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Jan 20, 2022

In Episode 2 of Series 7 of The Rights Track, Martin Scheinin, British Academy Global Professor at the University of Oxford and a member of the Scientific Committee of the EU Fundamental Rights Agency joins Todd to discuss whether the grammar of human rights law can cope with multiple challenges of the digital realm.  

Transcript

00:00 Todd Landman

Welcome to The Rights Track podcast which gets the hard facts about the human rights challenges facing us today. In series seven, we're discussing human rights in the digital world. I'm Todd Landman, in our second episode of the series, I'm delighted to be joined by Martin Scheinin. Martin Scheinin is the British Academy, Global Professor at the University of Oxford, and a member of the scientific committee of the EU's Fundamental Rights Agency. He is currently exploring whether the grammar of human rights law can cope with multiple challenges of the digital realm. So Martin, welcome to this episode of The Rights Track, it's great to have you here. Well, you know, in our first episode of the series, we had a discussion with Ben Lucas, who's a data scientist. And the one thing that he said to me that has really is stuck in my mind is that the regulatory framework has not been able to keep pace with technological change. And I wanted to use that just as an opening framing that when we consider the international human rights framework, the international human rights regime as a regulatory framework of sorts, as against this rapid expanse in technological change, and in the digital space, this gap between regulation and technology is something that's pretty enduring. But I wonder what your early thoughts are about how do human rights address this question of technological change?

1:14 Martin Scheinin 

Well, I think that human rights law is very much needed now. There, there may be a widely held perception that human rights law would be unable to cope, for instance, because so much is done by private actors that traditionally are not seen as bound by human rights law, or because the digital realm knows no borders between countries, and therefore it escapes the jurisdiction of any single state, often relied upon as a necessary precondition for the application of human rights law. I do believe that human rights law can cope. And I can see with, with some satisfaction, how both the United Nations and Council of Europe human rights bodies and mechanisms have understood the importance of the challenge and are trying to address it, that doesn't mean that they would already have found a way but at least there is a good faith effort, I would say.

02:13 Todd Landman

And you know, human rights is often criticised as being state centric, where the primary duty bearers is the state, and then therefore private actors are not part of that frame. But what has changed since you know this early perception of state centric human rights framework in your mind that might address some of the gaps that you've, you've already raised with us?

2:31 Martin Scheinin 

Well, I'm currently running a four-year research project as British Academy Global Professor at the Bonavero Institute of Human Rights at the University of Oxford. And I framed the project as dealing with the grammar of human rights law and how it can address the challenges of the digital realm. And this, this framing signals need to go back to the foundational concepts and structures and to see how new phenomena new challenges can be spoken about in the language of human rights law. And just to take one example, one of my first journal articles in this project, still in the process of being finalised is about new EU level and national laws about taking down internet material that is seen as terrorist online content. It's a whole wave of legislation in European and other countries. And there is an EU regulation which is directly applicable EU law in all EU member states. It's a striking example of the challenges. We are speaking of something intangible, ultimately, information, images, video, text in digitalized form, which is produced by one private actor in one country, published by someone else, another private actor in another country, and perhaps using a medium of a server located in a third country and operated by a third private party. Under this EU regulation, which as I said, is valid law, national authority in a fourth country, in any EU member state, can ask the authority of the third country where the server is located to give an order to take down the material. And that national authority has one hour to act, which usually means an order for the private server operator to take down the material. And then that private actor has one hour again to implement the request or the order. What we see here is a whole chain of private actors.

04:41 Todd Landman

Yes It's an incredible reach and, and also what happens if they don't comply within the hour? That's an extraordinarily short time period.

4:49 Martin Scheinin 

Well, there are, of course, sanctions and enforcement mechanisms, penalties, etc. But we see here a whole chain of private actors in, in production and publishing of this information. And the challenges to human rights law are, firstly, the civil jurisdiction, the actors, the private actors are located maybe located in different countries. And the order comes from at least two different states where the server is located, and then the initiator of the actual requests. And neither one necessarily has any jurisdiction in relation to the person who actually is behind the message, who uploaded the so called terrorist online content, and is subject to a measure that constrains freedom of expression. And that relates to jurisdiction, and then we have the question of mechanism of redress, that there's a there's a vague clause saying there must be access to judicial remedies, but in what country? In what language by whom? Is the, is the question. So we risk the situation of putting people in a legal limbo. And here we need human rights law to navigate through this mess and and to provide some kind of guidance to what is permissible and where where to draw the limits both as to the substantive issue of what is terrorist online content? And also to the procedures what kinds of remedies will be required?

