the digest  March 2021

The OEWG’s consensus report: what’s the verdict?

March saw the final meeting of the Open ended Working Group on ICTs (OEWG), which began with no guarantee that a consensus report would be adopted.

The fact that one was adopted, after three days of discussion in a hybrid virtual format, represents a success in and of itself—something that seems to be widely agreed by stakeholders reflecting on the final meeting: from business (see Microsoft) to civil society (the Diplo Foundation, ICT4 Peace Foundation, APC, Reaching Critical Will and Council for Foreign Relations, among others).

A deeper look at the text, as we’ve undertaken in our key takeaways piece, illustrates the costs that came with agreeing a consensus report. The report affirmed past agreements and made progress in some areas (namely norms and capacity building), but it didn’t move forward discussions on other key issues, particularly on international law. This reflects the areas of disagreement that are still present among member states, and which will no doubt resurface at the next OEWG (the organisational meeting for which is already scheduled for early June).

However, some of the more concrete and actionable recommendations in the report—including reference to the “cyber Programme of Action”—may help to progress the discussion on responsible state behaviour in cyberspace. It’s essential that these discussions do progress, and that states implement what they have committed to; that understandings of how international law applies in cyberspace are advanced; and that states are held accountable for their actions. Without this, states will continue to act in ways which have documented human impact and which imperil cybersecurity.

As we also note in our takeaways piece, the OEWG report unfortunately falls short on recognising the role of non-governmental stakeholders in multilateral cyber discussions, including in the implementation of their outcomes. This was unsurprising, considering the well-documented challenges to meaningful NGO participation at the OEWG, which blocked all NGOs without ECOSOC status at the first two meetings. One initiative that could help to make these processes more inclusive is the recent launch of the Paris Call Working Groups, which includes a group focused on supporting meaningful stakeholder engagement at UN cyber processes. GPD recently joined the Paris Call and three of its working groups (on engaging emerging economies; advancing cyber norms; and supporting the multistakeholder approach in UN cyber negotiations)—and we were pleased to hear a lot of agreement on what needs to be done, including concrete recommendations for institutionalising stakeholder engagement which apply lessons learned from relevant processes at the UN and elsewhere.  

The plan for that working group—and the one for norms, which also had its kick off call in March—is to collectively prepare a series of recommendations to present to the Paris Peace Forum later this year. We’ll keep you updated here.

Other news: 
  • We’ve just launched an interactive hub on UN cyber processes, which aims to support civil society engagement there with a range of resources and insight: including in-depth explainers, a rolling feed of key news and updates, and an interactive tool tracking the positions of African states on UN cyber issues. Explore it here.
  • We joined 15 other civil society groups and networks in sending a letter to the Office of the UN Secretary General’s Envoy on Technology regarding the future of the IGF, including the possible set up of a “higher-level multistakeholder advisory body” (MHLB). The letter provides some guiding questions and recommendations to consider as part of ongoing discussions following the IGF’s launch of a consultation on the Secretary General’s proposed Roadmap for Digital Cooperation. A top-level summary of the inputs to that consultation can be found here.
  • The Global Encryption Coalition’s response to the EU consultation on its strategy to deal with child sexual abuse material (which we covered in last month’s Digest) can be accessed and signed onto here.
  • Our friends over at the Internet Society are hosting a webinar on 8 April on the importance of encryption for SMEs in the EU: find out more here.
  • We've launched a new report, examining the state of human rights in the context of the digital age in nine Commonwealth Pacific Island countries, and offering recommendations to policymakers.
  • Our Senior Programme Lead Daniela Schnidrig moderated a webinar co-organised by GPD and Oxford’s Global Cyber Security Capacity Centre, focused on stakeholder engagement in cyber policy. Read our highlights thread here.

A new trend in online content regulation?

In the years this newsletter has been tracking the online content regulation debate, the direction of travel has been fairly constant: governments demanding online platforms do more to remove different forms of illegal and harmful content, increasingly quickly, with threats of sanctions if they do not. 

Is this changing? Over the last few months, a new trend has emerged: with governments and legislators now considering regulation which—rather than requiring platforms to take down certain forms of content—would prevent them from removing certain forms of content or certain accounts.

Why is this happening? Perhaps it’s a reaction to the growing assertiveness of online platforms against government and political accounts which breach their terms and conditions. These accounts were at one point considered almost untouchable. But former US President Donald Trump’s suspension from various platforms—along with other actions, like Facebook’s ban on the Myanmar military—seem to have scared some officials, particularly populists and conservatives, who fear they may be next.

