are the unique challenges for the law and lawmakers in protecting citizens’ digital free expression and privacy rights? How did various efforts at soft-law and voluntary regulation emerge and how have they fared so far in addressing global threats to citizens’ digital free expression and privacy? We examine legislative efforts like the Global Online Freedom Act, the voluntary Global Network Initiative, and other emerging efforts as well as debates about how to address the problem.

 

 

Week 10 (Nov 7) – The Telecommunications Industry Dialogue (Wong) Telecommunications companies have historically operated under very different regulatory regimes and remain subject to licensing requirements that Internet companies may not face.  In addition, many telecom firms were formerly state-owned or remain partially state-owned. The nature of telecom services means that firms have invested a great deal in physical infrastructure inside a country and have many employees working locally. What are the implications of these differences for how the UN Guiding Principles, GNI principles, and other standards might apply to these companies? Should telecommunications join GNI or do they need a different type of organization or mechanism in order to make meaningful human rights commitments and be held accounable to them?

 

(Note: Case study readings for this week will be divided up and assigned to different groups of students.)

 

Case study: Teliasonera in Eastern Europe/Central Asia:

 

Case study: Internet cutoff in Egypt

 

Week 11 (Nov 18) – Where next? (MacKinnon) Are the approaches discussed in the previous week sufficient to get companies to make meaningful human rights commitments and be held accountable to those commitments? This week we will revisit the phenomenon of “transparency reporting” by some U.S. based Internet companies and ask whether the practice can be globalized. We will examine new efforts to get the ICT sector to follow the Guiding Principles with some more ICT-specific guidelines. And we will explore MacKinnon’s new project which is developing a methodology for ranking ICT sector companies on free expression and privacy criteria.

NOTE THIS IS A MAKEUP ON A MONDAY 1:30-3:30pm IN A DIFFERENT ROOM: Tanenbaum 253

 

 

Week of Nov 21 - No Class

Week of Nov 24 - No Class (Thanksgiving)

Class 12 (Dec 4 - MAKEUP SLOT AT 1:30PM, Tanenbaum 253) - student presentations

Class 13 (Dec 5 - USUAL TIME AND PLACE) - student presentations

 

Course Summary:

Date Details