Digital rights are *all* human rights, not just civil and political

The UN Special Rapporteur on extreme poverty and human rights consults with the field

This post was co-authored with Jonathan McCully

Last week, following our strategy meeting, the Digital Freedom Fund hosted the UN Special Rapporteur on extreme poverty and human rights, Professor Philip Alston, for a one-day consultation in preparation for his upcoming thematic report on the rise of the “digital welfare state” and its implications for the human rights of poor and vulnerable individuals.

This consultation highlighted the true breadth of human rights issues that are engaged by the development, deployment, application and regulation of new technologies in numerous aspects of our lives.

The consultation brought together 30 digital rights organisations from across Europe, who shared many examples of new technologies being deployed in the provision of various public services. Common themes emerged, from the increased use of risk indication scoring in identifying welfare fraud, to the mandating of welfare recipients to register for bio-metric identification cards, and the sharing of datasets between different public services and government departments.

While many conversations on digital rights tend to centre around civil and political rights — particularly the rights to freedom of expression and to privacy — this consultation brought into sharp focus the impact new technologies can have on socio-economic rights

At DFF, we subscribe to the mantra that “digital rights are human rights” and we define “digital rights” broadly as human rights applicable in the digital sphere. This consultation highlighted the true breadth of human rights issues that are engaged by the development, deployment, application and regulation of new technologies in numerous aspects of our lives. While many conversations on digital rights tend to centre around civil and political rights –– particularly the rights to freedom of expression and to privacy –– this consultation brought into sharp focus the impact new technologies can have on socio-economic rights such as the right to education, the right to housing, the right to health and, particularly relevant for this consultation, the right to social security.

The UN Special Mandates have already started delving into issues around automated decision-making in a broad spectrum of human rights contexts.

The UN Special Mandates have already started delving into issues around automated decision-making in a broad spectrum of human rights contexts. In August last year, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression produced a detailed report on the influence of artificial intelligence on the global information environment. This follows on from thematic reports on the human rights implications of “killer robots” and “care robots” by the UN Special Rapporteur on extrajudicial, summary or arbitrary executions and the UN Special Rapporteur on the enjoyment of all human rights by older persons, respectively.

The poor are often the testing ground for the government’s introduction of new technologies.

The UN Special Rapporteur on extreme poverty and human rights has similarly placed the examination of automated decision-making and its impact on human rights at the core of his work. This can already be seen from his reports following his country visits to the United States and United Kingdom. In December 2017, following his visit to the United States, he reported on the datafication of the homeless population through systems designed to match homeless people with homeless services (i.e. coordinated entry systems) and the increased use of risk-assessment tools in pre-trial release and custody decisions. More recently, following his visit to the United Kingdom, he criticised the increased automation of various aspects of the benefits system and the “gradual disappearance of the postwar British welfare state behind a webpage and an algorithm.” In these contexts, he observed that the poor are often the testing ground for the government’s introduction of new technologies.

The digital welfare state seems to present welfare applicants with a trade-off: give up some of your civil and political rights in order to exercise some of your socio-economic rights.

The next report will build upon this important work, and we hope that the regional consultation held last week will provide useful input in this regard. Our strategy meeting presented a great opportunity to bring together great digital rights minds who could provide the Special Rapporteur with an overview of the use of digital technologies in welfare systems across Europe and their impact. It was evident from the discussions that the digital welfare state raises serious human rights concerns; not only when it comes to the right to social security, but the right to privacy and data protection, the right to freedom of information, and the right to an effective remedy are also engaged. As one participant observed, the digital welfare state seems to present welfare applicants with a trade-off: give up some of your civil and political rights in order to exercise some of your socio-economic rights.

It was clear from the room that participants were already exploring potential litigation strategies to push back against the digital welfare state, and we look forward to supporting them in this effort.

Cross-posted on the Digital Freedom Fund blog and Medium.

Digital rights are human rights

As the boundaries between our online and offline lives blur, is there really a distinction between “digital” and other human rights?

UN Photo Eleanor Roosevelt

UN Photo | Eleanor Roosevelt, holding the Universal Declaration of Human Rights

What do we mean when we talk about “digital rights”? This is a fundamental question that influences the Digital Freedom Fund’s strategy as we define the parameters for supporting the work of activists and litigators in Europe.

A quick search online yields a variety of definitions, most of which focus on the relationship between human beings, computers, networks and devices. Some of the narrower ones focus on the issue of copyright exclusively.

As our lives are digitalised further, does this approach to defining the term make sense?

