A digital rights bill means nothing without basic state compliance

The backlash against state surveillance is growing stronger by the day. ubiquit

More than 500 high-profile names, including authors, musicians and five Nobel laureates, have signed a petition to the United Nations calling for a bill of digital rights to be developed in the wake of this year’s revelations about state surveillance.

The petition, signed by Margaret Atwood, Tom Stoppard and Günter Grass, among others, condemns the mass surveillance that has been revealed over the last few months, starting with the NSA secrets revealed by whistleblower Edward Snowden. Titled A Stand for Democracy in a Digital Age, the petition says mass surveillance is an affront on human rights and treats every citizen as a suspect.

Down the road, it seems likely that Snowden’s revelations will be seen as the tipping point in the digital human rights debate.

A question of rights

This is about so much more than privacy. The petition implicitly recognises privacy as a necessary component to the exercise of the right to freedom of expression and assembly. “A person under surveillance is no longer free; a society under surveillance is no longer a democracy,” it states, alluding to what I would argue are the core objectives of all human rights (and on this, I admit, there is no consensus): human dignity and autonomy.

While surveillance is receiving a significant amount of attention at the moment, many of us who work in this area know that discussions about digital rights have been going on for some time.

The Internet Rights and Principles Charter in particular has been an important step. This concludes that the current human rights framework is sound but that we need to articulate what we mean by human rights in the internet environment. Drawing from the UN International Bill of Human Rights, the IRP Charter explains, amongst other things, that states must enact laws to protect the privacy and data of their citizens, which should include the protection of personal data, the right to anonymity and freedom from surveillance.

A lot of the questions remain unanswered and they are both fundamental and legal in nature. We need to think about whether a binding charter is needed or whether we simply need to clarify the meaning of rights in the digital age.

The private sector in your private life

The petition also calls for respect of human rights by both states and corporations. This challenges the legal model of human rights, which historically has focused on the relationship between citizens and the state.

The role of businesses in respecting human rights has been articulated in the UN Guiding Principles but the responsibilities they describe are still largely extra-legal in nature. One of the problems revealed in the wake of the Snowden affair has been the pressure put on businesses to facilitate the surveillance of citizens. It has not been clear if companies have been complicit in the spying or if they were pressured into supplying information to governments but it is clear that saying businesses should respect human rights is far from a straightforward proposition in this day and age.

In this respect, a formal charter would have its advantages. It would bind states to ensure these rights are protected in their countries, which would include infringements by businesses. It might be argued that this already exists in our current human rights system, but that states are simply failing in their obligations to protect our rights. And quite frankly, when states are at once the protector of our rights and the very ones abusing them, the limitations of the legal system as it currently exists become alarmingly clear.

Perhaps the problem here is not a lack of law, but the failure of states to comply with what the right to privacy already entails. This means the role of the public in the human rights system cannot be underestimated. Groups such as the one that has emerged behind this petition are vital if we are to continue to push governments into respecting our existing freedoms.

Our right to be forgotten

There are other sticking points in the vision set out in the petition, though. What these campaigners seek is not only freedom from surveillance, but necessarily a right to be forgotten once our data has been collected.

The right to be forgotten, at its most basic level, means a right to control the information that is available about you on the internet, usually through a process of deletion. This is harder than it seems. There are unanswered questions about what happens to data that relates to more than one citizen, what actually qualifies as personal data and who owns data about you. The issue is currently subject to a turbulent debate in Europe and the thought of scaling any resulting policy up to a global level poses an even greater challenge.

It will be equally difficult to reach an international consensus on the right to anonymity or pseudonymity. Rights of anonymity are more entrenched in American consciousness than in Europe and there is a very fine line between using anonymity to enable free speech and using it to facilitate hate. Anonymity allows us to be part of online groups that can support self-exploration or help us to circumvent oppressive state censorship in a way that would be impossible if you were forced to reveal your identity. But at the same time, to say that we have a right to anonymous speech ignores the devastating impact of hate speech and bullying endured by the victims of such speech. Nevertheless, we need to have this debate if we are to have a bill of digital rights.

The petition is a welcome formalisation of the public’s anger and feelings of violation upon learning of the programme of mass surveillance carried out by states. The call for scrutiny by the UN is also welcome. A proposal for a bill of digital rights, however, is not necessarily a realistic cause.