By Dinah PoKempner
We are at a difficult juncture in protecting online speech and privacy, when states resist applying principles they have endorsed internationally to their domestic legislation and practice. All road signs to freedom of speech and privacy point one way, yet governments insist on taking the wrong route, telling alarmed passengers it is for their own safety.
The internet gives individuals unprecedented ability to communicate across borders and access the world's information, for good or ill. Although governments have welcomed the internet’s globalizing effect on economic development, they now fear its ability to amplify messages like terrorism, revolution, pornography, or propaganda. But sacrificing basic freedoms to control the internet’s powers is neither effective nor wise. How well we protect privacy and speech in the digital age will determine whether the internet liberates or enchains us.
The gap between human rights law and government practice is nowhere more evident than in surveillance. When Edward Snowden ignited the debate in 2013, the U.N. responded with resolutions, expert reports, and a new expert position on privacy. Although people challenged surveillance in courts and legislatures, few countries curtailed their surveillance powers and many instead legalized or expanded them in new laws.
In the U.S., some nominal but symbolically notable changes began. Congress started slightly constraining the U.S. intelligence community’s power to collect millions of call records, and President Barack Obama apologized for spying on allied heads of state. Yet the laws and directives that allow sweeping collection of both U.S. and foreign communications for foreign intelligence remain in place.
The United Kingdom just adopted a troubling law reinforcing "bulk" surveillance practices without prior judicial approval. France rushed through flawed surveillance laws in the wake of terrorist attacks. Russia and China both deepened their governments’ already draconian surveillance powers this year. Even Brazil and Mexico, strong proponents of privacy at the U.N., entertained cybercrime bills that would have constricted access to information and free speech. Germany, a leading data protection proponent, approved a law in October 2016 for blanket mass surveillance of non-citizens.
How did we get to this schizophrenic state of affairs, where states proudly proclaim that human rights apply online, and then legislate to curtail them?
There was a time when discussion of the internet and human rights rang full of utopian aspiration—the internet would set speech free, circumvent censorship, and enable social organizing on an unprecedented scale.
The backlash was swift. Dissidents who tried to avoid suppression by going online found themselves monitored, publicly shamed, or arrested in numerous countries. State authorities asked or forced tech companies to hand over their users' data and decode communications. Governments fearful of the free flow of information erected national firewalls, blocked social media, and even shut the internet down temporarily to control online activity.
These actions are hardly in tune with rights obligations. But online speech is perceived as different from, and more dangerous than, offline speech in several critical ways. Online speech can be more disinhibited than real world encounters; it can persist on the internet for an extended length of time; and it is inherently trans-border. Each of these attributes can make online speech powerful and its regulation tricky, even for rights-sensitive governments.
In both attributed and anonymous speech, the disinhibiting quality of online communication contributes to "sharing," greater responsiveness, informality, incivility, and invective. Policies such as attaching real names to online profiles are often invoked as a panacea, but they don’t necessarily improve behavior despite their value in spotting and silencing dissenters.
Many undesirable postings online—such as false or malicious speech, copyright violations, and privacy invasions—are hard to suppress. Courts in Canada and France ordered Google to delist content they disapproved globally, not just within their own territory and jurisdiction. If every country follows suit, the internet would soon be purged of all controversial content, including much art, criticism, and debate.
Finally, the sheer quantity and variety of digital data enables not just unprecedented collaboration, but also frightening social profiling and persecution. Data mining, aggregation, and retention are increasingly new and potent dangers to freedom.
The new problems raised by the internet require doubling down on privacy and freedom of speech, rather than giving up on them. Back in 1948, the drafters of the Universal Declaration of Human Rights had the foresight to protect one of the most fundamental rights in the future digital age, in Article 19:
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers (emphasis added).
In the 21st century, the U.N. Human Rights Committee explained that governments proposing measures to limit these rights “must demonstrate their necessity” and adopt only those “as are proportionate to the pursuance of legitimate aims.”
Our duty, in holding our governments to their word, is to rigorously hold laws, policies, and practices to this test. Often, the media and legislators have failed to do so.
Is it “necessary” or “proportionate” to conduct dragnet data collection in order to identify terrorists and prevent attacks? The evidence provided to the public by law enforcement agencies so far is slight. What we do know is that terrorists and terror plots are relatively rare and false leads can overwhelm the system and divert resources from more productive actions. Does monitoring particular communities for counter-terrorism or law enforcement purposes actually make them safer, or does it make them lose trust in government and worsen the problem?
The more a policy or law limits rights for the many, the less likely it is the least intrusive means of protecting security. Blanket or wide-sweeping restrictions on anonymity, encryption, and internet access should immediately raise questions. They may sometimes stop criminals, but they always compromise security and rights for everyone.
Human rights and human security are two faces of a single coin. When rights are consistently violated, societies become insecure, as the recent destruction in Syria demonstrates. Societies that deprive their inhabitants of online privacy and means of digital security are deeply vulnerable to crime, demagogues, corruption, manipulation, and stagnation. Hurtling into a digital future, it seems prudent to carry our rights along, rather than abandon them by the roadside with our typewriters.
Read Human Rights Watch’s World Report 2017: Demagogues Threaten Human Rights.
Dinah PoKempner is the Human Rights Watch general counsel.
[Photo courtesy of Elvert Barnes]