Saving the U.N. “Internet Resolution” from sharks circling in Geneva

Last week the United Nations Human Rights Council (HRC) passed by consensus a renewed version of the groundbreaking “Internet Resolution” affirming that human rights apply online. Now is an especially critical time for human rights across the globe, and the developments in the current session of the HRC demonstrate just how important it is to have every hand on deck, fighting to ensure that we do not lose these fundamental protections in the digital age.

Why should we care about the Internet Resolution, or for that matter, any of the many statements issued by the HRC? As our friends at Global Partners Digital (GPD) point out, even though resolutions like this are non-binding, they can influence the actions of policymakers at the national level; contribute to norm-building in a range of international policy spaces; and inform a range of documents and guidelines. This may be “soft power,” but it matters.

Resolutions are not static. First adopted in 2012, the Internet Resolution has changed significantly over the years — and not always for the better. What started as a short statement about the positive nature of the open and global internet and other communications technologies — and their power to help us exercise our rights and develop our economies — has since become a weighty, issue-laden text that warns about abuses and violations that are perpetrated using the internet and other technologies. There are dark implications.

Many of the currently adopted changes to the Internet Resolution are good and necessary, seeking to address gaps and pressing problems in safeguarding human rights. That includes the language on closing digital divides based on gender and other attributes. Other points and omissions of the text are not so good, as ARTICLE 19 observes. They are the result of efforts by a more spirited, confident, and determined coalition of adversaries to the open internet than perhaps ever before witnessed at the Human Rights Council.

Opening the door to increased state control of the internet, censorship

In the consensus text for the Internet Resolution, repeated concessions have been made to governments that promote sovereign control over the internet, which they see as a recruiting ground for terrorists and a hotbed of national security threats. As a result, the resolution now comes close to threatening — instead of promoting respect for — the rights of people using the internet. The final change to the draft resolution (which indicates this was a hard-fought compromise) adds the undefined terms “terrorists” and “their supporters,” and warns against their “increasing” use of ICTs, without providing a clear sense of who these evildoers are and without evidence of the rising threat.

The problematic paragraph reads,

Expressing concern at the increasing use, in a globalized society, by terrorists and their supporters, of information and communications technologies, and noting in this regard that the prevention and suppression of terrorism is a public interest of great importance, while reaffirming that States must ensure that any measures taken to combat terrorism are in compliance with their obligations under international law, in particular international human rights law, international refugee law and international humanitarian law,

Egypt pushed hard for this language, which comes from the state’s flawed resolution first passed by a contentious vote — not consensus — in 2016 (see paragraph 10 here).

Here’s the issue: in many countries, simply using the internet to exercise your rights is being criminalized. This new language in the Internet Resolution could give cover to governments to continue their campaigns of oppression through broad and vague laws and arbitrary and unlawful enforcement practices. We are all suspects now.

Normally, the U.S. would have been a key member state working on this resolution. In previous years, the U.S. has been part of the “core group” of authors, and has co-sponsored the text. But this year the U.S. was absent, having withdrawn from the Human Rights Council just as the negotiations for this resolution began. As we said at the time, this abdicates responsibility. Protecting human rights is difficult and messy work; pulling away is cowardly, and leaves people who cannot protect themselves even more vulnerable. If the absence of the U.S. emboldened states seeking more control over the internet, the lesson here is clear: those truly committed to human rights must engage more deeply.

Notably, these adversarial states not only added the word “terrorists,” but succeeded in deleting the word “censorship,” which was present in a strong paragraph in earlier drafts that specifically called out the harmful effects of internet shutdowns and the risky practice of “privatized enforcement” whereby states defer the enforcement of rule of law online to online platforms.

More bad news: there is also discussion of disinformation and propaganda in the text, but without clear definitions and without safeguards against overreach and abuse in efforts to combat them.

What human rights defenders achieved: the Internet Resolution is stronger on encryption, internet shutdowns, gender

Fortunately, as we note above, a number of changes to the text were both positive and necessary. Thanks to the hard work of those standing strong for human rights, we have these achievements:

Encryption and anonymity are finally acknowledged. Governments are undermining secure communications by banning encrypted messaging apps and seeking legislative requirements for encryption back doors. Three years after Special Rapporteur David Kaye’s groundbreaking report on the topic (and five since his predecessor reported to the HRC on the utility of encryption), the Internet Resolution:

…encourages business enterprises to work towards enabling technical solutions to secure and protect the confidentiality of digital communications, which may include measures for encryption and anonymity, and calls upon States not to interfere with the use of such technical solutions, with any restrictions thereon complying with States’ obligations under international human rights law.

