Bundesministerium der Justiz und für Verbraucherschutz

DokumenttypNamensartikel | Datum10. Dezember 2015 | Person Heiko MaasOur Digital Civil Rights

Two weeks ago, Martin Schulz, President of the European Parliament, called for a charter of fundamental rights with respect to the internet. Here is a proposal in black and white.

Medium: Die Zeit
Ausgabe: 50 vom 10. Dezember 2015

By now, digitalisation has become an all-encompassing phenomenon and there is not a single aspect of our lives that has remained untouched by it.  Originally, the internet was launched with a lofty vision in mind: information available freely to all, flowing in decentralised fashion, without being commercialised or controlled by hierarchies.  Since then, however, digitalisation has become the mastery over critical data, accompanied by the increasing subjugation of all areas of human life to economic dictates.

Because digitalisation developed hand in glove with neoliberal market forces, the task of steering the process through democratic regulation was placed on the back burner for far too long.  Thus, hardly any attempt was made to make this new technology amenable to the rule of law. 

Nowadays, we are only too happy to make use of the many fascinating opportunities the digital age accords us, even as we recoil at the collateral damage that has come in its wake: increasing encroachments upon individual privacy; loopholes that allow human behaviour to be manipulated; the amassing of overweening power and influence by the five oligarchs of the West – Amazon, Apple, Facebook, Google, and Microsoft.  The internet scholar Evgeny Morozov hit the nail on the head in writing, “digital technologies are our best hope, but also our worst enemy.”

We are now faced with the urgent need to promptly find an answer to a simple, fundamental question: What sort of world do we wish to live in?  And once we’ve answered that question, we must take appropriate action.  For public policy that wishes to remain relevant can no longer shirk the task of imposing order and structure on thedigitalisation process, both at the national and transnational levels.  This is why Martin Schulz, in a recent interview with the German daily DIE ZEIT (No. 48/15), opined that a charter of fundamental digital rights was required.   An idea with which I fully concur!  So in the interest of moving this debate forward, I would like to offer a possible starting point:

Article 1 „Every individual has the right to access the internet.”   

One cannot do without the internet these days.  To an increasing degree, people’s ability to earn money, access knowledge, and participate fully in society are dependent on being connected to the worldwide web.  So if we want to ensure that social justice prevails in this digital age of ours, we will have to prevent class distinctions from arising in the digital realm as well.  Consider that while almost 95% of Germany’s well-educated, high-income population is already online, just over half of those with ten years of schooling in a Level 2 institution and those earning a net monthly income of less than EUR 1,000 surf the web – and the trend is actually declining!  So we need to do more than simply expand the existing internet infrastructure; we must also ensure that everyone can enjoy equitable access to the internet in actual practice.   

Article 2 „Each individual has the right to control his or her own personal data.”   

Data have been called the new “black gold” of the 21st century.   If we accept this premise, then it follows that all those who claim that data protection is obsolete in the digital age are trying to dispossess us.  Our personal data is part and parcel of who we are, and this is how it must remain.  As a fundamental rule, no one should be allowed to use data without the consent of the person to whom they belong.  For only he who can control his own data is truly sovereign.  If this data sovereignty is to be assured, declarations of consent will have to be formulated in a clearer manner than is currently the norm.  As far as I am concerned, simply clicking “yes” or “no” to accept or reject several pages of general business terms hardly represents an ideal level of self-determination.  Thus, everyone must have the freedom to opt out of individual data uses without suffering any detriments.  The new EU General Data Protection Regulation, which is now in the process of being adopted, will bring us at least one step closer to this ideal. 

Article 3 „Each individual has the right to control his or her own digital identity.  Everyone has the right to be forgotten.”

A person must be allowed to determine which traces he or she leaves behind on the worldwide web – particularly because such traces are often used to create personality profiles and to influence behaviour.  Thus, many online services should also be usable anonymously or with a pseudonym.  Another thing we need is transparency: Everyone must have the right to know what information others have stored about him or her, and must be entitled to have erroneous data corrected.  Given that digital information can still be called up decades later with a few mouse-clicks, it is essential that the “right to be forgotten” be assured.  So that youthful indiscretions do not turn into lifelong burdens, for example, search engines must be required to eventually stop displaying certain personal entries. 

