Protecting Freedom of Thought in the Digital Age
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unique psychological buttons, it seemed clear to me that the idea that no one could ever interfere with our minds was outdated.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.