Internet rights at the Human Rights Council 41st session

The 41st session of the Human Rights Council is taking place over three weeks (24 June to 12 July 2019) in Geneva. During this session over 100 reports will be presented on thematic and country-specific human rights situations from UN Special Procedures, the Secretary General and the High Commissioner for Human Rights. The Council is expected to adopt on around 25 resolutions. It will also feature the annual full day discussion on the human rights of women, which includes panel discussions on violence against women in the world of work and the rights of older women and their economic empowerment.

A number of key issues for internet rights are on the agenda at HRC41, including the surveillance technology industry and freedom of assembly and association in the digital age. The session also presents the opportunity to address critical violations of internet rights in places like Ecuador, Myanmar, Palestine, Sudan and Tanzania, among others. HRC41 will see at least one internet-specific resolution, a new resolution on “New and Emerging Digital Technologies and Human Rights” presented by the Republic of Korea, Austria, Brazil, Denmark, Morocco and Singapore. The resolution is expected to build on a joint statement led by these States at the last HRC session, which called on the Council to facilitate multistakeholder conversations and consider studying how to manage the human rights challenges arising from new and emerging technologies in a holistic and pragmatic manner while recognising their possible contribution to the full enjoyment of human rights. This brief outlines key internet rights issues on the agenda.

The Twitter hashtag for the session is #HRC41, and plenary sessions will be live streamed and archived at this link.

Key thematic reports for internet rights

Surveillance and human rights

In a landmark report on the surveillance technology industry, UN Special Rapporteur on Freedom of Opinion and Expression calls for “an immediate moratorium on the global sale and transfer of the tools of the private surveillance industry until rigorous human rights safeguards are put in place to regulate such practices and guarantee that Governments and non-State actors use the tools in legitimate ways.” The report outlines the various ways that surveillance technology, ranging from mobile device hacking to IMSI catchers to facial recognition, are deployed to target journalists, activists, opposition figures, critics and others, violating their freedom of expression, or worse, leading to arbitrary detention, sometimes to torture and possibly to extrajudicial killings.

For years, as civil society actors like Citizen Lab have documented, commercial surveillance technology has ended up in the hands of repressive governments to target, silence and crush dissent, with little to no transparency, accountability, oversight or redress. As APC noted in our submission to the report, while surveillance technologies may have legitimate uses and be designed "neutrally", the reality is that they are deployed in ways that violate a range of human rights with impunity. Whether targets of government surveillance (like activists, human rights defenders, journalists whose communications and devices are intercepted) or subjects of lateral/social surveillance (like survivors of domestic violence who are targeted with spousal spyware and experience new forms of domestic violence through “internet of things” devices), persons who are in positions of vulnerability and marginalisation in society, including political dissidents, minority rights activists, persons living in conflict areas and women or persons of varying gender identity, tend to experience disproportionate effects from the deployment of surveillance technologies.

As we highlighted in our submission, surveillance technology has been deployed to identify phones that have sexual content and social media groups or texts that were promoting “gay behaviour or prostitution”, to limit and block access to certain websites that might be deemed inappropriate. This often leads to censoring of content generated by or about LGBTIQ communities, and to track the movement of women. Often these are carried out in the name of keeping girls and women safe, with little thought paid to their informed consent or autonomy.

The Special Rapporteur’s report recognises that domestic and international export control measures and corporate self-regulation have wholly failed at regulating this industry, which is shrouded in secrecy and is at the nexus of corporate and state interests. As the Special Rapporteur aptly observes, “It is insufficient to say that a comprehensive system for control and use of targeted surveillance technologies is broken. It hardly exists.” In addition to calling for a moratorium on the export and use of targeted surveillance technologies, he outlines the main elements of a framework to protect individuals from the use of surveillance technologies that interfere with the enjoyment of human rights. These include a range of measures for States both as users and exporters of surveillance technologies, as well as for companies to meet their respective obligations and responsibilities under international human rights law.

Some specific recommendations include that States participating in the Wassenaar Arrangement, a non-binding agreement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies, develop a framework by which the licensing of any technology would be conditional upon a national human rights review and companies’ compliance with the Guiding Principles on Business and Human Rights. Such a framework could be developed through a specially established human rights working group, which could also set clear and enforceable guidelines on transparency and accountability with respect to licensing decisions, surveillance-related human rights abuses and the treatment of digital vulnerabilities. The report also recommends the establishment of co-regulatory initiatives by all relevant stakeholders, that develop rights-based standards of conduct for the private surveillance industry and implement these standards through independent audits, and learning and policy initiatives.

