The
Global Digital Compact and International Law
May
2023
Workshop
summary report
May 2023
Minderoo Centre
for Technology and Democracy and the Lauterpacht
Centre for International Law
Minderoo Centre for Technology and Democracy
The Minderoo Centre for
Technology and Democracy is an independent team of academic researchers at the
University of Cambridge, who are radically rethinking the power relationships
between digital technologies, society and our planet.
The
Global Digital Compact and International Law
Workshop
co-hosted by Prof Henning Grosse Ruse-Khan and Dr Ann Kristin Glenster
5-7pm
2 May 2023, Lauterpacht Centre for International law,
University of Cambridge
Workshop
summary report: Dr Ann Kristin Glenster, Senior
Policy Advisor, Minderoo Centre for Technology and Democracy
On
2 May 2023, the Minderoo Centre of Technology and Democracy and the Lauterpacht Centre for International Law convened a
workshop to discuss international law implications of the Minderoo Centre for
Technology and Democracy’s recently submitted evidence to the proposed Global
Digital Compact (GDC).
The
idea for a GDC was introduced in the United Nations Secretary General’s report Common
Agenda (2021),[1]
with the intention that it would “outline shared principles for an open, free
and secure digital future for all.”[2] Input
into the GDC was subsequently requested by the United Nations Office of the
Secretary-General’s Envoy on Technology addressing “core principles that all
governments, companies, civil society, and other stakeholders should adhere to”
and “key commitments to bring about these specific principles” in relation to
seven digital issues.[3]
The evidence will be collated and presented at the United Nations Summit of the
Future in September 2024.
Responding
to the call for evidence, the Minderoo Centre for Technology and Democracy convened
two sessions with academic researchers from the University of Cambridge in
April 2023. Evidence from these sessions was submitted and collated into a
report published by the Minderoo Centre for Technology and Democracy.[4]
The evidence report addressed the seven digital issues identified in the call
for submissions:
1. Connect
all people to the Internet, including all schools
2. Avoid
Internet fragmentation
3. Protect
data
4. Apply
human rights online
5. Introduce
accountability criteria for discrimination and misleading content
6. Promote
regulation of artificial intelligence
7. Digital
commons as a global public good
This
workshop specifically discussed whether the proposed core principles and key
commitments should be amended, extended, or deleted, and the mechanisms that
would be needed in international law to give them effect.
Key
takeaways
Key
takeaways from the workshop are:
· The
principle of connecting all people to the Internet first concerns access, and
second the rights and protections which should apply once people are connected
to the Internet
· Principles
of cybersecurity and safety are crucial, especially to safeguard critical infrastructure
· International
law lacks effective mechanisms to compel private actors, especially key
intermediaries, to adhere to human rights or other standards. While it can
oblige States to act, those are often unwilling or unable to impose obligations
on relevant private actors that uphold human rights or other shared values. Internet companies and social media
platforms’ internal policies and adjudication processes cannot be relied upon
by individual users to guarantee their user rights, including the enforcement
of human rights
· Accountability
has to be more than mere transparency, and for this
purpose, researchers, courts, and regulators must have access to data and
systems as a matter of law. In addition, accountability must reflect the core
role of private actors in implementing, interpreting and enforcing state rules
in the digital context
· The
digital commons as a global public good should be governed by international law
frameworks, including the Rabat Plan of Action[5]
1. The
importance of access
The
workshop began by considering the first digital issue of connecting all people
to the Internet. Workshop participants observed how this should be a core
principle as it is a prerequisite for the other core principles. Hence, this
digital issue could be conceptualised as having two steps: (1) Connect all
people to the Internet as a right that should be provided by governments; and
(2) The rights that should follow, such as being protected from online harms, once individuals are connected to the Internet. Applying
this conceptualisation, the first step addresses issues such as net neutrality
and States’ obligations to provide necessary infrastructure to enable people to
connect to the Internet. The second step concerning the online experience links
to the issue of protecting human rights online and the difficulties of balancing
freedom of speech with the right to participate and access to speech, which are
placed in peril when people, especially women and girls, are driven offline or
harassed into self-silence.[6] In
that regard, workshop participants discussed how existing conceptualisations of
human rights and user rights do not address the issue of amplification from
harm arising from automation and cannot adequately address the essential role
of platforms as private intermediaries.
2. Cybersecurity
and safety
Workshop
participants repeatedly noted the importance of cybersecurity in relation to a
GDC. For instance, issues of cybersecurity were seen as crucial to delivering the
ambition of connecting all people to the Internet as the infrastructure needed
to do so must be safe and secure.
