We are in a period of profound societal change and disruption, almost a tectonic shift, brought on by the rapid expansion of digital communication infrastructure and exponential adoption of digital technology. Protection of human rights in the 21st Century will rest on our ability to articulate how to apply enduring human rights principles in the digital context. But we are behind the curve. ” As a former US Ambassador, I know there is more all stakeholders can be doing to advance initiatives in this domain.
Digital technology has transformed the means through which human rights are both exercised and violated around the globe. The Internet has become an indispensible tool for the realization of a range of human rights, and for accelerating economic development. Yet, every day, there are new examples of how digital technologies play a role in undermining human rights — whether through a prime minister banning Twitter in Turkey; a death sentence for a posting on Facebook in Iran; bulk electronic surveillance of American citizens by the NSA; a court ruling on the right to be forgotten in Google searches in Europe; or a requirement that Internet users supply real names to service providers in China. This dual edge aspect of technology was conveyed well by a Tibetan human rights activist to the Toronto-based research group Citizen Lab: “Technology is this funny thing where it’s a lifeline, and then . . . maybe it’s your ticket to jail.”
None of our political, social or legal institutions have caught up with the implications of this transition, and our understanding of how to protect and respect human rights is being deeply challenged. The human rights movement needs to catch up to the digital reality in which we operate. Here are three practical steps.
1. Create a Special Rapporteur Mandate on the Right to Privacy at the UN Human Rights Council
The first practical step to take in protecting human rights in the digital realm is to generate global support for the creation of a “special rapporteur” (essentially an international human rights law expert) for the right to privacy at the UN Human Rights Council in Geneva at its next session in March. The creation of such a mandate would follow directly from an invitation in the UN General Assembly (UNGA) resolution on The Right to Privacy in the Digital Age that passed by consensus on Dec. 18 in New York, under the leadership of Brazil and Germany.
The core idea is simple: when everything you say or do can be tracked and intercepted, it has a chilling effect on what you feel free to say, where you feel free to go, and with whom you choose to meet. These concerns go to the heart of the work of human rights activists and defenders around the world.
The consensus UNGA text expressed growing global concern about the human rights costs and consequences of unchecked mass surveillance, including the erosion of fundamental freedoms of expression, assembly and association. The resolution invited Human Rights Council members in Geneva to take up the challenge of protecting privacy in the digital context by considering the creation of a special procedure mandate holder to address these global concerns. Ideally, this mandate holder would be dedicated to fleshing out the implications of digital communications technology for the right to privacy, and help articulate how to adhere to the rule of law and ensure protection of human rights and fundamental freedoms in the digital environment. The international community must stand behind the creation of this urgently needed international mandate.
2. Contribute to Development of Multi-Stakeholder Internet Governance
A second practical step that can be taken to reinforce human rights promotion in the digital context would be to support further development of the multi-stakeholder approach to Internet governance that prevails today, rather than allow retrenchment toward a multilateral, state based “Westphalian” model of governance.
The Internet itself has in many ways been a boon to the exercise of rights, but also has contributed to the larger trend of distribution of power away from governments to non-state actors. The Internet, which emerged through the collaboration of technologists and various other stakeholders, operates through global, trans-boundary connectivity, and does not depend on geographic borders. In effect, the Internet challenged the nation-state system that lies at the heart of the UN structure, the so-called “Westphalian” model. While individuals have been empowered through global connectivity and the free flow of information across borders, the territory-based nation-state system of governance has been tested.
In response, some governments, notably China, increasingly endorse a concept of Internet sovereignty, whereby each national government has sovereign control over all aspects of Internet infrastructure, data, content and governance within its borders. This approach would in effect be an effort to Westphalianize the global Internet, and to resist the global trend toward a distributed, decentralized multi-stakeholder model of Internet governance.
To meet this challenge, the multi-stakeholder model for Internet governance must be protected and strengthened. A basic concept underlying this model is that governments alone are not best positioned to make technical or policy decisions about the Internet single-handedly. The Internet evolved through collaboration and decision-making by many non-governmental actors, and the functionality of the open interoperable Internet depends on continued inclusion of many stakeholders in Internet governance processes, most notably technologists. On the human rights policy front, civil society organizations dedicated to protection and promotion of human rights are best placed, and must have a seat at the table alongside governments, technologists, the private sector and others, in creating Internet governance mechanisms that prioritize global human rights in the digital realm.
3. Reinforce the Conceptualization of Human Rights Protection as a National Security Priority
Finally, we need to solidify the international understanding that protection of human rights and adherence to the rule of law in the digital realm are essential to the protection of national and global security, rather than antithetical to it. All too often in the post-Snowden context, national security interests are presented in binary opposition to freedom and privacy consideration, as though there is only a zero-sum relationship between human rights and national security. In reality, human rights protection has been an essential pillar of the global security architecture since the founding of the United Nations immediately after World War II. Recent failures to adequately protect human rights and adhere to the rule of law in the digital realm has been deeply undermining of some crucial aspects of long-term national and global security.
One of the most troubling aspects of the mass surveillance programs disclosed by Edward Snowden was the extent to which digital security for individual users, for data, and for networks, has been undermined in the name of protecting of national security.
This is both ironic and tragic, given that digital security is now at the heart of national security — whether protecting critical infrastructure, confidential information, or sensitive data. Practices, such as surreptitiously tapping into networks, requiring back doors to encrypted services and weakening global encryption standards will directly undermine national and global security, as well as human rights.
Meanwhile targeted malware and crafted digital attacks on human rights activists have become the modus operandi of repressive governments motivated to undermine human rights work. Civil society actors increasingly face an onslaught of persistent computer espionage attacks from governments and other political actors like cyber militias, just as businesses and governments do. So while our notions of privacy are evolving along with social media and data-capturing technology, we also need to recognize that it’s not “just privacy” that is affected by the digitization of everything. The exercise of all fundamental freedoms is undermined when governments utilize new capacities that flow from digitization without regard for human rights.
Furthermore, by engaging in tactics that undermine digital security for individuals, for networks and for data, governments trigger and further inspire a hackers race to the bottom. Practices that undermine digital security will be learned and followed by other governments and non-state actors, and ultimately undermine security for critical infrastructure, as well as individuals users everywhere. Strengthening digital security for individual users, for data, for networks, and for critical infrastructure must be seen as the national and global security priority that it is.
We are at a critical moment for protection of human rights in the digital context.
All global players whose actions impact the enjoyment of human rights, especially governments who claim to be champions of human rights, must lead in the reaffirmation of the international human rights framework as a central pillar for security, development and freedom in the 21st century digital environment.