However, only limited guidance is given by international human rights monitoring bodies and courts on how to apply human rights law to the design and use of Internet technology, especially when developed by non-state actors. And while the Internet can certainly facilitate the exercise and fulfilment of human rights, it is also conducive to human rights violations, with many Internet organizations and companies currently grappling with their responsibilities in this area.

To help understand how digital technology can support the exercise of human rights, we—Corinne Cath, Ben Zevenbergen, and Christiaan van Veen—organized a workshop at the 2017 Citizen Lab Summer Institute in Toronto, on ‘Coding Human Rights Law’. By gathering together academics, technologists, human rights experts, lawyers, government officials, and NGO employees, we hoped to gather experience and scope the field to:

1. Explore the relationship between connected technology and human rights;

2. Understand how this technology can support the exercise of human rights;

3. Identify current bottlenecks for integrating human rights considerations into Internet technology; and

4. List recommendations to provide guidance to the various stakeholders working on human-rights strengthening technology.

In the workshop report “Coding Human Rights Law: Citizen Lab Summer Institute 2017 Workshop Report“, we give an overview of the discussion. We address multiple legal and technical concerns. We consider the legal issues arising from human rights law being state-centric, while most connected technologies are being developed by the private sector. We also discuss the applicability of current international human rights frameworks to debates about new technologies. We cover the technical issues that arise when trying to code for human rights, in particular when human rights considerations are integrated into the design and operationalization of Internet technology. We conclude by identifying some areas for further debate and reflection, six of which we list below:

Integrating Human Rights into Internet Technology Design: Six Considerations

Legal:

1. Further study of the application of instruments of the existing human rights framework, (like the UN Guiding Principles for Business and Human Rights) to Internet actors is needed, including the need for new legal instruments at the national and international level that specify the human rights responsibilities of non-state actors.

2. More research is needed to analyse and rebuild the theories underpinning human rights, given the premises and assumptions grounding them may have been affected by the transition to a digitally mediated society. Much has been done on the rights to privacy and free speech, but more analysis of the relevance of other human rights in this area is needed.

3. Human rights frameworks can best be approached as a legal minimum baseline, while other frameworks, like data protection legislation or technology-specific regulation, provide content to what is aimed for above and beyond this minimum threshold.

Technical:

1. Taking into account a wider range of international human rights would benefit the development of human rights oriented Internet technology. This means thinking beyond the right to privacy and freedom of expression to include (for example), the right to equality and non-discrimination, and the right to work.

2. Internet technologies, in general, must be developed with an eye towards their potential negative impact and human rights impact assessments undertaken to understand that impact. This includes knowledge of the inherent tensions that exist between different human rights and ensuring that technology developers are precise and considerate about where in the Internet stack they want to have an impact.

3. Technology designers, funders, and implementers need to be aware of the context and culture within which a technology will be used, by involving the target end-users in the design process. For instance, it is important to ensure that human-rights-enabling technology does not price out certain populations from using it.

Internet technology can enable the exercise of human rights—if it is context-aware, recognises the inherent tensions between certain rights (privacy and knowledge; free speech and protection from abuse for example), flexible yet specific, legally sound and ethically just, modest in its claims, and actively understanding and mitigating of potential risks.

With these considerations, we are entering uncharted waters. Unless states have included human rights obligations directly into their national laws, there are few binding obligations on the private sector actors pushing forward the technology. Likewise, there are also few methodologies for developing human-right-enabling technology—meaning that we should be careful and considerate about how these technologies are developed.

Read the workshop report: Corinne Cath, Ben Zevenbergen, and Cristiaan van Veen (2018) Coding Human Rights Law: Citizen Lab Summer Institute 2017 Workshop Report. Posted: 14 February, 2018.

The Internet is often portrayed as a disruptive equalizer, an information medium able to directly give individuals access to information and provide a platform to share their opinions unmediated. But the Internet is also a tool for surveillance, censorship, and information warfare. Often states drive such practices, but increasingly the private sector plays a role. While states have a clear obligation to protect human rights on the Internet, questions surrounding the human right accountability of the private sector are unclear. Which begs the question what the responsibility is of the private industry, which runs and owns much of the Internet, towards human rights?

During the 35th session of the United Nations (UN) Human Rights Council this month, David Kaye, UN Special Rapporteur (UNSR) for the right to freedom of expression, presented his latest report [1], which focuses on the role of the private sector in the provision of Internet and telecommunications access. The UNSR on freedom of expression is an independent expert, appointed by the Human Rights Council to analyse, document, and report on the state of freedom of expression globally [2]. The rapporteur is also expected to make recommendations towards ‘better promoting and protection of the right to freedom of expression’ [3]. In recent years, the UNSRs on freedom of expression increasingly focus on the intersection between access to information, expression, and the Internet [4].