Workshop
participants noted that this is especially the case where a commercial tech
company provides Internet access to an entire country. India, Brazil, and
Myanmar were cited as examples. In the cases of Brazil and Myanmar, it was
noted how Meta had been used to spread political misinformation and
disinformation, in at least one case with disastrous consequences.[7]
Another example was concern over location and traffic data used by a Chinese
taxi app as such data could be used deliberately to create traffic jams. Workshop
participants also discussed the importance of cybersecurity to protect against
cyberattacks from hostile foreign states.
Workshop
participants identified issues of cybersecurity in relation to the ambition to
avoid Internet fragmentation. The workshop specifically considered the the Minderoo Centre of Technology and Democracy evidence
report’s key commitment on open source software (OSS).[8] Workshop
participants suggested that the key commitment listed in the evidence should be
extended to include a commitment to ensure that OSS was safe and secure.[9] Workshop
participants also discussed how the international community should create an
international entity with the responsibility to identify and maintain critical
OSS.
3. Protecting
human rights and users online online
Some
workshop participants felt that the Minderoo Centre for Technology and
Democracy evidence report should have included more references to specific
international human rights instruments.[10]
There
was consensus among the workshop participants that challenges for international
law in regard to human rights online concerned the
issue of ensuring that individuals have effective remedies, particular in
relation to human rights breaches across national borders, i.e., where the
victim was in one country and the perpetrator in another.
Workshop
participants discussed how the difficulties in international law were to find
ways to compel States to impose positive human rights obligations on private
actors, such as Internet companies and social media platforms, beyond soft law
calls for social corporate responsibility (SCR).
Workshop
participants expressed some lack of faith in depending on national laws and
national courts to enforce online human rights, and workshop participants also
noted anecdotally that representatives from social media platforms had referred
to their own internal platform policies first to resolve issues, and national
law second and only when an issue could not be satisfactorily addressed through
internal policies. As a consequence, workshop
participants noted how hard it is for individual users of Internet services,
platforms, and products to seek redress through these policies when the access
to the rights afforded in the policies were obfuscated by design. In practice,
users must first go through the corporate architecture of internal policies
before being able to invoke their legal rights. While users might at times
enjoy the theoretical possibility to seek redress in front of national courts,
the lack of effective availability of such remedies and the problems of
enforcing any rulings (domestically, but even more so abroad) render these
options inutile. It was clearly felt by workshop participants that relying on
social media platforms and Internet companies’ own adjudicative processes amounted
to little more than a sham.[11]
4. State
responsibility for, and direct accountability of platforms
Challenges
of accountability for the service, products, and infrastructure were discussed at
some length. The discussion covered both the accountability to which private
actors should be held, but also the responsibility of governments and
regulators to devise and enforce accountability regimes. Workshop participants
felt that the the Minderoo Centre of Technology and
Democracy evidence principle on transparency did not go far enough.[12]
Accountability
was related to the necessity of researchers, regulators, and courts having
access to data, and how there is no effective legal mechanism by which to
compel companies to provide access to their data and systems. Specifically, the
issue of access to training data (mainly for the purpose of training AI) through
the copyright exception for text and data mining (TMD) in the European Union
was mentioned,[13]
and how often trade secret protection was used as a rationale by corporate
actors to deny access.[14]
Workshop
participants found that the tendency to divide accountability and liability
into categories based on the size of Internet companies or online platforms, or
on perceived risk to be unhelpful and out of touch with reality.[15] Participants
expressed concern that such conceptual fragmentation did not reflect the
interconnected nature of the supply
chain and was likely to result in confusion and be a drain on regulators and
courts’ resources.
5. Digital
commons as a public good
Workshop
participants consulted the General Secretary’s Common Agenda report to
determine what was meant by the phrase “the digital commons as a global public
good.”[16] Participants
found that as the digital commons was conceptualised as a public good, the
digital issue was one of ‘ownership’ and in particular access to the digital
commons as a resource.[17] In
terms of international law framing and the role of states as protectors of the
commons, workshop participants pointed to governance models for the Internet which
would regard the Internet as a shared resource.
Workshop
participants highlighted that in relation to the digital commons as a public
good, then the last principle of the the Minderoo Centre
of Technology and Democracy evidence report regarding the need for framework
was the most important, but it also begged the question of which frameworks? In
that regard, the workshop referred repeatedly to the European Union as being a
leader in devising and adopting legislation in the digital, network environment,
and that these frameworks were likely to be exported globally due to the
‘Brussels effect.’[18]
The
discussion circled back to the first digital issue of connectivity and workshop
participants found that it was not enough to simply guarantee access to the
Internet if people could not avail themselves of the benefits. To paraphrase
one workshop
participant,
it is not enough to guarantee access to the digital commons if people do not
have the means to exploit it. Thus, it was suggested that the first principle
regarding the digital issue of connecting all people to the Internet could
include a right to ‘equal access with equivalent benefit to all.
