Human Rights and the digital Domain Primer
Index:
1. Introduction
1.1 The digital Domain
1.2 The digital domain and human Rights
2. Our Digital Identity
2.1 Digital Identity
2.2 Digital Integrity and Dignity
2.3 Access
2.4 Rights and Duties
2.5 Digital Citizenship
2.6 Residency
2.7 Political Crimes
2.8 Asylum
2.9 Digital Slavery and Servitude
3. Governance
3.1 The digital Domain on its way to Statehood
3.2 Governance of the digital domain
3.3 Governance challenges ahead
3.4 The way forward: A Bill of Digital Rights and Responsibilities
3.5 The Instruments of Governance
3.5.1 The Rule of Law
3.5.2 Recognition before the Law
3.5.3 Arbitrary Acts and Acts of Omission
3.5.4 Justice and Independent Judiciary
3.5.5 Legislation
3.5.6 Digital policy making Mechanisms and Tribunals
3.5.7 Multistakeholderism
3.5.8 Commerce in the service of human Rights and digital governance.
4. Appendix: Digital Technologies
4.1 DNS Values
4.2 Data and Algorithms
4.3 Artificial Intelligence
Human Rights in the digital domain Primer
The digital domain encompasses the different spaces and spheres we use to relate and interact with the people and things that surround us using digital technologies. The digital domain is not limited to the technologies itself, but it has an important ethical dimension that encompasses the values, principles and instruments that inform and govern it. Created by humans for humans, our beliefs, cultural backgrounds, and biases are reflected in the codes we write and the algorithms we create. The digital domain requires governance that is informed by the fundamental values that are universal to all of humanity: our fundamental human rights. The Universal Declaration of Human Rights, UDHR, as the globally accepted standard, should serve us as the guiding light when it comes to striking the delicate balance between our rights and responsibilities on and off-line.
In reality our human rights are constantly challenged by human creed. The challenge is particularly powerful as the business models of large sections of the digital economy that sustains the digital domain are based on the separation of rights from responsibilities and offer little or no incentives to extend human rights into the digital domain.
The following primer tries with broad brushstrokes to scope the relationship between human rights and the digital domain. The hope is to create awareness and spark a broad discussion on how to extend our fundamental human rights into the digital domain.
Reproduced from TPRC50 Taylor Working Paper Hrts 8-1-22 1, Preserving Human Rights Across the Digital Domain, Richard D. Taylor, J.D., Ed.D)(Chapter 2.1, ”Scope of the digital Domain”.
As of this writing, there is no generally accepted single term or phrase which incorporates all aspects of the “Digital Domain”. There are multiple neologisms which capture aspects of it, such as:
· Datasphere: “The notional environment in which digital data is stored; esp. the Internet viewed in this way”. (OED Online, 2022a)
· Cybersphere: “The sphere or realm of information technology, now esp. the Internet.” (OED Online, 2022b)
· Infosphere: “Information, considered as a dynamic environment in which people live; the sphere of human activity concerned with the collection and processing of information, esp. by computer.” (OED Online, 2022c)
· Cyberspace: “The space of virtual reality; the notional environment within which
electronic communication (esp. via the Internet) occurs.” (OED Online, 2022d)
· Metaverse: “A computer-generated environment within which users can interact with one another and their surroundings, a virtual world; (more generally) the notional
environment in which users of networked computers interact.” (OED Online, 2022e)
It includes tangible things, e.g., infrastructure, ICTs, the Internet and intangible ones, e.g., data stored and transmitted, programs, applications, platforms, content, algorithms, broadband, and their respective ecosystems. This paper adopts the term “Digital Domain” to represent the broadest scope of the field. Its boundaries are constantly emerging and evolving and can be vague at the margins. As a practical matter, at the heart of the Digital Domain are those
technologies, applications and regulations which have become the focus of governmental policies as a key part of a global contest for leadership and dominance technically, economically, culturally and ideologically
1.2 The digital domain and Human Rights
Founded solely in the: “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family”, our universal human rights are, “the foundation of freedom, justice and peace in the world,”.
Given the ability and importance of the digital domain as an instrument of humanity, to bring about the “the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want” to safeguard its dignity as human beings, humanity must strive to fully extend its human rights into the digital domain[1].
“Disregard and contempt for human rights”, in the digital domain, will result as in the past,” in barbarous acts which have outraged the conscience of mankind,”.
As long as the digital dividend in all its different expressions is paid out to only a few and not to many, the deeper the crisis caused by the suppression of human rights gets, and the stronger the counterreaction by those suppressed will be.
To ensure that individuals “not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression”, it is “essential” that human rights in the digital domain, “should be protected by the rule of law”.
Our human rights are constantly challenged by human creed that seeks to disrespect the fact that: “Everyone has duties to the community in which alone the free and full development of his personality is possible” .“In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.” (All quotes UDHR)
[1] For a definition of digital domain see section 2 below.
2.1 Digital Identity
Our physical identity is something that is gifted to us by our birth. Our digital identity is created by digital technologies. In parallel to our physical identity, with very few exceptions, all people are simultaneously acquiring multiple digital identities. They consist of digital data constructs (digital identities) that are linked to our unique literal being as a human. Often attached to these digital identities are human or machine-imposed value judgments affecting one’s real-world reputation, identity information, credit or risk worthiness, and other indicia affecting basic human welfare.
Technology builds our digital identities from data assembled from a myriad of sources, even if we may never be exposed to, or ever use digital technologies. The pervasive collection and processing of data nevertheless gives birth to our digital identities. Multiple versions of one’s digital identity can be constructed by others through data assembly and artificial intelligence algorithms, which are contrary to the principles of the UDHR. The main question here is: Who has the right to a person’s digital data and its uses? How do the principles of the UDHR dictate the digital rights and duties of the person and others? The UDHR dictates that everyone has the right to liberty and security in their physical identity. How does this extend to digital identities?
When we talk about the technical aspects of digital identities, we often seem to forget that every virtual identity relates to and deeply affects the lives of a very real person. Digital identities have the same fundamental human needs as the real person they are associated with.
Denying one’s rights in cyberspace can amount to digital confinement, isolation or even incarceration. Emerging digital governance structures should be employed to protect one’s digital identity rights in cyberspace. One should have ownership rights about one’s own digital assets in cyberspace, including one’s digital identities built by others and one’s interactions with others in cyberspace. Digital engagement should be able to be pursued in safety, and with protection for both the physical and digital person.
In the context of digital technologies, literal and digital life are co-dependent. Digital life, liberty and security means access to and the right to control one’s identity, data and its uses. This, in turn, impacts one’s literal life. The right to life in the context of digital technologies consists of the free right to access, and our rights as a digital citizen with respect to the security, privacy and integrity of our digital being, and with regard to our rights to the digital identity constructed by those with whom we interact in business, governance, and in society.
The challenge to design and implement digital identities and wallets is not so much good engineering, but how to design and implement them in a way that fully respects our fundamental human rights..
