Charting DFF’s First Chapters

By Nani Jansen Reventlow, 2nd July 2020

It’s here! We are extremely proud to launch DFF’s first ever annual report.

The long-awaited report charts the first leg of DFF’s journey as an organisation, from its founding in 2017 through 2019. Within its pages, you can read how an idea conceived by the digital rights field in 2016 has evolved into a fully-fledged fund that has supported 37 strategic cases across Europe – and helped spread the message of digital rights protection even further.

The report illustrates the development of DFF’s concept from its early stages until now. Threats to our digital rights stretch across a broad spectrum, so it was clear from the get-go that DFF needed to focus its ambitions.

That’s why, following close consultation with the European digital rights field, we formulated our three thematic focus areas: privacy and data protection; the free flow of information online; and accountability, transparency, and adherence to human rights standards in the use and design of technology online.

What DFF actually does also flows from this strategy process: DFF supports litigators to bring strategic cases on digital rights. But we also offer pre-litigation research grants. In parallel, we seek to leverage the vast knowledge of the European digital rights network by bringing people together, facilitating collaboration, and field building.

Our funding, research, and networking are all guided by a few core convictions. DFF believes firmly in the ‘strategic’ part of ‘strategic litigation’: in other words, we want to pave the way for cases with the potential to reach beyond the courtroom and to effect far-reaching social change.

We also never understate the importance of an intersectional approach

We also never understate the importance of an intersectional approach. We know that many digital rights issues disproportionately affect marginalised groups. We also know that many of the obstacles society faces in safeguarding human rights in the digital sphere hinge on power imbalances and structural inequality. That’s why doing our part to decolonise the field is an absolute priority for us.

In the time period covered by this new report, we’ve made 23 grants supporting 37 cases across 15 jurisdictions. Included among these is the Dutch SyRI case, which challenged state “predictive policing” and resulted in a landmark ruling earlier this year. We were delighted to be able to support the coalition of litigators who brought this case to a successful outcome, and its reverberations across the continent were clear-cut evidence of the impact such cases can have.

Apart from that, the cases we’ve supported tackled a host of today’s most urgent digital rights violations, from secret algorithms and mass surveillance to the “digital welfare state“.

We’ve made 23 grants supporting 37 cases across 15 jurisdictions

We’ve also been privileged to host several workshops through the years, where some of the brightest minds in digital rights have come together to collaborate on strategy and work on case development. DFF has facilitated conversations dedicated to competition law, GDPR, and artificial intelligence, as well as strategic litigation retreats and annual strategy meetings for field-level planning.

These first years have inspired confidence, and highlight how tangible progress can be achieved by working together as a field. With that in mind, we’re extremely excited to see what lies ahead.

Illustration by Cynthia Alonso

The Need for Digital Rights Protections in Upcoming EU Competition Law Consultations

By Paul Keller, 25th June 2020

On 2 June 2020, the European Commission launched two public consultations to seek views on the Digital Services Act (DSA) package and on a New Competition Tool (deadline for responses is 8 September 2020).

Together with these consultations, it also presented three “Inception Impact Assessments” related to these two legislative projects and gave interested parties until the end of June to provide feedback on these.

These Inception Impact Assessments are proposals for analytical frameworks that the European Commission will use to assess proposed policy instruments. The first one deals with the e-Commerce aspects of the proposed DSA, the second deals with the plans for an “ex ante regulatory instrument for large online platforms acting as gatekeepers,” and the third one deals with the proposal for a “new competition tool.

The possible changes that the DSA may bring to core principles of the EU e-commerce framework, particularly with regard to intermediary liability, have been getting a lot of attention recently and seem to dominate the discourse within the digital rights community.

So far, however, there has been comparably less attention by human rights organisations for the policy initiatives aimed at addressing the disproportionate influence large digital platforms have on the rights of participants in the digital economy.

This is why, following this month’s competition law workshop organised by DFF, a small group of participants from the workshop (the group includes representatives from Access Now, Article 19, Privacy International, COMMUNIA, Liberties and Worker Info Exchange) have teamed up to draft an initial response to the Commission’s Inception Impact Assessments to the New Competition Tool and the ex ante regulatory instrument for large online platforms.

Both of these tools/instruments are expressions of the Commission’s objective to increase its regulatory capacity in the online environment.

The new competition tool that is being considered  by DG COMP would give the Commission additional abilities to intervene in situations that fall outside the scope of its current regulatory powers derived from Article 101 TFEU (anti-competitive agreements and practices between companies) and 102 TFEU (abuse of dominant position) or its ability to review proposed mergers. Regulatory powers that, as discussed at the DFF workshop, have room for improvement when it comes to holding dominant platforms to account for harmful business practices.

As outlined in the Inception Impact Assessment, the “new tool” would allow the Commission to take action in response to structural market concerns. While the Inception Impact Assessment keeps all options open, it is clear that the Commission is primarily thinking about structural problems in “digital or digitally enabled markets.”

Given this, there is significant overlap with the other policy initiative of ex ante regulation. The proposed “ex ante regulatory instrument for large online platforms with significant network effects acting as gate-keepers in the European Union’s internal market,” developed by DG CNECT, is squarely aimed at large online intermediaries. With this instrument, the Commission intends to “ensure a fair trading environment and increase the innovation potential and capacity across the online platform ecosystems in the EU’s single market.”

