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the digest  October 2021

Why does Facebook’s Oversight Board get so few appeals from the Global South?

The Facebook Oversight Board recently published its first three quarterly transparency reports. 

These reports are, in parts, critical of Facebook. They conclude that the company is not answering all of the Board’s questions, and that it has been less than transparent about its “cross-check” system (which Facebook uses to review content decisions relating to high-profile users). Coming alongside recent revelations by whistleblower Frances Haugen, it’s clear that many—the Board, Facebook employees, and users themselves—are still demanding more accountability from the social media giant. 

But setting aside these issues, what exactly do these reports—specifically information about user appeals—mean for the Board, civil society organisations and users around the globe? 

Data from the reports show that the Board received over half a million user appeals between October 2020 and June 2021, and that the cases it selected relate to a wide range of issues, including on hate speech, violence and incitement, and nudity and sexual activity. The sheer number of appeals (which continues to increase each quarter) and the varying types of cases bodes well for the Board, suggesting growing interest among users in taking advantage of the review process it offers.

However, the reports also indicate that over two thirds of user appeals came from the United States, Canada and Europe. In comparison, the Board estimates that only 8% of cases came from the Asia-Pacific and Oceania region, 4% from the Middle East and North Africa, 2% from Central and South Asia, and 2% from Sub-Saharan Africa. This breakdown is clearly unreflective of the actual distribution of Facebook users around the globe, a fact which is acknowledged in the Board’s report. Indeed, it notes that users in these regions may experience more, not fewer, problems with Facebook than in parts of the world which generate more appeals.

The Board has committed to expanding outreach in these regions to ensure that its oversight extends to users everywhere, and asks that users and civil society in these regions take notice of this concern and bring more appeals. We welcome this commitment, and hope that it is followed up with concrete actions which the Board reports on in future.

Oversight Board members Julie Owono and John Samples touched upon the global reach of the Board and the issue of accessibility in a recent podcast. But language and translation issues alone may not offer a satisfactory explanation as to the geographical imbalance of user appeals to the Board. To help address some of these issues, the Board could undertake (or commission) research to help understand the reasons for the discrepancies in figures, identify the barriers that exist, and how they might be overcome. While the Board has committed to engaging with civil society, including academics and researchers, to scrutinise the issue of the company’s cross-check system, we would suggest that this extend to outreach on the geographic distribution of appeals as well. Greater action, including potential financial and educational commitments, may be needed to understand why appeals are not coming in from the areas most likely to be negatively affected by Facebook’s content moderation decisions.

The updated UNHRC privacy resolution: welcome progress on AI and human rights

In what has become a regular occurence, the UN Human Rights Council just adopted a new iteration of its resolution on the right to privacy in the digital age.

This update to the privacy resolution—the fourth to date—builds on the previous version in several important ways. There’s new language on new and emerging technologies, including the role that algorithmic or automated decision-making processes can have on human rights, more detailed language on the need for human rights to be considered in “the conception, design, use, deployment and further development of new and emerging technologies, such as those that involve artificial intelligence”, and a range of measures that states and private enterprises should consider.

The resolution also contains stronger language on the harms associated with surveillance generally, including its potentially discriminatory impacts. It sets out that any surveillance of digital communications “must be conducted on the basis of a legal framework, which must be publicly accessible, clear, precise, comprehensive and non-discriminatory, and that any interference with the right to privacy must not be arbitrary or unlawful, bearing in mind what is reasonable with regard to the pursuance of legitimate aims”. This wording is especially welcome in light of the recent Pegasus Project revelations.

We were also also pleased to see new language on the gender-based impacts that harms to privacy online can have, new language on the role of the private sector and their responsibilities under the UN Guiding Principles on Business and Human Rights, and slightly stronger language on encryption—recognising that “technical solutions to secure and to protect the confidentiality of digital communications, including measures for encryption, pseudonymization and anonymity, are important to ensure the enjoyment of human rights”.

Importantly, the resolution also calls on the UN Office of the High Commissioner for Human Rights (OHCHR) to prepare a written report identifying “recent trends and challenges with regard to the human right to privacy, including those addressed in the present resolution, to identify and clarify related human rights principles, safeguards and best practices”. This will be presented at the end of 2022, and we expect a public consultation to take place at some point next year. 

