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The Privatization of Human Rights: Illusions of Consent, Automation and Neutrality PAPER SERIES: NO. 24 — JANUARY 2016 The Privatization of Human Rights: Illusions of Consent, Automation and Neutrality Emily Taylor THE PRIVATIZATION OF HUMAN RIGHTS: ILLUSIONS OF CONSENT, AUTOMATION AND NEUTRALITY Emily Taylor Copyright © 2016 by Emily Taylor Published by the Centre for International Governance Innovation and Chatham House. The opinions expressed in this publication are those of the author and do not necessarily reflect the views of the Centre for International Governance Innovation or its Board of Directors. This work is licensed under a Creative Commons Attribution — Non-commercial — No Derivatives License. To view this licence, visit (www.creativecommons.org/licenses/by-nc- nd/3.0/). For re-use or distribution, please include this copyright notice. Centre for International Governance Innovation, CIGI and the CIGI globe are registered trademarks. 67 Erb Street West 10 St James’s Square Waterloo, Ontario N2L 6C2 London, England SW1Y 4LE Canada United Kingdom tel +1 519 885 2444 fax +1 519 885 5450 tel +44 (0)20 7957 5700 fax +44 (0)20 7957 5710 www.cigionline.org www.chathamhouse.org TABLE OF CONTENTS iv About the Global Commission on Internet Governance iv About the Author 1 Executive Summary 1 Introduction 1 Context 3 Big Data and Profiling 5 The Human Rights Risks of Big Data Collection 6 Standard Terms Analysis: The Illusion of Consent 11 Content Moderation: An Illusion of Automation 13 The Illusion of Neutrality and the Need for Ethics 14 Analysis: Public Attitudes about Privacy 15 Conclusions and Recommendations 17 Works Cited 24 About CIGI 24 About Chatham House 24 CIGI Masthead GLOBAL COMMISSION ON INTERNET GOVERNANCE PAPER SERIES: NO. 24 — JANUARY 2016 ABOUT THE GLOBAL ABOUT THE AUTHOR COMMISSION ON INTERNET Emily Taylor is an Internet governance expert and an GOVERNANCE associate fellow of Chatham House. She has worked in the domain name industry since 1999. Emily is co- The Global Commission on Internet Governance was editor of the Journal of Cyber Policy (Taylor & Francis) established in January 2014 to articulate and advance a and a member of the Global Commission on Internet strategic vision for the future of Internet governance. The Governance Research Advisory Network. Her research two-year project conducts and supports independent publications include the annual World Report on research on Internet-related dimensions of global public Internationalised Domain Names (lead author); various policy, culminating in an official commission report that reports on Internet protocols for the UK regulator, will articulate concrete policy recommendations for the Ofcom; a review of the policy development process future of Internet governance. These recommendations of the Internet Corporation for Assigned Names and will address concerns about the stability, interoperability, Numbers (ICANN); a study on the domain name system security and resilience of the Internet ecosystem. in the Middle East and adjoining countries (for ICANN) and a paper on IANA’s (Internet Assigned Numbers Launched by two independent global think tanks, Authority’s) transition (for the Global Commission). the Centre for International Governance Innovation She chaired the independent WHOIS Review Team for (CIGI) and Chatham House, the Global Commission on ICANN, and served on the United Nations Internet Internet Governance will help educate the wider public Governance Forum’s Multistakeholder Advisory on the most effective ways to promote Internet access, Group. For 10 years, she was at Nominet as director while simultaneously championing the principles of of legal and policy. She is a director of several Internet freedom of expression and the free flow of ideas over companies, including Oxford Information Labs, which the Internet. specializes in data mining and statistical analysis. The Global Commission on Internet Governance will focus on four key themes: • enhancing governance legitimacy — including regulatory approaches and standards; • stimulating economic innovation and growth — including critical Internet resources, infrastructure and competition policy; • ensuring human rights online — including establishing the principle of technological neutrality for human rights, privacy and free expression; and • avoiding systemic risk — including establishing norms regarding state conduct, cybercrime cooperation and non-proliferation, confidence- building measures and disarmament issues. The goal of the Global Commission on Internet Governance is two-fold. First, it will encourage globally inclusive public discussions on the future of Internet governance. Second, through its comprehensive policy- oriented report, and the subsequent promotion of this final report, the Global Commission