UN Special Rapporteur Warns of Racial Discrimination Exacerbated by Technology

By Nani Jansen Reventlow, 15th July 2020

The Digital Freedom Fund welcomes the publication of the report “Racial discrimination and emerging digital technologies: a human rights analysis” by the UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, E. Tendayi Achiume.  

The report goes beyond analysing specific instances of racial discrimination on digital platforms to assess how emerging digital technologies perpetuate racial discrimination on a structural level. Examining the racially discriminatory consequences of algorithmic decision-making throughout public and private life, the report sheds light on how existing inequalities, biases, and assumptions in the design and use of digital technologies threaten the human rights of marginalised and racialised groups. The report also outlines a structural and intersectional human rights law approach to regulating digital technologies, emphasising that an effective response to racial discrimination must include efforts to break down power structures within the sectors that make decisions about the design and use of these technologies, including private technology companies, research institutions, and public regulatory bodies. 

The report goes beyond analysing specific instances of racial discrimination on digital platforms to assess how emerging digital technologies perpetuate racial discrimination on a structural level.

A cohort of digital rights NGOs, including DFF, have released a statement highlighting a number of salient points in the Special Rapporteur’s report. The statement – which is open to additional signatories – expands on the human rights framework set out in the report, drawing attention to several specific commitments which state and corporate actors must uphold to prevent and remedy the discriminatory impacts of emerging digital technologies. 

The NGOs assert that certain technologies should be banned outright. Incremental regulation, they argue, is not appropriate for technologies such as facial recognition and predictive analytics that are demonstrably likely to cause racially discriminatory harm. The statement also emphasises the importance of keeping access to technology at the forefront of dialogues about racial discrimination in the design of digital technologies. The digital divide between the global South and the global North will perpetuate and deepen existing global inequalities as societies increasingly rely on digital platforms to distribute public goods, medical care, and education. The digital divide is not limited to less-resourced countries, either. In the US, for example, lack of basic internet access falls disproportionately on Black, Latino, and American Indian communities. 

The NGOs also elaborate on the Special Rapporteur’s account of how the values and practices of the technology field must change in order to ensure that digital tools do not replicate racially discriminatory structures. The statement echoes the report’s challenge against Silicon Valley “technochauvinism,” or the idea that technology is the best solution to social problems, and expands on the importance of including people who have experienced the impact of racially discriminatory technology in the design process and compensating them for their contributions. In discussing racial equality data, the NGOs took a step beyond exploring ways to dismantle structural racism in the technology industry to examine how even efforts to combat digital discrimination have the potential to perpetuate racial hierarchies. 

While the Special Rapporteur advocates for data collection to help address racial inequities, the NGOs highlight the risk this could pose for already marginalised populations. The NGOs would nonetheless welcome, and gladly participate in, an effort to develop standards for non-extractive data collection and governance, including measures to ensure that data collection, analysis, interpretation, and dissemination do not reinforce existing racial and other hierarchies as well as address the power dynamics between data collectors and those whose data is collected.

The UN Special Rapporteur’s report outlines critical warnings about the racially discriminatory potential of technology, which is particularly urgent in the wake of the coronavirus

The UN Special Rapporteur’s report outlines critical warnings about the racially discriminatory potential of technology, which is particularly urgent in the wake of the coronavirus as governments around the world launch digital interventions in the name of the public good. DFF hopes that the report will receive broad support from civil society and that it will prompt much-needed further conversations on the issues addressed.

These conversations should include reflections on the makeup of the digital rights field itself, which, in DFF’s view, is currently too embedded in the power structures that enable the practices addressed by the Special Rapporteur to adequately fight them. We at DFF, together with EDRi, have initiated a decolonising process which aims to examine and tackle this issue. To learn more and find out how to get involved, visit the DFF website.

Update (September 2020): 80 NGOs and 55 individuals have joined the Digital Freedom Fund, Access Now, AI Now Institute, Amnesty International, Association for Progressive Communications and Internet Sans Frontières in signing on to the statement in support of the UN Special Rapporteur’s report. For the full statement and list of signatories, see here. DFF is grateful to Jessica Fjeld and Vivek Krishnamurty for their leadership in drafting the statement.

Photo by Bryan Colosky on Unsplash

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

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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