This mirrors text in the spring 2017 “Privacy Resolution,” which is up for renewal at the United Nations General Assembly this fall. Elsewhere, the Internet Resolution notes that encryption and anonymity “can be important to ensure the enjoyment of human rights, in particular the rights to privacy, to freedom of expression and to freedom of peaceful assembly and association.” We could not agree more.

Improved language on internet shutdowns. Two years ago the Internet Resolution recognized the rise of internet shutdowns across the world, without much outcry from the governments that actually shut down the internet. This time around, Egypt — supported by China, South Africa, Poland, and Pakistan — questioned whether to keep the agreed text in the Internet Resolution on shutdowns, or to weaken it. But in the end, governments in the Freedom Online Coalition like Canada, Germany, and the Netherlands were able to fight back and actually improved the text, so it directly addresses the harms of internet shutdowns. The expanded paragraph reads:

Condemns unequivocally measures in violation of international human rights law that prevent or disrupt an individual’s ability to seek, receive or impart information online, calls upon all States to refrain from and cease such measures, and also calls upon States to ensure that all domestic laws, policies and practices are consistent with their international human rights obligations with regard to freedom of opinion and expression online;

A separate resolution on peaceful protest at this Council session also condemns internet shutdowns, while unfortunately linking the trend with disinformation. That resolution reads:

Concerned about the emerging trend of disinformation and of undue restrictions preventing Internet users from having access to or disseminating information at key political moments, with an impact on the ability to organize and conduct assemblies,

…calls upon all States to refrain from and cease measures, when in violation of international human rights law, seeking to block Internet users from gaining access to or disseminating information online;

Access Now had pushed for the resolution to call for more concrete action on shutdowns, like asking the Office of the High Commissioner for Human Rights to conduct a study of the impact they have on economic, social, and cultural rights. States did not take up the suggestion, but we will continue pressing for research on shutdowns and their many harms.

Acknowledging the digital divides based on gender. There is thorough coverage of the many digital divides based on factors like gender, geography, and income, and that makes this resolution the strongest yet on acknowledging that not everyone has the same access or experiences online.

The word “gender” appears 14 times, showing a greater understanding of the multidimensional nature of threats and opportunities for women and girls going online, and the intersection of various forms of discrimination that hinder the exercise of rights for many people and communities. The coauthors deserve support for combating the backwards views posed by some states in the hearings, including that the gender digital divide does not exist in many countries.

In one strong passage, the text:

…condemns unequivocally online attacks against women, including sexual and gender-based violence and abuse of women, in particular where women journalists, media workers, public officials or others engaging in public debate are targeted for their expression, and calls for gender-sensitive responses that take into account the particular forms of online discrimination.

The gender language draws on previous reports, including one by the United Nations High Commissioner for Human Rights, to which Access Now contributed. It complements another resolution at this session, on violence against women, which focused on digital contexts.

Finally, the text also improves on previous language regarding data protection, and the need for corporate actors to look to international human rights law for guidance on their policies generally, drawing from David Kaye’s latest report on content regulation and platform responsibilities.

Conclusion: we must keep watch to ensure the Internet Resolution protects the vulnerable

In this pivotal time for human rights, participants in global forums like the Human Rights Council must work even harder to make every resolution stronger. That means making sure that they hew closely to purpose, and cannot be co-opted to enable human rights abuse.

There are malicious actors who use the internet and communications technologies to do harm, and we recognize the importance of ensuring the text responds to emerging threats. However, the intent of the Internet Resolution, and the HRC generally, is to promote and protect everyone’s rights, with special attention to the most vulnerable and marginalized communities and the most pressing violations. States promulgate or allow many of the most serious threats to those most at-risk, and unaccountable private actors facilitate them. The threats to national security and destabilizing forces in many countries both precede and extend beyond the internet. National security problems will not be solved by greater state control over what we say and do online. If we open a door to criminalizing people using the internet to exercise their rights, it cuts against the purpose of the Internet Resolution and the Council itself.

It is heartening to see a consensus resolution. But we cannot support key pieces of the text and fear this will only strengthen state calls for repression. To everyone engaged in this process, we invite collaborative work to ensure that as we move forward, we commit to resolutions that can safeguard, not thwart, human rights in the digital age.