on Internet Governance will communicate its findings with senior stakeholders at key Internet governance events. www.ourinternet.org IV • CENTRE FOR INTERNATIONAL GOVERNANCE INNOVATION • CHATHAM HOUSE THE PrivatiZation OF HUMAN RIGHTS: ILLUSIONS OF CONSENT, AUtomation AND NEUTRALITY Business is collecting way more information than it should. We for surveillance to be enabled through “cosy, voluntary now have a stalker economy where customers become products.... relationships” (Anderson 2015a) between governments Every time we — collectively — have had a choice between and a handful of technical providers; the reach and power convenience and privacy/security, we’ve chosen convenience. of a handful of (mostly US-based) companies with billions of users; and galloping technological innovation without —Al Gore (2014) a parallel track on ethics to guide decision makers — “not everything that technically can be done, should be done” EXECUTIVE SUMMARY (Omand 2015, 16). The Internet enables the free flow of information on There is a burgeoning field of scholarship encompassing an unprecedented scale but to an increasing extent the the intersection of human rights with online life. It is not management of individuals’ fundamental rights, such as possible or desirable to attempt comprehensive coverage privacy and the mediation of free expression, is being left of this rich field in one short paper. Beyond its scope are in the hands of private actors. The popularity of a small online state surveillance; the details of former National number of web platforms across the globe confers on the Security Agency (NSA) contractor Edward Snowden’s providers both great power and heavy responsibilities. revelations; the response of the technical community to Free-to-use web platforms are founded on the sale of alleged systematic weakening of encryption standards; the user data, and the standard terms give providers rights to security risks arising from data breaches (such as the Sony intrude on every aspect of a user’s online life, while giving hack, or the alleged targeting of Reuters by the Syrian army users the Hobson’s choice of either agreeing to those through a third-party advertiser). While the paper briefly terms or not using the platform (the illusion of consent). alludes to the tendencies of states to enlist the assistance of Meanwhile, the same companies are steadily assuming private companies in mass surveillance, or even copyright responsibility for monitoring and censoring harmful enforcement, this is not its primary focus. content, either as a self-regulatory response to prevent conflicts with national regulatory environments, or to The Snowden documents have sparked legal challenges in address inaction by states, which bear primary duty for more than one country, many of which are still working upholding human rights. There is an underlying tension their way through the system.1 This paper does not for those companies between self-regulation, on the one speculate on their likely outcomes. hand, and being held accountable for rights violations by states, on the other hand. The incongruity of this position CONTEXT might explain the secrecy surrounding the human systems that companies have developed to monitor content (the Human Rights: The Legal Matrix illusion of automation). Psychological experiments and opaque algorithms for defining what search results or The Universal Declaration of Human Rights (UDHR) was friends’ updates users see highlight the power of today’s adopted in 1948 by the newly formed United Nations providers over their publics (the illusion of neutrality). General Assembly, following “massive violations of Solutions could include provision of paid alternatives, fundamental rights immediately before and during World more sophisticated definition and handling of different War II” (Gardbaum 2008, 750). The UDHR is founded on types of data — public, private, ephemeral, lasting — and the concept that “the peace and security of mankind are the cooperation of all stakeholders in arriving at realistic dependent on mutual respect for the rights and freedoms and robust processes for content moderation that comply of all” (Roosevelt 1948). with the rule of law. The UDHR was followed by, and provides the basis for, UN treaties and a patchwork of legally binding instruments INTRODUCTION and enforcement mechanisms at both the regional and the In the so-called “stalker” economy, as Al Gore (2014) has termed it, customers become products and business collects much more information than it should. He suggests that “we are rapidly approaching a gag point” at which consumers reject current norms and reassert their right to privacy. But in such a contested and controlled environment, what constitutes individual privacy, and how plausible would a reassertion of
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