Colombia: Submission to the UN Committee on Economic, Social and Cultural Rights

We write in advance of the 73rd pre-session of the Committee on Economic, Social and Cultural Rights (“the Committee”). We hope this submission will inform the Committee’s preparation of its list of issues to seek further clarity on Colombia’s compliance with the International Covenant on Economic, Social and Cultural Rights (ICESCR). This submission focuses on government-endorsed online learning during the Covid-19 pandemic, the right to free and compulsory education, and the protection of education from attack.

Government-Endorsed Online Learning During the Covid-19 Pandemic (article 13)

1. In a global investigation of education technology (EdTech) products endorsed by the world’s most populous countries for children’s education during the Covid-19 pandemic, Human Rights Watch found that Colombian authorities directly violated children’s right to privacy and other rights.[1]
2. Human Rights Watch analyzed Aprender Digital, a website developed and launched by the Colombian Ministry of National Education on March 16, 2020 to provide students with digital educational content during Covid-19 school closures,[2] as well as seven other privately-built platforms recommended by the ministry: Dropbox, Edmodo, Jumpshare, Padlet, Remind, WeTransfer, and Workflowy.[3] Of these eight products, one was a mobile application (“app”), three were websites, and four were available in both formats.
3. Our analysis found that all eight EdTech products surveilled or had the capacity to surveil children online, outside school hours, and deep into their private lives. All eight EdTech products could or did transmit children’s personal data to third-party advertising technology (AdTech) companies.

Finding Out Who Children Are

4. Four EdTech products authorized by the education ministry for children’s use had the capability to collect their users’ Android Advertising IDs, allowing them to tag, collectively, an estimated 1.25 billion users and uniquely identify their devices for the sole purpose of advertising to them.[4]
5. These identifiers enabled companies to infer the interests and characteristics of individual children for commercial purposes. Every time a child connects to the internet and comes into contact with tracking technology, any information collected about that child is tied back to the identifier associated with them by that company, resulting in a comprehensive profile over time. Data tied together in this way do not need a real name to be able to target a real child or person.
6. Human Rights Watch submits that these tracking techniques are neither proportionate nor necessary for these products to function, or to deliver educational content to children. Their use on children in an educational setting arbitrarily interferes with children’s right to privacy.

Tracking Who Children Know

7. Four apps recommended by the education ministry for children’s use had the ability to collect information about their users’ friends, family, and other acquaintances by accessing the contacts list saved on users’ phones.[5] This allowed these apps to learn personal details about these contacts, including any saved names, phone numbers, emails, addresses, relationships, and profile photos. Human Rights Watch found that this data was neither necessary for these apps to function, nor provided educational benefit to children.
8. When details about the personal relationships of a child are collected without consent or awareness by the child or by the family member or friend in question, it is an arbitrary intrusion on the privacy of each of these individuals. For contacts, the right to privacy is affected by the “mere collection of personal data” in which they lose control over information, in addition to the risk of experiencing potential misuse of their personal data.[6]

Tracking What Children Do Inside and Outside the Classroom

9. Ad trackers and third-party cookies are generally used by AdTech companies to scrutinize a person’s every action and behavior, infer their characteristics and interests, and deliver customized ads and content that follow them around the internet. All seven EdTech websites extracted and sent children’s data to AdTech companies, using ad trackers and third-party cookies that tracked users across the internet.[7]
10. Of these, three websites, including Aprender Digital, the website owned and operated by the education ministry, sent children’s data to AdTech companies that specialize in behavioral advertising or whose algorithms determine what children see online. In doing so, these companies not only distorted or risked distorting children’s online experiences, but also risked influencing their opinions and beliefs at a time in their lives when they are at high risk of manipulative interference.[8] Human Rights Watch also found Aprender Digital sending children’s data to Google through Google Analytics’ “remarketing audiences” tool, allowing the website to potentially track its users with ads across the internet.[9]
11. This unnecessary, disproportionate data surveillance enabled advertisers and other companies to use children’s data for commercial purposes, and exposed children to further risk of misuse and exploitation of their data. Their use on children in an educational setting unreasonably infringes on children’s right to privacy.

