Human rights in the virtual malls
With the whole world migrating online, we are not moving into a civic digital commons—but rather into a series of virtual private malls. Private corporations essentially own the Internet from one end to the other. They produce the hardware, lay the cables, store the data and manage the networks.
The privatized Internet and corporation-owned mobile communication networks are increasingly the platform on which we express our opinions, seek, receive and impart information, and the gateway through which we exercise our other basic rights. In addition to governments and state regulators, it is increasingly the private sector that is becoming the arbiter of our freedoms. Can we be sure that it cares?
Fortunately, to some extent, the right to communicate and the business model of the communication sector overlap. Our right to communicate is their network traffic; our right to express ourselves freely is their social network.
What is more concerning are the areas where the business model of the communication sector and the right to communicate do not overlap, where there is money to be made with products that suppress information, silence speech. Dual-use technology – technology that can be used to legitimately manage network traffic and spam as well as to surveil and censor political opponents – is a problem which has not been solved. Companies from several Western European countries, including Germany, Sweden and Britain as well as the United States and Israel have been found to be exporters of dual-use technology to repressive regimes, an industry worth over US$4 billion a year according to the London-based NGO Privacy International.
What can companies and what can governments do, to ensure that human rights are protected in the digital world? This is a question we at AccessNow.org are often asked, and we have a few answers.
Human rights by design
First and foremost, one of the best ways for companies and governments to develop a human rights policy is to employ a model we call human rights by design: “During the research, development and design stages, technology companies should anticipate how and by whom their products and services will be used. Developing a human rights policy and engaging in diligence at the earliest stages helps companies prevent crises, limit risk, and enable evidence-based assessment of company activities and reporting.” This was one of the basic principles affirmed in the Silicon Valley Standard, the outcome document of the Silicon Valley Human Rights Conference we hosted in San Francisco in October of last year.
We need to recognize that there are human rights implications all the way along the value chain, even at the level of coding technology. Offering off-the-shelf geo-location technology may get a seller closer to a customer. But it also gets an authoritarian regime closer to its dissenters.
Companies should adopt the United Nations Human Rights Council’s Protect, Respect, and Remedy Framework for Business and Human Rights, known as the Ruggie Framework, which sets out corporate responsibilities for protecting human rights. The Ruggie Framework’s provisions need to be applied to the information and communications technology (ICT) environment. An important step would be to join the multi-stakeholder Global Network Initiative for the protection and advancement of freedom
of expression and privacy in the ICT sector and begin human rights impact assessments.
As for governments, they must embed rights-respecting policies into all their laws. Rights should always come first when lawmakers seek to regulate the Internet. Any exemptions should only be made after the rights are enshrined in law.
Legislation in the name of national security, copyright enforcement or preventing child pornography should not be rushed through legislatures without due consideration of its implications for the Internet’s infrastructure, for how content is accessed and for the right to free expression. Governments do need to protect the public and make sure that creators are properly paid, but this should never come at the expense of our fundamental rights.
Power in the marketplace
Companies have power in the marketplace, and they should be using that power to encourage governments to protect human rights through appropriate policies, practices, legal protection and judicial oversight. They need to pressure governments to not allow the copyright industry to trump freedom of speech in the name of Intellectual Property. It is also vital that they advocate for control over their networks, even in times of crisis.
Companies must ensure that any restrictions requested by government authorities are necessary, consistent with international human rights laws and standards and the rule of law, and proportionate to achieving a clearly defined and legitimate public purpose.
Governments, in turn, must listen to companies and respect their decisions to embed human rights into their corporate DNA. This includes when companies stand strong for net neutrality, i.e. the equal treatment of all Internet traffic, be it video, audio, e-mail or the text of a web page. The Netherlands’ lead on committing to net neutrality was a major step forward, and is prompting similar legislation in Belgium, Spain and elsewhere.
Security and encryption of web activity
Digital attacks are the greatest threat to an open Internet. Civil society members’ Internet accounts are constantly being hacked, their networks compromised and their sites brought down. They need the assistance of the technology sector for the establishment of a reliable security infrastructure.
As affirmed in the Silicon Valley Standard: “Effective Internet security is essential to ensuring freedom of speech, privacy, and the right to communicate online. Technology companies must provide a basic level of security (e.g. HTTPS and its improvements) to their users by default and resist bans and curtailments of the use of encryption.”
A security infrastructure is reliant upon governments not banning encryption and other security mechanisms. Encryption tools are critical for activists, political dissidents and civil society at large. Rights-respecting governments, civil society and private companies must advocate for the privacy of individuals, and support their efforts to protect themselves.
Intermediary liability
Freedom of speech, association, and commerce increasingly depend on Internet intermediaries such as broadband service providers and web hosting companies. These intermediaries should not be required to determine the legality of, or be held liable for, the content they host, as is being asked of them by the copyright lobby in proposed multilateral trade agreements such as the Anti-Counterfeiting Trade Agreement (ACTA) and the Trans-Pacific Partnership (TPP) or in the Stop Online Piracy Act (SOPA) in the United States.
Companies must fight this trend and governments must not hold these hosts liable for their content. They should pass laws that allow for a reasonable time frame for intermediaries to take down illegal content upon judicial decisions and following due process and provide protection from prosecution for the mere posting of content. Holding website hosts liable is a blunt instrument that can be used to quiet dissent and chill the political climate.
Global co-ordination is needed to protect intermediaries because if they are held liable, our right to freedom of speech will be severely compromised.
Legal jurisdiction in a borderless virtual world
The global nature of the Internet means that a law in one country has an effect on users worldwide. The Silicon Valley Standard requires corporations to minimize the negative impact of government rules and regulations that infringe upon freedom of expression or other human rights. It calls on technology companies to incorporate adequate privacy protections for their users by default:
Technology companies should resist overboard requests from governments to reveal users’ information, disclose no more information about their users than is legally required, and inform their users so they can choose to legally respond to these requests.
In times of crisis, when open communication is especially important, companies should resist government efforts to conduct blanket surveillance of corporate networks, shut down services or block access to their products.
Governments, for their part, should listen to civil society and multi-stakeholder groups when drafting legislation and refrain from bypassing the judiciary when submitting requests to companies for surveillance or data sharing. Technologically developed nations must know that they are being looked upon for guidance on Internet policy. The decisions they make set precedents for the rest of the world.
Governments and corporations alike must support the development and implementation of an open Internet and mobile communication environment. Now is the time for us to work together to achieve an open Internet, so that all can enjoy their rights.