Underlining the urgency of this issue, the Special Rapporteur encourages the HRC to establish a working group or cross-mandate task force to monitor and provide recommendations on trends and individual cases of human rights abuses facilitated by digital surveillance. APC encourages States to act on the Special Rapporteur’s recommendations, and in particular, those who are members of the HRC to mandate a new mechanism to address the issue of digital surveillance. Together with Amnesty International, the Permanent Mission of Canada and others, APC is co-organising a side event on “The Surveillance Industry and Human Rights” on 27 June 2019 from 13:30–15:00 in Room IX.

Freedom of peaceful assembly and association in the digital age

The Special Rapporteur on the rights to freedom of peaceful assembly and of association (FoAA), whose mandate is up for renewal at this session, will be presenting the first in-depth examination of FoAA in the digital age. Considering State obligations and the role of business, the report concludes that international law protects FoAA, whether exercised in person, through technologies of today, or through technologies that will be invented in the future, and that existing international human rights norms and principles should not only dictate State conduct, but also be the framework that guides digital technology companies’ design, control and governance of digital technologies.

The report highlights the vast opportunities facilitated by digital technologies, which enable individuals and civil society groups to organise and mobilise, to advance human rights and to innovate for social change, online and offline. The Special Rapporteur asserts that encryption provides individuals and civil society actors with safe online space to gather and connect with other members of their group as well as to organise and coordinate activities, without undue interference from third parties and government. Reflecting many of the threats included in our submission, the report also outlines a trends in restrictions to FoAA online, ranging from legislative measures, like cybercrime and surveillance laws, to government-sponsored trolling and cyberattacks and network shutdowns.

The Special Rapporteur provides a series of recommendations to States and private companies concerning improving internet access, noting the disparate impact that limitations on access to and use of digital technologies can have on racial and religious minorities, political opponents and activists, and lesbian, gay, bisexual, transgender and intersex persons; refraining from imposing network shutdowns; revising cybercrime, surveillance and antiterrorism laws; promoting and protecting strong encryption and anonymity; ending all practices of blocking websites of civil society organisations and human right defenders; refraining from targeting civil society and protesters with surveillance; ending all acts of government-sponsored online trolling, intimidation and disinformation targeted at civil society actors; and preventing, investigating, punishing and providing redress for human righs abuses perpetrated by the private sector. He also provides detailed guidance on how the private sector should carry out its responsibility to respect FoAA, including by recognising international human rights law as the authoritative framework for ensuring that peaceful assembly and association rights are respected in their products and services and evaluating their policies accordingly.

APC, together with the Permanent Missions of Canada and the Netherlands ARTICLE 19, the International Center for Not-for-Profit Law and CIVICUS, is co-organising a side event on “Defending Online Civic Space” on 26 June from 15:30 – 17:00 in Room VIII, which will provide the opportunity to discuss these issues in depth.

State killings of human rights defenders, journalists and prominent dissidents

The powerful report of the Special Rapporteur on extrajudicial, summary or arbitrary executions presents the legal findings of her international human rights inquiry into the unlawful death of Saudi journalist Jamal Khashoggi, which concludes that the State of Saudi Arabia is first and foremost responsible for the murder. The Special Rapporteur recommends a range of measures that the UN, Saudi Arabia and Turkey should take to strengthen accountability and justice for Khashoggi’s murder, including carrying out criminal investigations to the acts of Crown Prince Mohamad Bin Salman and top advisers, as well as the establishment of an independent UN mechanism that could be rapidly mobilised to ensure criminal investigations to future killings of journalists and human rights defenders.

The report also focuses on the legal and policy implications in relation to the responsibility to protect and the duty to warn those who are the subjects of credible threats from State and non-State actors. One aspect of this duty that the Special Rapporteur emphasises is that if a State is engaged in surveillance activities directed at specific countries, and comes across information indicating that individuals may be at risk of human rights violations, including violation of the right to life, then it has the obligation to assess the nature and imminence of the risks and threats and to determine how it may protect those whose lives may be at risk. Despite the potential utility of surveillance in this context, the Special Rapporteur on extrajudicial, summary or arbitrary executions echoes the recommendations of the Special Rapporteur on freedom of opinion or expression, calling for a moratorium on the export, sale, transfer, use or servicing of privately developed surveillance tools to Saudi Arabia and other states until a human rights-compliant safeguards regime is in place.

