Future-proofing our digital rights through strategic litigation: how can we win?

By Jelle Klaas, 7th November 2018

In September 2018, I was privileged to take part in the wonderful DFF workshop “Future-proofing our digital rights” in Berlin. With great participants from across Europe – lawyers, legal scholars and activists for digital rights – we explored the near and not-so-near future of digital rights.

One part of the workshop was looking at the future from a more positive perspective (“what would make the digital future bright and full of rainbows”). The other part was about scoping the risks and dangers (“what would make the digital future dark and full of robots”). Read more about this on the DFF blog.

The breakout session I want to tell you about was the session titled “what can we win now?”

The idea for this session was to scope out a few litigation ideas on what could be the digital rights equivalent of a landmark case such as the U.S. Supreme Court examples of Rosa Parks or a Brown v. Board of Education. Such a case wouldn’t immediately bring us a better (digital) world (that, unfortunately, cannot be achieved through litigation alone), but it could strengthen the campaign for such a world and could give the digital rights movement further inspiration and momentum.

Our small breakout group first debated the difference between digital rights issues on the one hand, and more traditional civil rights issues like racism and segregation on the other.

In situations like Brown v. Board of Education or the action by Rosa Parks, a court case that showed the daily practice of structural racism and segregation and its injustice was needed to set change in motion. However, it would appear that many digital rights issues are more abstract to the general public than, for instance, the segregation policy of the U.S. in the 1950’s. It can, therefore, be more difficult to show why violations of these digital rights matter and really hurt people in their everyday lives.

With this in mind, we thought that bringing cases that seem absurd and unrealistic at first, but are nonetheless true, can be one litigation tactic that can be used to bring home the extent to which digital rights are under attack. Cases that convey the feeling: “this could also happen to me.” And cases that almost everyone can relate to and feel threatened by.

We decided to focus on cases regarding the use of algorithms and decisions by computers/artificial intelligence.

We came up with four possible scenarios of cases that could help us “win”:

  • A baby profiled as a terrorist. Unfortunately, we already know of one baby that was profiled based on an algorithm and whose diapers were searched by border police. This is of course absurd (babies do not have detectable political views, and even if they had, they could not act upon them), but we discussed that perhaps not everyone could relate to this (“I have no ‘risky’ name and/or flight patterns, so this does not concern my children”);
  • A person who is charged more to buy a car or get a service, because of their data profile. Quite some research has already been done that shows that algorithms (often containing a fair number of errors) resulted in people wrongly being denied services or credit. A case where a biased algorithm charges more for a service or product (that has nothing to do with the bias) could be a good case to show that algorithmic decision-making can affect everyone.
  • A child taken away from its parents by child care authorities based on data analysis. To detect whether children are at risk of abuse or in an unsafe situation, child protection agencies are making use of algorithms. There have already been incidents reported where children have been taken away from parents (partly) based on biased algorithms. Most people would probably accept that decisions regarding children being taken from their families is one field in which a fully human, contextual viewpoint is needed and where the margin of error should be low. Litigation around an awful situation that shows how this can go wrong could be very powerful.
  • Essential medical supplies not being delivered to a household because the area is deemed off limits. We have already seen this happen: some areas, with a bad reputation or poorer population, receive worse or no delivery of products by some companies. This policy can stem from algorithms based on discriminatory data. A possible litigation strategy would be to go for a house right next to a poor area, to show the spillover effects of such algorithms’ decision-making.

Interesting raw first ideas, in my opinion, that could be expanded upon and further explored.

The workshop reminded us that we have to prepare for the future. Proactively thinking about campaigning and strategic litigation, not just as a reaction to a new harmful practice, is a very good way to do so. Creating or finding the case or incident that can really grab the attention of a larger group of people, outside the digital rights community, could help build a stronger, more cross-disciplinary movement or make these already existing movements bigger and broader.

The digital rights movement is already very aware of the digital rights violations in the present. It could also prepare to find, amplify and effectively respond to incidents in the future that, for instance, warn the general public about algorithms and computer decisions.

About the author: Jelle Klaas is the litigation director of the Nederlands Juristin Comité voor de Mensenrechten (NJCM — Dutch Legal Committee for Human Rights) and responsible for their Public Interest Litigation Project (PILP).

DFF and SHARE host second litigation retreat: strategising on digital rights in the heart of Belgrade

By Jonathan McCully, 31st October 2018

This month, we were very happy to be working again with our friends at the SHARE Foundation to host our second litigation retreat. On this occasion the retreat brought together twelve digital rights litigators from across Europe in bustling Belgrade, Serbia to share and further develop their strategic litigation skills.

At the retreat, representatives from nine organisations that work on defending rights and freedoms in the digital space came together: Access Now, Amnesty International, Digital Security Lab Ukraine, Human Rights Monitoring Institute, Irish Council for Civil Liberties, noyb, Open Rights Group, Privacy International, and the Public Interest Litigation Project. Each of these organisations also share an interest in using litigation as a means to ensure changes in law, policy or practice to enhance the protection of rights and freedoms in the digital sphere.

