Exchanging knowledge across the Atlantic: litigators kick off call series on digital rights

By Jason Williams-Quarry, 10th September 2019

DFF’s transatlantic call series on digital rights kicked off on 9 September with 29 experts, litigators and activists sharing knowledge from across 15 organisations.

The five-part call series seeks to facilitate dialogue on digital rights priorities and international collaboration between organisations in the US and Europe.

The first call focused on a wide range of critical digital rights issues, including facial recognition, mass surveillance and how to use anti-trust and competition law to protect digital rights. Participants met with their peers in an informal setting, shared knowledge of each other’s organisations as well as concrete experience by discussing recent cases and pending litigation.

The call series builds on initial conversations earlier in the year between DFF and lawyers from the Electronic Frontier Foundation (EFF), Knight First Amendment Institute at Columbia University and American Civil Liberties Union (ACLU).

DFF is hosting another four transatlantic calls over the coming weeks. The next transatlantic calls currently planned are:

  • 23 September (17:00 CEST)

Heat mapping thematic areas for transatlantic collaboration

  • 8 October (17:00 CEST)

Challenging anti-encryption measures

  • 15 October (17:00 CEST)

Machine learning and human rights

  • 13 November (17:00 CET)

Content moderation

Register for any of the upcoming sessions by getting in touch with us via e-mail.

Further topics and calls will be added based on the input from participants. Stay tuned!

Six years after the Snowden revelations, the fight against bulk surveillance continues

By Megan Goulding, 9th September 2019

The High Court of England and Wales recently ruled that the UK Snoopers’ Charter was compatible with rights to privacy and freedom of expression. This judgment allows the UK Government to continue to spy on people, in the UK and abroad, regardless of suspicion. Ordinary people will have their sensitive communications and data swept up and stored under wide-ranging state powers to spy en masse.

Liberty, the UK human rights organisation that brought the challenge, will appeal the judgment in the courts and will keep fighting for a targeted surveillance regime that respects people’s fundamental rights.

The People vs Snoopers’ Charter

The Investigatory Powers Act (the latest iteration of the Snoopers’ Charter) became law in late 2016. It purported to introduce transparency to state surveillance following Edward Snowden’s revelations of unlawful mass monitoring of the public’s communications.

A petition calling for its repeal attracted more than 200,000 signatures, but it was still not debated by Parliament. The judgment handed down by the High Court of England and Wales on 29 July 2019 was the latest step in Liberty’s historic legal challenge to mass surveillance powers under the Snoopers’ Charter. This legal challenge has been taken in two separate tranches.

The first tranche resulted in the High Court handing down a decision in April 2018 that found that the legislation failed to protect people’s rights in relation to the state’s accessing of their communications data. Specifically, the Court found that it was unlawful for the state agencies to be able to access people’s data held by telecommunications operators without prior independent authorisation, and that agencies should not be able to access such data for the purposes of investigating non-serious crime. The UK Government was ordered to change the law to correct these defaults and has now introduced a new body called the Office for Communications Data Authorisations (OCDA) which will authorise state access to data held by telecommunications operators.

The second tranche of the litigation focused on the illegality of “bulk” powers, including bulk interception, bulk hacking, bulk acquisition of data, and the creation of “bulk personal datasets”. It was the world’s first legal challenge to powers allowing state agencies to hack people’s information under bulk warrants.

At the hearing in June 2019, Liberty argued that the bulk powers contained in the Investigatory Powers Act 2016 breach Article 8 (the right to privacy) and Article 10 (the right to freedom of expression) of the European Convention on Human Rights.

Liberty further argued that there are insufficient safeguards in the Act to protect confidential journalistic sources and legally privileged material.

MI5’s unlawful data retention

A week before the hearing in June, as a result of Liberty’s litigation, it was revealed in court that MI5 (the UK’s Security Service) has for many years been unlawfully retaining and mishandling people’s data obtained under the bulk powers Liberty was challenging. This included mishandling sensitive legally privileged material (i.e. confidential communications between a lawyer and their client). It was only because of Liberty’s case, and the Government’s duty to report relevant issues to the Court, that the Government admitted what it knew about MI5 unlawful conduct. Though the Government is still keeping the exact details of the unlawful conduct secret, it has been forced into publicly revealing certain details as a result of Liberty insisting that it do so in court.

The Investigatory Powers Commissioner (the head of the UK oversight body for surveillance) said the breach was severe enough that he considers MI5’s handling of data to be in “special measures”, drawing an analogy to the “special measures” status that is given to schools in the UK when they are failing and require urgent remedial action. However, the Commission did not elaborate on what this designation means for MI5’s surveillance powers. Nevertheless, MI5’s startling admission in the documents revealed in court that people’s data is being held in “ungoverned spaces” shows that the Act’s safeguards, and its oversight system, are wholly inadequate for protecting people’s fundamental rights.

This inadequacy goes to the heart of Liberty’s challenge. Liberty’s case is that the safeguards in the Investigatory Powers Act 2016 fail to protect people’s privacy and free expression. The MI5 disclosures prove that. So inadequate are the safeguards that they can fail to be enforced for years without it being discovered by the oversight body, Government or public.

Pushing forward the fight against mass surveillance

In September 2018, Liberty, along with 13 other human rights and journalism groups and two individuals, won its challenge to the previous Snoopers’ Charter (the Regulation of Investigatory Powers Act 2000) at the European Court of Human Rights. The Court found that the UK’s previous regime for bulk interception was unlawful.

Liberty and the other Applicants appealed this judgment to the Grand Chamber of the European Court and were in Court in July, seeking an even firmer ruling that bulk surveillance powers inherently violate people’s rights.

The Investigatory Powers Act 2016 replicated and expanded the intrusive surveillance powers that the European Court has already found to breach people’s rights to privacy and free expression.