In many ways, we already live in the sci-fi future we once imagined. The internet of things is here. Our food is kept cold in what we used to call a fridge, but what is now a computer that also has the ability to freeze things. The main way in which we communicate with our colleagues, family and loved ones are our mobile devices and what happens on social media is alleged to have a significant impact on elections. Our data are being collected by governments and corporations alike. In all of these contexts, our basic human rights – our rights to freedom of expression, freedom of assembly, privacy, and the like – are implicated. If there ever was a dividing line between “digital” rights and human rights, it has blurred to the point of irrelevance.

In line with the reality of our time, at DFF we work with a broad definition of digital rights for our grantmaking and field support activities. We consider digital rights to be human rights as applicable in the digital sphere. That is human rights in both physically constructed spaces, such as infrastructure and devices, and in spaces that are virtually constructed, like our online identities and communities.

If digital rights are human rights, then why use a different term? The label “digital rights” merely serves to pinpoint the sphere in which we are exercising our fundamental rights and freedoms. To draw concrete attention to an issue, using a term that expresses the context can help with framing and highlighting the issue in a compact manner. With our digital rights under threat on many fronts, this is important. Just as it was important, in 1995, for Hillary Clinton to state at the Women’s Congress in Beijing that “human rights are women’s rights, and women’s rights are human rights,” and for President Obama in 2016 to stress that LGBT rights are human rights, we should all be aware that digital rights are human rights, too. And they need to be protected.

As we further engage with the digital rights community in Europe, we look forward to supporting their important human rights work and highlighting their successes in this space. Part of that mission also includes creating broader understanding that digital rights are indeed human rights. We hope you will join us in sharing that message.

This article has been cross-posted on the Digital Freedom Fund blog. To follow DFF’s work and be notified when we launch, sign up for our newsletter and follow us on Twitter.

Putting the “Woman Question” front and centre: Professor Ruth Rubio Marín

SOU-Ruth

On 5-7 May 2016, the European University Institute in Florence, Italy, hosted the sixth edition of the State of the Union, a space for high-level reflection on Europe. This year, these reflections revolved around the topic of Women in Europe and the World. There were many amazing and strong women who spoke at this conference, such as Valerie Amos and Patricia Sellers, and the various panels featured fascinating discussions on topics such as women in conflict, women and transition in the Middle East, migration, employment and social affairs, or sexual and reproductive politics. One particular highlight of the conference was the State of the Union address on day 2, given by Professor Ruth Rubio Marín (pictured above), who holds the chair of Constitutional and Public Comparative Law at the European University Institute. Her powerful speech was rewarded with what seemed like a never-ending standing ovation. It was well deserved. I highly recommend listening to the address in full, but here are some highlights.

In her speech, Professor Ruth Rubio Marín highlighted the injustices women and girls in Europe and the World face on a daily basis in a very straight forward manner. For those of us working on issues of gender equality and women’s emancipation and rights, the statistics Professor Rubio Marin provided were all too familiar. One in three women will suffer some form of physical or sexual violence at least once during their lifetime, and for one in five women, this violence occurs at the hands of a current or former partner. Yet, only 14 per cent of women report their most serious incident of intimate partner violence to the police. Women receive only 84 cents to every euro men earn, and the pension gap between women and men is 38 per cent. Working men devote only 9 hours a week to unpaid care and household duties, compared to 26 hours a week for working women. The gap in care responsibilities when high-wage women enter the labour market, is often filled by migrant women, thus perpetuating global (gender) inequalities. Women still account for only 20 per cent of company board members of the largest publicly listed companies, and on average only 28 percent of parliamentarians around the world are women. Androcentric values remain systematically privileged over those traditionally seen as ‘feminine’. As Professor Rubio Marín so rightfully stated: “Oppression does not only happen in cases of a cruel tyrant with bad intentions. Indeed, a well-intentioned liberal society can place system-wide constraints on groups and limit their freedom, relying not only on overt rules but also on unquestioned norms, habits and symbols.”

But what struck me most about her address was her courage and honesty. The personal became the general, the general the personal. When speaking about the by now well-known statistics about the number of women who have suffered some form of physical or sexual violence (1 out of 3), she bravely said: “Ladies and gentlemen, I have never said so publicly, but the time has come to unite and end any form of silence. I was one in the ones out of three.” And when addressing the gender pay gap, she directly addressed the president of the European University Institute, Professor Joseph H.H. Weiler, saying: “The gender pay gap is perpetuated by the generalised practice of lack of transparency around payment by almost every employer, including our beloved European University Institute. Dearest president, perhaps the time has come to change that?”