2.2 Digital Integrity and Dignity
Freedom is a central tenant of human dignity, as equality is a central tenant of rights. Freedom and equality are prerequisites for a person’s physical and digital integrity. If a person does not have the freedom and ability to control its identity data, one might be faced with veritable digital Frankenstein’s monster identity, assembled from data “body parts” from various sources, often of dubious origin. Such identities can be inaccurate, created without a person’s permission and be lacking in integrity. Erroneous data, unverified, can have dire consequences in terms of one’s virtual identity and real-world life. Even correct data processed through a non-transparent algorithm can, in its application, be harmful to people in both the virtual and physical worlds. A multitude of false digital identities can emerge that undermine one’s integrity, none bearing any fidelity to one’s true literal and digital selves.
2.3 ACCESS
There have been many innovations to aid communication, but the Internet as the current step in improved communication is different. With access, people can connect and interact in synchronous and asynchronous time, and easily at any distance. Digital technology and infrastructure are simultaneously the means and venue for assembly, have become key tools for the self-assembly and self-realization. It is therefore easy to confuse access to the tools of communication with the right to communication itself. Digital domain is not a human right, but it enables the exercise of human rights and as such is a common good and universal Internet access should be a fundamental right, and not be subject to questionable constraints on personal rights and freedoms, or digital date use practices of questionable integrity.
Access enables the extent of human rights into digital domain. It is the gatekeeper to digital opportunities. Accessing digital domain is an act of exercising ones digital citizenship. Equal treatment as digital citizens mean equal access to digital domain for all. Citizenship without adequate digital access is diminished. This underscores the need to treat digital access as a public good and not just another private consumable.
The digital domain has become so significant in human affairs that some wish to declare that access should be treated as human right. That risks confusing access to the tools of communication with the right to communication itself. Equally, the Internet is an important tool to better respect and realize human rights, but it is more like the objectives in the UN’s Sustainable Development Goals (SDGs), and not a right in and of itself.
Our rights are inseparable from our being as a person. How these rights are interpreted and manifested themselves can vary by context and can evolve over time, but the fundamental values expressed in the UDHR and guiding that process are unchangeable.
With rights come obligations. Our identity and dignity as a digital citizen depend on how well we exercise both rights and obligations. Our digital obligations are based on our digital rights and are (or should be) being established through proper policy-making processes. Under no circumstances should policy making, or outcomes, negate or violate our fundamental human rights as expressed in the UDHR.
The lack of legitimate and effective policy making processes around digital rights leaves us in a position with limited control over our digital identity. The resulting loss of digital integrity restricts the exercise of our digital rights and duties.
2.5 Digital Citizenship
Nationality defines the legal relationship of a person to the state, giving the state jurisdiction over the person. In turn the person enjoys rights and duties protection from the state. Today, the digital domain bestows on each of us a dual, but inseparable, physical, and digital citizenship. Even if we don’t know about the digital domain or are unable or have decided not to use any of the digital technologies, we are still digital citizens with rights (and corresponding duties). Our lives, one way or another, are affected by that citizenship. Building from the UDHR, digital citizenship comes with the same fundamental rights that every physical and digital person should enjoy. The design of systems of digital governance to enshrine this is the pressing task at hand.
The global and virtual character of the digital domain makes it a space where the will of its residents is the single source of its sovereignty. Sovereignty in the digital domain means sovereignty based on the will of the people that occupy it. At one crucial level, it is global and not territory or slice of the globe.
Governments will have to learn and consider that national citizens are also citizens of a global cyberspace that transcends the sovereign bounds of the nation-state. That is not a new situation for governance. Much of the Digital domain is like the earth’s oceans or atmosphere. It transcends national boundaries. While there will be national digital governance, there will have to be global agreement on the governance of the digital domain. This will most likely be resolved much in the way we have multilateral agreements dealing with oceans and the atmosphere. The role of the state differs a bit in the digital domain. The issue is not only about the shared use of a common resource, but that states will have to enter a working relationship not just with other states and their citizens, but a new global and sovereign “we the people” in the form of the global digital citizenship.
At the level of the global digital domain, the issue of global digital citizenship is complex. Everyone is a de facto resident and global citizen of the digital domain but the rights and obligations of global digital citizenship but the key issues how they should be defined and who should be involved in formulating them are still unresolved.
To delineate between national digital citizenship and citizenship within the cyberspaces of the Digital domain, we use the term digital citizenship for the former and global digital citizenship for the latter. In both cases, effective democracy calls for engaged citizenship, engaged digital citizenship, and engaged global digital citizenship. Here our focus is on stakeholders engaged global digital citizenship.
It is essential for the governance of cyberspace that policymaking and enforcement tools are in place that ensure global digital citizens are empowered in the policy-making processes, are never deprived of their full rights (and duties) citizenship and enjoy a safe and secure residence in the cyberspaces of the Internet. The UDHR not only defines the values and key principles that should be enshrined in a declaration of digital rights, or more properly, the rights of global digital citizenship, but it also describes the necessary instruments of governance. (see below” The instruments of Governance”)
Establishing the rights and duties of digital citizenship will likely be a two-stage process. The first stage will involve identifying and subscribing to a set of basic principles in a digital bill of rights. The second stage will be the process of legislative and behavioral changes over time.
It is likely that global digital citizenship will develop in two directions, upward from the refinement of national digital citizenship, and downward from principles and ideas starting with the notion of a global digital citizenship that exists in addition to and partially apart from one’s national digital citizenship.
2.6 Residency
Our digital residence in the cyberspaces of the global Digital domain stands in marked contrast to our digital residence where we reside. Governments have sovereignty and authority over domestic cyberspace. Persons and entities have a state defined digital citizenship and residency. They also now have a nation-like digital residence in the global digital domain.
Article 13: (1) gives everyone the right to freedom of movement and residence, within the borders of a state. Residence and citizenship are not necessarily the same, so Article 13 does not address rights and duties regarding citizenship. Residency in cyberspace operates both within the nation state, and globally outside the nation state. Ideally, there should be only one set of cyberstate policies and regulations, one digital citizenship for all. However, nation-states can and do distinguish between residence and citizenship. They may have different policies for each, policies that also differ from those of other nation-states. At the global level, that is not the case. In global cyberspace everyone is a global resident and, by extension, a global citizen. There is no way to differentiate between the two. There is no way to acknowledge global residency but deny global citizenship.
The power and legitimacy of cyber governance stem from the recognition of a state’s sovereignty and its right to govern domestic cyberspace. Within one’s country citizenship, national digital citizenship comes under the governance of that domestic cyberspace. At the same time persons and entities have a global residence in cyberspace and may have local residences in other countries. This raises the issue of digital migration, and one’s ability to change digital residence across states and governments, at will. At the same time, this leaves open our understanding of what digital citizenship means at the global level. ICANN, responsible for the security and stability of the global Internet, has a motto that states: “One World, One Internet.” What that means in terms of global digital citizenship, domestic digital citizenship, and cyberstate governance is yet to be worked out. Ideally, this will be determined, consistent with and with help from, the principles in the UDHR.
One important complication is that in digital space, one also has a global presence and residency. This calls for attention to developing multilateral (global) policies that enshrine one’s rights and responsibilities as a global digital citizen. One is directed to how we have addressed the laws of the sea and space.
