Protecting Freedom of Thought in the Digital Age

By Susie Alegre, 23rd March 2020

Emoticons and "like" buttons

My work as an independent lawyer focuses on the potential for technology to interfere with our right to freedom of thought, as protected in international law instruments including Article 9 of the ECHR and Article 18 of the ICCPR.

According to these instruments, many rights, like the right to private life and the right to freedom of expression, can be limited in certain circumstances to protect the rights of others or in the interests of public order.

The right to freedom of thought, on the other hand, is absolute under international human rights law. This means that where there has been an interference with our right to freedom of thought, as it relates to the thoughts and feelings we experience in our inner world, such an interference can never be justified. 

Despite this strong level of treaty-based protection, however, the right to freedom of thought has rarely been invoked in the courts. Many legal scholars and commentators have assumed that this is because, in fact, no person or government could ever get inside our minds

Many legal scholars and commentators have assumed that this is because, in fact, no person or government could ever get inside our minds

But when I first read about the Cambridge Analytica scandal and the use of behavioural micro-targeting to produce individual psychological profiling of voters so that they can be targeted with tailored adverts that press their unique psychological buttons, it seemed clear to me that the idea that no one could ever interfere with our minds was outdated.

There are three main planks to the right to freedom of thought:

  • The right not to reveal our thoughts.
  • The right not to have our thoughts manipulated.
  • The right not to be punished for our thoughts.

All three are potentially relevant in the digital age, where algorithmic processing of Big Data is relied on to profile and understand individual’s thought processes in real time for the purpose of targeting them with tailored advertising and other content.

Profiling seeks to infer how we think and feel in real time based on large swathes of data, including our online activity. Research on Facebook claimed that the social media platform could know you better than your family from interpreting your “likes”. In this way, interpretation of your social media activity gives a unique insight into your mind.

In another experiment, researchers showed that altering the order of Facebook feeds could manipulate users’ mood. The tailored way that information is delivered to us could change the way we think and feel in a very real way.

In another experiment, researchers showed that altering the order of Facebook feeds could manipulate users’ mood

But it is not only the tracking and manipulation of our thoughts and feelings that is of concern. The way that information could be used against us is equally worrying. Inferences about our personalities and moods drawn from big data can form the basis for decisions that will fundamentally change our life chances whether in limiting access to financial services, automated hiring processes or risk assessments in the criminal justice system.

Thanks to a DFF pre-litigation research grant, I am currently exploring the ways in which technology and artificial intelligence can be used to try to cross the boundaries into our inner world and to identify where arguments based on the right to freedom of thought could help to challenge these practices before the courts in the UK, Ireland and Spain.

The research is currently in the first phase, gathering relevant reports and examples of practices that could be considered to have implications for freedom of thought. I would very much welcome suggestions for reading and contacts from colleagues working in digital rights in any jurisdiction who would be interested in discussing ways that freedom of thought could be relevant to the work they are doing.

Inferences about our personalities and moods drawn from big data can form the basis for decisions that will fundamentally change our life chances

DFF’s Strategy Meeting 2020 offered a unique opportunity to share my initial research on the right to freedom of thought and to get feedback and ideas from an incomparable range of digital rights activists and experts from across Europe and beyond. The chance to test and discuss ideas, and to gain insights into the work of others, opened new and exciting avenues of inquiry that will feed into my research. It also helped me to reach out to new partners. I left Berlin energised and with a long list of people, organisations and topics to follow up with – DFF’s Strategy Meeting really does make things happen.

But the Strategy Meeting was just the beginning – I would love to hear from people and organisations who are already working on these issues or would like to cooperate on future work to keep the momentum from Berlin going.

Susie Alegre is an international human rights lawyer, author and barrister at Doughty Street Chambers specialising in the right to freedom of thought and technology.

Image by George Pagan III on Unsplash

How NGOs are Joining Forces Against Adtech

By Gro Mette Moen, 19th March 2020

Pole with sticker saying 'Big Data is Watching You'

As the General Data Protection Regulation approaches its two-year anniversary, it has been disappointing to see a lack of strong enforcement against adtech privacy violations.