Government Failure to Protect

12. All EdTech products reviewed by Human Rights Watch engaged in data practices that unreasonably infringed on children’s rights or risked doing so.
13. All the privately-owned EdTech products were marketed as free and appear to have been provided to the Colombian government at no direct financial cost. In the process of endorsing these and promoting their wide adoption by schools, teachers, and students, the Colombian education ministry appears to have offloaded the true costs of providing education online onto children, who were forced to pay for their learning with their rights to privacy, access to information, and freedom of thought.
14. Human Rights Watch did not find evidence that the education ministry took measures to prevent or mitigate children’s rights abuses by companies, or that it checked whether the EdTech products it was rapidly endorsing were safe for children to use.[10] As a result, children whose families were able to afford access to the internet and connected devices, or who made hard sacrifices in order to do so, were exposed to the privacy practices of the EdTech products they were told or required to use during Covid-19 school closures.
15. Children, parents, and teachers were largely kept in the dark about these data surveillance practices. Neither the government nor the companies informed children and their parents of the full extent of these data practices that risked or infringed on children’s rights. As these tracking technologies were invisible to the user, children had no reasonably practical way of knowing the existence and extent of these data practices, much less the impacts on their rights. By withholding critical information, the government and these companies impeded children’s access to justice and remedy.
16. Even if children, parents, and teachers had known about these data practices, Human Rights Watch found that the data surveillance took place in virtual classrooms and educational settings where children could not reasonably object to such surveillance.[11] These companies did not allow students to decline to be tracked; this monitoring happened secretly, without the child’s knowledge or consent. In most instances, it was impossible for children to opt out of such surveillance and data collection without opting out of compulsory education and giving up on formal learning during the pandemic.
17. Human Rights Watch recommends that the Committee ask the government of Colombia:

• What recourse or remedy does the government provide, or is planning to provide, to children who have experienced unreasonable infringements of their rights as a result of their use of these EdTech products and whose data remain at risk of misuse and exploitation?

18. Human Rights Watch recommends that the Committee call on the government of Colombia to:

• Update and strengthen implementation of the data protection law to deliver a comprehensive child data protection framework that protects the best interests of the child in complex online environments, and ensures that companies respect children’s rights and are held accountable if they fail to do so.
• Provide remedy for children whose data were collected through their use of EdTech products. To do so:
  • Conduct a data privacy audit of all EdTech websites and apps it has endorsed for children’s online learning. If the products fail this audit, rescind endorsement of these products, and immediately notify and guide affected schools, teachers, parents, and children to prevent further collection and misuse of children’s data.
  • Require EdTech companies with failed data privacy audits to delete any children’s data collected during the pandemic.
  • Require AdTech companies to identify and immediately delete any children’s data they received from EdTech companies during the pandemic.
• Ensure that any services that are endorsed or procured to deliver online education are safe for children. In coordination with data protection authorities and other relevant institutions:
  • Require all companies providing educational services to children to identify, prevent, and mitigate negative impacts on children’s rights, including across their business relationships and global operations.
  • Require child data protection impact assessments of any educational technology provider seeking public investment, procurement, or endorsement.
  • Ensure that public and private educational institutions enter into written contracts with EdTech providers that include protections for children’s data.
  • Define and provide special protections for categories of sensitive personal data that should never be collected from children in educational settings, such as precise geolocation data.

