Internet access in the age of the surveillance state

Oxford University’s Ian Brown asks what Europe can do to protect our digital rights and privacy.

In November 2013, the Council of Europe held its four-yearly ministerial conference in Belgrade, on the theme of freedom of expression and democracy in the digital age. The Council is the 47-member intergovernmental organization responsible for the European Convention on Human Rights, and the court that interprets and upholds these rights. The conference was organized to “address opportunities and problems relating to freedom of expression and other fundamental rights and freedoms in respect of the internet, its openness and governance.”

In considering these issues, the first major challenge for the Council and its Member States is to agree the best way to encourage the provision of internet access to all Europeans, so that they can take advantage of the new opportunities for expression it provides.

Last year, 72% of EU households had broadband internet access – but this fell to half in some eastern European countries. This gap presents a challenge both to courts, which have increasingly found that internet access is an essential component of the right to access information,  and governments, who need to generate the investment in internet infrastructure necessary to make universal access a reality.

A second major challenge relates to the private ownership of most of the infrastructure and services that users depend upon to exercise their democratic rights online. The private sector has been left to decide many rules impacting on users’ rights, such as the types of objectionable but legal content banned from social networking sites, or the conditions under which ISPs will voluntarily block access to websites containing allegedly illegal material.

An important issue for the future is to ensure that such “self-regulatory” measures protect the rights of those affected. For example, blocked sites should be notified and given the opportunity to appeal decisions in full judicial proceedings.

Finally, the ongoing revelation of mass surveillance by the US and many European states presents the starkest long-term challenge to the democratic potential of the internet.

The fundamental rights to freedom of expression, association and assembly, as well as privacy, are of course qualified ones. European states undoubtedly continue to face serious threats – from terrorist groups and others – to national security and public safety.

But we should perhaps thank the US National Security Agency (NSA) and its European allies for presenting us with such a clear vision when it comes to internet communications – NSA Director General Keith Alexander’s “collect it all”. We should certainly thank whistleblower Edward Snowden for revealing this vision to the world. If European states wish to discourage future breaches of international law, they should offer him asylum.

Strict democratic oversight and legal control of intelligence agencies will be one important way to ensure such awesome surveillance capabilities are not abused. But free expression, association, assembly and privacy cannot remain meaningful concepts if every communication, meeting, movement and website visit can be potentially monitored and analysed.

As the internet develops further, almost every activity – whether offline or online – will leave a digital trace. Thanks to Snowden, we know that many of those traces are already being copied into government databases. Such mass surveillance, going far beyond the “strategic” surveillance considered by the European Court of Human Rights in cases such as Klass and Kennedy, is undoubtedly subversive of Convention rights.

If even cabinet ministers remain unaware of such significant intrusions, and newspapers are threatened with criminal prosecution for discussing them – both of which we have seen in the UK this summer – can a democratic remedy really be said to exist?

The Belgrade conference concluded with the adoption of a ministerial declaration calling for “adequate and effective guarantees against abuse concerning the growing technological capabilities for electronic mass surveillance”, noting such abuse “may undermine or even destroy democracy”.  The Council of Europe has much to do in the coming years to adequately protect freedom of expression and related democratic rights online.

Ian Brown is the author (with Chris Marsden) of Regulating Code: Good Governance and Better Regulation in the Information Age.

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Free Speech Debate is a research project of the Dahrendorf Programme for the Study of Freedom at St Antony's College in the University of Oxford. www.freespeechdebate.ox.ac.uk

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