Article 15: (2) of the UDHR states that: “No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” This confronts us with an interesting conundrum in global cyberspace. While one’s national and global digital residency can be protected or abridged by the actions of one’s nation-state, and by multilateral agreements, what might it mean to change one’s digital nationality? As well, given the fluid definition of nationality, one may well possess multiple digital nationalities. If states arbitrarily abridge digital citizenship rights in cyberspace, what are the citizen’s options? One can, of course, exercise engaged participation to try to enshrine and protect digital rights. One can resist when confronted with tactics contrary to the universal principles enshrined in the UDHR, or enshrined in subsequent global digital citizenship covenants.
Does one have a right, or a possibility, to secede? The answer is both a yes and a no. One can secede from a state’s jurisdiction by emigration, but one cannot secede from the global cyberspaces of the Digital domain any more than one can secede from earth’s gravity. The mere fact of existing now makes one a resident of global cyberspace. One is likely to have residency even prior to birth.
What this means is one’s presence is preordained, that one has a duty and an obligation to willfully become an engaged digital citizen in the cyberspaces of the Digital domain from the moment one is capable of measured and deliberate action. This does not mean a childhood engagement in the governance processes, but it does mean a progressive learning and understanding of integrity-based engagement in policy and behavioral norms that make one a responsible, engaged digital citizen of the national and global digital domains.
2.7 Political Crimes
2.7 Political Crimes
Political crimes in the context of the UDHR are considered an abuse of human rights. A political crime or acts contrary to the purposes and principles of the UN. States may define political crimes as any behavior perceived as a threat, real or imagined, to the state’s survival, including both violent and non-violent oppositional crimes. Such criminalization may curtail a range of human rights, civil rights, freedoms. Under such regimes conduct which would not normally be considered criminal per se is criminalized at the convenience of the group holding power.
Digital citizens experiencing digital exploitation and manipulation have the right to engage in peaceful acts of civil disobedience. The right of assembly to protest peacefully has long been accepted as essential. In the context of the UN peaceful is defined as the absence of war based on international law. Peaceful means not just the absence of physical violence. Many forms of violence exist that are not physical but mental and psychological, and they may target the individual, the group, or the social fabric of society.
2.8 Asylum
2.8 Asylum
Asylum is the mechanism that protects human rights against arbitrary state power. For digital asylum to have meaning, it might have to be accompanied by physical migration.
Digital citizens experiencing persistent digital exploitation, manipulation and persecution have the right to asylum. Everyone has the right to seek and to enjoy in other countries asylum from digital persecution. Asylum is the mechanism that protects human rights against arbitrary state power, be it driven by political, economic, religious or other forces.
Extending the notion of asylum to the protection to one’s digital residency and citizenship is one of the challenges on the global Internet policy and governance agenda. In digital domain there is nowhere to go, nowhere to hide. If within one’s digital residency one been persecuted or prevented access, digital migration still leaves the literal person still open to persecution. For digital asylum to have meaning, it has to be accompanied by physical migration and the granting of asylum.
2.9 Digital Servitude and Slavery
A state of digital servitude (near slavery) exists when a person, in order to communicate, interact, or conduct business in the digital domain, it is forced to accept condition that are contrary to its human rights and interest. If a person does not have the freedom and ability to control its personal data it lives in a state of digital servitude.
Digital slavery occurs when someone takes ownership of another person’s digital data with the intention to manipulate and exploit its behavior of that person on and offline. Practices that seek access to and use of personal digital data (such as in user agreements) require explicit and clear terms of agreement if they are not to become instruments of a digital slave trade, resulting in literal or digital slavery or servitude. A digital slave trade occurs when the personal data of digital citizens is traded between entities without the person’s consent.
3.0 Governance
Freedom and equality, dignity, and rights, are separate fundamental human values that cannot be separated. Equally, our physical and digital identities, our residence in a country, nation and cyberspace, and our dual citizenships, are separate but cannot be separated. They are interdependent and constantly exert influence on each other. The freedom and equality, dignity and rights, and the resulting instruments that a literal person enjoys have parallel existence for one’s digital identities. The governance around the parallel existence of digital identities is as of yet underdeveloped, and the challenge before us today
Article 28: Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.
Article 28 of the UDHR is aspirational and calls for a social and international order in which the rights and freedoms outlined in the UDHR can be realized. The same can be said for the digital rights and responsibilities of digital citizenship and the governance of the digital domain.
Citizenship requires a state or country. A state or country requires governance. Digital citizenship presumes the statehood of the digital domain and the need for its governance. The question here is if this presumption is valid.
The UDHR uses the terms country, nation and state repeatedly and we need to review their roles and definitions before we can proceed to apply them to the Digital domain.
A country is commonly understood as a defined and recognized geographic territory inside which people live according to a legally binding sets of rules that are set by its own governance processes.
A nation may exist within or across geographic boundaries. It may be defined as a community of people based on political, economic, geographic, ethnic, religious, and other factors. The term nation often refers to a country, but not always. The important difference between a country and a nation is that a nation may not have its own governing power and sovereignty. Intellectual discoveries and technological advances are the driving factors for social change. If the opportunities to use them to enhance safety and security are perceived as significant enough, they result in changes of the social order. The opportunities are often perceived as disruptive and revolutionary (for example, we are talking about the “industrial revolution”), but they give rise to the birth of new nations. The revolution can either be violent or nonviolent, but it never results in stasis. These “revolutions” allow people to disrupt the old in order to create a new state that is projected to be more effective in securing security and prosperity.
A state is a political entity represented by a centralized government that has sovereignty over a geographic area. Membership in the UN is seen as a recognition of sovereignty and statehood. Although the UN is a union of nations, it emphasizes, rights or wrongly, that it is people-centered and sees its role as the representative of the interests of the people that are subject to governance, and not of governments themselves.
The UDHR envisions the country, nation and state as the appropriate vehicle for protecting the will of its people, for promoting the best possible social order to serve the needs and rights of the people according to the principles of the UDHR. Digital technologies and the digital domain, with their promise of exponentially increased security and prosperity, are dramatic disrupters by introducing a technology that transcended and redefined many of the defining factors of an existing country, nation or state.
Within the digital domain, we are living in technological and social constructs and virtual territories. These were initially the web sites we visit and the social platforms (email, social media) we use. Increasingly, they now include the growing universe of the Internet of Things (IoT) with its immense tracking and data archiving. Each of those online spaces could be compared to nations in terms of their process and data control. Many digital tech companies and their high-level representatives act in their relationship with states as if they are nations in their own right. Like nations in the real world, digital territories are influenced and defined by political, economic, geographic, ethnic, religious, language factors.
Approaches to sovereignty in Cyberspace go back as far as 1996 when John Perry Barlow published his “Declaration of the Independence of Cyberspace”. “We will create a civilization of the Mind in Cyberspace. May it be more humane and fairer than the world your governments have made before.”
Digital technologies, with their global reach, are transcending and redefining many of the factors of what constitutes a country, nation or state. They are also propagating change in ways that often stand in direct challenge to old perceived values, including those of the UDHR. For example, one’s personal presence in digital cyberspace may be entitled to few or no rights to one’s personal data, if data users ignore UDHR privacy rights based on notions of “unregulated digital innovation.”
