QUESTIONS FOR UNESCO'S COMPREHENSIVE STUDY ON INTERNET RELATED ISSUES Submitted by admin on Fri, 27/06/2014 ­ 23:32 From now until November 2014, UNESCO is asking for inputs and research around this global questionnaire on Internet­related issues in the four areas of access to information and knowledge, freedom of expression, privacy, and ethical dimensions of the information society. The questions also explore the intersections between these areas and options for future UNESCO action in these fields. The findings, on topics which relate to UNESCO’s mandate, will feed into a comprehensive Internet­related study mandated by UNESCO’s 195 Member States through Resolution 52 of the Organization’s 37th General Conference (November 2013). Contributions can be submitted through this open online questionnaire or at the many conferences where UNESCO organizes consultation events. Other comments and questions can be sent to [email protected] NOTE: Your written contribution will be published on the UNESCO website after submission. Name EPHRAIM PERCY KENYANITO Gender * Male E­mail *[email protected] Category of Stakeholder * Civil Society and NGOs including individual users Others: please specify Name of Organization or affiliation: Access (AccessNow.Org) Country * Kenya Region * Africa 1 Access (AccessNow.org) is an international organization that defends and extends the digital rights of users at risk around the world. By combining innovative policy, user engagement of our global community of nearly half a million members around the world, and direct technical support we fight for open and secure communications for all. We welcome this opportunity to submit comment on UNESCO’s Internet Universality study. Given the breadth of the study’s questions, we have chosen to focus on a subsection of questions that most directly pertain to our mandate. For any questions or comments please contact Access Policy Director Jochai Ben­Avie ([email protected]) or Policy Fellow Ephraim Kenyanito ([email protected]). A. Questions related to the field of Access to information and knowledge 1.What can be done to reinforce the right to seek and receive information in the online environment? Access notes that a recently (November 2014) released survey of Internet users in 24 countries has found that 83% believe affordable access to the internet should be a basic human right, according to the “CIGI­Ipsos Global Survey on Internet Security and Trust.” This overwhelming sentiment speaks to the fact that the internet is perhaps the greatest democratizing force in the history of the fight to realize Article 19 of the ICCPR, enabling billions to seek, receive, and impart information like never before. Yet, even as more and more individuals come online for the first time, freedom of expression online is under unprecedented threat, particularly from threats of surveillance, net discrimination and censorship. To reinforce this right, existing protections must be enforced and new policies and regulations are needed to ensure adequate protection of this fundamental freedom. A. Surveillance As the former UN Special Rapporteur on Freedom of Expression Frank La Rue noted in a report last year: The right to privacy is often understood as an essential requirement for the realization of the right to freedom of expression. Undue interference with individuals’ privacy can both directly and indirectly limit the free development and exchange of ideas. Restrictions of anonymity in communication, for example, have an evident chilling effect on victims of all forms of violence and abuse, who may be reluctant to report for fear of double 2 victimization. In this regard, article 17 of ICCPR refers directly to the protection from interference with “correspondence”, a term that should be interpreted to encompass all forms of communication, both online and offline. As the Special Rapporteur noted in a previous report, the right to private correspondence gives rise to a comprehensive obligation of the State to ensure that e­mails and other forms of online communication are actually delivered to the desired recipient without the interference or inspection by State organs or by third parties. (p. 7) The Snowden revelations have at once revealed the staggering scope and scale of interference with the right to privacy of virtually all of the world’s users by the U.S., U.K., and other governments, while at the same time giving rise to the chilling effect on freedom of expression that La Rue describes. A recent study by the PEN America Center reveals that 28 percent of writers surveyed has “curtailed or avoided activities on social media,” with another 12 percent saying they had seriously considered doing so. The PEN study illustrates the urgent need for surveillance reform to ensure freedom of expression online. The International Principles on the Application of Human Rights to Communications Surveillance (“the Principles”), which have been endorsed by more than 400 civil society organizations from around the world, provide a framework for assessing how international law applies when conducting communications surveillance. In a recent landmark report on “The Right to Privacy in the Digital Age,” UN High Commissioner for Human Rights Navi Pillay stated that the Principles can be considered interpretive guidance of Article 17 of the ICCPR. Simply put, state action to adopt, comply with, and implement the Principles would significantly and substantively reinforce the right to seek and receive information in the online environment. B. Net neutrality Critical to ensuring the internet’s continued success as a bastion of free expression, is the prevention of net discrimination, which can be understood as interference with the three core principles of net neutrality: 1) that all points in the network should be able to connect to all other points in the network (the end to end principle); 2) that all providers of the internet should make their best efforts to deliver traffic from point to point as expeditiously as possible (the best efforts principle); and 3) that everyone should be able to innovate without permission from anyone or any entity (the innovation without permission principle). Net neutrality means that all traffic on the internet is treated on an equal basis, no matter the origin, type of content, or means (e.g. equipment or protocols) used to transmit internet traffic. Any deviation from this principle (for instance for traffic management purposes) must be 3 proportionate, temporary, targeted, transparent, and in accordance with relevant laws. If these criteria are not respected, users then face network discrimination. It is our recommendation that UNESCO and other UN Agencies supports legislation prohibiting net discrimination as a critical means to ensuring the free flow of information online. Additional resources on net discrimination and how to ensure the protection of net neutrality and thereby the right to free expression can be found here. B. Questions related to the field of Freedom of Expression 6. What are the current and emerging challenges relevant to freedom of expression online? To summarize, Access notes that some of the current and emerging challenges relevant to freedom of expression online include: ­ Invasive and disproportionate policy responses ­ Threats to civil society organizations, activists, citizen journalists and bloggers ­ Regime change and political risks that undermine digital rights As the WSIS Forum 2012 & 2013 Booklet on Identifying Emerging Trends and a Vision Beyond 2015 notes, there are increasing challenges in addressing freedom of expression and privacy in the digital age. The liability of intermediaries and governmental surveillance also negatively impact freedom of expression and right to privacy on internet. Moreover, we have documented cyberattacks on journalists and bloggers, who are targeted specifically for the opinions they hold and express online (e.g., https://www.accessnow.org/blog/2013/06/19/access­submits­upr­report­on­vietnam­cyber­attack s­on­civil­society­a­key­c). We are also concerned about the use of invasive and disproportionate policy responses that can imperil human rights and economic development. This is especially true of legislation enacted in the name of cybersecurity, from the U.S. (e.g., https://www.accessnow.org/blog/2014/07/15/access­calls­for­president­obama­to­pledge­to­veto ­cisa) to the African Union (e.g., https://www.accessnow.org/blog/2014/08/22/african­union­adopts­framework­on­cyber­security­ and­data­protection) and elsewhere. Access operates the only 24/7, international digital security helpline, offering real­time, direct technical assistance and advice to activists, independent media, and civil society organizations. 4 As part of this work, we have witnessed growing and varied attacks on civil society actors endangering freedom of expression. [Adittionally, Access has also documented about fake domains attacks that impersonate civil society and news organizations and we have provided recommendations towards mitigating such attacks (https://www.accessnow.org/page/­/docs/FakeDomainsReport.pdf )] 7. How can legislation in a diverse range of fields which impact on the Internet respect freedom of expression in line with international standards? Legislation impacting on free expression online should be developed in a multistakeholder fashion in line with the 2005 Tunis Agenda. Multistakeholderism is considered best practice in internet policymaking and is critical to ensuring that the