Submission to the study on private ICT sector responsibilites
Introducton
Founoeo in 2003, the Center for Technology ano Society (CTS/FGV) aims to stuoy the legal, social ano cultural implicatons resultng from the aovancement of informaton ano communicaton technologies. CTS/FGV proouces acaoemic research ano policy papers that may impact the oevelopment of public policies, so they will upholo oemocracy, funoamental rights ano the preservaton of the public interest. The four lines of research oevelopeo by the Center are: Creatve inoustries, culture ano access to knowleoge; Internet governance ano Human Rights; Digital oemocracy, communicaton ano partcipaton.
Among other networks, CTS/FGV is part of the IGF Dynamic Coaliton on Platorm Responsibility [1] ano since 2014 has been oeveloping a project on corporate responsibility of online platorms. The project “Terms of Service ano Human Rights” oevelopeo a methooology to analyse the oegree of protecton of privacy, freeoom of expression ano oue process ofereo by the Terms of Service (ToS) of a variety of online platorms. Some of the main goals of the project are to: (i) trigger internatonal oebate on the role of online platorms’ provioers as cyber-regulators ano on their responsibility to respect human rights; (ii) proouce evioence on the impact of ToS on inoiviouals’ human rights; (iii) encourage platorm responsibility ano foster a competton environment baseo on the respect of human rights stanoaros; (iv) encourage governance mechanisms grounoeo on the respect of three funoamental components of the rule of law online: privacy, freeoom of expression ano oue process ano (v) stmulate the formaton of a community to oiscuss ano oevelop projects on the subject.
The Center for Technology ano Society welcomes the initatve of the Uniteo Natons Special Rapporteur on the Protecton ano Promoton of the Right to Opinion ano Expression to raise oebate on the private sector’s responsibility to protect freeoom of expression. We are pleaseo to submit a contributon to the call on “Freeoom of expression ano the private sector in the oigital age”, which currently is a central topic in Internet Governance. We remain available to ofer complementary informaton in any of the subjects oiscusseo below, as well as to oevelop further stuoies in relaton to the project.
Specifc questons
At a minimum, the actors within the ICT sector that implicate freedom of opinion and expression include search engines and data processors, social media, news media, Internet Service Providers (ISPs), telecommunicatons providers, e-commerce, surveillance and cybersecurity frms. The Special Rapporteur would welcome input that identfes the ways in which these or otherprivate
corporate actors implicate freedom of expression.
In the infrastructure layer, for instance, network operators have the possibility to implement oirectly their terms of service via Internet trafc management practces. Blocking or throtling packets, as well as creatng "fast lanes" may have a oetrimental efect on the freeoom to receive ano impart informaton. In the logical layer, ICANN oevelops policies that guioe the introoucton of new gTLDs into the oomain name system. Domain names ofen entail expressive ano communicatve elements, ano controversies on whether to approve the creaton of new gTLDs such as .fail, .sucks or .islam, reveal the impact that ICANN’s policies may have on freeoom of expression. Moreover, the process to evaluate community applicatons has leo to some quite controversial results. The new gTLD .gay was assigneo to a company insteao of to the applicants from the gay community. This causes an impact on freeoom of expression ano freeoom of associaton. ICANN's policies ano oispute resoluton mechanisms have to be aoopteo by oomain name registries ano registrars as a conoiton to their accreoitaton to the ICANN system. Finally, in the crossing of logical ano content layers, a number of online platorms regulate their cyberspaces through comprehensive terms of service that users can only accept on a “take-it-or-leave-it” basis. These actors heavily infuence – either through their policies or their algorithms - the conoitons in which expression will take place online. Ano with the emergence of the so-calleo Internet of Things (IoT), several non-traoitonal ICT inoustries might also start to interact with ICT companies ano impact on the right to freeoom of expression online. In this scenario, there is a clear neeo for further empirical stuoies aimeo at unoerstanoing the characteristcs of this oiversity of actors ano their impact on freeoom of expression. However, beyono the partcularites of each specifc service, it seems like some issues are relevant for all – or at least most – of them.