06:15 Todd Landman

Yeah, and you know, I'm going to pick up on this freedom of expression, maybe add freedom of speech alongside it with the, you know, rather famous cases of former President Trump and now representative Marjorie Taylor Green having been banned from certain social media platforms. One was about misinformation with respect to COVID-19. The other was just about misinformation more generally, in a view to mobilising supporters. But what's your take on this ability for private organisations like a Facebook or a Twitter to ban people for life for something that they've posted on their own platforms?

6:52 Martin Scheinin 

Yeah, the traditional view, of course, is that a medium, a newspaper, has no obligation to publish every opinion, they exercise their freedom of expression, by choosing what message they want to carry. And as such, that belongs to freedom of expression. But then when we have the emergence of let's say, Facebook or Twitter as something that can be called public goods, or common goods, we have to ask the question, whether access itself is a freedom of expression issue and how can the mediation of content be done so that freedom of expression of the of the of the users is reflected. I see a certain asymmetry in the sense that those holding a public office, if they have a Twitter account, they shouldn't be allowed to block other voices who may be critical of them. So that critics couldn't respond to their messages, but can then Twitter block them by banning them from using the service? I think we are in in quite a challenging situation. Here, I do believe that some kind of extension of human rights obligations to private actors is necessary. It may happen through their own regimes of redress, as Facebook is trying to build. And I'm optimistic, not of the model itself, but of the possibility of perfecting the model so that we can have genuine human rights mechanisms, also within private actors. Ultimately, there could be something like a World Human Rights Court with jurisdiction over those private actors who have accepted it as a as an appeal court, in respect of their own internal mechanisms.

08:51 Todd Landman

That's fascinating Martin. You know, back in all way back in 1998, I was on my way to Venice, to teach on the European master's degree in Human Rights and democratisation. And I think I was in the air when the British authorities arrested Augusto Pinochet from Chile and put him under house arrest, which I believe was about 18 month’s worth of time when British Parliament debated the legality of his arrest in his detention. And there was an appeal made and often this case is cited as one in which the application of universal jurisdiction applied, and it really advanced the argument for universal jurisdiction. I wonder to what degree what you're exploring and talking about here today is the application of the principle of universal jurisdiction for digital technologies.

9:36 Martin Scheinin 

I think there's a need for a distinction in the sense that the Pinochet case was about enforcement jurisdiction, the powers of the state to do something over an individual who is is primarily subject to other country's laws. Whereas here we hold a state to account for something that happened outside its borders, because of the causal link to human rights harm elsewhere. And states have been very careful in not accepting extraterritorial jurisdiction in respect of human rights violations that materialise elsewhere, when they were not there themselves and the European Court of Human Rights has been struggling, we know the bombing of Belgrade, the Bankovic case where the European Court of Human Rights threw it out, because it was outside the legal space of Council of Europe. Subsequently, it has taken the view that if you take possession of a person through arrest, then you are there with human rights obligations, which is, of course a bit paradoxical that dropping bombs is not jurisdiction, but but handcuffing is. We are we are trying to impose upon States a broader notion of jurisdiction, which is simply based on their causal links with what happens in the digital realm. For instance, in curtailing freedom of expression, by actors outside their own territory. It is necessary that we do this because the internet knows no knows no borders, and there are causal links, which create the human rights harm we are addressing. And as we see in the EU terrorist online content regulation, there are multiple countries involved. And one country asks for the takedown, another country implements it that the server can be located in a third country and the actor himself/herself in a fourth country, there's a whole chain of action, but somebody must be held accountable. And that requires the extension of the notion of jurisdiction.

11:44 Todd Landman

Okay, that that distinction between the two makes, makes perfect sense to me. And you know, the complexity and complication of that is, is very salient. I wonder beyond expression and freedom of speech, etc. What other human rights are at stake in this particular agenda?

