Freedom of Expression and the Digital Access Industry: Five Key Takeaways

The Internet, a historically unparalleled source of information and expression, has also become a playground for censorship, punishment and propaganda. Not a day goes by where an individual is not arrested, prosecuted or threatened for the content of a tweet or a post. States are ordering internet shutdowns in times of public protest, elections, and even school exams. Governments enjoy surveillance capabilities that drill deep into the lives of journalists, activists, political opposition, and regular citizens.

These threats, and many others, are typically driven by states, in violation of their obligations to respect everyone’s right to hold opinions without interference and to seek, receive and impart information and ideas of all kinds, as both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights provide. While states are undoubtedly obliged to protect human rights online, what are the roles and responsibilities of the companies that comprise the Information and Communications Technology (ICT) sector – a multi-trillion-dollar industry that has become an essential pillar of democratic life today?

Last year marked the beginning of an attempt to flesh out the UN Human Rights Council’s important recognition that human rights apply online as well as offline. David, the council’s special rapporteur for freedom of expression, conducted an initial survey of chokepoints to free expression on the Internet that identified several areas where clarification of State obligations and private sector responsibilities is most needed. This year’s report follows up by exploring how global free expression is both supported and undermined on the networks that enable us to connect to the Internet – the most basic level of the digital infrastructure. The report not only analyzes the role of States, but also the companies that build and operate these networks – everything from telecommunications and Internet service providers, to Internet exchange points and content delivery networks, which ensure faster and more efficient exchange of Internet traffic, to network equipment vendors, which build and configure networks.

This week, states and NGOs got a first chance to react to the report’s findings and recommendations when David presented them to the council in Geneva – the culmination of more than a year’s worth of study and consultations. Here are five takeaways that we hope States and others address: 

  1. Network shutdowns devastate individuals and their communities … and are spreading: Governments deliberately disconnected the Internet and other major communications services an estimated 56 times in 2016 – almost four times the number recorded in 2015. Such large-scale disruptions frequently require the assistance of providers operating in the country, which are under intense pressure to comply and even face threats to their employees and infrastructure. Shutdowns have a devastating impact on affected users: They cut off access to emergency lines, banking, voting, public service announcements, and reporting on major crises and events, among other services. Nevertheless, this ‘nuclear option’ has become a popular tool of information control, particularly during elections, protests, and, bizarrely, national exams.
  2. Surveillance is more secretive and invasive than ever: Although Snowden’s revelations triggered global debate about government surveillance, large-scale snooping has continued unabated. Between 2015 and 2016, France, Germany, Pakistan, Russia, and the United Kingdom were among the countries that embarked on major expansions of their surveillance authorities. The digital access industry has become a critical feature of the surveillance state, a major source for the chilling of expression worldwide. They routinely field broad requests for law enforcement access to user data. In exchange for a license to operate, companies may also be required to create large databases of user data and store them locally in order to facilitate future government access. Many also face demands to configure networks that enable direct government access without the operator’s knowledge, potentially creating security loopholes that can be exploited by criminals and other bad actors.
  3. States must back up their commitments with action: The persistence and expansion of censorship and unjustified or otherwise unlawful surveillance present a serious challenge to the credibility of State obligations under human rights law. States have recognized what’s necessary to reverse the trends, having (for instance) condemned shutdowns as a categorical violation of international law. It is wellestablished that censorship to suppress criticism or dissent, whether online or offline, is never a legitimate restriction on freedom of expression. And when it comes to surveillance, judicial authorization and oversight, individualized targeting, and limits on data sharing and retention are among the safeguards that may help bring surveillance operations in line with human rights standards.   
  4. Companies are on the front line of the fight for users’ rights: It is undeniable that companies face significant pressure to comply with censorship or surveillance laws and requests. However, as gatekeepers of the digital infrastructure that exercise significant economic clout, they are also best placed to push back against human rights violations. In particular, companies can identify, mitigate and prevent risks to the freedom of expression and privacy of users long before they materialize. For example, due diligence practices that assess and curb potential misuses of a company’s products or services may protect users down the line. Companies should also closely monitor the human rights situation where they operate, and push for clarification or reform when they identify gaps between their human rights commitments and relevant local laws. Regular consultations with users and civil society, as well as joint outreach and advocacy with peer companies, have also proven to be effective tools against government overreach.
  5. Transparency needed across the board: During shutdowns and other large-scale censorship incidents, governments rarely provide information about the services affected, how long they are expected to last, and the reasons for such disruptions. Government requests for user data are often accompanied by gag orders, and companies themselves are sometimes in the dark about the extent to which authorities are monitoring their networks. Given these challenges, companies need to be more creative and dynamic in their approach to transparency. Publishing aggregate data, disclosing how they interpret and apply local laws, and even selectively withholding information may mitigate the impact of gag orders and non-disclosure laws. During an ongoing crisis like a shutdown, companies should strive to provide regular updates to affected customers. If this is not possible, a meaningful account of what happened after the fact may help users pursue a remedy.

Read the full report, which also discusses the erosion of net neutrality, and the human rights impact of standards developing organizations like the Internet Engineering Task Force, and its supplementary materials, here. We are already turning to the next phase of this effort to explore freedom of expression in the digital age, which will focus on content regulation and Internet platforms. A prospectus and call for submissions will be circulated this summer, and we encourage everyone who’s interested to engage.   

Image: Getty/Omar Havana

 

About the Author(s)

David Kaye

UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Clinical Professor of Law at UC Irvine School of Law, Formerly Served in the Office of the Legal Adviser at the State Department (1995-2005) Follow him on Twitter at (@davidakaye).

Amos Toh

Katz Fellow at the Brennan Center for Justice’s Liberty and National Security Program