First, there is a general neeo for more transparency from corporatons in terms of (i) the type of user generateo content that is alloweo in a partcular service (especially in the case of social networks, email ano storage services, etc.); (ii) the algorithms ano parameters that oetermine the classifcaton of content (especially in the case of search engines, social networks, news meoia); (iii) the type of content that might be founo in a partcular service, especially if it can be ofensive or inappropriate to partcular groups of people (e.g. chiloren, religious groups, etc.) as well as about content that will not be founo because of any of the companies’ policies; (iv) informaton about content that was removeo or is being promoteo (e.g. aovertsing) with a clear oiferentaton between sponsoreo aovertsing, news ano user generateo content; (v) oetails on the implementaton of Internet trafc management practces.
Secono, these actors shoulo observe the oue process in their practces with both the creaton of alternatve mechanisms for the resoluton of conficts ano the promoton of access to justce. This shoulo incluoe:
• Meaningful notce about requests for removal of content generateo by the user, incluoing the justfcaton for such, ano right to be hearo before the takeoown;
• Clear mechanisms for reportng abusive content followeo by meaningful notfcaton about the proceoures that are being taken, incluoing about the possibility of the request for removal being challengeo ano instructons on other ways the victm can protect herself in case the content is not removeo;
• Meaningful notce ano right to be hearo before the terminaton of account for violaton of the contract or any other reason;
• The right of users to go to courts in their own jurisoicton ano unoer their countries' legislaton.
It is worth notng that several factors infuence companies’ interference in freeoom of expression. In that sense, the State has also playeo a role in pushing companies to restrict freeoom of expression online, especially in countries where this right is not well establisheo as a social value. Any atempt to foster corporate's responsibility in protectng freeoom of expression online shoulo also highlight States’ outy to protect free speech ano to promote the respect for human rights by business enterprises. States shoulo not interfere in the oesign of Internet services ano platorms in a way that will unoermine the exercise of the rights to freeoom of expression ano to privacy [2].
Legal and policy issues concerning the ICT sector have become prominent in recent years. These include, to name a very small number of examples, the regulaton of content on all platorms and by all services and providers; acquiescence of corporate actors with government mandates or requests to take down content or services, to cooperate with government surveillance, or to localize data; the liability of intermediaries; and the security and privacy policies and technologies adopted by private actors, such as encrypton. The Special Rapporteur would welcome input that identfes key legal and policy issues in the ICT sector, as well as legal and policy concerns raised by government regulaton of the ICT sector, that implicate freedom of opinion and expression.
Many of the oifcultes in oealing with the aforementoneo legal ano policy issues oerive from two factors: a) the tension between a boroerless Internet ano a worlo oivioeo into natonal jurisoictons; b) the atempts to enforce natonal laws using Internet architecture as a proxy.
The court oecision that recently leo to the blocking of WhatsApp in Brazil serves as a gooo example of the problems that these approaches may generate to freeoom of expression. In the miost of a criminal prosecuton, a Brazilian juoge requesteo WhatsApp to provioe informaton on a user who was unoer investgaton, baseo on the fact that the Civil Rights Framework for the Internet (Marco Civil oa Internet) requests applicaton provioers to store their logs for six months. The company repeateoly faileo to comply with the court oroer. Facebook responoeo that there is no legal representaton of WhatsApp in Brazil, while WhatsApp allegeoly argueo that it ooes not retain the requesteo informaton. Faceo with a conunorum, the juoge issueo a court oroer oetermining that telecommunicaton companies shoulo block WhatsApp for 48 hours. This oecision was reverteo by the court afer 12 hours of blocking, however, the consequences of the measure on the freeoom to communicate were profouno. WhatsApp is useo by 90% of the connecteo populaton for everyoay communicaton. It is also useo by some public services to communicate with the citzens, because of the high levels of penetraton of the technology.
natonal boroers ano it is impossible to neatly contain the consequences of oecisions such as this one in a partcular jurisoicton.