Country-specific situations

Chile

The outcome of Chile’s Universal Periodic Review will be adopted at the 41st session, at which point the government will respond to a number of recommendations it received during its review earlier this year. A coalition effort led by APC member Derechos Digitales managed to gain visibility for internet rights in Chile’s review. The government received recommendations concerning the right to privacy, surveillance and data protection; freedom of expression, assembly and association, and protection of journalists and HRDs in the online environment; access to ICTs for indigenous peoples, rural populations and women; and gender-based violence against women in digital contexts.

Ecuador

The June session provides an important opportunity to put a spotlight on internet rights in Ecuador. On 11 April 2019, software developer, cybersecurity expert and digital rights activist Ola Bini, a Swedish national living in Ecuador for the past six years, was illegitimately detained as a political prisoner in Ecuador. His arrest is a serious violation of his rights and blatantly disregards international law. Bini’s case should concern the HRC as an assault on freedom of expression and privacy, as well as a measure to restrict activism around rights. Given the highly questionable circumstances of his arrest, the motivation would appear to be the criminalisation and persecution of those whose work is instrumental to enabling and defending freedom of information, privacy and other rights online.

The UN Working Group on Arbitrary Detention, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression and the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights issued an urgent appeal to the government of Ecuador expressing concern about the circumstances that surround Bini’s arrest and detention, and requesting information concerning the basis for his arrest and procedural irregularities. On 21 June, Bini was released; however the issues and questions about the criminal case and the illegal persecution continue. APC continues to demand responses from the Ecuadorian government and the judicial system in relation to the reasons for the political persecution of a privacy and digital security activist.

Additionally, at HRC41 the UN Special Rapporteur on freedom of opinion and expression and the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights will present a joint report on coordinated country visits conducted by two Special Rapporteurs in Ecuador last year. APC encourages the government to respond to the report, including their recommendations that the government:

• Order an investigation into the purchase and use of malware to monitor journalists and human rights defenders during the previous administration.

• Call on private sector platforms to publicly disclose the decisions they make regarding the blocking of content in Ecuador and the deletion of accounts reported for the alleged abuse of terms and conditions or copyright infringements, in cases of users persecuted for political or journalistic reasons.

• Limit the requests to internet companies for the takedown of content to the narrow restrictions available under article 19 (3) of the ICCPR.

• Ensure a future of non-discrimination for content and content-providers, for instance, by reforming the Organic Law on Telecommunications to ensure the independence of the agency for the regulation and oversight of telecommunications, clarifying its position as an independent agency and ensuring multi-stakeholder roles in appointing its directors.

• Identify, prosecute and punish those found responsible for the attacks against vulnerable groups perpetrated on social networks.

• Ensure the government’s commitment to network neutrality, including by reconsidering and revising article 64 of the telecommunications law, which may interfere with neutrality by permitting variable tariff plans by internet service providers.

• Continue the ongoing efforts to expand internet coverage, in particular to rural areas, so that all members of Ecuadorian society have access to the internet and may fully exercise their rights.

• Ensure that the costs of high-quality fixed and mobile broadband connections are affordable.

• Establish individual reparation measures aimed at providing restitution, compensation or rehabilitation to victims, as well as general measures of satisfaction and guarantees of non-repetition for the broad range of violations of freedom of expression in the last decade.

APC also urges the government to adopt the proposed data protection law that could further protect the rights to privacy and freedom of opinion and expression, which the Special Rapporteurs welcomed.

Myanmar

The High Commissioner on Human Rights and the Special Rapporteur on Myanmar will provide an oral update on the situation in Myanmar to track progress concerning the human rights situation of the Rohingya people. Significant challenges in terms of the use of online spaces and more particularly Facebook to spread hate and instigate violence against minorities have been noted since 2017. In March 2018, the Chairman of the UN Independent International Fact-Finding Mission on Myanmar told reporters that social media had played a “determining role” in Myanmar.

On 20 June 2019, the Ministry of Transport and Communications (MoTC) issued a directive toward all mobile phone operators to temporarily suspend mobile internet service in the conflict-ridden townships of Rakhine and Chin States. Over 20 digital rights organisations and other civil society organisations in Myanmar issued a joint statement expressing concern about the shutdown, particularly because it raises concerns for people’s safety by reducing the ability of emergency services to communicate and locate people and undermining the abilities of the authorities to disseminate important information to move people to safety. APC echoes the concerns of our members and partners in Myanmar, and supports their demands that the government:

• Immediately lift all restrictions on internet access and to restore telecommunication unconditionally to full capacity in the nine townships of Rakhine and Chin States.