This most recent report is a landmark document. Its focus on the role and responsibilities of the private sector towards the right to freedom of expression presents a necessary step forward in the debate about the responsibility for the realization of human rights online. The report takes on the legal difficulties surrounding the increased reliance of states on access to privately owned networks and data, whether by necessity, through cooperation, or through coercion, for surveillance, security, and service provision. It also tackles the legal responsibilities that private organizations have to respect human rights.

The first half of Kaye’s report emphasises the role of states in protecting the right to freedom of expression and access to information online, in particular in the context of state-mandated Internet shutdowns and private-public data sharing. Kaye highlights several major Internet shutdowns across the world and argues that considering ‘the number of essential activities and services they affect, shutdowns restrict expression and interfere with other fundamental rights’ [5]. In order to address this issue, he recommends that the Human Rights Council supplements and specifies resolution 32/13, on ‘the promotion, protection and enjoyment of human rights on the Internet’ [6], in which it condemns such disruptions to the network. On the interaction between private actors and the state, Kaye walks a delicate line. On the one hand, he argues that governments should not pressure or threaten companies to provide them with access to data. On the other hand, he also argues that states should not allow companies to make network management decisions that treat data differentially based on its origin.

The second half of the report focusses on the responsibility of the private sector. In this context, the UNSR highlights the responsibilities of private actors towards the right to freedom of expression. Kaye argues that this sector plays a crucial role in providing access to information and communication services to millions across the globe. He looks specifically at the role of telecommunication and Internet service providers, Internet exchange points, content delivery networks, network equipment vendors, and other private actors. He argues that four contextual factors are relevant to understanding the responsibility of private actors vis-à-vis human rights:

(1) private actors provide access to ‘a public good’,
(2) due to the technical nature of the Internet, any restrictions on access affect freedom of expression on a global level,
(3) the private sector is vulnerable to state pressure,
(4) but it is also in a unique position to respect users’ rights.

The report draws out the dilemma of the boundaries of responsibility. When should companies decide to comply with state policies that might undermine the rights of Internet end-users? What remedies should they offer end-users if they are complicit in human rights violations? How can private actors assess what impact their technologies might have on human rights?

Private actors across the spectrum, from multinational social media platforms to the garage-based start-ups are likely to run into these questions. As the Internet underpins a large part of the functioning of our societies, and will only further continue to do so as physical devices increasingly become part of the network (aka the Internet of Things), it is even more important to understand and allocate private sector responsibility for protecting human rights.

The report has a dedicated addendum [7] that specifically details the responsibility of Internet Standard Developing Organizations (SDOs). In it, Kaye relies on the article written by Corinne Cath and Luciano Floridi of the Oxford Internet Institute (OII) entitled ‘The Design of the Internet’s Architecture by the Internet Engineering Task Force (IETF) and Human Rights’ [8] to support his argument that SDOs should take on a credible approach to human rights accountability.

Overall, Kaye argues that companies should adopt the UN Guiding Principles on Business and Human Rights [9], which would provide a ‘minimum baseline for corporate human rights accountability’. To operationalize this commitment, the private sector will need to take several urgent steps. It should ensure that sufficient resources are reserved for meeting its responsibility towards human rights, and it should integrate the principles of due diligence, human rights by design, stakeholder engagement, mitigation of the harms of government-imposed restrictions, transparency, and effective remedies to complement its ‘high level commitment to human rights’.

While this report is not binding [10] on states or companies, it does set out a much-needed detailed blue print of how to address questions of corporate responsibility towards human rights in the digital age.

References

[1] https://documents-dds-ny.un.org/doc/UNDOC/GEN/G17/077/46/PDF/G1707746.pdf?OpenElement
[2] http://www.ijrcenter.org/un-special-procedures/
[3] http://www.ohchr.org/EN/Issues/FreedomOpinion/Pages/OpinionIndex.aspx
[4] http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf
[5] The author of this blog has written about this issue here: https://www.cfr.org/blog-post/should-technical-actors-play-political-role-internet-age
[6] http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/32/L.20
[7] https://documents-dds-ny.un.org/doc/UNDOC/GEN/G17/141/31/PDF/G1714131.pdf?OpenElement
[8] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2912308
[9] http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf
[10] http://www.ohchr.org/Documents/Publications/FactSheet27en.pdf