The globally expanding scope of the digital domain and cheaper and easier access have given billions of persons a digital residence in the cyberspaces of the Digital domain. Click by click, soundbite-by-soundbite, and frame-by-frame, digital human communities are forming, and the notion of an increasingly powerful multifaceted global “cybernation” is created in parallel with it.
The emerging cybernation is acquiring the properties of a physical nation, as a diverse community, both within nation-states and at the global level. Within nation-states, cybernations can be subjected to state governance, as in the case of the General Data Protection Regulation, GDPR, within the states of the European Community. The GDPR also applies outside typical borders to EU Citizens who may live outside the EU. GDPR’s broad regulatory language is not only affecting privacy rights in the EU but having an extra-territorial effect. Lacking an effective global system of governance, cyberspace is still in search of its ‘statehood.’
Global cyberspace cannot yet claim to have the status of a sovereign state. It still lacks a governance structure and rubric for determining how citizens, entities, governments participate in multi-stakeholder or multilateral governance structures. The realms of cyberspace need rules and regulations that govern the processes, balance the rights of the individual against those of the community, and vice versa. All citizens in the physical world are entitled to a social and likewise, digital citizens are equally entitled to some form of suitable and accountable global Internet governance. We need to build equivalent digital governance structures that are accountable to the will of all global stakeholders, whether they be persons, entities or states.
Once Internet Governance has become mature in its role as a venue for global expressions of “the will of [all] the people”, stakeholder engagement will require policies around the rights and duties of digital citizenship, nation by nation. Given the unique nature of the Digital domain, there will be a need to address the notion of digital citizenship at the global level.
A just state is built by the political will and engagement of its citizens. To construct the layers of the cyberstate, from local to global, will require shared aspirational goals and vision across its citizenship. It will require the formulation of a digital bill of rights, and the formation of a democratic governance structure for the digital domain whose constitution needs to be fully informed by the UDHR.
3.2 Governance of the digital domain
The term Internet governance is commonly used to describe governance of the digital domain. As the Internet is only a part of the digital domain there is a danger that the term Internet governance limits the importance and scope of governance in the digital domain the term Internet Governance should be replaced by the more accurate “governance of the digital domain” and the shorter but more ambiguous term “digital governance”.
Governance, in the form of authoritative policy-making processes and resulting laws and regulations, are in their infancy in cyberspace. The existing vacuum is filled by government efforts to exercise a perceived sovereignty over citizen “citizenship” in cyberspace. Part of the argument is that citizens need protection from harm, and part is in support of third parties’ digital business strategies. There are conflicting pressures there. Also, the sovereignty of state is limited to their authority over citizens within the context of the state. People now have a second larger form of citizenship in global cyberspace. Laws and regulations that do not recognize the dual nature of digital citizenship are, at best, an incomplete effort to regulate and protect the rights and duties of one’s digital citizenship. In addition to the articulation of proper domestic digital citizenship policies, it is impossible to overestimate the need and urgency for progress on Internet governance at the level of the global Digital domain.
Different circumstances call for different behaviors. At the start of digital unbridled innovation and expansion. Only a few were connected and most of those shared responsibility for the network. Accountability by honor system and peer pressure. Now that the networks of networks affect so profoundly our lives it is time to regulate.
Governments, as representative of their citizens, participate in digital governance and policy making processes through international law and treaties and play a major role in establishing a governance structure, on the basis of joint sovereignty of humankind over digital domain and its technologies.
As long as digital domain is without just and effective governance mechanisms, it falls to the state is to protect the rights of its citizens, including their rights as digital citizens.
National governments have been slow to understand the policy issues within the Digital domain. In an era where neoliberal values still dominate, much of the policy that would shape Internet governance remains stillborn.
States are in the process of building their policies and regulations for national cyberspace, and for the rights and duties of national citizens and residents, virtual or literal, in national cyberspaces.
The physical nation-states play an ambiguous role when it comes to protecting digital citizenship rights. They are developing policies related to national digital citizenship, while trying to extend that control into global cyberspace. Such strategies are bound to experience extreme difficulties in the borderless cyberspace of the Digital domain. These issues become even more challenging when such national policies inevitably clash with each other across jurisdictional boundaries.
So long as states fail to recognize the global borderless nature of cyberspace, their efforts to protect their citizens in global cyberspace will always be inadequate. It will take states entering international treaties that regulate the digital relationships between literal states in order to ensure that the rights of their citizens are respected in borderless cyberspace.
At an individual level, empowered digital citizenship should bring the right to access global cyberspace, the right of protection by the State, and the obligation of the State to engage in multilateral efforts to protect its citizens’ global digital rights. On the other hand, state-level interference with cyberspace, such as network takedowns, constitute an abridgment of principle-based rights of digital citizenship in both national and global cyberspace.
The power of digital Domain Governance bodies, some formulated as “standards bodies”, is based on agreement and compliance evolve from a trade-off analyses by significant players. There are constant attempts to gain more power and to get existing coordinator activities under their control.
Much of the dialogue and discussion is on structures and processes, taking with only weak regard to the rights and duties of one’s digital citizenship, or reference to the underlying human rights principles drawn from the UDHR.
Over the years there developed a growing, and increasingly confusing blend of multilateral, intergovernmental, and international initiatives to establish policy making mechanisms for digital domain. Ignoring the special character of digital domain as a common good, their common characteristic is that they are created as instruments to ensure that one group’s specific interests prevail over those or another: profit over privacy; national interests over global brotherhood; short term political gains over long term common good, the list is as long as there are special interests seeking protection. This exposes the hypocrisy of self-appointed and self-empowered policy-making bodies, as they loudly proclaim the absolute equality of all digital citizens but in practice are only motivated by preserving their own privileges and powers.
As Internet Governance matures the major challenge will be to secure the voice and participation in dialogue and policy development for those voices speaking in the public interest and those coming from the Digital domain’s marginalized communities
The core challenge is: For the global Digital domain how does the will of the people get formed, how does it get represented in the rules and regulations, and within the social norms and structures and processes of Digital domain?
One approach is to shift the central focus from “what should be the government” to “what principles should govern the rights and duties of digital citizenship” and digital citizens’ engagement and the “will of the people” shaping governance. Part of that path would proceed much in the way that the UDHR has focused on human rights at a universal level, and as leverage on the behavior of the nation state.
There are three challenges at play here. One is the absence of a “state system” to house governance, the other is how to engage the “will of the people” in governance processes, and the last is how to do so with trust and integrity.
In governance that includes agreeing on a charter or constitution, and the establishment of governance mechanisms. To a large extent this process has not occurred around the rights of engagement, the rights and duties of digital residency as digital citizens, and the current stage of Internet governance.
Making the UDHR the foundation of Internet governance is the first step in securing digital rights and obligations in a global Digital domain with integrity. Efforts to create just and authoritative Internet Governance structures can begin with examining the UDHR as a universal and authoritative navigational tool for flagging digital rights and duties and highlighting areas and issues where the Internet’s cyberspace poses challenges. We will need ongoing multilateral dialogue to flesh out the definition of various digital rights and duties and the building of Internet Governance structures.
