Gill, Lex and Redeker, Dennis and
Gasser, Urs, Towards Digital Constitutionalism? Mapping Attempts
to Craft an Internet Bill of Rights (November 9, 2015). Berkman
Center Research Publication No. 2015-15. Available at SSRN:
The idea of an “Internet Bill of Rights” is
by no means a new one: in fact, serious efforts to draft such
a document can be traced at least as far back as the
mid-1990s. Though the form, function and scope of such
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 paper, we propose a unified term
to describe these efforts using the umbrella of “digital
constitutionalism” and conduct an analysis of thirty
initiatives spanning from 1999 to 2015. These initiatives have
great differences, and range from advocacy statements to
official positions of intergovernmental organizations to
proposed legislation. However, in their own way, they are each
engaged in the same conversation, seeking to advance a
relatively comprehensive set of rights, principles, and
governance norms for the Internet, and are usefully understood
as part of a broader proto-constitutional discourse. While
this paper does not attempt to capture every facet of this
complex political behavior, we hope to offer a preliminary map
of the landscape, provide a comparative examination of these
diverse efforts toward digital constitutionalism, and — most
importantly — provoke new questions for further research and
study. The paper proceeds in four parts, beginning with a
preliminary definition for the concept of digital
constitutionalism and a summary of our research methodology.
Second, we present our core observations related to the full
range of substantive rights, principles and themes proposed by
these initiatives. Third, we build on that analysis to explore
their perceived targets, the key actors and deliberative
processes which have informed their character, and the changes
in their substantive content over time. Finally, we look
forward, identifying future directions for research in this
rapidly changing policy arena and for the broader Internet
governance community.