Article 4 „No one should become the object of an algorithm.”   

In an era of “big data,” analyses of past behaviour are being used to predict future conduct.   Yet people are more than just a data profile, and human behaviour cannot simply be calculated in a neutral manner.  After all, every algorithm is derived from assumptions that may be incorrect or indeed discriminatory.  This is why we need a sort of “technical control board” for algorithms, one that can monitor the integrity of the programming employed while also ensuring that our freedom to act and make decisions is not open to manipulation.  Machines do not have their own sense of ethics and are unable to feel empathy.  Thus, detrimental decisions must not be taken on the basis of algorithms alone.  We cannot just place blind faith in statistics and big data, for in order to be appropriate, a decision must not only be efficient, but also just.

Article 5 „Every individual shall have the right freely to express and disseminate his or her opinions on the internet and to inform himself or herself without hindrance from generally available sources.  There shall be no censorship.”

Does this sound familiar?  Perhaps because Article 5 of the German Basic Law features very similar wording.  Since it makes information easy to access and exchange while also affording many networking opportunities to minorities, the internet can act as a powerful force to promote freedom.  We must protect this potential, all the more so because autocratic regimes fear it so much.  The fact that digital dissent and activism loom large here in Germany as well is exemplified by the recent referendum on bringing the Olympic Games to Hamburg: While all the political parties and traditional media came out in favour of Hamburg as an Olympic venue, it was the “no” campaign organised over the internet that was ultimately able to win over a majority of the local population.

Article 6 „The right to express opinions on the internet does not release anyone from the obligation to respect generally applicable laws and the personal rights of one’s fellow human beings.”   

Unfortunately, the worldwide web is tempting all too many people to brutalise their use of language.  Internet “trolls” and fanatics may not want to hear this, but the internet is actually not a legal vacuum.  In other words, the web is not a place where one can simply spew hatred, incitement to hatred or insults against fellow human beings without suffering the legal consequences.  It is certainly a good thing that going forward, the judiciary intends to intervene in a more consistent fashion – when someone posts statements online exhorting readers to burn down refugee centres, for example.  Facebook, too, is doing the right thing by finally living up to its responsibility to promptly delete threats and incitements to violence.  So although censorship by private individuals is unacceptable, the deletion of illegal content is not in fact censorship, but rather the granting of equal protection under the law to all, both in the analogue and digital realms.

Article 7 „Every individual has the right to receive reasonable remuneration for his or her work when providing or brokering services via the internet.”

The internet is also impacting our work environment.  Fewer people now hold full-time jobs, while more and more work as freelancers or independent contractors on demand.  While this gives them more flexibility, it also puts them at risk of becoming digital day-labourers, without any social safety net to fall back on.  Since contracts for work are often awarded by way of online auctions, sometimes forcing tradesmen or domestic staff to engage in ruinous competition, we also need a prohibition against wage-dumping practices on the internet.  For also in the digital world, work well done deserves to be remunerated with a living wage worthy of human dignity. 

Article 8 „All creators of copyrightable work as well as performing artists have the right to a fair share in the proceeds earned from the digital exploitation of their work.”

Never before in history have so many people had such convenient access to so much knowledge and culture.  This is something we can thank digitalisation for.  At the same time, however, the digital world has made intellectual property particularly vulnerable.  Thus, we should apply the principle "compensation instead of prohibition” and should focus on developing new payment models, rather than in engaging in ultimately futile attempts to stem the tide of digitalisation. 

Article 9 „It is the duty of the State to ensure internet neutrality.”

Equality in the digital age means web neutrality first and foremost; in other words, all data packages must be transmitted with the same speed and level of quality.  We need an open internet where it is up to providers to decide what to place online and up to customers to choose the content they wish to see – and not up to the network operators.  A two-class internet would result in a situation where commercial content becomes even more dominant, but where we would probably never see video segments like the ones showing Egyptian civil-rights activists on Tahrir Square.  It is a good thing that the European Parliament has taken a fundamental stand in favour of internet neutrality.