[1] Secretary-General,
Our Common Agenda – Report of the Secretary-General (United Nations
2021) https://www.un.org/en/content/common-agenda-report/ accessed 04 May
2023.
[2] United Nations,
Office of the Secretary-General’s Envoy on Technology, https://www.un.org/techenvoy/global-digital-compact accessed 4 May
2023.
[3] https://www.un.org/techenvoy/global-digital-compact/submissions accessed 4 May
2023.
[4] Minderoo Centre
for Technology and Democracy, Evidence Submitted to the Global Digital Compact
(April 2023) https://www.mctd.ac.uk/evidence-submitted-to-the-global-digital-compact/ accessed 4 May
2023.
[5] Rabat Plan of
Action on the prohibition of advocacy of national, racial or religious hatred
that constitutes incitement to discrimination, hostility or violence (https://www.ohchr.org/en/freedom-of-expression#:~:text=The%20Rabat%20Plan%20of%20Action%20suggests%20a%20high%20threshold%20for,article%2020%20of%20the%20ICCPR accessed 4 May
2023).
[6] The workshop
participants specifically discussed the UK Online Safety Bill (https://bills.parliament.uk/bills/3137 accessed 4 May
2023) and the European Union Proposal for a Directive of the European
Parliament and of the Council on combating violence against women and domestic
violence (COM/2022/105 final) https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52022PC0105 accessed 4 May
2023.
[7] e.g.
the Bolsonaro’s use of WhatsApp to spread political messages and the Rohnigya genocide in Myanmar.
[8] Digital Issue 2.
Avoid Internet Fragmentation, core principle 1, key commitment 4: “All
stakeholders should commit to ensuring the availability of repairable,
free-and-open source software (FOSS) and sustainable
devices”. MCTD evidence report p. 7.
[9] ibid.
[10] For example, the
Rabat Plan of Action (supra note 5).
There was a view that the wording of
“necessary for a democratic society” taken from the European Convention of
Human Rights should be replaced by the phrase ‘international law and human
rights’ in digital issue 1, commitment 5 stating that “Access to the Internet
should only be taken away by government in accordance with law necessary for
democratic society” (MCTD evidence report, p. 5, original wording).
[11] For example, there
was some discussion regarding the Meta Oversight Board (https://about.fb.com/news/tag/oversight-board/ accessed 4 May
2023).
[12] Digital issue 5:
Core principle 1: “All data-processing systems should be transparent” (MCTD
evidence report, p. 12).
[13] See for example Martin
R.F. Senftleben, Study on EU copyright and related
rights and access to and reuse of data (European Commission, March 2022) (https://op.europa.eu/en/publication-detail/-/publication/5c5153a4-1146-11ed-8fa0-01aa75ed71a1/language-en/format-PDF/source-search accessed 4 May
2023); Christina Angelopolous, Study on EU
copyright and related rights and access to and reuse of scientific
publications, including open access (European Commission, June 2022) (https://op.europa.eu/en/publication-detail/-/publication/884062d5-1145-11ed-8fa0-01aa75ed71a1/language-en/format-PDF/source-262356864 accessed 4 May 2023).
[14] Sharon K. Sandeen and Tanya Aplin, ‘Trade
Secrecy, Factual Secrecy and he Hype Surrounding AI’ in Ryan Abott (ed.) Research Handbook on Intellectual Property
and Artificial Intelligence (Edward Elgar 2022).
[15] e.g.
the UK Online Safety Bill (supra note 5) and the European Union’s
forthcoming AI Act (Proposal for a Regulation of the European Parliament and of
the Council Laying Down Harmonised Rules on Artificial Intelligence (Artificial
Intelligence Act) and Amending Certain Union Legislative Acts (COM/2021/206
final) https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A52021PC0206 accessed 4 May
2023.
[16] Common Agenda (supra
note 1) p 62.
[17] Workshop
participants pointed out that the MCTD evidence report on digital issue 7, core
principle 1, commitment 5 should change to no longer refer to the right to
freedom of speech but to the digital good instead (MCTD evidence report, p. 15).
[18] Anu Bradford, ‘The
Brussels Effect’ 107(1) 2012 Northwestern U Law Rev;
Columbia Law and Economics Working Paper No. 533.