Efforts to create just and authoritative Internet Governance structures can begin with examining the UDHR as a universal and authoritative navigational tool for flagging digital rights and duties and highlighting areas and issues where the Internet’s cyberspace poses challenges. We will need ongoing multilateral dialogue to flesh out the definition of various digital rights and duties and the building of Internet Governance structures.
Some stakeholders, especially those who rely on digital business practices that exploit data access, oppose using the UDHR as a navigational aid for policies that protect the rights of national digital citizenship. These parties argue that regulations that constrain data use will stifle digital innovation. Some business (and political) interests in cyberspace push for unrestricted digital business practice innovation. Governments, however, are increasingly dismissing arguments for “unregulated innovation” and instead are increasingly turning to over-regulation, with its unintended consequences, as the answer.
We cannot subjugate our freedom of thought to the opinions of others, especially when in uncritical support for technical or social innovation. We cannot bow to a leadership that postulates the superiority of one thought over another, independent of evidence, logic, and morality, or thought that demands acceptance without accountability. Innovation with integrity is hampered by leadership when that leadership seeks to preserve and strengthen special interests, frequently at the expense of human rights and wellbeing.
A sign of true innovation and leadership with integrity is that it enables and nurtures the processes of free thought, evaluation, dialogue, and consensus. These four steps are integral to the process of sound digital Domain governance policy making.
What is clear is that the globe is on the cusp of constructing Internet governance at every level, and that much of the digital domain is like the earth’s oceans or atmosphere. It transcends national boundaries. While there will be national digital governance there will have to be global agreement on global digital governance. There is a distinguishing unique property to the challenge of global governance in the Digital domain. Within the nation state persons are citizens of the state and subject to the rights and obligations of that citizenship
Are we on the way to create new governance models where the very few use digital means (AI) to control the masses, or does the machine take over, and one way or another we end up under structured (but mindless?) dictatorship? Fundamental decisions, governance structures and processes, across a wide range of human activities including work, are yet to be made. That is where the principles of the UDHR come in to give direction and that is where IG governance comes in to give everybody a voice in the fundamental decisions of our lives.
Policy making and implementation in responsive and responsible (democratic) governments always reflects a tension between the interests of competing constituencies and involves maneuvers that test the limits of social norms. At the global level, this tension is between national sovereignty and multilateral agreements for a greater common good.
Any structures of global governance are likely to be enshrined in international or multilateral treaty agreements, much like the multilateral agreements dealing oceans and the atmosphere. They are unlikely to come from some sort of overarching cyberstate. It is essential for the governance of digital domain that policy making, and enforcement tools are in place that ensure that global digital citizens are empowered in the policy making processes, are never deprived of their full rights (and duties) citizenship, and enjoy a safe and secure residence in the digital domains of the internet.
Article 21, Section 3 of the UDHR states that “The will of the people shall be the basis of the authority of government”. For the Digital domain there is no global governance structure that can be held responsible for establishing and protecting the rights and obligations of global digital citizenship. As long is digital domain is without just and effective governance mechanisms, it falls to the state is to protect the rights of its citizens, including their rights as digital citizens.
The time is ripe for the Internet community to explore the potential application of the UDHR to address key protections for citizens and governance at the level of the global Digital domain.
3.4 The way forward: A Bill of Digital Rights and Responsibilities
Digital governance requires shared aspirational goals and vision across the digital citizenship.
Once Internet Governance has become mature in its role as a venue for global expressions of “the will of [all] the people”, stakeholder engagement will require policies around the rights and duties of digital citizenship, nation by nation. Given the unique nature of the Digital domain, there will be a need to address the notion of digital citizenship at the global level. The principles of the UDHR will be used to guide structural changes in Internet Governance such that our behavior in the Digital domain will help society achieve a more human-centered approach to social security.
Borrowing from the birth of the United States, when people come to a point where they feel that “We hold these truths to be self-evident” regarding the rights and duties of their digital citizenship, the time will have come to establishment an Internet Governance that reflects and protects peoples’ human rights within those digital rights and duties. To reach this stage, stakeholder engagement, dialogue and transparency will be key. The self-evident truths regarding digital citizenship and Internet governance have to do with digital inclusion and joining the virtual to the literal.
The principles in the UDHR constitute the key principles that should be enshrined in a declaration of digital rights, or more properly the rights of global digital citizenship.
There is a need to for a democratic body, whose constitution needs to be based on the digital bill of rights, to exercise the joint sovereignty of all digital citizens.
3.5 The Instruments of Governance
The UDHR describes the instruments of governance through which these values are to be realized, as justice, tribunals, law, and the social frameworks in which they take place. These instruments of governance in the digital domain need to fulfill the fundamental requirements for just governance of equality, fairness, independence, impartiality, and competence. There is an urgent need to define cyber law, establish mechanisms of enforcement, and create dispute resolution tribunals, all developed through legitimate policy-making processes.
3.5.1 The Rule of Law
The protection of human rights by the rule of law extends fully into the digital domain.
With regard to the rule of law, the digital domain has some special characteristics that require the transposure and redefinition of territorially based concepts of law and justice into the digital domain of borderless, universal and inclusive activities and behavior.
International laws and treaties extend and do apply in digital domain. Existing treaties and national laws are not adequate for digital governance. Given the global nature of the digital domain, National and regional digital domain law will often have a relevance that goes beyond the limits of territory-based sovereignty.
The UDHR envisions the country, nation and state as the appropriate vehicle for protecting the will of its people, for promoting the best possible social order to serve the needs and rights of the people according to the principles of the UDHR. Cyber law is always subject to and guided by national laws and international agreements, there is a need for the design of national cyber laws, and for some degree of global harmony across digital policies.
The digital domain as a common redefines the role of the country, nation and state as the appropriate vehicle for protecting the will of its people in digital domain. They have to consider:
- that in digital domain their sovereignty still comes from the will of the people but that their citizens as digital citizens are guided by the global not national common good.
- existing laws might not be adequate in digital domain and need to be adapted. Treatment under the law draws on both codified law and case law. Jurisprudence under digital governance is in its infancy and will further develop over time. So will case law and legal processes regarding issues such as intellectual property, trademark infringement, domain name disputes, cybersquatting, and e-commerce practices.
- new category of crimes cybercrimes such as, hacking, identity theft and cyberbullying, malware, spyware, phishing, and pharming.
3.5.2 Recognition before the Law
Recognition means adequate treatment. What’s adequate in a state context might be inadequate in a global context.
Recognition before the law means not only recognition of a human being as a person and a citizen, but also the recognition of the specific circumstances in which one resides, here as digital personas and digital citizens.
The criteria for the approval of granting rights are: True, valid, legal, worthy of consideration.
Laws, regulations and behavior concerning digital existence must respect the (global) borderless residence of our digital beings.
3.5.3 Arbitrary Acts and Acts of Omission
Digital providers, or any other digital stakeholder, should not be able to arbitrarily introduce rules, or demand the use of unjustified standards and norms, that harm the rights of users by exclusion or by threatening sanctions.