11:58 Martin Scheinen

Well, I don't think people realise how broadly their human rights are actually at issue, when dealing with new developments in the digital realm. When we say expression, of course, easily what follows is freedom of assembly and association. Their exercise has largely shifted to happen online, especially in the times of the pandemic, but we also can say at elections and democracy. And public accountability have become phenomena that take place online. And this issue of democracy is especially important because of the vulnerability of electoral systems to malicious operators in cyberspace. So democracy is facilitated by moving online, but also but also subject to new kinds of risk. Our intimate sphere happens, to a large extent, online, even if the most important manifestations, of course, are still interpersonal. That brings up a whole range of privacy issues. Data protection is of course the human right which is most often referred to simply because of the passing of lots of sensitive personal data, but the mother right, right, the right to privacy is equally important. Here we go to issue such as surveillance. And if I now may mentioned another article I'm working on within my British Academy Global Professor project, I've been looking into the privacy related developments during the pandemic. And of course, there are very important and very different developments over these 22 months. We, we have totalitarian control with countries like China, which erode totally the privacy of the individual, and utilise and exploit health information for social control. It is true that digitalized control tools are in a sense rational because humans are vectors of the virus. The epidemic is not simply a question of a virus that that keeps replicating. It is human society, which transforms the virus into an epidemic in democratic countries. We see innovations such as contact tracing apps, digital contact tracing apps, and COVID passports. Both are potentially privacy intrusive, but here we see a certain kind of paradox in that in order to function, they must be human rights compatible or at least must have human rights compatible features, because they will only work if they are widely accepted. So, here the issue of legitimacy comes to the defence of human rights. Solutions, technological solutions, that would be best simplistically will not work, because they will not be widespread enough, whereas, where privacy, by design is inbuilt in the solutions, they will have much better success. We get into new paradoxes however, because for instance, when the, when the contours of the epidemic change with new variants like the Omicron variant, we are speaking on today, the scope of for instance, a COVID Passport can be rapidly overnight changed. So previously, having a COVID passport did not reveal your actual health information. It only told that this person is at this moment, carrying a valid COVID passport. But it didn't tell whether they were vaccinated, whether they had COVID, or whether they were tested in the last 24 hours, 72 hours. Now, when the, when the requirements are being made more narrow. The COVID Passport suddenly starts to reveal health information. It was sold under a different label. But now it is transforming to, let's say worse for human rights in the sense that it breaks the promise of not revealing health information.

16:09 Todd Landman

Yeah, and it really does hit the question of liberty versus public health and involves this question of proportionate response, right. And so the human rights framework often talks about proportionality, as well as reasonableness as well as of a certain, you know, time bound duration. So it's possible to rescind on particular rights commitments for a particular period of time, if that rescindment of rights is or taking away rights is proportionate to the threat that one faces. And of course, massive debates here in the UK about this, there's a very strong lobby that's advocating against the passports, another lobby that's advocating for them, and it is down almost to the individual user to give consent to those passports and move about planet Earth. But those who do not give their consent and want to move around planet Earth without demonstrating whatever status they have, they may in themselves be putting others at risk. But the probability of that risk is different, you know, because I could have all the passports I like and still be a contagion. And somebody couldn't have any of the passports or not be a contagion. So it's these huge tensions throughout this whole debate.

17:16 Martin Scheinin 

You mentioned, you mentioned proportionality, and I think there's an important issue that I want to address in the sense that many a human rights laws scholar is happy with proportionality. Ultimately, human rights would be a question of balancing between the competing public interest and the intrusion that results into an individual's human rights. But I belong to the, let's say, more fundamentalist school of scholars who say, there are also bright lines, there's something called the core or the inviolable ethics of every human right. So proportionality just does not justify every intrusion. And and that's an important task also in the context of COVID, that we must first define the ultimate limit up to which proportionality is taken into account. And there are applications of this approach include, including the two Max Schrems cases by the European Court of Justice, the highest EU court, where they did not conduct a proportionality assessment because they said this is mass surveillance, which is prohibited as as a bright line. I endorse that approach, that human rights are not only about balancing of competing values, they are also about protecting the inviolability of certain foundational principles and they belong to what I call the grammar.

18:39 Todd Landman

I see, so this word grammar then becomes very important for you. And I suppose it almost invites you to deconstruct the grammar, and then reconstruct the grammar. So what can you tell us about the grammar of human rights? I'm very interested in this concept.

18:54 Martin Scheinin  

Well, my British Academy project lists ten antinomies or challenges, which are related to human rights in the digital realm, but at the same time, go back to these foundational principles, concepts, structures of human rights law, and what I mentioned about the essence inviolability of the essence versus proportionality is one. There's the question of the private versus the public actor as agent, and also as the duty bearer. There's the question of territorial versus extraterritorial action by states. And there's also the distinction between derogation and limitation. Limitations are in normal times. And they must be proven proportionate, whereas derogations are exceptions in times of crisis. And I think COVID has provided us an opportunity, us an opportunity to look once again into the question, are there different limits, a different definition of the inviolable core, for instance, when a country is in a state of emergency? These are just examples.

