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.

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The Assange saga: who does the Working Group on Arbitrary Detention represent?

It is not a normal occurrence to see the decision of one of the so called ‘special procedures’ of the United Nations receiving worldwide attention. However, the opinion of the Working Group on Arbitrary Detention categorising the situation of Julian Assange as arbitrary deprivation of liberty, on 4 December 2015, has attracted the attention of the press, social media and experts’ commentary around the globe.

Suspiciously enough coming from the founder of WikiLeaks, this response was sparked by Assange himself, when he announced, a day before the Working Groups’ opinion became public, that he would surrender to UK authorities if the Working Group concluded that the Swedish and British authorities had acted legally.

Background: The Working Group on Arbitrary Detention consideration of individual cases

The Working Group on Arbitrary Detention is one of the ‘thematic special procedures’ of the United Nations Human Rights Council. The creation of a special procedure is dependent on the approval of a resolution creating the mandate by a simple majority of a governmental body (the Human Rights Council or its precursor, the Commission on Human Rights). These resolutions are therefore result of political negotiations between states, although the mandate-holders of special procedures are independent experts. As a consequence, the scope of competence and methods of work are framed in vague terms, and mandate-holders have enjoyed great flexibility and autonomy in operationalising their activities.

While intervention in individual cases was well-established among other mandate-holders of special procedures when the Working Group on Arbitrary Detention was created in 1991, this was the first special procedure to be explicitly endowed with the power of ‘investigating cases’ falling within its mandate. The Working Group has adopted methods of work  similar to treaty-bodies dealing with individual complaints, complete with conclusions concerning the existence of a violation by the State concerned. Special procedures do not require  the exhaustion of domestic remedies to be able to access them, one of the many features making these mechanisms particularly attractive to those who need a reaction from an international body, including the possibility of ‘urgent appeals’ which can be sent in a matter of hours, if there is an imminent risk to the life or physical integrity of the victim.

Undermining human rights bodies: reactions to the opinion of the Working Group on Assange

It is not the purpose of this commentary to assess the content of the opinion of the Working Group, largely criticised for its shaky legal foundations elsewhere (see for instance: Mathew Happold here, Joshua Rozenberg here, or a more nuanced view by Liora Lazarus here). Instead, it seeks to highlight the implications of the reaction to the opinion, which risk damaging international human rights bodies, at a time when mistrust towards the international human rights regime, often voiced by countries ‘in the South’ as attempts to undermine their sovereignty, are increasingly being augmented by the voices of Western States including the UK.

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