On the other hano, some responses from policymakers have also been problematc, risking to unoermine citzens' expression online. An example of that is a bill that is penoing approval in the Brazilian Chamber of Deputes, PL 215/2015. The bill, which originally aimeo at establishing more rigor in punishing crimes against honor taking place online, proposes to introouce a manoatory real name policy to access the Internet ano a version of the so-calleo right to be forgoten in the Brazilian legal framework [3].
States have also showeo concern about the power that corporatons have in oetermining the rules that will apply online. In that sense, policymakers have also trieo to intervene in oroer to strengthen issues like transparency ano oue process – usually falling into the jurisoicton issues oue to the global character of the Internet when trying to apply their rules. In Brazil, the Civil Rights Framework for the Internet (Marco Civil oa Internet), Law No. 12.965/2014, provioes that: (i) users’ personal oata shoulo not be transferreo to thiro partes without the users’ freely given, informeo ano specifc consent; (ii) users have the right to access clear ano complete informaton about the collecton, use, storage, processing ano protecton of their personal oata which can only be useo to purposes that (a) justfy collecton, (b) are not forbiooen by law ano (c) are explicitly laio oown in services contracts or terms of use; (iii) users have the right to consent about the collecton, use, storage ano processing of personal oata ano that consent shoulo be separateo from other contractual clauses. Accoroing to the Law, companies’ terms of use shoulo be public ano clear ano, besioes the above-mentoneo, shoulo incluoe clear ano full informaton setng forth the oetails concerning the protecton to connecton recoros ano recoros of access to internet applicatons, as well as on trafc management practces that may afect the quality of the service provioeo. It also highlights that all obligatons preoicteo in the Brazilian Consumer Protecton Act are applicable to the interactons that take place on the Internet.
It remains yet to be seen how Brazilian courts will interpret some of the above-mentoneo provisions of the Marco Civil. However, the Juoiciary alreaoy has elements to invalioate several clauses since Law No. 12.965/2014 also oetermines that any contractual clause that unoermines the confoentality of private communicatons on the Internet or that oo not provioe an alternatve to the contractng party to aoopt the Brazilian forum for resoluton of oisputes arising from services renoereo in Brazil shoulo be oeclareo null.
Finally, the global character of the Internet has also raiseo other concerns such as with the neeo for plurality ano oiversity. Especially in sectors that are subject to network efects ano therefore highly concentrateo such as social meoia, it seems important to think about mechanisms to foster competton ano a oiverse environment. While it coulo be argueo that everyone has the opportunity to express themselves in these meoia, they have their own rules that limit certain types of expression. These rules are ofen associateo with cultural or moral values that usually refect their origins or the culture of the majority of it's public, which may impact on the expression of minorites or local cultures. [4]
Several stuoies have shown that Internet companies’ policies are ofen complex, long ano oifcult for the average user to unoerstano. They are usually oistributeo into more than one page ano can be complementeo by help pages, tutorials, Q&A, etc., which, oespite not being efectvely part of the contract, may specify or contraoict its terms. In aooiton, the use of excessively legal ano ofen vague terms also makes it haroer for the average user to unoerstano the terms she is acceptng. At the same tme, however, the length ano complexity of a company’s terms of use, privacy policies or other policies oo not always refect transparency in terms of their practces to their users. When it comes to the consent for the collecton, use, storage ano processing of personal oata, terms usually ask for a general “take it or leave it” consent.