Many of the violations of UNHRD rights in digital domain are based not on acts of commission, but also based on acts of omission. In order to enable and sustain predatory digital business practices, the necessary technological tools that protect the privacy and security of digital citizens have not been implemented. Much of data security has to do with the holder of the appropriate data ensuring that it is not accessed by competitors or cybercriminals.
Arbitrary acts and overly broad laws can impose the blunt force remedy of removing individual and entire household access to Internet services, which results in a form of digital exile. Terminating users’ internet access, along with content filtering and “stay down” regimes without due process protections for citizens, results in unjust digital exile.
Digital citizens experiencing digital exploitation and manipulation have the right to engage in peaceful acts of civil disobedience. The right of assembly to protest peacefully has long been accepted as essential. In the context of the UN peaceful is defined as the absence of war based on international law. Peaceful means not just the absence of physical violence. Many forms of violence exist that are not physical but mental and psychological, and they may target the individual, the group, or the social fabric of society.
3.5.4 Justice and Independent Judiciary
States have their own jurisdiction and sovereignty and will exercise control over domestic Internet Governance. Much like domestic human rights governance, based on the principles of the UDHR, those policies and behaviors should respect the principles behind global digital rights. There will never be a global cyberstate in the sense of an independent digital state with sovereignty over its digital territory. But the digital rights of empowered digital citizens require the principles a global universal declaration of digital rights, backed by an international judiciary, empowered by signature states, and operating with its own jurisdictional independence. This is where the separate but inseparable overlap. Stakeholder engagement in global dialogue, as well as dialogue within existing national and international bodies, is necessary to agree upon the principles and mechanisms for international agreements around the rights (and obligations) of digital citizenship, to establish appropriate judiciary institutions and processes, and to inform behavioral integrity.
3.5.5 Legislation
To preserve ability of digital technologies to improve the human experience and to prevent them to be abused, digital domain need rules and regulations that govern the processes, balance the rights of the individual against those of the community, and vice versa.
Digital technologies, by their very nature, enable malicious behavior that subjects digital citizens to many forms of online cruel, inhuman or degrading treatment. The development of digital governance structures will be charged with putting instruments and measures into place that prevent such behaviors. Main task is the protection against takeovers by practices that use digital technologies not as a means to realize a world of freedom from fear and want for all .
There is a pressing need for a dialogue between all digital citizens for the formulation of policies, and for oversight in policy implementation. States must take care of how they approach cybercrime and security, and the presumption of misuse just because the possibility of misuse exists. All legislation needs to be evidence-based, rights sensitive and motivated by public interest and the common good. It cannot be based on bolstering strategic economic and political power self-interests at the expense of digital rights.
3.5.6 Digital policy making Mechanisms and Tribunals
There exists no specific judiciary body for cyberspace. States are trying to fill the void and extend their sovereignty into cyberspace by making the activities of their citizens in cyberspace subject to nation-based laws, some with elements of extraterritoriality. These efforts can only result in inadequate applications of law and expressions of justice. They do not consider the special characteristics of cyberspace and transpose territorially based concepts of law and justice into the digital realm of borderless, universal and inclusive activities and behavior. There is an urgent need to define cyber law, establish mechanisms of enforcement, and create dispute resolution tribunals, all developed through legitimate policy-making processes. To establish legitimate cyber-laws and create competent tribunals, digital citizens must be empowered and engaged in policy-making processes.
3.5.7 Multistakeholderism
Much of the discussion around Internet governance embraces the notion of multistakeholder engagement in governance processes.
Given the character of the Internet as a shared global resource created and maintained by the private sector, multistakeholderism seems an appropriate principle for its governance. A potent manifestation of the belief in multi-stakeholder policy-making processes was the 2016 U.S. Government transition of control of the Internet Assigned Numbers Authority (IANA), manager of key Internet domain name functions, to a global multi-stakeholder community.
However, the reality of current digital policy-making tells another story, as multistakeholderism seems to be unable to adequately address current digital governance challenges. The reasons for the weakness of multistakeholderism when it comes to digital governance become obvious when we compare stakeholderism with citizens in a democracy.
Multistakeholder structures as part of digital governance need to fulfill the fundamental requirements for just governance of equality, fairness, independence, impartiality, and competence. Stakeholder groups lack these requirements. Not all stakeholder groups are treated or see themselves equal with others, they are organized around special interests and topics and not primarily the common good, they are not determined by periodic and genuine elections of all digital citizens, neither are they clearly separated from the institutions they govern over, and/or are in their maintenance dependent on support from the same institutions.
Multi stakeholder engagement in digital governance mistakes fulfilling crucial functions for the establishment and maintenance of digital domain for citizenship.
In a democracy, who is a citizen and their rights and responsibilities in well-defined policy-making processes are based on fundamental common human rights values, such as equity, inclusiveness, and transparency. The common goal is to enable the well-being of all. We miss all of this in multistakeholderism.
Stakeholderism – No generally accepted definition of, or right to: | Citizenship – Generally accepted definition of, and manifest right to: |
Who or what is a stakeholder | Citizenship |
What constitutes a multistakeholder process and what are its parameters | Democratic processes and their parameters well defined |
Right to participation not defined and dependent on other stakeholders | Well defined universal right, (duty), to participation, universal franchise, without interference by other stakeholders |
Founded in particular interests | Founded in human rights |
Centered on process and outcomes | Centered common good |
Not all stakeholders seen as equal | All citizens are equal |
Participation is dependent on ability, available time and resources | Duty of policy making process to enable participation of all citizens. |
No generally defined right to information | Duty to provide information and transparency, |
No fundamental right to inclusion | Inclusion a fundamental value |
Lack of accountability. No generally accepted checks and balances, independent review, or judiciary | Accountable to all. Established and binding checks and balances, independent review, and judiciary |
Democracy, and in particular representative democracy, undoubtedly has its shortcomings and can always be improved. Still, at least we have a large body of experiences and standards that give it a strong foundation. Multi-stakeholder processes are defined mainly by processes and those who implement and maintain them. The ambiguities of multistakeholderism often result in policy-making processes that are heavily weighted to achieve the desired outcomes of powerful stakeholders, whilst maintaining the false impression of fairness and legitimacy.
The argument that multi stakeholderism results in quicker, easier and more effective policy-making processes is contradicted by many processes where a minority stakeholder group, powerful or not, uses the ambiguities of the process to prevent or delay unwanted majority consensus decisions.
Cynics might be tempted to see multistakeholderism as an attempt by the private and governmental sectors to wind back the clock on human rights-based citizenship. Reality does not support that point of view. A closer look shows that multistakeholderism has served the governmental and private sectors badly.