Among the states currently considering “anti-takedown” regulation, Poland is most advanced: its recently published draft law (analysed here by our Head of Legal, Richard Wingfield) would establish a new state body, the Freedom of Speech Council, with the power to demand that online platforms reinstate content and accounts that are not illegal under Polish law. Hungary is also considering legislation, likely to be similar to Poland’s. The UK may add a “duty of impartiality” to its proposed Online Safety Bill (potentially forcing platforms operating in the UK to simultaneously take down more and less content), and various ideas are emerging in the US at both the federal and state level.

For human rights defenders, this trend presents a complex challenge. There are real problems with these responses: not least the greater control they would give to governments and regulatory bodies to control what we can and cannot see online. But the current situation—in which online platforms can remove the accounts and speech of elected officials at will, with no accountability, is also difficult to defend. Alternative approaches—such as greater transparency around content removal and account suspension, independent appeal mechanisms (like Facebook’s Oversight Board), and multistakeholder oversight processes —are promising, but have yet to be tested to their full potential. Until they are, the debate is likely to remain polarised and tense: with newly interventionist platforms confronted by governments demanding both less and more content be removed.

A new guide to AI-related forums (and an opportunity to shape global policy…)

As one of the most important new and emerging technologies, efforts are taking place around the world to shape the way that artificial intelligence (AI) is developed, used and governed.

While there are many serious questions over the role that AI plays (and should play) in our societies, it is also at the heart of new geopolitical battles. In 2017, Vladimir Putin said that “whoever leads in AI will rule the world”, which perhaps explains why AI is now on the agenda of almost every multilateral organisation: from UNESCO to the ITU, the UN Human Rights Council to the Secretary General's Roadmap for Digital Cooperation.

To support civil society groups and others in navigating this complex landscape, we’ve put together a guide to AI Forums as part of our new AI Policy Hub. This is just the start of a more comprehensive set of resources and tools that we’ll be launching in the coming weeks and months on the hub.

In April, a key process to pay attention to is the Council of Europe and its Ad hoc Committee on Artificial Intelligence (CAHAI). CAHAI—which was set up at the end of 2019 in order to “examine the feasibility and potential elements of a legal framework for the development, design and application of artificial intelligence”—is perhaps the most advanced of the many other forums and processes looking at AI. Through it, the Council of Europe appears to intend to develop a legal instrument on AI which would have the same status as its others on issues such as data protection and cybercrime.

Opportunities to influence the work of CAHAI are limited at this stage. However, a critically important one is the open consultation just launched, which will help inform the Committee’s work in developing proposals for the legal instrument. The consultation is open until 29 April and we encourage as many stakeholders as possible—including civil society organisations—to respond to and shape this work.

Listening post

Your monthly global update, tracking relevant laws and policies relating to the digital environment.

On the trust and security side, cybersecurity and cybercrime legislation progressed in several countries: 

  • Sierra Leone's Cybercrime Bill text was published, resulting in a backlash due to its punitive nature and potential to suppress freedom of expression online. 
  • Following protests around Bangladesh’s Digital Security Act, the Law Minister has announced plans to amend provisions of the Act, but ruled out abolishing it altogether. 
  • Malaysia’s Communications and Multimedia Ministry (KKMM) is preparing a Cabinet paper on anti-cyberbullying laws. 
  • In Fiji, the controversial Police Powers Bill has been withdrawn by the government. 
In other news, Sierra Leone approved its National Cybersecurity Strategy (NCSS), and Jamaica announced plans for a new NCSS to be brought to cabinet later this year. 

Finally, the Global Forum on Cyber Expertise welcomed Papua New Guinea as its 89th member, and the Bahamas launched a new project with the ITU, towards developing a national Computer Incident Response Team.

On the online content side: 
  • Australia’s Online Safety Bill passed the lower house and is now being considered by the upper house in the Australian Parliament. In the Senate committee’s report on the bill, they cited GPD’s submission from last month several times. 
  • Ireland’s Online Safety and Media Regulation Bill 2020 is being reviewed by the joint parliamentary committee. (GPD recently submitted input to a consultation on the Bill).
  • France’s proposed "separatism law" has several provisions around hate speech which pose risks for freedom of expression and association: see Article 19’s analysis here. The Senate will begin examining the Bill on 30 March. 
  • Croatia’s Bill on Electronic Media—currently under discussion—would pluralise public access to media and make data on media ownership public and financing more transparent. However, concerns have been raised about its punitive sanctions for (broadly defined) “hate speech”, and its implications for intermediary liability. Discussion and amendments are taking place until 2 April, with a vote scheduled for 2 May. 
  • New Zealand’s bill on “objectionable” content is now under consideration within Parliament. See our recent feedback on the bill here.
On the emerging tech side, some movement on data protection: Sri Lanka has published a draft bill, while Jordan has announced the development of new legislation.

Also, Vietnam has adopted its National AI Strategy (NAS), setting out the government’s approach to the development and use of AI; while the UK has announced its intention to develop a new NAS, despite already publishing one in 2018.
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