Technological factors - The global context

B. The global context

IX. Technological factors

In the context of this chapter, technological factors are understood as issues related to the use of information and communication technology (ICT) that have an impact on the way individuals are able to enjoy their human rights. ICT is a broad and not clearly defined term that refers to any communication device or application, encompassing: radio, television, cellular phones, computer and network hardware and software, satellite systems and so on, as well as the various services and applications associated with them (SearchCIO 2011).

Since the scope of technological factors that may have a potential human rights impact is extremely broad and diverse, this chapter prioritises issues that are reflected in contemporary policy discourses at the level of the European Union (EU). The list of factors addressed in this chapter are by no means exclusive but based on an interpretative analysis of scholarly work, policy documents, and civil society reports related to the field. As part of the analysis, dominant cross-cutting themes have been extracted and used to categorise and prioritise issues for analysis.

The literature review on scholarly work pertaining to ICT and the information society⁵⁰ has a particular emphasis on research that relates these developments to human rights and democracy. The academic field covering these themes is extremely broad and interdisciplinary, including scholarship from law, communication and media studies, cultural studies, and political science.

The literature review of policy sources includes policy documents at UN, Council of Europe (CoE) and EU level related to ICT and human rights. At UN level, key sources include the first General Assembly Resolutions related to the internet. It also includes various reports from UN special procedures, in particular from the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, and from the special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. Key sources from the CoE include the recently adopted Guide on Human Rights for Internet Users, whereas attention has been paid to the numerous standard-setting documents related to ICT and human rights developed over the past ten to fifth teen years within the CoE. Finally, at EU level, sources include a broad array of policy documents and legislation, such as the ongoing reform of the data protection directive, and the recently adopted EU Guidelines on Freedom of Expression Online and Offline.

The review of civil society reports and campaigns have focused on European Digital Rights (EDRI) and Privacy International (PI) as two key European actors within this field. Both EDRI and PI have conducted numerous campaigns and reports related to the human rights implications of, for example, data retention, biometrics, filters and blocking, copyright enforcement, and social media.

*The author of this chapter is Dr. Rikke Frank Jørgensen, Researcher, the Danish Institute for Human Rights.

50 One of the first scholars to introduce the concept information society was Fritz Machlup in The Production and Distribution of Knowledge in the United States from 1962. However, the concept became widely known with Daniel Bell’s The Coming of Post- Industrial Society from 1973.

IX. Technological factors

A. Introduction

*The author of this chapter is Dr. Rikke Frank Jørgensen, Researcher, the Danish Institute for Human Rights.

In the following chapter, emphasis is on human rights issues related to the use of the internet⁵¹, reflecting the attention the internet has received in the scholarly literature and policy debate pertaining to human rights and ICT globally, as well as within Europe.

1. Structure and content

The subsequent mapping and analysis is structured according to five factors, each representing a core topical issue that has a potential positive or negative impact on the individual’s enjoyment of his/her human rights within the context of the EU´s internal or external policies.

The selected factors are: (1) non-discriminatory access to the internet; (2) protecting internet freedoms;

(3) freedom of expression and self-regulation; (4) privacy, surveillance, and cyber security; and (5) internet governance.

Several of the factors have both internal and external policy implications, but in the context of this chapter non-discriminatory access to the internet and freedom of expression and self-regulation are related to EU internal policies, whereas internet freedoms and internet governance refer to EU external policies. With respect to privacy, surveillance, and cyber security this is addressed as a factor related to both internal and external EU policies.

B. Global context

The internet may be seen as a pioneer of the post-national constellation often referred to as globalisation, representing a space where state, society and economy converge and interact in novel ways (Habermas 2001; Castells 2009). Moreover, it has been argued that there are certain qualities of the internet, a

‘structural match’, that relate it to the characteristics of modern societies (Qvortrup 2003:166). Current societies are confronting immense complexity because so many social actions have become communicatively assessable, and the response or stabilizing factors to deal with this social complexity are communication-based processes of coordination.

Scholars inspired by Castells have emphasised a transformation from classical models of democracy to network models, where the State is decentred and political arenas occur across society. This implies a shift in focus from ‘government to governance’, as well as broader access to agenda setting by different actors both at national and international level (Hoff, Hansen et al. 2006:18-25). An example of this is the internet’s potential to enable political and social networks and to mobilise civil society across borders (Keane 2003; Donk, Loader et al. 2004; Castells 2009).

One of the characteristics of the internet era is the way it changes the modalities for public and private life. On the internet, public life is increasingly recorded, traceable, shareable, and utilised as a commodity to generate income. Private life, on the contrary, requires a special effort, which is an option that one has to activate (Jørgensen 2013:25). Contemporary policy controversies related to internet regulation in many cases concern conflicting interests related to various internet domains and activities as public in relation to private (Jørgensen 2013: 5). These include, for example, privatised law enforcement, protection of user

51 The term internet refers to a global information and communication system that is linked together via the TCP/IP protocol (Federal Networking Council (FNC) Resolution October 24, 1995).

rights within private internet platforms, new forms of content control and censorship, exchange of user data between public and private entities, commercial use of personal data, private gatekeepers in the public domain, etc.

After some years with focus on the anarchic nature of the internet, the key question is no longer whether it is possible to regulate the internet, but rather how to do it (Pollicino and Bassini 2011: 2).