The private sector is averse to regulation, so it might look tempting to influence policy making through multistakeholderism. Tempting as it might seem, it is like making a deal with the devil. Whilst a corporation should act ethically, deciding what is ethical is simply not their business. Not only do they lack legitimacy, but without proper “rules of the game”, they can also only lose. Unfair competitive advantages destroy markets and undermine the foundations of capitalism and stifle innovation. Short-term gains can result in long-term irretrievable losses. When corporations are perceived to put their interest over the common good, they lose their most important capital: trust. Trust is one of the most important and valuable assets in the digital age. Digital business is trust business. Lose customers’ trust, and they may never return. If the governments don’t trust businesses, regulations can be stifling or force them out of business
3.5.8 Commerce in the service of Human Rights and digital governance
We all know that this is not our reality. Innovation in the digital marketplaces does not want to be hampered by pesky questions about rights and responsibilities. Equally, there is growing evidence that consumers, out of a justified concern for their privacy and security are losing trust in digital technologies and might ultimately refuse to adopt digital identities and wallets.
We can see a demand for trust and integrity at work in the marketplace. Consumers went “green” and started to pay for their physical health, and the health of the planet, by buying biological products at a higher price than non-biological ones. Private sector companies that offer products that demonstrably do not violate their customers’ digital integrity are able to charge a price and make a profit without having to resort to practices that are harmful to their customers. Like the “green industry, a “digital integrity industry” emerges. We are just the beginning of a movement that is gaining momentum.
Change does not just happen; it requires a reason or motive. It’s not enough to establish human dignity values, they must show a clear return on investment to motivate stakeholders to implement them. Only strategies where digital integrity and profits align will the necessary investments be made. We need to demonstrate human dignity as an integral element of digital innovation and demonstrate that it is more profitable than exploiting other people’s data. To affect positive changes towards digital dignity and integrity, we must make human rights profitable or create benefits. Only when digital integrity turns a profit will the necessary investments be made to establish human rights as an element of digital business plans and policy making.
Digital engineering created the opportunity for big tech corporations to gain an advantage over the rest of the world. The moment we gain an advantage of any kind over others, we try everything to retain and somehow justify it.
Big tech justifies this behavior with the benefits “unregulated innovation” has brought to humanity while doing everything to gloss over the unspeakable harm misguided digital technologies do to that excluded part of humanity at the bottom of the digital food chain.
Digital dignity is good business. We see a clear demand for digital integrity at work in the digital marketplaces. Private sector companies that offer products that demonstrably do not violate their customers’ digital integrity can charge a price and make a profit without resorting to practices that are harmful to their customers. Each new “digital integrity business contributes to the reform of the digital marketplace.
Human rights will only be adopted when we are able to communicate them as instruments that offer tangible benefits for all. Internet governance needs to write a new play based on a plot that contains digital campaigns, education, products and services that combine the need for digital integrity with the human desire to gain an advantage.
The private sector’s profit motive is sustained and secured as the technologies themselves are sustainable Ongoing harmful digital technologies put digital sector companies on the way to self-destruction. This is why the private sector should support and advise digital governance policy making processes but not try to influence them. In this case restraints ensure sustainable profits. Uncontrolled competition, like unregulated liberty, does not mean real freedom. Industries, governed by the law of greed. threatens the integrity of human civilization.
4. Appendix: Digital Technologies
- DNS Values
- Data and Algorithms
- Artificial Intelligence
Digital technologies, resulting from scientific advancement and its benefits, extent the physical world into virtual space. (Digital domain) The purpose of science and technology is to create opportunities for all to realize a world of freedom from fear and want. Digital technologies, as a tool to advance the realization of human rights, are a common that is based on the concept of sharing. Shared technologies based on shared standards, protocols, and their associated parameters. Shared rights and duties represent the DNA of Digital domain.
4.1 DNS Values
“Everyone, everywhere, equally”. Articles 5 and 6 of the UDHR stress the universality of identity rights and make no distinctions based on race, religion, culture, or gender orientation. Personhood is a broad concept under the UDHR, and the pressing task now is to formally recognize digital personhood, identity data and “constructed identities” formally under its protection.
Universality and inclusivity without geographical limitations are fundamental characteristics of cyberspace and the loadbearing pillars of digital citizenship. The 3e’s are “separate but inseparable” as foundational principles of the UDHR and should formally underpin digital citizenship. No citizen should be denied access and protection of the law or be forced to give up these fundamental rights regarding their digital data and digital identities in the digital domain.
The 3e’s also apply, in a technical sense, in the operation of the Internet’s Domain Name System, (DNS). When the DNS resolves digital address queries, it makes no distinctions and serves everyone, everywhere, equally. The DNS reflects and upholds the most important principle when it comes to the application of law: Do not discriminate. The DNS is more than a technical innovation, it’s operation inherently embodies respect for rights in cyberspace and exhibits integrity in human communication within a trusted system. Attempts to weaken the universality of DNS through alternative roots, national segments and closed spaces diminish our rights as persons and reduce the role of the digital domain as a venue for building our joint digital and human humanity.
The Internet’s Domain Name System (DNS) is the address system for cyberspace and is the key element that makes the dream of global connectivity and communication possible. In recognition of cyberspace’s universal character, our engineer explorers enshrined the fundamental human rights values, such as freedom and equality, into the very technology that opens up cyberspace for us. It’s not just a marvel of engineering, beautiful to behold, but also a manifestation and demonstration of respect for human dignity and integrity. The DNS has many other intended and unintended functions; domain names were used as tools to monetize numbers and keep the startup internet financed, but at its core, it is a tool to express and attain human desires and needs. (Those who want to prevent these values occasionally try to create their own address system that reflects their own interests). That is why the DNS is a fundamental Human Rights issue, and those responsible for its security, stability and infrastructure should stand above and should not be subjected to sectorial interests.
This makes the UDHR the natural and only reference point for digital governance, making freedom and equality the foundational values of cyberspace, extending the same rights and responsibilities to all digital citizens of cyberspace.
The drafters of the UDHR envisaged collaborative policymaking through international co-operation. The most significant ongoing initiative in support of social security is the 17 United Nations Sustainable Development Goals (SDGs). The SDGs express a “…universal call to action to end poverty, protect the planet and ensure that all people enjoy peace and prosperity.”5 The SDG’s, as with other UN declarations, are aspirational and non-binding. Properly used the Digital domain could build an engaged citizenry, motivated political processes, and solidarity between nations and within global communities. Achieving the SDGs will also require a massive, multifaceted, and targeted use of digital technologies. Currently, the digital technology landscape is mainly shaped by digital business practices with a narrow focus on enterprise profits, revenue, and growth. It is an open question to ask what digital business and eGovernance practices are required, which should be curtailed, and to what extent current digital practices and behavioral, social norms support or violate the principles of the UDHR. To what extent do they support, or are detrimental, to the achievement of the SDGs and social security?
“The concept of “sharing” is the DNA of the whole Internet.
Cyberspace has over time developed from being the way to access computers, to share files and become the space to assemble, to express, share and promote ideas and to defend and pursue them as an individual or group without the limitations of space and to a certain extent the limitations of language and culture.
It leads to a “win-win-situation” and does not know losers. If the concept of sharing is ignored or substituted by a 20th century “zero-sum game” with winners and losers, the risk is high, that in an interconnected world at the end of the day everybody is a looser. This is a fundamental lesson from the 50 years of Internet history, which should not be forgotten.”