While it seems that data protection authorities have found many violations too big to handle, NGOs have gathered forces, among other things at DFF’s strategy meeting in February.

In January 2020, the Norwegian Consumer Council published a report called “Out of Control – How consumers are exploited by the online advertising industry”, covering how apps on our phones share personal data with potentially hundreds of obscure companies. These companies harvest data to create profiles on individuals, which are then used for serving targeted advertising. Additionally, they are used for purposes such as discrimination, manipulation, and exploitation.

These companies harvest data to create profiles on individuals, which are then used for serving targeted advertising

Alongside the report, we filed complaints against six companies for breaching the GDPR, including five large adtech companies.

However, we were far from alone. We published ‘Out Of Control’ all across the world, together with a large number of other consumer, digital rights, and civil rights groups in Europe and the United States. The consumer rights umbrella in Europe, BEUC, coordinated the European action and many of the organisations are members of the Transatlantic Consumer Dialogue (TACD), Consumers International and the human rights umbrella Liberties. A total of 43 organisations in 20 countries participated, sending letters to several data protection authorities. Together we have achieved media coverage in more than 70 countries.

Our research was inspired by a vast digital rights network, including previous work done by Privacy InternationalPanoptykon Foundation and Open Rights Group. Additionally, many organisations have given important input in the research and we worked together with the cybersecurity company Mnemonic, the digital rights organization None Of Your Business (NOYB) and the researcher Wolfie Christl of Cracked Labs in particular.

Based on discussions at events such as the DFF strategy meeting in February, it is clear that many of the issues reach beyond privacy violations. In the future, we need to push for enforcement, looking across silos to address the combination of competition, privacy and consumer rights violations.

…it is clear that many of the issues reach beyond privacy violations. In the future, we need to push for enforcement

Another important topic is how we can address the responsibilities of publishers and advertisers. Publishers, advertisers and consumers/citizens are all cheated by the adtech industry in different ways. This means that we might have common interests.

Karolina Iwańska from the Panoptykon Foundation describes the dilemmas facing legitimate media in the article “10 reasons why advertising is broken”. Since a large portion of advertising funds go to adtech intermediaries, and because the adtech industry is dominated by only a few monopolistic actors, legitimate media are locked into a less-than fruitful business relationship with companies such as Google.

There are also widespread issues with ad fraud, where advertisers are paying large sums of money to adtech companies, but end up having their ads shown to bots instead of human beings.

We have seen some advertisers address the problematic aspects of adtech, both in dialogue with NGOs and in industry forums. For example, the head of the Norwegian branch of the World Federation of Advertisers recently published an opinion piece in the industry magazine Kampanje, predicting that advertisers will demand higher privacy standards from the adtech industry in the future. He calls for advertisers to become “the change you wish to see” – using their purchasing power to create room for alternative business models to grow. In other words – these issues can be addressed both through enforcement and from industry pressure.

The adtech industry should look out, because when the NGO sector stands together, we are a force to be reckoned with

In the meantime, we hope that further collaborative work will help push relevant authorities to protect consumers from commercial surveillance. By extension, this may help bring about a better and safer digital world, a world that is no longer driven by all-consuming tracking and profiling.

The adtech industry should look out, because when the NGO sector stands together, we are a force to be reckoned with.

Gro Mette Moen is the acting director of digital policy in the Norwegian Consumer Council.

Photo by ev on Unsplash

Turning Words Into Action: What Happens After the Strategy Meeting?

By Nani Jansen Reventlow, 12th March 2020

Coloured sticky notes from the strategy meeting

This February, we hosted our third annual strategy meeting, bringing together a group of 60 actors from across Europe and beyond to discuss recent developments in digital rights, strategise on new initiatives, and also reflect on how we can better work together as a field.

Besides offering an opportunity for participants to interact in person with their peers, the strategy meeting sparks new action and informs DFF’s activities. How? Let’s take a look.

Focus Areas for Grants and Support

DFF’s thematic focus areas were determined based on the priorities expressed by the field. Following a strategy process that commenced before DFF’s formal founding, the first annual strategy meeting was an opportunity to collectively take stock of the current state of play for digital rights in Europe and what the priorities were for key actors in the field.

