Small steps in the struggle for digital rights? – Paul Bernal

18 10 2016

jeremy-corbynWhen Jeremy Corbyn launched his ‘Digital Democracy Manifesto’ at the end of August, he may not have inspired, but he was at least attempting to get to grips with something that really matters: how governments should deal with the internet.

It is something that matters deeply, not least because of the prodigious opportunities that the internet provides for people – almost every aspect of our lives now has at least some online element. So far, however, governments have been conspicuously unclear in how they deal with the internet, uncertain as to their role – and often seeming to fail dismally to understand the nature of the internet and how people use it.

Declarations of rights

In this context, it is positive that Corbyn has issued this manifesto – and particularly that he included, albeit in a very limited form, a ‘People’s Charter of Digital Liberty Rights’. He is not the first politician to do this. In 2014, Liberal Democrat MP Julian Huppert proposed a ‘Digital Bill of Rights’ to “protect our fundamental liberties online.”

The idea of declarations of rights – whether they be conventions, statements, ‘bills of rights’ or some other form – is a very potent one, as the many well known historical examples demonstrate. It bore particular legal fruit in the revolutionary time at the end of the eighteenth century, with France’s Declaration of the Rights of Man and of the Citizen and the US Bill of Rights in 1789, and intellectual analyses in Thomas Paine’s The Rights of Man in 1791, Wollstonecraft’s A Vindication of the Rights of Woman in 1792.

In some ways this was a recognition of a shift in power – and an assertion that an iniquitous or damaging situation could not be allowed to continue. These revolutions were against despotism and tyranny, and an attempt to protect people from it.

Similarly, the Universal Declaration of Human Rights (UDHR) in 1948, the European Convention on Human Rights (ECHR) in 1950, were a reaction to the horrors of the Second World War, the Holocaust and the Nazis. People need protection – but they also need freedom. Rights, and the language of rights, are part of that.

When looking at these kinds of declaration, there are critical questions to ask. Who are the people concerned? Who and what is threatening them? What are they being threatened with? How can they be protected from those threats?

And, in this particular context, how can the opportunities and advantages that the internet provides be harnessed for the people? What, indeed, do we think the internet is for? What role should governments play in this? What rights do people have when they use the internet? Who should establish these rights, to what purpose, and in what form?

Internet rights

None of these are easy questions, and none have simple answers – but people have been both asking them and trying to answer them from the earliest days of the internet.

It is more than 20 years since John Perry Barlow’s seminal ‘Declaration of the Independence of Cyberspace’, which set out the stall for those who thought that governments should leave the internet alone, and stop even trying to interfere. As Perry Barlow put it:

“I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear.”

The suggestion was direct: governments should not and could not impose their rules upon the internet community.

Governments have not, unsurprisingly, taken Perry Barlow’s advice – and the extent to which they could have or should have taken it remains a matter of contention. There is still a strong school of thought that much (or indeed most) intervention by governments into the internet is counterproductive or harmful. And yet the internet has changed massively since 1996, as has the nature of those who spend time on it. As a consequence, arguments about rights in particular are in many ways very different from those made then.

Back in 1996, when the Declaration of Independence of Cyberspace was written, the people concerned were a fairly homogenous group. Largely young men, rich, well-educated, technologically-aware, mostly white, primarily American and with a distinctly libertarian outlook – and the threat came from governments and their attempts to regulate the internet, thus restricting their freedom.

Since 1996, however, things have changed significantly. The internet ‘community’ is a very different one, much more diverse in many ways – there are people of all kinds on the net, including children. The net is truly ‘world-wide’ now, with a wide diversity of culture, religion, politics and philosophies. The involvement of governments is much larger and multi-faceted – and perhaps even more importantly, other hugely significant ‘players’ in the game have become involved: the commercial internet companies. Google, Facebook, Amazon, Apple and others are in many ways every bit as powerful and important as governments in relation to how the internet functions.

In this rapidly expanding and constantly transforming internet, the kinds of rights we need are often difficult to pin down – though pin them down we must, at least to some extent, if they are to be protected. This is why there have been many attempts to create ‘bills of rights’, and not just in the UK. The ‘Internet Rights and Principles Dynamic Coalition’, based at the UN Internet Governance Forum, was set up in 2010, and put forward a charter of human rights and principles for the internet, which sets out a vision for human rights and principles that parallels the kinds of rights set out in the UDHR and the ECHR.

Online privacy and freedom of expression in the UK

The rights in this charter are to a great extent familiar, but some have particular relevance to the internet. Freedom of expression online includes the right to online protest and freedom from censorship. The right to privacy includes freedom from surveillance, the right to anonymity and the right to use encryption. The right to privacy includes freedom from surveillance, the right to anonymity and the right to use encryption.

It is when we look at these rights that the UK in particular is falling far short of what is required – and where Corbyn’s manifesto was deeply disappointing, and a big missed opportunity.

In terms of freedom of speech, the UK fails badly. Former Prime Minister David Cameron very actively promoted the idea of ‘filters’ to restrict access to pornography and a wide range of what might be deemed to be inappropriate websites, which resulted in significant ‘over-blocking’, including of political sites, sites promoting sex education and sexual health and more.