4.2 Data and Algorithms
Everybody has the sole ownership rights with regard to one’s own digital assets, (data), in digital domain, including one’s digital personas, built by others and one’s interactions with others in digital domain.
Digital technologies employ algorithms that process data to predict and guide the future. Created by humans who are bias by their nature, there exists a systemic bias in all algorithms. Algorithms today profoundly influence all aspects of a persons live with their attempts to determine who is likely to be a repeat offender, succeed in college or dissent from the party line. They have created parallel governance and justice systems that is completely hidden and unaccountable. Their social engineering multiplies and reaffirms existing biases and results in roll back social equalities and act as algorithmic obedience trainers for humans.
Human Rights provide fundamental values to overcome existing biases and their adherence ensures that all humans equally benefit from digital technologies. The fundamental Human Rights are the master algorithm that determine the framework for the operation of all digital algorithms.
The algorithms used in processing digital data must be completely transparent, in all stages of data gathering, processing and outcomes.
The loss of control by a person over its personal digital data, compromises its physical and digital dignity, its equality and rights, and the ability of a person to exercise its reason and conscience.
Data is property. Some countries see data as intangible and not subject to ownership under the Civil Code, but Intangible data becomes tangible and real through the effect it has on our literal world.
A person can grant access to its personal digital data, but in doing so never loses full control over the data. It is essential that there be full transparency and accountability for all data of all digital citizens.
Even when data is anonymized, processing it still requires the previous consent of the person related to it.
Coercing individuals to sacrifice or compromise their human and digital rights through denial of services, for example through unreasonable “legal” consent forms, and the failure to fully disclose the true uses of personal data, are unethical and comparable to giving a person the choice to opt in to slavery, or starve.
4.3 Artificial Intelligence
Article 1 talks about human beings which “are endowed with reason and conscience and should act towards one another in the spirit of humanhood.” It expresses what makes us, as users of digital technologies, different from the digital technology itself.
Digital technologies, and especially Artificial Intelligence (AI), can learn, by which is meant an ability to process Big Data quickly, and aggregate data for various uses. Such learning has various dimensions, but much is based on pattern recognition, inference or deduction. As powerful as this will be for processing Big Data, it is still far away from the ability to reason or having a conscience. The promising claims that AI enthusiasts make, no matter how clever the machines they create, never attain true human reason and conscience. They will always lack self-integrity and dignity, and empathy and respect for others.
Automated decision systems and AI are adopted for reasons of efficiency and often touted for their ability to do good. But, like any multipurpose technology, there is a real and dangerous downside. Automated decision systems and AI algorithms are created in non-transparent and non-consultative ways. The prime stakeholder, the person whose digital identity is being fashioned into identity, is not consulted. Opaque algorithms, with unidentified biases, make decisions that profoundly affect human lives.
It is essential that there be transparency and accountability for that data use and those identity determinations. Without actual oversight, where is the cautionary check to test if automated decisions are wrong, discriminatory or biased? How are such mistakes corrected before citizens’ lives are negatively impacted? Such decision systems, without full consent and information, can and has harmed citizens. Attempts to appropriate identity digital data, in the absence of use transparency and owner consent, must be strongly opposed.
The call to test, validate and audit automated decision systems triggers intellectual property concerns. The secrecy around digital algorithms, valuable for increasingly questionable digital business practices, has prevented the scrutiny of business practice applications. This trade secret issue has been used to prevent diagnosing and fixing flawed systems and decision outcomes.
We might bestow authority on digital technologies, and we might grant them decision-making rights, but these will always be exercises in human intent. We will always have to recognize that it is our ability to reason and our conscience that are ultimately responsible for the decisions the machines make. Digital technologies cannot be used in ways that escape our reason and conscience. Situations where digital technologies are given rights over fellow humans, is an abdication of our responsibilities and is deeply fraudulent and highly dangerous.
The difference between personal data and general data (e.g., facial recognition) is blurred. Surveillance capitalism is not just after the insights that can be gotten from aggregate, anonymous data, but its digital business model is also interested in insights about you. Secondly, It focuses AI on Artificial Narrow Intelligence or “ANI,” which is basically smart algorithms that make quick decisions, for example, based on real-time data they receive. They are superior to human intervention only in that they can process data quicker. The algorithms remain “human intelligence” based, in contrast to Artificial General Intelligence (AGI), where machines refine the algorithms based on specified (human?) objectives.
AI-based technology and digital business plans will be developed as ways to refine the control and manipulation of people, for whatever ends the users of AI seek. The real danger is that surveillance capitalists will develop a monopoly on AI, or at least a protection against transparency and accountability, that threatens the use of knowledge and technology in the common good service.
Above we referenced how digitally controlled robots have manually replaced human labor in repetitive and dangerous work. We are at the doorstep of another significant disruption to work caused by computer-based Artificial Intelligence (AI). As with robots, AI ranges from small or Artificial Narrow Intelligence (ANI) applications to big Artificial General Intelligence (AGI), a yet-to-be-achieved state where self-learning machines become “smarter than humans.”
In terms of Article 23, this raises deeper issues around the rights of workers. Robots were introduced to replace or complement human labor. The introduction of AI encompasses this but goes well beyond it. AI algorithms are also used to evaluate workers as candidates for employment, their performance as workers, their behavior as consumers, and, with the growth of the Internet of Things (IoT), to monitor every aspect of their personal life. The worker is in a situation where the tools and the algorithms monitor the worker as a worker, and where they monitor everyone all the time.
All of these processes, from hiring to monitoring, are highly “black box” with little or no transparency or consultation with respect to the processes, or the intended uses. The worker produces a “product,” and part of that product is data about a myriad of factors involving both the worker and the production process.
Just as there are negotiable issues around the division of effort between robots and workers, and between AI algorithms and workers, there are also what should be negotiable issues around access to, and the use of, the massive AI and Internet of Things (IoT) data stream that is generated by the worker and the work process. These workplace issues have a lot in common with the issues around access to personal data outside the workplace and the uses that business and governance put to one’s transactional, social media, and ambient personal data.
Under the guidance of the principles of the UDHR, what roles do humans play, and in what governance, management, and work structures, to ensure the principles and protections of Article 23? Most of us work for a living. How labor is employed and remunerated bears heavily on our individual and collective states of wellbeing.
There is a whole minefield of concerns here that go well beyond the focus of Article 23. Will work be fulfilling and expressive, or will we be transformed into mindless consumers, kept distracted by (AI-generated) mass media? Do these trends and tendencies risk creating concentrations of power and marginalization that threaten our notions and practices of democracy? How do we plan the trajectory of our lives and work on society’s trajectory as the Digital domain is shaped to serve the wellbeing of all?
Artificial intelligence as a technology applied in the digital domain does not have human rights but must be subject to them. Respect human rights in how to collect and process data. There are fundamental decisions to be made here, either by active stakeholder engagement or by default. How do we come to understand how these digital landscapes and processes impact on our broader notions of human rights and democratic forms of governance? How do we design digital governance strategies that both respect the principles in the UDRH and provide fertile ground for digital advancement and wellbeing for all?
These are areas where Internet governance (IG) comes into play and where a multitude of Internet related policy and social norm decisions are yet to be made.