The mappings and conversations at the meeting were then distilled by the DFF team into three thematic focus areas for its work: privacy and data protection; the free flow of information online; and transparency, accountability and adherence to human rights standards in the design and use of technology.

The mappings and conversations at the meeting were then distilled by the DFF team into three thematic focus areas

Whether these thematic focus areas continue to reflect the field’s needs and priorities is tested on a continuous basis, through individual exchanges, litigation meetings, and developments in DFF’s grantmaking work. But the annual strategy meeting remains a key moment to test and verify that we are still providing support to the field with the right focus areas in mind.

Skill Building and Litigation Sessions

In 2018, we organised two strategic litigation retreats together with SHARE Foundation to help litigators sharpen their strategic litigation skills and develop case ideas into a concrete strategic litigation plan.

During the strategy meeting that year, participants identified a need for more skill-building and -sharing around strategic litigation: people wanted to exchange with peers on specific casework and learn from each other.

Following the strategy meeting, a number of follow-up calls and exchanges with members of our network helped determine in more detail what would be most useful, on the basis of which the programme for the retreat was created. The two retreats in 2018 were positively received, with requests for new installments, which DFF plans to organise in the fall of 2020.

A number of cases also sprung from the retreats, some of which DFF was given the opportunity to support.

Strategy meetings have also led to litigation meetings focused on specific thematic work

Strategy meetings have also led to litigation meetings focused on specific thematic work. The GDPR meeting organised by Access Now and noyb in May of 2019, sponsored by DFF, is an example, as is the training on using the competition law framework to advance digital rights, held in December 2019. DFF’s current work on developing a litigation strategy on the “digital welfare state” follows from the consultation UN Special Rapporteur Philip Alston held for his thematic report on the issue. We hosted this consultation as a side event to the 2019 strategy meeting.

The need to focus on litigation on the negative human rights impact of artificial intelligence and automated decision-making also followed from that strategy meeting and, in addition to a litigation meeting co-organised with AI Now Institute in November 2019, had concrete follow-up during the recent one.

Resources for Strategic Litigators

Several resources have been developed based on conversations at the strategy meetings. The Model Ethical Funding Policy followed from discussions on the problematic aspects of funding digital rights work. A Short Guide to Competition Law for Digital Rights Litigators was created following the explicit request made in the report-out following a small group discussion for more training and resources on using the competition law framework to advance digital rights.

We continue to listen to discussions during our strategy meetings to get a sense of what resources or tools we can help build to better support the field.

Strategic Cases

Last, but definitely not least, the strategy meetings have been an opportunity for litigators to connect and explore ways to collaborate on cases, either by sparking new ideas for future work or finding allies for existing projects.

…the strategy meetings have been an opportunity for litigators to connect and explore ways to collaborate on cases

One piece of cross-border litigation sparked from the 2018 strategy meeting, when representatives from Gesellschaft für Freiheitsrechte in Germany and epicenter.works in Austria had a conversation about the EU Passenger Name Record Directive. That conversation led to joint action to challenge the Directive on data protection grounds, which you can read more about here.

The NGOs leading the challenge to the SyRI risk assessment system in the Netherlands, PILP and Platform Bescherming Burgerrechten, found an ally for their case in 2019, when they invited UNSR Philip Alston to submit an amicus brief. With success: the case was recently won.

Another example is organisations working on challenging the AdTech industry, who updated the field on their ongoing work and held space for multiple conversations strategising on the topic at the 2019 strategy meeting, which then fed back into the litigation work they were developing.

What’s Next?

The February strategy meeting ventured into previously unexplored territory on a number of fronts, amongst others by looking at what we could learn from the work in other regions, such as Latin America, and exploring parallels in tactics with climate change litigation.

However, the conversations at the meeting also showed that, overall, the thematic priorities of the field remain focused in the same areas as before. This makes sense: these are not minor, short-term issues, but ones that require a sustained and concerted effort to tackle.

The thematic conversations on, amongst others, AI and human rights and the digital welfare state will feed into the dedicated convenings that will take place on these topics in the spring and summer. Further activities will surely follow from that.

And what about cases? We are certain new collaborations have emerged and fresh ideas were brought to existing projects. We look forward to highlighting them here in the months to come!