We will appeal the High Court’s July judgment, and will keep fighting until the UK Government gives people a targeted surveillance regime that does not demand they throw away their rights.

About the author: Megan Goulding is a solicitor at the UK human rights campaigning organisation, Liberty. Megan specialises in privacy, technology and human rights and runs Liberty’s litigation in this area.

Rebuilding the master’s house instead of repairing the cracks: why “diversity and inclusion” in the digital rights field is not enough

By Nani Jansen Reventlow, 2nd September 2019

Paul Sableman, CC BY 2.0

Silicon Valley is not the only sector with a “white guy” problem: civil society struggles with this as well. Oddly, it wasn’t until I looked at the group photo taken at the Digital Freedom Fund’s first strategy meeting that I noticed it: everyone in the photo except for me was white. I had just founded a new organisation supporting strategic litigation on digital rights in Europe and this had been our first field-wide strategic meeting, bringing together 32 key organisations working on this issue in the region. This was in 2018. In 2019, the number of participants had increased to 48, but the picture in the group photo still was pretty pale, with the team of my organisation accounting for 50% of the 4 exceptions to that colour palet. And while gender representation overall seemed fairly balanced, and there was a diverse range of nationalities present, some voices were noticeably absent from the room. For example, the overall impression of participants was that there was no one with a physical disability attending.* It was clear: something needed to change.

In all fairness, the participants themselves had clocked this as well –– the issue of decolonising the digital rights field had significant traction in the conversations taking place in the course of those two days in February. I have been trying to find good statistics on what is popularly referred to as “diversity and inclusion” (and sometimes as “diversity, equity and inclusion”; I have fallen into that trap myself in the past when speaking about technology’s ability to amplify society’s power structures), both in the human rights field more widely and the digital rights field specifically, but failed. Perhaps I was not looking in the right places; if so, please point me in the right direction. The situation is such, however, that one hardly needs statistics to conclude that something is seriously amiss in digital rights land. A look around just about any digital rights meeting in Europe will clearly demonstrate the dominance of white privilege, as does a scroll through the staff sections of digital rights organisations’ webpages. Admittedly, this is hardly a scientific method, but sometimes we need to call it as we see it. 

This is an image many of us are used to, and have internalised to such an extent that I, too, as a person who does not fit that picture, took some time to wake up to it. But it clearly does not reflect the composition of our societies. What this leaves us with, is a watchdog that inevitably will have too many blind spots to properly serve its function for all the communities it is supposed to look out for. To change that, focusing on “diversity and inclusion” is not enough. Rather than working on (token) representation, we need an intersectional approach that is ready to meet the challenges and threats to human rights in an increasingly digitising society. Challenges and threats that often disproportionately affect groups that are marginalised. Marginalisation is not a state of being, it is something that is done to others by those in power. Therefore, we need to change the field, its systems and its power structures. In other words: we need a decolonising process for the field and its power structures rather than a solution focused on “including” those with disabilities, from minority or indigenous groups, and the LGBTQI+ community in the existing ecosystem.

How do we do this? I don’t know. And I probably will never have a definitive answer to that question. What I do know, is that the solution will not likely come from the digital rights field alone. It is perhaps trite to refer to Audre Lorde’s statement on how “the master’s tools will never dismantle the master’s house” in this context, but if the current field had the answers and the willingness to deploy them, the field would look very different. Lorde’s words also have a lot to offer as a perspective on what we might gain from a decolonising process as opposed to “diversity and inclusion”. While the following quote focuses on the shortcomings of white feminism, it is a useful aide in helping us imagine what strengths a decolonised digital rights field might represent:    

“Advocating the mere tolerance of difference between women is the grossest reformism. It is a total denial of the creative function of difference in our lives. Difference must be not merely tolerated, but seen as a fund of necessary polarities between which our creativity can spark like a dialectic. … Only within that interdependency of different strengths, acknowledged and equal, can the power to seek new ways of being in the world generate, as well as the courage and sustenance to act where there are no charters.”

The task of re-imagining and then rebuilding a new house for the digital rights field is clearly enormous. As digital rights are human rights and permeate all aspects of society, the field does not exist in isolation. Therefore, its issues cannot be solved in isolation either –– there are many moving parts, many of which will be beyond our reach as an organisation to tackle alone (and not just because DFF’s current geographical remit is Europe). But we need to start somewhere, and we need to get the process started with urgency. If we begin working within our sphere of influence and encourage others to do the same in other spaces, to join or to complement efforts, together we might just get very far.

My hope is that, in this process, we can learn from and build on the knowledge of others who have gone before us. Calls to decolonise the academic curriculum in the United Kingdom are becoming increasingly louder, but are being met with resistance. Are there examples of settings in which a decolonising process has been successfully completed? In South Africa, the need to move away from the “able-bodied, hetero-normative, white” standard in the public interest legal services sector is referred to as “transformation“. And efforts to “radically re-imagine and re-design the internet” from Whose Knowledge center the knowledge of marginalised communities on the internet, looking at not only online resources such as Wikipedia, but also digital infrastructure, privacy, surveillance and security. What are the lessons we can learn from those efforts and processes?

This is an open invitation to join us on this journey. Be our critical friend: share your views, critiques and ideas with us. What are successful examples of decolonising processes in other fields that the digital rights field could draw on? What does a decolonised digital rights field look like and what can it achieve? Who will be crucial allies in having this succeed? How can we ensure that those currently being marginalised lead in this effort? Share your views, help us think about this better, so we might start working on a solution that can catalyse structural change.

* As observation was the method used for this determination, it is difficult to comment on representation that is less visible than other categories such as religion, socioeconomic background, sexual orientation, etc.