By drawing on these experiences, Professor Rubio Marín made the numbers we so often hear personal, perhaps making it a little easier for those more unfamiliar with the statistics to grasp their meaning. I could not help but notice that the majority of speakers on the second day of the conference, held at Palazzo Vecchio, were men (14 men versus 13 women spoke on day 2). I hope we can count on all of them in the struggle for gender equality, both in Europe and in the World. Women remain an oppressed group, and it is up to all of us together to change that. To paraphrase Professor Rubio Marín: Now, more than ever, we must put the “Woman Question” front and centre, both in Europe and in the World.

  • Listen to Professor Ruth Rubio Marín’s speech in full
  • Get a written copy of the speech

The beginning of the end of border-free Schengen?

With Austria, Germany and Slovenia reintroducing or rather strengthening border controls amid the refugee and migrant crisis following the suit of other European countries like France, Sweden, Denmark and Norway many of us are now questioning: is this the beginning of the end of border free-Schengen?

Two weeks ago in his speech at the European Parliament, the President of the European Commission expressed his concern by bluntly saying: “Internal borders, Erasmus and the Internet generation, these are things that do not go together. (…) The price of a European Union with internal borders is very high. (…) We must do everything to save the Schengen area, knowing that this requires a well-controlled European policy of lawful migration.”

Why is Schengen so important for Europe? Let’s reflect. The Schengen Agreement was a result of the willingness of European states to move into the creation of a single area where European citizens and third nationals alike would move freely the so called, Schengen Area. On the 14 June 1985 France, Germany and the Benelux countries signed in Schengen, an Agreement of the Gradual Abolition of Checks at their Common Borders. This initial stage was depicted as an important path towards the construction of the common territory of a supranational entity. Italy, Portugal, Spain Greece and Austria later adhered along with Sweden, Finland and Denmark. In 1999 a cooperation agreement was signed by Iceland and Norway and later with Switzerland. The 1985 text was later supplemented with the 1990 Schengen Convention, which proposed the abolitions of internal borders and a common visa policy. The Schengen Convention was the incubator of the European Community because it allowed Member States to achieve the “communitarian” or better said, the European states “community objective” without compromising or transferring their sovereignty to the community institutions. In 1997 the Amsterdam Treaty incorporated the Schengen treaties into European Union law (despite providing opt outs for countries like Ireland and the United Kingdom) meaning that – free movement of persons- became not only one of the primary achievements of the European Union (EU) but also part of the EU’s identity and citizenship. Today, under the Lisbon Treaty, Schengen rules are subject to both parliamentary and judicial scrutiny. As most Schengen rules are now part of the EU acquis, it has no longer been possible for accession countries to ‘opt out’ since the EU enlargement of 1 May 2004.

The unprecedented flux of refugees and migrants into Europe and other on-going challenges such as climate and demographic change has served to underline the inextricable link between external border management and free movement inside those external borders. But more than that, the erosion of the border-free Schengen means millions of financial losses and consequently a rise in unemployment within a continent, which is slowly resurrecting from a financial crisis. As the Dutch take over for the next six months the European Union Presidency, Mark Rutte the Dutch prime minister, has stated that the EU has “six to eight weeks” to save border-free Schengen. The programme of the Dutch Presidency of the Council of the European Union clearly prioritises, among others, the need for a comprehensive approach to migration and international security: “The current priority is to control Europe’s external borders effectively, improve the initial reception of refugees in Europe and in the region, and share the burden fairly.” The programme also outlines that “conflicts and human rights violations are major factors in instability, and are causing long –term challenges in the area of security, the humanitarian situation and socio-economic development” The Dutch also say, they are committed to link “internal and external policies more effectively and use the EU´s broad range of instruments and diplomatic efforts on the part of the High Representative and the Member States.” More importantly, they are “determined to contribute to the speedy elaboration and implementation of the migration package presented by the Commission and the early completion of the strategic review of EU foreign and security policy.”

Whatever actions are taken in the next few months to it is important to highlight that border free Schengen will only survive if it rightly addresses the migration situation. In other words, if the European Union Member and Schengen States are able to manage a security and border- control agenda together with a human rights one. Without the focus on the protection of the human person during all phases of displacement i.e. before, during and after displacement occurs the Schengen-border area is likely to become defunct.