This movement towards what some would call censorship, others the creation of a ‘safe’ environment is showing no signs of slowing down: last week it was announced that GCHQ is drawing up plans to create a ‘Great British Firewall’ to block ‘malicious content’. Both Cameron’s ‘porn’ filters and GCHQ’s ‘Great British Firewall’ are on the surface about safety and security. There is a balance to be found between these rights, but that balance requires understanding and discussion – whilst in practice the idea of freedom of speech barely gets a mention.

It is a similar story on privacy. The Investigatory Powers Bill, currently making its final steps through parliament, treats privacy as an afterthought rather than a fundamental right to be protected by default. When asked by parliamentary committees to make privacy central to the bill, almost all that was done was to change the title of one section to include the word ‘privacy’.

This is one of the biggest ‘let downs’ of the Corbyn Digital Democracy Manifesto. It did not address either of the two big areas of privacy and freedom of expression in anything but a cursory manner, and did not recognise or acknowledge the UK’s distinct problems in both these areas.

This was particularly disappointing for a Labour document. Though Labour has a poor record on civil liberties in recent years, it really should not, because rights of freedom of expression have been critical for the Labour movement, and surveillance has been used very directly against left wing groups, protestors and even Labour politicians. For Labour, civil liberties and human rights should be a strength rather than a weakness.

The role of the commercial internet

The other big omission from Corbyn’s version of a digital bill of rights – and indeed in some ways from the whole of the Digital Democracy Manifesto – is a recognition of the role of the commercial internet, and in particular of the internet giants Google, Facebook and others.

‘Traditional’ human rights have been established to protect people from state overreach, but in the internet as it currently exists it is not just the state that people need protection from. Indeed, though Edward Snowden’s revelations about the surveillance activities of the NSA, GCHQ and others were deeply shocking to many, they only form part of the picture. As Bruce Schneier put it:

“The NSA didn’t wake up and say, ‘Let’s just spy on everybody.’ They looked up and said, ‘Wow, corporations are spying on everybody. Let’s get ourselves a copy.’”

What is more, in practice it may be that surveillance by Facebook and Google represent more of a risk to most people than that of the NSA and GCHQ. Though the authorities have stronger sanctions, relatively few people are likely to be impacted by their activities. Corporate surveillance could reduce your job opportunities, increase your insurance premiums and/or undermine your relationships: harm may not be so extreme but might have an impact on far more people.

The point about commercial enterprises is that they’ve taken over control over so many of the areas where our rights matter. Freedom of expression is left in the hands of Facebook – the recent story of the censorship of the Napalm child picture highlights just one of the problems – and Google, who between them provide so much of the opportunity to be heard and control the access to information that is the other, equally important side of this right.

We associate and assemble online in forums under the control of these same corporations – and organise and coordinate our associations and assemblies off line with tools provided by them too. 

For all these reasons, any effective set of digital rights needs to acknowledge and address the commercial internet. Our rights need to apply to the private sector as well as the state – and it is not enough to say that people have ‘choice’ whether to use Facebook, Google and so forth, so they consent to that surveillance. In practice there is very little choice – and when all of those involved use the same techniques, and with the same lack of transparency, even that little choice is an illusion. The reality is that most people use Facebook, and most people use Google. To pretend otherwise is to fail to face reality – and in the end rights are only worth their salt if they have a grounding in reality.

Digital rights in reality

That, ultimately, is the key point. The reason to have rights is to have an effect. The reason to declare rights is so that those rights are respected and protected – and established as norms of what is acceptable. That means rights have to be based in what is really happening, and have to reflect a real understanding of the situation and of the threats than need addressing.

In the UK in particular, that means facing up to what we are doing over censorship and surveillance. In the whole world that means facing up to the role of the commercial operators on the net, and seeing how much we are handing over to them in relation to our rights. Understanding that Facebook and Google are not champions of free speech, for example, but businesses whose bottom line is the bottom line, may be difficult and may have uncomfortable implications, but it is crucial.

For politicians like Jeremy Corbyn, it means listening to more people than his inner circle – but Corbyn is far from alone in this failure. The last decade of UK politics is littered with poorly conceived projects and terrible laws, from Gordon Brown’s Digital Economy Act in 2010 to the current mess that is the Investigatory Powers Bill, and one of the prime reasons for this is a failure to understand the internet, or to listen to those that do.

It would be nice to imagine that at some point this would change, but there are precious few signs of it.  With Theresa May in Downing Street, the UK government is unlikely to move in anything but the wrong direction in relation to either human rights or the internet – which makes it even more important that Labour provides some sort of coherent alternative.

Corbyn’s manifesto launch does not really do that, but he does leave the door open for further consultation. Now that his position as Labour leader has been reaffirmed, and seems to be secure at least for the immediate future, that opening might become a little wider. This is something that matters, so I hope that Corbyn and the Labour hierarchy let people step through that door, and when they do, I hope they listen. If they do, there’s a chance that we all might benefit. The struggle for rights has always been a longterm one, and every small step matters.

This post originally appeared on the OpenDemocracy blog, as part of its Human Rights/The Internet series, and is reproduced with permission and thanks. 



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