The Terms of Service ano Human Rights Project ran by the Center for Technology ano Society at Funoação Getúlio Vargas Law School in Rio oe Janeiro (CTS/FGV), oevelopeo a methooology to analyse the oegree of protecton of privacy, freeoom of expression ano oue process ofereo by the Terms of Service (ToS) of a variety of online platorms. The stanoaros ioentfeo as a basis for the methooology oerive from existng internatonal human rights oocuments, incluoing most notably the Council of Europe's Guioe to Human Rights for Internet Users. Between September 2014 ano May 2015, the Project has analyseo the policies of a corpus of 50 platorms in a pilot experience aimeo at enhancing the methooology ano to ioentfying the main practces aoopteo by platorm provioers. Preliminary results bring evioences that confrm some of the issues pointeo out before:
• More than 60% afrm on their ToS that they track users in other websites ano 75% that allow thiro party tracking on their own websites;
• Arouno half of the platorms oo not have clear informaton on their ToS regaroing the aggregaton of personal oata between oiferent services or across oevices, making it oifcult for the user to know how her oata is being useo;
• Most platorms share oata with thiro partes for various reasons (commercial, technical, etc.) but usually oo not specify the recipients of that oata;
• Although arouno 60% of the platorms ofer informaton about how to report inappropriate content, most oio so only for copyright violatons ano specifeo the DMCA mechanism without giving further informaton on how to report other type of ofenses;
• Arouno half of the platorms hao no informaton on the encrypton of content or personal informaton transmiteo or storeo. Although 42% afrm on their ToS that they will encrypt transmiteo oata, most oio so only for certain type of oata such as creoit caro informaton;
• Only one thiro of the platorms explicitly say they allow anonymity. Most platorms have no informaton on this;
• Only 11% of the platorms analyzeo commit to sharing oata for law enforcement or juoicial purposes only following a specifc legal process on their ToS;
• Only one thiro of the platorms commit to issuing prior notce before making changes to the ToS;
• Almost half of the platorms (44%) reserve themselves the right to terminate its’ services (for all customers) without prior notce ano 86% to terminate the account of a partcular user without notce;
• Just 22% of the platorms say on their policies they will allow users to access the ToS they originally agreeo ano arouno 70% give no informaton on that;
• Almost half of the platorms afrm they will scan, flter, block or remove content for unspecifeo, unclear or unoetermineo reasons;
• Half of platorms also reserve the right to takeoown user generateo content afer request without notce.
The complete report with the fnal results of the project shoulo be launcheo in March. The center is also planning to oevelop a secono phase focuseo on the Internet of Things ano its interacton with the so-calleo “smart cites”.
Besioes the Terms of Service & Human Rights Project, together with the IGF Dynamic Coaliton on Platorm Responsibility the CTS/FGV has also oevelopeo Recommenoatons on Terms of Service ano Human Rights [5], which aims at ofering guioelines for companies in oeveloping their policies in accoroance with internatonal human rights stanoaros for freeoom of expression, privacy ano oue process.
Conclusion
The increasing reliance on a variety of intermeoiaries makes the Internet a hyper-regulateo environment where both natonal legislatons elaborateo by “traoitonal” sovereigns ano private oroering oefneo by a new wave of private sovereign (Lessig, 1999; MacKinnon, 2012; Belli, 2016) shape the Internet experience of the regular user. Partcularly, the Snowoen revelatons seem to have calleo the general public's atenton to something that has always been in the core of the Internet architecture: the fact that all communicatons ano actvites taking place online require the intermeoiaton of a number of private enttes that unilaterally regulate a myriao of essental components of the Internet structure. In this context, it is unquestonable that private corporatons have an important role in guaranteeing freeoom of expression online.
The responsibility of private unoertakings to respect human rights is explicitly recognizeo in the Uniteo Natons’ Guioing Principles on Business ano Human Rights, which also afrm their joint outy with States to provioe efectve remeoies against violatons. However, a oefniton is missing of the stanoaros against which such responsibility can be measureo in the context of online platorms. In that sense, internatonal guioelines at the UN level coulo help stmulatng companies’ corporate responsibility, as well as giving the private sector references in how to be more transparent ano accountable. On the other hano, this type of specifc oocument is relevant for the oevelopment of new initatves oeoicateo to fostering corporate responsibility ano have an eoucatonal role for both the private ano the public sector.
References
[1] See more informaton at htp://www.intgovforum.org/cms/2008-igf-hyoerabao/event-reports/74-oynamic-coalitons/1625-oynamic-coaliton-on-platorm-responsibility-oc-pr.
[2] Examples of atempts to intervene in the oesign of Internet services are the oemanos for the implementaton of flters against chilo pornography or copyright violatng material or for backooors in encrypteo technologies. About the later, a coaliton of organizatons has organizeo a leter in oefense of encrypton, for more informaton see htps://securetheinternet.org.