In our analysis, the fact that the Commission is seeking to strengthen its regulatory capacity in the online environment is very welcome. We are however concerned that both initiatives are largely limited to discussing the application of these instruments based on market-focused objectives. This is why it urges the Commission to take a broader perspective when analysing the impact of the proposed tools. In addition to the objective of improving the economic efficiency of markets, the Commission should also measure the impact of these tools on protecting fundamental rights, such as the right to self-determination in the digital environment. In our response, we state that:

We believe that this small number of large online platforms not only act as economic gatekeepers, but also as ‘fundamental rights’ gatekeepers. Through their business models, their terms of services and community guidelines, these platforms set standards in the market with regards to, among others, people’s rights to privacy, data protection and freedom of expression. These large platforms are able to do so because, on the one hand, barriers to entry are so high that it is extremely difficult, if not impossible, for new players to enter the market and put competitive pressure on gatekeepers. And, on the other hand, because consumers do not have viable alternatives to switch to. […]

The impact of these platforms’ behaviours and business models on the guarantee of fundamental rights in the digital single market is a major challenge for the EU, and the European Commission should include it in its understanding of the problem it aims to fix with these welcomed initiatives.

You can find the full draft response here. We are currently looking for additional signatories for our response. If you are representing an organisation interested in supporting our response please get in touch with us by 28 June 2020.

We believe that it is essential that the digital rights community sends a strong signal to the European Commission that its responsibility in the digital space goes further than ensuring the functioning of markets. As we state in our response:

We are convinced that the initiatives of the European Commission constitute a once in a generation opportunity and the planned reform could become a blueprint for the regulation of digital markets and services worldwide. Therefore, we hope the Commission will give due attention to our calls and will not miss the opportunity to set the rules for a democratic, fair, innovative and fundamental rights’-oriented EU digital society.

Paul Keller is the President of COMMUNIA association for the public domain and senior research fellow at the Institute for Information Law, University of Amsterdam.

Image by xresch from Pixabay

The Grave and Growing Dangers of Border Surveillance

By Dragana Kaurin, 20th June 2020

This year, World Refugee Day comes during a devastating global pandemic that has closed borders around the world.

The current reality makes it even more difficult for refugees to flee to safety and seek asylum. We are also witnessing protests and community action against racial structural violence worldwide, bringing to the surface a number of disturbing trends in technology and policies in border surveillance.

One of the successes in this regard that has been widely reported in the media lately, due in no small part to years of civil society campaigns, is a moratorium on the sale of facial recognition technology to law enforcement in the United States. Research has shown a widespread racial and gender bias in these intrusive technologies, and the moratorium is a welcome move towards stopping discriminatory practices and abuse of data by law enforcement.

However, they are still being used to monitor the movements of refugees and migrants who don’t have the same protections and access to legal mechanisms as citizens.

Almost immediately, the COVID-19 pandemic became a justification for governments to use more intrusive surveillance technologies on refugees and migrants

Almost immediately, the COVID-19 pandemic became a justification for governments to use more intrusive surveillance technologies on refugees and migrants, in some cases forcing them to wear wristbands that track location and movement. Biometrics have become commonly used in the aid sector for both registration of refugees and access to aid and services, among UN agencies, NGOs, border control, and private sector contractors.

The widespread application of biometrics is justified by UN agencies like the World Food Program (WFP) as a solution to the very non-existent problem of identity theft among aid recipients, and embezzlement of aid, which is largely done by aid providers, not recipients. 

Such a large-scale reliance on these technologies has reduced human bodies into evidence. As a result, and in an effort to regain some control over their bodies and their data, there have been a number of disturbing reports about refugees burning off their own fingerprints out of fear of being tracked and returned to countries of origin, or to entry-point countries in the EU due to the Dublin Regulation.

…there have been a number of disturbing reports about refugees burning off their own fingerprints

Like facial recognition technology, fingerprint readers were built on racialised assumptions of users, and only have high accuracy with middle aged men with lighter skin tones. There has been a pattern of centralised collection and storage of this biometric and personal data across sectors and agencies, seen with public-private partnerships like Palantir-WFP, Microsoft-International Committee for the Red Cross, and Facebook Libra-Mercy Corps.

Even though these organisations claim the data sharing partnerships are making their operations easier, it comes at the cost of losing the trust and confidence from the refugee communities. 

Lastly, the target of migration surveillance has shifted to the people crossing into bordering countries, and to monitoring the human rights organisations who work with refugees. As facial recognition technology and other biometric tracking has become normalised through public-private partnerships, we’re seeing a bigger trend in cross-border surveillance of migrants and refugees.

Outsourcing surveillance of migrants has become the norm

Outsourcing surveillance of migrants has become the norm in Australia, United States, and the EU, done through data extraction companies like Cellebrite, which bypass passwords to track location and movement through digital devices. Furthermore, agencies like EUROSUR that are tasked with monitoring borders have shifted their focus to surveillance of civil society organisations that conduct search and rescue at sea, as well as journalists and human rights researchers that document abuse and harassment of asylum seekers by border control agents in the US.

These trends in humanitarian “technosolutionism”, cross-border surveillance of migrants and refugees, and use of their data without consent are deeply troubling, and evident across sectors: at UN agencies, border control agencies, and non-government organisations.

With no one to turn to for protection and no way to access their own data, these stakeholders seem to be sending the message to refugees that they are too untrustworthy to get information from them directly and with informed consent.

It’s therefore critical that in this political moment of reimagining and restructuring our systems, we include the needs and the rights of refugees, because the overreach of intrusive technologies always starts with the most marginalised, invisible communities before it is normalised and eventually used widely on others.

Dragana Kaurin is a human rights researcher and Executive Director of Localization Lab.