At a time where, according to the Frans Timmermans who currently serves as the First Vice-President of the European Commission, 60% of arrivals in Europe from the Middle East and Africa are economic migrants and not asylum seekers fleeing war, it becomes apparent that the protection of the human person merits other solutions that are currently not catered by Europe’s current migration policies, neither the 1951 Refugee Convention and its additional Protocol or the complementary protection measures within the European states. Besides facilitating national and local development projects or other types of bilateral, regional or international cooperation agreements with developing countries, facilitating well-managed mobility and labour migration or other forms of temporary protection from degraded and impoverish areas with Europe, could potentially represent an effective strategy to avoid displacement and help mitigate the current migration crisis. If anything, the next European Union migration package needs to be “migrant centred”: addressing migrants’ group vulnerabilities, employment aspirations, and family situations, and increase skills and provide equal treatment that respects, protects and fulfils their human rights. Migration can be used as a source of transcultural capital to create and promote mutual business for sending and receiving countries and should always avoid the negative effects of loss of human capital or “brain drain” from developing countries. Only time will tell whether or not European states are up for this challenge. Jean Monnet’s celebrated words in 1978 that “Europe will be forged in crises, and will be the sum of the solutions adopted in those crisis,” continue to be as timely as ever.

Go On! Last call for applications to the 2014 Specialization Course on International Criminal Law in Siracusa, Italy

The International Institute of Higher Studies in Criminal Sciences (ISISC) in Siracusa, Italy, announces their 14th Specialization Course in International Criminal Law for Young Penalists on “Assessing the Effectiveness of International Criminal Law in the Prevention and Control of Transnational and International Crimes.” The course will take place from May 18th to May 28th and is open to all international graduate law students.

The deadline for application submissions is March 20th, 2014. ISISC will select 60 participants who should have at a minimum a first degree in law, having graduated in the last eight years (between 2006 – 2014), and be 35 years of age or under. Furthermore, the Institute will offer 10 scholarships to applicants from Developing and Less Developed Countries.

All relevant information and the application form are available on the ISISC website. If you have any questions or concerns, contact the ISISC at icl-2014@isisc.org.

Poster_ICL_2014_web

A $15 Million Dollar Torture Partnership

Poland CIA Prison

By Amrit Singh

It has been common knowledge for a while that Poland hosted a secret CIA prison where Abd al Rahim al Nashiri and other prisoners now held in Guantánamo were detained and tortured.  As Warsaw and Washington struggle in vain to hide this truth from the public, fresh revelations from the Washington Post now confirm that the CIA paid Poland $15 milllion to host that prison. In early 2003, two senior CIA officers delivered the cash in large cardboard boxes to Col. Andrzej Derlatka, the deputy chief of Polish intelligence, and two of his associates.

This is significant news for many reasons. First, Europe’s top human rights court justheard oral arguments in two companion cases brought on behalf of al Nashiri and another Guantánamo prisoner, Abu Zubaydah. The cases challenge Poland’s participation in the CIA’s secret detention program. The fact that Poland received $15 million in cash as reward for its participation further confirms the overwhelming evidence the Court has already received in support of the applicants’ claims in these pending cases.

Second, news of the $15 million payment has created a public uproar in Poland. Even skeptics of the Guantánamo prisoners’ claims are now persuaded of Poland’s complicity in torture; and those who until now clung to the idea that this complicity was driven by lofty Polish ideals cynically recognize the power of money. It will be interesting to see how the Polish authorities decide to respond. Since 2008, they have been dragging out a pending (and ineffective) investigation into the CIA prison. The new revelations raise the question of whether domestic pressure, combined with the pending European Court proceedings, will compel the authorities to stand up to Washington and fess up to the truth. Fifteen million dollars seems a paltry amount for a country like Poland to receive for sacrificing its own constitutional ideals and facing potential censure before Europe’s highest human rights court. (Significantly, in December 2012, the court held that Macedonia had violated the European Convention through its participation in the secret detention and rendition of German national Khaled el Masri).

Meanwhile, in Washington, a 6,000 page Senate intelligence committee report on CIA secret detention and interrogation continues to be withheld from the public, despite the fact that the majority of the committee believes the CIA’s secret prisons and torture techniques were “terrible mistakes.”  It is not clear when this report will see the light of day and in what form. What is clear, however, is that the truth will come out one way or another, no matter how hard the Obama administration, the intelligence community’s allies, and Republican lawmakers try to cover it up.

Yesterday the news was about Macedonia’s complicity in CIA torture; today the news is about Poland; tomorrow it will be about Romania and Lithuania, which also hosted secret CIA prisons and also face litigation before the European Court.

Indeed, that the United States co-opted as many as 54 countries into unlawful CIA secret detention and extraordinary rendition operations may ultimately mean that there is only so much the administration can do to cover up the truth.  In the face of snowballing disclosures, the U.S. and its partners in torture would be well advised to own up to their responsibility before the truth emerges by other means to embarrass them.

(Crossposted from Just Security: A Forum on Law, Rights, and U.S. National Security)