The protection of human rights online has been a topic in internet governance discussions for some time, but considering the recent revelations about government surveillance and their aftermath, Access’ Deborah Brown argues that the time is ripe for reform.
This summer’s revelations of mass government surveillance have already begun to impact the politics of global internet governance and are likely to reverberate for some time. The heightened attention to internet governance comes with both opportunities and risks for safeguarding human rights in the digital environment.
Recent events have renewed calls for establishing an international framework for the governance and use of the internet. Brazilian President Dilma Rousseff made a compelling case for this with her speech at the opening of the 68th session of the United Nations General Assembly. Asserting that the U.S. surveillance programmes are in breach of international law, Rousseff articulated five principles for internet policy making that echo forward-thinking draft legislation in Brazil known as the Marco Civil, which Brazilian civil society has been pushing for since 2009, but has yet to be adopted.
The IBSA grouping (India, Brazil, and South Africa) subsequently reinforced this position, pointing out that the unauthorised practice of illegal interception of communications and data was a “serious violation of national sovereignty and individual rights” and calling for “an open discussion and setting of international norms.”
Multi-stakeholder and/or intergovernmental institutions?
Rousseff’s strong stance on human rights was met with wide support; however, her call for the creation of “multilateral mechanisms for the worldwide network” raised some eyebrows for fear that this statement could be interpreted as promoting an intergovernmental rather than multi-stakeholder body. There is strong concern that establishing a centralized and top-down mechanism for internet governance determined by governments could lead to fewer protections for rights. An intergovernmental mechanism would also be inconsistent with the bottom-up multi-stakeholder approach to policy making and the open architecture that are essential to an open internet. It is not clear that Rousseff intended this with her statement, as such a move would be counter to Brazil’s model of the CGI.br — the country’s Internet Steering Committee — which has been a model of successful, multi-stakeholder governance to the world.
A group of governments at the UN Human Rights Council meanwhile made a more direct call for the establishment of an intergovernmental body. A joint statement from Pakistan on behalf of Bolivia, China, Cuba, Ecuador, Indonesia, Iran, Uganda, Venezuela, and Zimbabwe asserted that “A strategic rethinking of the global internet governance mechanism is inevitable” and went on to suggest that the “[f]urther development of an international mechanism in the context of ‘Enhanced cooperation’ can be a concrete way forward.” Although the statement did clarify that the “international intergovernmental mechanism of internet governance” should “ensure the right to privacy,” many of the governments associated with the statement have poor records in protecting privacy and other rights online.
Independence through infrastructure
Another response to the surveillance scandal has been to advance plans for infrastructure independence. Last month the BRICS countries (Brazil, Russia, India, China, and South Africa) announced a new high-capacity undersea fibre optic cable that will connect the BRICS countries directly to each other, allowing internet traffic to deliberately circumvent United States and European entry points. While some media have portrayed the announcement as a response to U.S. and European surveillance programs, it was conceived of as a project to expand internet access in the developing world and improve trade relations for BRICS countries. Indeed, the cable should greatly benefit connectivity in the developing world. Avoiding traffic flows through the U.S. and Europe will not in itself preclude state surveillance of communications, and could even open the door to surveillance by more governments.
New standards vs. updating existing norms
Finally Germany, together with Austria, Hungary, Switzerland, and Liechtenstein, is proposing to enshrine digital privacy in an international human rights treaty. Specifically, the intention is to draft an additional protocol to the International Covenant on Civil and Political Rights, which already contains a provision (Article 17) on the right to privacy. Last month at the International Conference of Data Protection and Privacy Commissioners in Warsaw, Poland, privacy authorities overwhelmingly supported a resolution to update Article 17 and “create globally applicable standards for data protection and the protection of privacy in accordance with the rule of law.”
Given that the U.S. was the only country that did not support the resolution at Warsaw meeting and has not signed onto any optional protocol to any international human rights treaty, perhaps a better strategy at this point would be to focus on updating interpretation and implementation of existing norms. The UN Human Rights Committee, which oversees government compliance with the ICCPR issues authoritative interpretations of the treaty known as General Comments. In 2011, the Committee issued General Comment 34 on Article 19, which interpreted the right to freedom of expression in light of new technology. General Comment 34 has been well-received and is frequently cited in the context of upholding freedom of expression in the digital environment.
There have been several calls for a new General Comment on Article 17 to advance international understanding of the right to privacy in the digital age. UN Special Rapporteur on Freedom of Opinion and Expression Frank La Rue called for this in his 2013 report, and members of civil society have echoed this call. Since the U.S. is already party to the ICCPR, any further interpretation of the treaty should guide its implementation.
The UN Internet Governance Forum beginning later this month in Bali will be a valuable opportunity to strategize on approaches to better safeguard human rights online. The time is ripe for reform; the challenge is to ensure that this political opportunity results in rights-respecting frameworks, rather than a legitimization or normalization of state surveillance.
This article gives the views of the author, and does not represent the position of the LSE Media Policy Project blog, nor of the London School of Economics.
