Human rights in the age of platforms Rikke Jørgensen 2020, Information, Communication & Society

https://www.academia.edu/127969264/Human_rights_in_the_age_of_platforms?rhid=43675358559&swp=rr-rw-wc-117340726&nav_from=482e6caa-39ef-4788-b463-838ccfc689ca David Kaye UN Special Rapporteur on Freedom of Expression On the shelf beside my desk rest a number of recent and already dog-eared books about the digital age: Consent of the Networked by Rebecca MacKinnon, The Attention Merchants by Tim Wu, China's Contested Internet by Guobin Yang, Twitter and Tear Gas by Zeynep Tufekci, The Net Delusion by Evgeny Morozov, Weapons of Math Destruction by Cathy O'Neill, and Dragnet Nation by Julia Angwin. Stacked nearby are countless nongovernmental organization reports and academic studies about the ways in which the Internet is affecting the enjoyment of human rights, with titles like Tainted Leaks (Citizen Lab), Online and on All Fronts (Human Rights Watch), Let the Mob Do the Job (Association for Progressive Communications), Troops, Trolls and Troublemakers (Oxford Internet Institute), and ¿Quién defiende tus datos? (Derechos Digitales). What connects these disparate publications? Apart from all having a focus on the individual's experience in the digital age, not a single one tells a hopeful story about personal autonomy, freedom of expression, security, or privacy online. Not one of these publications highlights the ways in which the Internet has opened broad avenues of communication among cultures, permitted the sharing of information and ideas across borders, and offered vast expanses of knowledge that can be traversed from link to link and thread to thread online. Some of them focus on the repression of governments that criminalize expression online or conduct surveillance of their citizens and others. Some drill down into the ways in which private companies govern quasi-public space, share information with governments seeking access to their networks, or simply give the false impression of privacy or security in the shadow of what Peter Swire has called "The Golden Age of Surveillance." Are there stories about private actors expanding or simply protecting human rights? Of course, they do exist. Indeed, the story that dominated about twenty years of public discourse, from about 1990 to 2010, was the story of private innovation breaking through old barriers of distance to develop technologies that have created and then forever altered the "information society." Those stories are still told, ones about atheists in religious societies using the Internet for connection, sexual minorities going online to gain knowledge about health and well-being, and critics and dissenters using the tools of social media to share information and organize for protest. The truth is, the books on my shelf and the publications in my in-box reflect changes in the way most stakeholders now think about the Internet. According to an increasingly dominant narrative, the Internet is a place of darkness, danger, propaganda, misogyny, harassment, and incitement, which private actors are doing little to ameliorate. (Where do you read these complaints? On the Internet!) Worldwide, people are worried, legislators are energized, and the gears of regulation have been engaged. An era of Internet laissez-faire is over or at least coming to a close. To be sure, repressive governments have been imposing costs on private actors in digital space for many years, especially those actors-such as telecommunications and Internet service providers-subject to licensing rules as a condition of participation in a local market. Many perform a kind of regulation by denying entry into markets; blocking, filtering, or throttling digital traffic; providing beneficial network access to friends and limiting that access to critics; and performing other tricks of the digital censor. But the regulatory buzz is not limited to the repressive. Some rules-such as those pertaining to intellectual property, like the Digital Millennium Copyright Act in the United States-have been in place for decades, giving some private actors the power to shape in often very problematic ways the nature of expression and creation online. Recent years have shown deepening interest in regulation, as governments are eager to gain some measure of control over Internet space in an era of digital distress. European institutions are in the lead, developing regulatory models that may be replicated worldwide. The European Court of Justice has taken on personal reputational control with the right to be forgotten (or the right to erasure), outsourcing its implementation to Google. The European Court of Human Rights has danced around the possibility of intermediary liability for third-party expression. The United States and Europe have been in deep negotiations over the future of privacy ever since the collapse of the Safe Harbour standards in the treatment of personal data of Europeans. The European Union has imposed a code of conduct for social media companies and search engines to follow in the context of extremist and terrorist content, and it seems poised at the time of this writing to enter into the fraught space of disinformation and propaganda, so-called "fake" or "junk" news. Amid the calls for regulation in democratic societies and the acts of government repression elsewhere, there is one undeniable fact about the digital age: at the center is the private company. Whether it's the telco providing digital access, or the social media company providing space for conversation, or one of any number of other actors in sibling industries, private companies in the digital age exercise enormous control. They connect users and providers of information and ideas. They sell user data and user attention. They moderate (or regulate) user speech. They cooperate with or resist government demands. In short, they often are either the governors of space visited by billions or the mediators between the individual and the government. This is a massive role and, depending on how you see it, a vital responsibility. Just whose responsibility is subject to debate. This volume, a collection of studies by some of the leading thinkers at the nexus of private action and public regulation in the digital age, introduces the most difficult legal and policy questions of the digital age. It presents theoretical insights about the transformations brought about by private actors. It offers specific examples of private power that implicates the rights of individual users. It provides legal frameworks for all stakeholders to think through the problems of human rights protection in an environment so dominated by private companies. All of this the volume does without either the hysteria of the moment's particular crises or, at the other end of the spectrum, a jargony disconnection from the experience of real human beings. The real challenge for the next generation of legislators and regulators, particularly those of good faith operating in democratic societies, is to shape new laws that meet two conditions: First, at a minimum, they must promote and protect everyone's rights, such as the right to seek, receive, and impart information and ideas of all kinds, regardless of frontiers and through any media as provided by Article 19 of the International Covenant on Civil and Political Rights. They must be compliant with international human rights norms, protecting users who enjoy rights. Second, law must xiv Foreword protect users-and society as a whole-from the harms caused by the special features of the digital age. That is easier said than done, perhaps, but the preservation of the original vision of the Internet should be at the top of all stakeholders' agendas moving forward. This volume guides us toward that goal. tute for Human Rights in January 2017 to share their initial drafts and worked together to shape the overall direction of the book. A note of thanks goes to colleagues at the Danish Human Rights Institute, Marc Bagge Pedersen, Karen Lønne Christensen, and Emilia Piechowska, who have provided crucial practical and editorial assistance; and Anja Møller Pedersen for her contribution to the authors' workshop. I am also indebted to the MIT Press for their kind and professional assistance all the way from idea to final book, to the anonymous reviewers, and to series editor Sandra Braman for her support and substantive input ever since the idea of the book first materialized in 2016. I am grateful for the generous support from Knowledge Unlatched and the Danish Council for Independent Research, which enabled the open access edition of this book. It is my hope that it will benefit scholars and human rights practitioners around the globe. This book is concerned with the human rights implications of the "social web." 1 Companies such as Google, Facebook, Apple, Microsoft, Twitter, LinkedIn, and Yahoo! play an increasingly important role as managers of services and platforms that effectively shape the norms and boundaries for how users may form and express opinions, encounter information, debate, disagree, mobilize, and retain a sense of privacy. The technical affordances, user contracts, and governing practices of these services and platforms have significant consequences for the level of human rights protection, both in terms of the opportunities they offer and the potential harm they can cause. Whereas part of public life and discourse was also embedded in commercial structures in the pre-Internet era, the current situation is different in scope and character. The commercial press that is often referred to as the backbone of the Fourth Estate was supplemented by a broad range of civic activities and deliberations (Elkin-Koren and Weinstock Netanel 2002, vii). Moreover, in contrast to today's technology giants, the commercial press was guided by media law and relatively clear expectations as to the role of the press in society, meaning an explicit and regulated (although imperfect on many counts) role in relation to public deliberation and participation. In contrast to this, the platforms and services that make up the social web are based on the double logic of public participation and...