Article 10 „No one is entitled to abuse commercial market power.  The State shall act to prevent monopolies and cartels, while also fostering diversity and competition.”

If the Edeka and Tengelmann supermarket chains announce plans to merge, our German anti-trust regulators are quick to get in the game, so as to ensure that we continue to have competition in this sector.  But what do we do when faced with the fact that Google is used for 95 percent of all online searches in Germany?  This is a quasi-monopoly situation where neutrality needs to be safeguarded so that all internet service offers are kept equally accessible in a non-discriminatory manner.  In order to promote competition and allow new providers to enter the market without difficulty, we will also need more data portability, i.e. the right to take our data with us when we switch providers.  Open interfaces and interoperability will be additional key factors, since they will allow products from different providers to be used with the same device.  After all, the world does not consist of Apple products alone! 

Article 11 „Every individual has a right to data security.  The hugely important role that data processing now plays makes our civil liberties vulnerable and elevates the risk that sensitive personal data may fall into the wrong hands.  Terrorist attacks are now being committed on the internet as well.  Not too long ago, “hackers“ were teenage nerds operating from their basements next door, but today’s cyberattacks are also being perpetrated by organised criminals, terrorists or foreign intelligence services.  Thus, anyone who stores sensitive data or provides digital services critical to public welfare must also take care to protect this infrastructure with special safeguards.  In short, data protection is a basic civil right and obligation.  And it will even become a matter of life and death, as in the case of the digitally networked vehicles known as “Smartcars”.

Article 12 „The various nation states shall strive to reach agreement on an international law of the internet, in order to secure internet freedom all over the world.”

Ever since Edward Snowden and the NSA scandal, we know that the digital Leviathan does not just lurk in Silicon Valley alone.  National governments can also pose a risk to freedom if they are allowed to intercept and read our emails at key internet nodes or spy on our surfing behaviour without any oversight.  The concept of international law was elaborated some 400 years ago in order to protect freedom of navigation on the high seas.  The high seas of today’s digital age are to be found on the internet.  Which is why we need an international accord on the protection of personal data, so as to prevent it from being arbitrarily tampered with by intelligence services.   

Article 13 Every individual has the right to an analogue world.  No one is to be unfairly disadvantaged simply for opting not to use digital services.”

Freedom always has a negative dimension as well.  Thus, we also have the right not to do something.   This must also apply in the digital age.  Buying a transport ticket, applying for a passport, initiating a wire transfer with the bank – these are all things that must remain possible without having to buy an expensive Smartphone.  And no one should be disadvantaged just because he or she does not have a Facebook account.  This not only minority-protection scheme for those people who prefer to opt out of digital services, but also constitutes a social justice imperative, for example to protect those many seniors who are unlikely to become “digital natives” in their old age.  Frank Schirrmacher once stated that the biggest challenge of the digital age will be how we manage to democratize the balance of power between the internet giants and the average citizen without sacrificing the benefits this new technology has brought us.  In order for this balance to be struck successfully, the nation states will have to once again review their policy options and make use of their democratically vested powers. 

Back in the 1930s, as the USA was mired in the Great Depression, Franklin D. Roosevelt launched his New Deal rather than simply leave people at the mercy of the markets.  He got the state involved and had to endure the slander of being called a Communist for his pains.  Yet he decided not to shy away from taking on the high and mighty if this is what the interests of the majority dictated.  In the end, he was able to restore social stability without having to do away with the capitalist system. 

In our day and age, our task will be to resolve the digital question without turning into computer-smashing Luddites.  We will have to make the big data industry answerable to democratic regulation and can no longer rely on big business to accomplish this task unaided.  This may at times bring us into unavoidable conflict with the global players, but we have the market power of 500 million EU citizens behind us.  If we wish to remain autonomous human beings rather than subservient digital subjects, we will need nothing less than a Digital New Deal.