The retreat was an opportunity for litigators to get away from the office and focus the mind on litigation work in a collaborative environment. All participants came to the retreat with a case that they were working on, and that they could strategise and plan around. The cases workshopped during the retreat dealt with a range of digital rights issues: from website blocking and surveillance, to challenging data retention regimes and securing enforcement of the General Data Protection Regulation.

Alongside the workshopping of specific cases, the four-day retreat involved a mixture of group work, plenary discussion, and substantive knowledge sharing sessions dealing with a range issues from case management and campaigning around a case, to building and implementing a litigation strategy. We also had an opportunity to hear from Senior Advisor to the UN Special Rapporteur on Extreme Poverty and Human Rights, Christiaan van Veen, who discussed the potential role of the UN Special Mechanisms in maximising impact in strategic cases and the work some UN mandates are currently doing on digital rights.

By the end of the retreat, participants left with the core elements of a comprehensive litigation and advocacy plan for their cases. One participant noted that the retreat was a “great and enriching experience that gave me practical tools for future use.” Another participant observed that the retreat “itemised how litigation strategy is but one piece of the advocacy puzzle.” The retreat also facilitated a better understanding of what other European digital rights litigators are currently working on. One participant noted that “[t]he collaborative efforts on digital rights across Europe is a lot more extensive and diverse than I knew.”

The agenda and materials used during the retreat were developed on the basis of input provided in follow-up conversations with members of our network interested in working on skill-building and skill-sharing after our February strategy meeting, as well as feedback provided by participants from our July retreat in Montenegro. We further benefitted from the expert guidance of Allen Gunn from Aspiration, who helped ensure that both our retreats fostered co-learning between participants in a collaborative environment. We would also like to thank one of the participants from our July retreat, Nevena Krivokapić, a lawyer at the SHARE Foundation, who joined us again as a co-facilitator for the week. “I had a fantastic and unique experience co-facilitating this event,” she said, “I enjoyed being able to spend a few days with the next generation of digital rights defenders, who shared very valuable insights for my future work.”

The litigation retreats form part of DFF’s work in supporting skill-building and skill-sharing amongst the field. This work will continue into 2019, with DFF supporting two thematically focussed litigation meetings. A call for applications for the first of these meetings, which will take place around May and focus on litigation around the GDPR, can be found on our website (deadline 30 November 2018). We are also working on a project to develop strategic litigation toolkits, which will include materials developed during the litigation retreats. We hope to share more information about this in the not-too-distant future!



Imagining our digital rights future

By Nani Jansen Reventlow, 4th October 2018

Does a future with self-driving electrical cars look greener? In a tech-driven future, will we be able to disconnect? How do we ensure transparency and accountability in a world where “black boxes” make decisions on our health, education, civil and political rights, and many other aspects of our lives? How can we use technology to our advantage five, ten years from now?

These, and other questions, were considered by participants in DFF’s “Future-proofing our digital rights” workshop in Berlin last week. Responding to an invitation sent out to our network this summer, representatives from Liberties, Privacy International, SHARE Foundation, Helsinki Foundation for Human Rights, Oxford Information Labs, Liberty, Public Interest Litigation Project, Prototype Fund, Panoptykon Foundation, Bits of Freedom, Global Partners Digital, La Quadrature du Net, and Digital Security Lab Ukraine came together in Berlin and, guided by the energetic facilitation from Aspiration, looked ahead at the opportunities, threats and challenges related to digital rights in the future. Temporarily switching our focus from the digital rights battles being fought today turned out to be an invigorating and inspiring experience.

Starting from a positive premise, we first explored what opportunities might lie ahead of us by answering the question “what digital rights do we want to be able to say we have five to ten years from now?” This was followed by our own imagining of a “Universal Declaration of Digital Rights”: how will the rights currently protected in our international human rights system be interpreted and will new ones need to be established over the coming years?

From there, we moved on to mapping of potential threats to this future vision, as well as an identification of the ways in which we could help (and avoid hindering) our future selves. We found that, on some issues, it was challenging to be truly forward-looking as the expectation was that future developments would mainly entail a reinforcement and amplification of current issues, such as the current lack of diversity and inclusion in the design and application of technology. Nevertheless, we were also able to formulate free-standing new narratives about our digital rights future, stepping away from a position in which we are merely responding to the ways in which our digital rights are under attack. Exciting questions to look at where ones like “what can we win on in the future” and “what will a right to disconnect look like?”

We will be reporting about some of these conversations in more detail over the coming weeks in a series of blog posts drawn from and shared by those present at the workshop, to which we invite your input and comments.

As mentioned in our pre-workshop post, this future-looking event, which has a long-term horizon, complements the two other types of events DFF supports to facilitate increased connectivity and collaboration across the digital rights field: the litigation retreats, focused on the short-term horizon, and DFF’s strategy meetings, which can be placed on the mid-term part of the horizon. The results of the Future-proofing Our Digital Rights workshop will feed into the next strategy meeting, which will take place in February 2019. In the interim, we will not only share a number of publications, but also host a “virtual design jam” towards the end of 2018 to explore how some of the ideas discussed during the workshop might be turned into concrete action, including litigation.

If you want to participate in any of these conversations or have thoughts on future digital rights issues you would like to share with us: get in touch to let us know!