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Championing human rights for the internet - why bother? Part four: Stepping up the tempo

Staying visible, not being drowned out by hostile agendas, or captured and then defused by lobbies of every ilk, is a challenge for those defending human rights on the internet.

Marianne Franklin
3 February 2016

HRI

Marianne Franklin, Professor of Global Media and Politics at Goldsmiths, University of London, gave her inaugural lecture on February 2, 2016 on ‘Public secrets – you, me, and the internet’. Marianne has hosted two panel debates with openDemocracy on ‘Defending human rights in the digital age’, the first with a panel that included the much-mourned Caspar Bowden, in one of his last typically incisive and energetic contributions to a crucial debate. The second panel discussion is represented here by two short clips, posing the question: If we cannot trust our own governments to protect our rights and fundamental freedoms online - should we trust corporate service providers to look after our personal data instead?

Daily this week look out for our serialisation of "Championing Human Rights for the internet - why bother?", continuing here with Part Four,"Stepping up the tempo." This introductory overview of the terrain launches openDemocracy's new 2016 partnership, 'Human rights and the internet', dedicated to the memory of Caspar Bowden, indefatigable fighter for our digital rights.

Navi Pillay, High Commissioner of Human Rights, 2008 - 2014.

Navi Pillay, High Commissioner of Human Rights, 2008 - 2014. Wikicommons/US Mission Geneva. Some rights reserved.

“… cybersecurity has become wholly conflated with ‘national security’, with no consideration of what a ‘secure’ internet might mean for individual users” (Kaspar and Puddephat 2015).

Even before news of mass online surveillance by the US and its allies (the UK, Canada, Australia, and New Zealand) hit the headlines, agenda-setters at the UN and regional level (e.g. the EU, Latin America) were stepping up the pace in order to make the internet-human rights interconnection more explicit, if not take control of setting the wider agenda. In doing so the hope is that such high-level declarations of intent will become concrete policies, change existing internet business models, and pave the way for affordable forms of legal redress.

It is a change of heart that is also palpable at the highest level of international political appointments. In the wake of a strongly worded statement from the previous UN High Commissioner for Human Rights, Navi Pillay about the human rights implications of US surveillance programs, the UN Human Rights Council appointed Joe Cannataci as its first Special Rapporteur on the right to privacy last year. The UN Special Rapporteur on the right to freedom of expression, David Kaye, has followed the lead of his predecessor, Frank La Rue in continuing to articulate how the right to freedom of expression works in people’s online lives.

It is also evident in the very recent active engagement of international human rights organizations such as Amnesty International and Human Rights Watch with online rights advocacy, including their belated, and circumspect participation in global internet governance consultations such as the Internet Governance Forum. The ninth Internet Governance Forum meeting in Istanbul in 2014 was a first for both these established international NGOs, even if the Human Rights Watch assessment of the event that year was less than enthusiastic.

These sorts of UN-brokered consultations are drenched with diplomatic protocol, hobbled by the constrictions of realpolitik and limitations of the host country’s attitudes to media and press freedoms. No surprise then that grassroots activists and dedicated civil society networks with the technical know-how and want-to would prefer to bypass these channels to concentrate on mobilizing and educating in more immediate, media-friendly ways.

Without such initiatives working both against and alongside officialdom the mumbo-jumbo of UN-speak (e.g. the 2012 ITU Telecommunications Treaty negotiations) coupled with commercially invested cyber-babble that lays claim to internet decision-making as a private rather than public concern would be even more impenetrable. They would be even more disconnected from the inch-by-inch, face-to-face work that has characterized both traditional and internet-focused human rights advocacy to date. Ten years may be a lifetime in computing terms but it is not very long at all for organizations like Amnesty or, indeed the time it took for iconic documents such as the Universal Declaration of Human Rights to be granted the status of customary international law.

No time for complacency

The time for rejoicing has been brief nonetheless as the pushback from incumbent powers has begun, and in earnest. As this section’s opening quote bears out, robust rights-based undertakings that address internet policy in the round are being squeezed out by the relentless march of national security and cybersecurity imperatives.

On the one hand we are seeing bills before legislatures around the world that are legitimizing online surveillance as a rule rather than as the exception. On the other hand, there is a raft of practices already in place that entail disproportionate levels of online tracking, data collection, retention and manipulation on the part of those powerful commercial service providers who currently monopolise global market-share. In the west, these corporate players are, moreover, the partners of choice for governments across the board seeking to leverage public internet goods and services with private funds. This Catch-22 is particularly acute in the Global South where internet access is still patchy and expensive as it is for the Global North where health, education, and public access to government services are being rolled out using private internet service providers.

The ongoing attempts by the UK government to pass controversial surveillance and data-retention legislation by any means possible are still before Parliament. In the meantime, as legal watchdogs have been noting in the wider institutional context of litigation, the “European Court of Human Rights is increasingly dealing with mass surveillance frameworks. … The trend created in the Schrems case (is one) where the different Courts analyse the whole surveillance system of a country in order to discover if it follows the principles of the European Charter of Fundamental Rights. There is hardly any mass surveillance law in Europe or elsewhere that will pass this filter. The hunting has started.”

At the same time, those freshly minted rights-based frameworks that have been a source of pride for activists as they work together with sympathetic legislators and judiciaries such as the Brazilian Marco Civil are already under pressure as courts and global corporations lock horns over their competing jurisdictional claims for users’ personal data. The 48-hour blocking of Facebook’s Whatsapp in Brazil in December, 2015, in the face of this US service provider’s purported refusal to recognize Brazilian jurisdiction under the aforementioned Marco Civil is one example. An EU-based lawsuit against Facebook as part of the ongoing Safe Harbour wrangling between the US and the EU, and Google’s stand-off with the European Commission in an ongoing anti-trust case are two other cases in point.

For this reason I would argue that whilst enjoying the spotlight, the human rights-internet advocacy nexus is at a critical stage. Becoming visible in the increasingly search-engine defined domain of public policymaking and related scholarly debates is one thing. Staying visible, not being drowned out by hostile agendas, or captured and then defused by lobbies of every ilk is another. Here I join the chorus of discontents about how quickly recognition that civil liberties in general, and international human rights law in particular, have an inherent online dimension, can mutate into stonewalling and platitudes.

Not only governments but also powerful vested interests in the commercial sector are using the law and electoral agendas, instrumentalizing different legal jurisdictions and public sentiments to confound this newly gained ground.

Part five tomorrow: Why bother then?

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