• Review Articles 75, 76, 77 and 78 of the 2013 Telecommunication Law and amend them to be in line with human rights standards.

• Refrain from restricting internet access in future, either in these currently affected areas or elsewhere in Myanmar, including in other conflict areas, and during periods of elections.

Together with our members and partners in Myanmar, APC will raise the situation regarding the internet shutdown and broader human rights concerns in Myanmar at HRC41.

Palestine

APC member 7amleh will be participating in HRC41 to build awareness around the “digital occupation” that Palestinians are experiencing as a result of Israel’s expanded power and control in the virtual sphere, including through restrictive laws. While the rise of social media has fostered new forms of activism, mobilisation and resistance to hegemonic power among Palestinians, it has also emerged as a new space for control and rights violations. Censorship, surveillance and control of Palestinians’ virtual space has also been exercised by the Palestinian Authority in the West Bank and Hamas in the Gaza Strip as a means to silence dissent.

The Special Rapporteur on freedom of opinion and expression highlighted some of these issues in his follow-up report on the mandate’s visit to Israel and the Occupied Territories. Taking stock of recent legislative developments in Israel, the treatment of journalists and human rights defenders, and the securitised response by Israeli authorities to peaceful protests, the Special Rapporteur observes, “When considered as a whole, these developments seem to indicate the consolidation of a policy of selective respect for freedom of expression by the Israeli authorities, according to which entire communities under its control are not seen as equal rights holders.” The report also reiterates concerns about the 2017 Cybercrime Law, passed by Palestinian authorities, which criminalises, in broad wording, the accessing of websites, the use of encryption and a wide spectrum of forms of expression online, alongside obliging internet service providers to cooperate with security agencies in data collection without judicial oversight. The report notes that despite positive amendments made in April 2018, the Law has continued to be used to stifle criticism online. In its current format, the Law epitomizes a trend since the visit towards the criminalisation of dissent by the Palestinian Authority.

Sudan

The HRC should urgently address the gross and systematic human rights violations occurring in Sudan. On 3 June, authorities initiated a violent military crackdown that protest organisers say killed more than 100 people. That same day, Sudanese authorities shut down internet access in the country. Following Sudan’s network operators Sudatel, Zain and MTN switching off mobile internet access for customers, fixed line internet services for most offices and houses were also cut, plunging the country into near total information darkness. APC is gravely concerned by the prolonged internet shutdown, both as a violation of Sudanese people’s rights to freedom of expression, assembly and association, and because of the known link between information blackouts and gross human rights violations. The Council should act urgently to establish an international fact-finding mission to prevent further escalation, document violations, identify perpetrators and push for accountability, in line with calls made by a group of Special Procedures including the Independent Expert on Sudan.

Tanzania

APC joined almost 40 NGOs in calling for the HRC to address the ongoing deterioration of the human rights situation in Tanzania. The space for HRDs, civil society, journalists, bloggers, the media, LGBTIQ persons, and opposition and dissenting voices in Tanzania continues to shrink.

On 25 April 2019, Dr. Wairagala Wakabi, the Executive Director of APC member Collaboration on International ICT Policy for East and Southern Africa (CIPESA), was detained upon arrival at Dar es Salaam’s International Airport. Dr. Wakabi had been invited to Tanzania to participate in the annual commemoration of the Tanzania Human Rights Defenders’ Day hosted by the Tanzania Human Rights Defenders Coalition. After hours of interrogation, was deported back to Uganda as a “prohibited immigrant.” Lawyers reported that the authorities denied him entry into Tanzania on vague grounds of “national interest.” Dr. Wakabi’s case is part of a broader trend of legal and extra-judicial methods used to harass HRDs, threaten independent journalism, and restrict freedoms of opinion and expression, peaceful assembly and association.

LGBQTIQ people in Tanzania have come under particular assault. Recently a prominent governor of the business capital of Tanzania, Dar-es-salaam, came on media to publicly announce a 17-person strong surveillance team to track gay people. Gay communities are in fear since this public announcement of surveillance of all the residents in Dar-es-salaam in the name of "cleaning up the city". The governor emphasised that the task force created was going to be able to identify phones that have sexual contents and social media groups or texts that were promoting gay "behavior or prostitution". The 41st session should be leveraged to help prevent a further deterioration of the human rights situation in Tanzania.

