By: Yuval Shany

Welcome to the thirteenth newsletter of the The Federmann Cyber Law Program!

One focal area of Cyber Law research program in the Federmann Cyber Security Research Center is the manner in which human rights apply in cyberspace. Although the principle that ‘offline’ human rights also apply online is widely accepted, the special features of the digital environment require important adjustments in the form and contents of human rights. For example, human rights have to be reinterpreted so as to accommodate the speed and scale in which information can be disseminated, to address new challenges resulting from the perpetual availability of data and the accessibility of big data, and to reflect the ever-increasing role of private actors in regulating and controlling online platforms. Furthermore, existing rights, such as privacy or freedom of expression might need to be radically reconceptualized for a radically different societal relations brought about by digital technology. Still, adjustments have their limits, and at some point, we would be confronted with the question of whether new digital human rights ought to be developed and whether new right and duty-holders should be recognized. Offline human rights have been based on a combination of power-imbalance between government and the governed and a history of oppression, abuse of power, injustice and failure to respect basic human needs and interests, and similar dynamics could justify the development of new digital or e-human rights.

In pursuit of this research trajectory, the Cyber Law program has embarked earlier this year on a series of workshops with the human rights, big data and technology research project at The University of Essex, to explore the scope and justification for some of the new potential rights. Last May, we held a workshop in London on the issue of the use of AI in decision making affecting basic rights, and later this September we will meet in Jerusalem to discuss whether there is a right to encryption. Both issues illustrate some of the interesting questions posed by the discourse on digital human rights. The first workshop dealt with the question of whether individuals have a right to a human decision maker, even in situations where machines may make objectively better decisions than humans, less prone to biases and mistakes. This, in turn, raises deep philosophical questions such as to whether individuals have a right to ‘unbelong’ (a term coined by Prof. Alon Harel to describe the interest in being considered not as a member of a group of persons sharing the same statistical profile). The second workshop will investigate the interplay between individuals, technology companies and governments in constructing new online private spaces through encryption and limits on decryption and ‘back doors’.

In parallel to this workshop, one of our researchers – Ms. Dafna Dror and myself, are working on a research project trying to map three generations of digital human rights, involving considerable adjustments to existing rights, conceptualizing new rights – such as the right of access to the internet and the right to control one’s digital representation (e.g., the right to be forgotten) – and creating new right and duty holders, including possibly recognizing the independent rights of digital persons. Cyber Law researchers have also participated in a number of meetings and seminars organized or co-organized by the Geneva Academy of International Human Rights and Humanitarian Law on the topic in Geneva, around the meetings of the Human Rights Council. The question of digital human rights finds itself increasingly at the forefront of the contemporary human rights discourse, and our program aspires to participate in the shaping of the responses to this question.

I would be most happy to discuss with you further these and other issues referred to in this newsletter and in our other publications.        

Sincerely,

Yuval Shany

Program Director