Protecting both human rights and public safety

The opportunity

Social networks, mobile apps and other cloud services are enabling new ways to create, communicate, publish, and access news and information. These services have unlocked opportunities to strengthen freedom of expression. Societies benefit in innumerable ways, including a more informed and engaged citizenry, expanded economic opportunities, and more connected communities.

The challenge

Although technologies have evolved, time-honored values endure. International human rights laws have long recognized freedom of expression and freedom from arbitrary or unlawful interference with privacy, family, home or correspondence. Both freedoms are key contributors to human dignity and the development of human potential. Of course, any technology, whether the printing press or the cloud, can be misused to disseminate illegal or harmful content. This raises important questions for governments, communities, cloud service providers and other stakeholders, who seek to ensure personal privacy, freedom of expression, and the right to receive and impart information on the global internet while protecting public safety. As societies seek to protect human rights while combating terrorism and extremism, it is important to recognize that public safety and human rights are complementary values that reinforce each other.

Policy recommendations

Governments should adopt clear laws and regulations that are interpreted and administered under the rule of law, including advancement of international human rights laws and norms. This will enable governments to protect freedom of expression, privacy and public safety while continuing to support robust exchange of ideas and information to fuel the benefits that technology can bring to societies and economies.

In particular, governments should consider the following principles:

Adhere to the rule of law. In regulating online content, conducting surveillance or accessing data, governments should fully commit to the rule of law. This means ensuring that laws and regulations and their enforcement are transparent and respect international human rights laws and norms. Governments should be open and engage their citizenry in public debate on the enactment of laws and regulations regarding restriction of online content, governmental surveillance and access to online data.
Citizens should determine how such laws and regulations will be enforced. Rule of law requires that enforcement orders and decisions be subject to independent judicial approval and review, with meaningful and trusted opportunity for companies and individuals to appeal judicial approvals or decisions. Adherence to rule of law will serve best to ensure that the benefits of cloud computing lead to human development and economic advancement.

Adopt a principled approach to online content regulation and protect freedom of expression and access to information. One of the fundamental roles and responsibilities of governments is to protect public safety. This sometimes requires the regulation of online content. Any governmental restriction on freedom of expression should respect the norms established by international law: legality, necessity and proportionality. Restrictions should be duly enacted by law, should be the least restrictive means possible and should be proportionate to the legitimate objective.
Governments should ensure that laws are strictly limited to the protection of public safety, and do not prevent broad sharing of ideas — even ideas that are unpopular.

When governments demand that online service companies remove content, they should do so transparently. These demands should be made pursuant to laws and regulations that clearly define what constitutes illegal content and the types of services that must remove it. Laws and regulations should require that legal orders for the removal of illegal content be specific, narrowly tailored and sufficiently detailed to enable companies to identify precisely which content must be taken down. Such laws and legal orders should not require companies (directly, or indirectly through intermediary liability or other pressures) to proactively monitor content or make independent determinations of illegality. Laws and regulations should not restrict companies from informing the public about removal demands from governmental authorities.

Protect rights to privacy online. Governments have long accepted the responsibility to ensure that they conduct surveillance or access information only when necessary. Like freedom of expression, surveillance and access to data must be subject to rule of law, grounded in legality, necessity and proportionality. See Government access to data for more recommendations.

Respect national sovereignty through international cooperation. Given the transnational nature of the global internet, demands to remove content or disclose digital evidence will often affect other jurisdictions. Unilateral demands or actions risk violation of other countries’ sovereignty, conflict of laws among nations, and potential interference with the exercise of fundamental rights. Governments should focus on strengthening international cooperation and adhering to international norms in considering content regulation, surveillance or access to data on the global internet. Where existing rules or processes for cross-border cooperation are outdated or cumbersome, governments should work together to update them so they keep up with new technologies, are adequate to address new challenges and protect human rights. Self-help is never the best option.

Noninterference with technology companies’ terms of use. Online services that permit end users to post content for viewing by others usually include terms of use (aka terms of service). These terms of use are designed to advance the service provider’s legitimate business purposes for the service in question, including generation of experiences appropriate to the nature of the service and the user communities they serve. Companies generally provide processes for users or others to report content that may violate the terms of use, and have procedures for review and removal of content that violates applicable terms of use. Governments should not pressure companies to change their terms of use or interfere with the way they are enforced.