The Right to Free and Compulsory Education (articles 13 and 14)

19. Colombia’s constitution states that education shall be compulsory between the ages of 5 and 15 and include one year of pre-primary education and nine years of basic education.[12] The constitution also states that education shall be free of charge in state institutions, “without prejudice to the collection of tuition from those who can afford it.”[13]
20. Basic education is composed of 5 grades of primary education and 4 grades of lower secondary education. The Colombian Constitutional Court in 2009 also ruled that the State has a clear, immediate obligation to guarantee free primary education, but a progressive one in the case of secondary and higher-level education.[14]
21. The United Nations Educational, Scientific and Cultural Organization (UNESCO) states that net enrolment rates in pre-primary (3-5 years of age), primary (6-10), and secondary (11-16) levels in Colombia in 2021 were 84, 94, and 85 percent respectively.[15]
22. However, a 2022 report by the Organisation for Economic Cooperation and Development (OECD) indicates that 25 percent of adolescents in Colombia still leave school without an upper secondary qualification.[16]
23. A draft law[17] currently under consideration,[18] would recognize every child’s right to early childhood education (“educación inicial”), and would require the government to progressively finance, offer, and guarantee the right to fundamental early childhood education for a minimum of three years.
24. Human Rights Watch recommends that the Committee ask the government of Colombia:

• What barriers does the government see to increasing enrolment rates within compulsory pre-primary, primary, and secondary education?

25. Human Rights Watch encourages the Committee to call on the government of Colombia to:

• Work out and adopt a detailed plan of action for the progressive implementation, within a reasonable number of years, to be fixed in the plan, of the principle of free early childhood education for all.

Protection of Education from Attack (article 13)

26. Human Rights Watch has extensively documented child recruitment, attacks on students, teachers, and schools, and the military use of schools in Colombia.[19] The Global Coalition to Protect Education from Attack (GCPEA) reports that attacks on schools and educators appeared to worsen during the Covid-19 pandemic.[20]
27. For example, anti-personnel mines were found in two schools in Antioquia in November 2020, according to local media. The mines, which had been installed during Covid-19 closures, prevented the municipality from reconnecting water service at the school. The presence of mines and lack of running water necessary for adequate sanitation delayed the re-opening of the schools by an additional week.[21]
28. In El Salado, Bolívar state, all 25 teachers working at a school reportedly received messages from an unidentified source threatening to kill and dismember them on their way to school, on February 7, 2020. As a result, the school suspended classes, according to local media outlet El Universal.[22]
29. GCPEA also identified two reported incidents of sexual violence at, or on the way to or from, school during the 2020-2021 reporting period.[23] One incident involved seven National Army soldiers sexually abusing a girl from the Embera Chamí Indigenous group in the vicinity of a school in the Pueblo Rico municipality, Risaralda state, in June 2020. The soldiers admitted to the crime, and a higher-level court in Pereria sentenced six of the soldiers to 16 years in prison and the remaining soldier to eight years of prison as an accomplice to the crime.[24]
30. In March 2022, the education ministry launched guidelines for the protection of children and adolescents from sexual violence in school environments.[25]
31. In an important step, Colombia endorsed the Safe Schools Declaration in November 2022.[26] The Safe Schools Declaration is an inter-governmental political commitment that provides countries the opportunity to express political support for the protection of students, teachers, and schools during times of armed conflict; the importance of the continuation of education during armed conflict; and the implementation of the Guidelines for Protecting Schools and Universities from Military Use during Armed Conflict.
32. Human Rights Watch additionally acknowledges Colombia’s good practice on protecting schools from military use, including through a 2010 military order and constitutional court decisions.[27]
33. Human Rights Watch recommends that the Committee ask the government of Colombia:

• What specific steps have been taken to protect children and adolescents against sexual violence on the way to or from school?
• How does the Colombian Armed Forces disseminate its military policy on the use of schools for military purposes, and encourage appropriate practice throughout the chain of command?

34. Human Rights Watch encourages the Committee to:

• Congratulate Colombia for endorsing the Safe Schools Declaration and encourage them to implement its commitments.
• Recommend that the government of Colombia share examples of its good practices in military policy and jurisprudence with other countries that have endorsed the Safe Schools Declaration, and in particular in Latin America.