In contrast to the initial narrative and presumption of a neutral technology that is by default open and borderless it is now recognised that the technology provides for new levers of control and interference with fundamental rights and freedoms (DeNardis 2012:729). Moreover, the security and copyright interests are increasingly used as driving forces in developing the increased disciplinary capacity of the internet (Wagner 2013:45).

Additionally, and no less important, is the challenge of enforcing regulation and providing users with effective access to remedies in this transnational space. As part of the discourse on internet regulation, IHRL is increasingly referred to as the underlying normative framework (Kettemann 2013:103).

Human rights and fundamental freedoms are guaranteed in various international and regional instruments, which are applicable both to offline and online environments. At the global level, the awareness of the human rights implications of the internet and other types of communication technology has risen steadily over the past years, and has resulted in internet related resolutions adopted by the UN General Assembly in 2012 and 2013, respectively (United Nations General Assembly 2013; United Nations Human Rights Council 2012). Internet related potentials and challenges has also increasingly been addressed by UN special mechanisms such as the UN special rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, and the former UN special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin. La Rue has highlighted the internet’s potential for strengthening the effective enjoyment of rights such as freedom of expression, freedom of information, freedom of association, freedom of assembly, and the right to take part in the conduct of public affairs, but also highlighted areas where these rights are under increasing pressure (La Rue 2011). La Rue and Scheinin have both emphasised the severe threats to the right to privacy via unprecedented means of surveillance (La Rue 2013; Scheinin 2009).

C. European context

‘The Internet is changing the world. It is not just a trillion-dollar marketplace. It is a forum where people connect, a platform for astounding innovation, and a powerful vehicle for human rights and fundamental freedoms’ (Kroes 2011:1).

Regionally, a number of CoE conventions, declarations and recommendations provide human rights orientation for internet related issues. Most recently, the CoE has developed a Guide for Internet Users, which explains in simple terms the relevant IHRL and standards as it relates to the European internet user (Council of Europe 2014). Also, there is an increasing number of internet related cases before the European Court of Human Rights (Council of Europe 2013). The European Court of Human Rights (ECtHR) has affirmed that ‘[t]he Internet has now become one of the principal means by which individuals exercise their right to freedom of expression and information, providing as it does essential tools for participation

C. European context

in activities and discussions concerning political issues and issues of general interest.’ (Ahmet Yıldırım v.

Turkey, 2012).

At EU level, a large amount of directives, policies and guidelines exist on internet and ICT issues but not necessarily in ways that address the issues from a human rights perspective or ensure a coherent and forward looking approach to the protection of human rights online. Key standard-setting documents related to the EU’s internal policy include the Digital Agenda (European Commission 2010), the first of seven initiatives under Europe 2020, the EU's strategy to deliver smart sustainable and inclusive growth.

The Digital Agenda provides an overall strategic orientation for EU Member States in the context of technology, with a primary focus on the broadband environment, public digital services, digital skills and jobs, cyber-security, copyright, cloud computing, and the electronics industry. According to the Digital Agenda, the internet is at the heart of seamless cross border services and the ‘internet economy’ in the EU-28 is expected to grow from 3.8% of GDP in 2010 to 5.7% in 2016 (European Commission 2010: Action 97). As part of the Digital Agenda, an EU Code of Online Rights has been developed (European Commission 2012a). The Code sets out the basic under EU legislation in relation to the digital environment, for example, the right not to be discriminated against when accessing online services, the right to have personal data protected, consumer rights when buying goods and services online, and rights protecting the individual in case of conflict such as access to dispute resolution.

In relation to the global discussions on internet governance, the Compact for the Internet was launched as the EU ‘internet essentials’ in 2011 (European Commission 2011a). The Compact highlights, among others, that there should be one internet governed in a transparent, pro-democracy and multi-stakeholder manner. Moreover, in relation to privacy and security, the recently adopted Cybersecurity Strategy (European Commission 2013a) clarifies the principles that should guide cyber security policy in the EU and internationally. The strategy emphasises that cyber security can only be sound and effective if it is based on fundamental rights and freedoms enshrined in the EU Charter of Fundamental Rights. Any sharing of personal data for the purposes of cyber security should be compliant with EU data protection law and take full account of the individual’s rights in this field.

With regard to the EU’s external policy, developments such as the Arab Spring have inspired the EU´s commitment to use different types of ICTs to protect and promote human rights. A key point of reference is the EU Strategic Framework on Human Rights and Democracy and the attached Plan of Action (Council of the European Union 2012), as well as the No-Disconnect strategy (European Commission 2011c). The aim of the Strategic Framework is to promote human rights in all areas of the EU’s external action, including in relation to technology and telecommunications, internet, and counter-terrorism policy. The framework explicitly states that the EU is committed to promote freedom of expression, opinion, assembly and association, both online and offline, and to entrench human rights in counter-terrorism activities. The No-Disconnect strategy was launched in 2011 but has not materialised to this point. Like the framework, the strategy highlights the EU's commitment to respecting human rights on and offline, and further provides that internet and other communication technology are drivers of political freedom, democratic development and economic growth. Concretely, the strategy proposes to assist people living in non-democratic regimes, for example by providing tools to bypass censorship, to enhance privacy and security, and to raise awareness of risks relating to communication technology.

In document protection oF human rights (Sider 156-194)