20:04 Todd Landman

Yeah, they're great examples. We interviewed an anti-terror expert, Tom Parker in the last series, and he made this reference very similar set of things that you just said there. And, you know, this notion of limits is really important. But also he's worried that there's a kind of state bureaucracy, a state apparatus that has been developed for this particular public emergency. And he's worried that that will become permanent, that that that it won't fade away, it won't be brought back down again, after a period of duration, and that we are in a sense, living with a new kind of surveillance that will will not go away. What do you say to that?

20:40 Martin Scheinin 

I have worked on surveillance in an earlier EU funded research programme called SURVEILLE, which developed multi-dimensional and multidisciplinary methodology for assessing the utility of surveillance technologies versus their human rights harm. And we could show that the most intrusive methods of surveillance often were only marginally effective in actually producing the legitimate aim or benefit towards the legitimate aim. It was a semi-empirical, largely largely based on hypothetical or modelling situations. But nevertheless, we had the multidisciplinary teams working on it and could show that this technological hype around surveillance is unfounded, that traditional methods of policing, footwork and human intelligence deliver a much better proportionality approach to assessing the Human Rights harm in relation to the actual benefit obtained toward national security. There are many reasons why surveillance technology and other digital innovations tend to perpetuate then. And we can speak on the surveillance industrial complex. And I'm also sure that there as issues of mission creep and function creep, and many of the changes we see in the realm of treatment of sensitive health data will remain after COVID-19 is over. So something is lost. Or at least there's a risk that something is lost every time a special situation justifies resorting to exceptional measures.

22:31 Todd Landman 

And just in closing, I want to ask you a final question, which is you spend your time as Global Professor, you engage with academics at Oxford and the rest of the world in this area, and you come up with a new grammar for human rights - what next? What's the goal here? Is it to then advocate to the United Nations system, the European system to change laws, regulations and practices? Do you think you could have that kind of leverage to make the changes required to address the very deep issues that you've raised with us today?

22:59 Martin Scheinin 

Well, I, I did mentioned the surveillance project where I was involved. That gives a good example of what an eternal optimist who is a serious academic can achieve. So we developed this methodology for the multidisciplinary assessment of surveillance technologies. And we delivered our reports and on 29th of October 2015, the European Parliament adopted a resolution where they commended the methodology developed in the SURVEILLE project and recommended it for use. Two weeks later, happened Bataclan, one of the most dreadful terrorist attacks in Europe and everything was forgotten. Nothing came out of it. And that's the pendulum, especially in issues of terrorism, that there are all kinds of good efforts to develop constraints safeguards and make proposal about human rights compatibility. But when panic strikes, it goes down the drain. I am an eternal optimist, and I think that human rights law has to engage has to evolve and that it will be able to deliver outcomes that both make meaningful difference as to the facts on the ground, and at the same time, are able to correspond to the intuitions of ordinary people with a common sense, there is a certain legitimacy requirement that what we deliver must be backed by the people as acceptable. And I think we can cope with that. But we cannot cope with irrational panic. That's the big problem in this work.

24:37 Todd Landman

Amazing. Yeah, I share your optimism, I'm afraid. And you know, the incremental gains you do you do face setbacks from these external threats panics, as you as you call them, and the perception of the disruption that's coming, but at the same time holding true to human rights and the philosophies that sit behind human rights, and then also this thing just about legitimacy, I think, you know, if we go back to Max Faber and his legal rational sources of authority, in where legitimacy comes from that acceptance that people think this is reasonable, proportional and something we can live with, but as you say, if there's overreach, mission, creep, panic and and other elements of state action and non-state action I might add, then the acceptability and legitimacy comes into question. So it's just been unbelievable talking to you and hearing your insights about this in the direction that you've taken our conversation today. So much to think about, you're in the middle of the project. We look forward to, you know, the results that you get at the end of the project and really seeing that that output and those conversations that will come from what you discover, but for now, I just want to thank you for appearing on this episode of The Right Track.

25:53 Chris Garrington

Thanks for listening to this episode of The Rights Track, which was presented by Todd Landman and produced by Chris Garrington of Research Podcasts with funding from 3DI. You can find detailed show notes on the website at www.RightsTrack.org. And don't forget to subscribe wherever you listen to your podcasts to access future and earlier episodes.