Other thematic reports of interest for internet rights

Data collection and management as a means to create heightened awareness of violence and discrimination based on sexual orientation and gender identity

The Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, whose mandate is up for renewal at this session, focuses his report on data collection and management as a means to create heightened awareness of violence and discrimination based on sexual orientation and gender identity, identifies risks associated with data collection, use and storage, and highlights key human rights safeguards in that regard. The Independent Expert’s report on his mission to Georgia reflects on cyberbullying, hate speech and online threats faced by lesbian, gay, bisexual, trans and gender diverse persons.

Freedom of expression, association and peaceful assembly by judges and prosecutors, offline and online

The report of the Special Rapporteur on the independence of judges and lawyers focuses on the exercise of the rights to freedom of expression, association and peaceful assembly by judges and prosecutors, both offline and online. The report includes a section on the social networks and the activities of judges and prosecutors, which addresses new challenges and ethical concerns  relating to the use of social media, and electronic communication more broadly, by judges and prosecutors.

Gender dimensions of the Guiding Principles on Business and Human Rights

Recognising the differentiated and disproportionate impact of business activities on women and girls, the Working Group on human rights and transnational corporations and other business enterprises dedicated its report ot the gender dimensions of the UN Guiding Principles (UNGPs) on Business and Human Rights. The Working Group developed a gender framework for the UNGPs and proposes gender guidance specific to each of the guiding principles. APC prepared input to the report, focusing on the impact of the private sector on women’s rights and sexual rights in the digital context. It particularly looks at issues related to online gender-based violence, privacy, anonymity, algorithms and big data, some of which were featured among the challenges and recommendations highlighted in the report. For example, the Working Group advised that Business enterprises “should take effective measures to ensure that women are not harassed, bullied or intimidated in cyberspace and that they are able to use social media platforms without fear of discrimination or threat of violence” and that they “should ensure that new technologies such as artificial intelligence and automation do not have disproportionate adverse impacts on women’s human rights.”

The digital welfare State in the UK

In reporting on his visit to the United Kingdom of Great Britain and Northern Ireland, the Special Rapporteur on extreme poverty and human rights examined social welfare in the country and concluded the new British social contract slowly evaporating and risks condemning the least well off to lives that are, as Thomas Hobbes put it, “solitary, poor, nasty, brutish, and short.” Among the programmes that the Special Rapporteur examined was Universal Credit and the digital welfare State. His assessment was grim, warning, “The British welfare state is gradually disappearing behind a webpage and an algorithm, with significant implications for those living in poverty.” The Special Rapporteur will examine this further with his upcoming report to the UN General Assembly on the impacts of the introduction of digital technologies in the implementation of national social protection systems.

Side events relevant for internet rights

• Women Human Rights Defenders in the Digital Age | Monday, 24 June at 12:30 – 14:00 (Room XXV) organised by UN Women, Amnesty International, the Ministry of Foreign Affairs of Denmark, OHCHR, International Service for Human Rights (ISHR)

• Freedoms of expression, assembly, and association in Asia | Wednesday,  26 June 2019 at 15:00 organised by Forum-Asia

• Defending Online Civic Space | Wednesday, 26 June at 15:30 – 17:00 (Room VIII) organised by APC, ARTICLE 19, the Permanent Missions of Canada and the Netherlands, the International Center for Not-for-Profit Law and CIVICUS. Download the flier here.

• Ending Impunity for Murdered Journalists: Enhancing the role and impact of the UN | Thursday, 27 June at 11:30 (Room VIII) organised by ARTICLE 19

• The Surveillance Industry and Human Rights | Thursday, 27 June at 13:00 – 14:30 (Room IX) Organised by APC, Amnesty International, the Permanent Mission of Canada, Citizen Lab, Red en Defensa de los Derechos Digitales, Access Now, Committee to Protect Journalists, and the Global Justice Clinic at NYU School of Law. Download the flier here.

• Needs, best practices and risks of research and data collection on sexual orientation and gender identity | Thursday, June 27 at 15:30 (Room V) organised by COC Nederland and ISHR

• Upholding the rule of law: The UN database on businesses operating in the OPT | Friday, 5 July at 14:00 (Room VIII) organised by the Cairo Institute for Human Rights Studies

• Human rights in the Sudan | Monday, 8 July at 13:00  (Room XXIV) organised by DefendDefenders and Physicians for Human Rights