European Ombudsman surveillance

Shaping the next 20 years of digital rights in Europe

This week we are celebrating the 20th anniversary of EDRi, the European Digital Rights network, and its two decades of defending and promoting rights online and off. The digital rights movement has come a long way and we are at a crucial moment to shape our shared digital future for the better. The EU’s fundamental rights framework has been pivotal in our achievements so far, but it has never served everyone equally. How can we better equip Europe for the human rights challenges of the digital age? 

What is EDRi and what do we stand for?

EDRi is the biggest European network and movement of NGOs, experts, advocates, technologists, academics, and impacted communities to defend and advance digital rights. Access Now has been a proud member since 2014. We have laughed and cried together,  celebrating successes such as upholding net neutrality and modernising the European data protection framework, and finding strength and solidarity as we worked to mitigate the negative consequences of data retention and other forms of surveillance

EDRi has paved the way for civil society in European countries to get a seat at the table in EU debates, policy, and lawmaking. It has also enabled international NGOs – like Access Now – to build a true European identity while bringing an international perspective to the public discourse in Brussels. Important work remains to pierce the Brussels “bubble” and open EU institutions and the insular lobbying environment to ensure that EU policy-making does not remain homogenous and hostile to racialised people and communities at risk. It’s imperative that our digital policies do not reflect ignorance at best, or enable systemic oppression at worst.

Digital rights for all people

Neither the benefits nor the harms from technology fall on society in a proportional manner. EU laws and policies should adequately protect and promote the rights of underserved, underrepresented, and at-risk people and communities. The efforts of the past 20 years have led to the recognition that digital rights are human rights and that “the same rights that people have offline must also be protected online”. Our next 20 years of advocacy must centre on achieving digital rights with, and for, all people. We must address the impact of technology – both in the private and public sector – in the context of human rights, social, racial, and climate justice. 

Our shared foundation for Europe, of human rights, rule of law, and democracy, is increasingly under attack. Some of us have never experienced the full benefits of these values and principles. With the attack growing broader, even the more privileged are confronting the reality of EU governments ignoring or violating our rights. Finally, Russia’s invasion of Ukraine is challenging the entire European community. These challenges have manifested in our digital policies. The securitisation and surveillance agenda is once again on the rise, and we are seeing an industry-friendly risk-based approach to regulation take hold, instead of one that aims first and foremost to protect and promote our fundamental rights. 

We must ground digital policy in rights, not risks

As we look ahead to the next 20 years, it’s clear that new technologies will bring new challenges for defending fundamental rights, and how we choose to meet those challenges matters. With the rise of artificial intelligence, or more precisely big datasets, algorithms, and automated decision-making systems, we have seen EU leaders develop a risk-based narrative for digital policies. In framing the proposal for the EU AI Act, the European Commission chose a market-oriented, product-safety approach. This is dangerous. When you just assume a level of risk and base policy on it, you automatically lower the bar for human rights protections and safeguards.    

In reality, some uses of technology are simply incompatible with human rights, as we see with remote biometric identification in publicly accessible placesPegasus spyware, and predictive policing. The EU should not approve uses of technology that fail the necessity and proportionality test and then wait for the courts to remedy societal harms and rights violations. We must disallow use of flawed border technology, not tell people to file lawsuits – which puts the burden of proof on the victim, not the perpetrator. It’s important to recognise that even our legal mechanisms are working for those in power, and can exacerbate discrimination, harassment, and lack of access to justice for the very people they’re supposed to serve. 

Taking a risk-based approach to digital policy is a clear example of a reformist reform that fails to address systemic injustices and deficiencies instead of constructing a new, equitable framework. It’s clear that policies like the EU AI Act will not correct hundreds of years of systematic oppression. In the next 20 years we must align our advocacy with larger social movements. As Claire Fernandez, Executive Director of EDRi, writes, “Key challenges and questions as EDRi works across a growing number of coalition members and partners, are how to work at the intersection of ‘digital’ with other movements”.

What’s next for Europe as we shape our digital future?

The EU’s competence on data protection is a milestone but in itself it cannot keep people safe. Why are almost all the other fundamental rights missing? Most EU digital laws rely on market principles which are not meant to put human rights protections at their core, and they create a suspect balancing exercise between fundamental rights and purported innovation. Still, the EU has been able to achieve a lot on these limited grounds. We see promise in the efforts to regulate content governance for online platforms and to some extent realign rights-harming business models, for example. But we need more powers to protect rights and address today’s political and societal crises, let alone to tackle tomorrow’s. 

As it stands, we are reaching the maximum potential of the current legal framework and its limitations are apparent. The EU needs more than just the (theoretically) binding Charter of Fundamental Rights. We cannot continue to enact legislation that aims to protect fundamental rights on a legal basis designed to ensure the functioning of the market; we need a new, stronger legal ground for fundamental rights beyond data protection. That means the EU must reach a new agreement to develop stronger competences and means to advance the fundamental rights protected under the Charter as a minimum step. 

We are at a geopolitical and societal crossroads, and our actions – or inactions – will shape the future of human rights. It is time for a new constitutional foundation to enable Europe to respond to human rights challenges in a way that centres impacted people. Access Now, together with the EDRI network and partners around the world, is ready for this challenge.