Other news
  • In case you missed it: read our thoughts on the recent OHCHR report on artificial intelligence and the right to privacy in last month’s Digest.

Cyber norms at the UN: latest updates

This month saw continued discussions around cyber resolutions at the 76th Session of the UN General Assembly.

In the end, only one cyber-related resolution passed at the First Committee—a joint effort by Russia and the US. The resolution is largely symbolic, acknowledging the Open Ended Working Group (OEWG) and Group of Governmental Experts (GGE) reports adopted earlier this year, and looking forward to the forthcoming OEWG process. But it’s still a positive development—suggesting that we will not see duplicative, competing processes on cyber at the UN this time, and showing that consensus is possible.

Can this consensus last, however? As the ICT 4 Peace Foundation notes, the resolution text differs in how it refers to the OEWG and GGE, and makes reference to "information security"—a controversial term which has historically been deployed by some states to bring protected forms of expression (like dissident speech) under the aegis of security. 

There’s also almost no reference to one of the key issues of contention within the OEWG: stakeholder inclusion. As we understand it, this question is still being discussed within the grouping, with a few formats for stakeholder input under consideration (including one day ‘non-governmental stakeholder’ meetings ahead of substantive meetings, and/or longer standalone stakeholder meetings). But, whatever the format, it’s clear that meaningful engagement will depend on the extent that stakeholders are able to actually attend and participate in the substantive meetings (at the last OEWG, this was only possible for a small number of ECOSOC-accredited groups). The OEWG Chair, Ambassador Burhan Gafoor, will be sharing a letter with member states in mid-November, outlining proposed plans for the forthcoming meetings, so we should have more updates on this front soon.

Elsewhere, applications have opened for attending the first meeting of the Ad Hoc Committee on Cybercrime in January. Interested stakeholders have until Wednesday 1 December to apply (note: the success of each application will depend on no objections being raised by member states). 

Ahead of this meeting, some states have provided their views on the scope and aims of a proposed convention on cybercrime. From an initial review, there seems to be at least some support—particularly among the “Western grouping” of the US, Canada, UK, Australia, New Zealand, and the EU—for a narrower scope, with an emphasis on cooperation around tackling cyber-dependent crimes. These submissions also reference the need for the treaty to promote and protect human rights, a view also supported by Japan. Other country submissions—including those of Indonesia—indicate support for a much broader scope that would also cover ‘content-related offences’ such as disinformation. We’ll soon be taking a closer look at the submissions in an upcoming deep dive—stay posted for that. 

Other news

  • As UN cyber discussions restart, the Let’s Talk Cyber initiative has relaunched with a new programme of events to support them. You can find out more here.
  • Last month, we reported on some controversial encryption-related provisions in Belgium’s draft Data Retention Legislation. Since then, it seems that concerns raised by civil society have been heard—the main Belgian opposition party has called for Parliamentary hearings on the proposals, resulting in the invitation of cybersecurity experts to meet with the Belgian government to further discuss the implications of the legislation for encryption, privacy and security. 
  • This month the Trust and Security Roundtable of the UN Secretary General’s met to discuss next steps. There has been continued disagreement within the Roundtable, which is chaired by Uruguay, Netherlands, Microsoft and Estonia, over the need for adoption of a ‘political statement’ on trust and security. Instead, constituents have agreed a ‘food for thought paper’, which includes reference to the mutually reinforcing relationship between cybersecurity and human rights, as well as the importance of a secure digital environment for the achievement of the SDGs. 
  • As preparation for the US-led Summit for Democracy gets underway, reports of a proposed 'Alliance for the Future of Internet' have made it to the press, with this Politico piece citing concerns raised by civil society and other stakeholders about the lack of timely and meaningful consultation with civil society ahead of the Summit, as well as the potential to duplicate existing forums and processes, such as the Freedom Online Coalition. 
  • In the wake of the Pegasus scandal, US has blacklisted NSO Group—a welcome move that will hopefully trigger a domino effect. However, as noted in this joint letter we signed back in July, export controls are just one of the measures needed to address the actions of private companies on human rights in cyberspace.
  • The Freedom Online Coalition's 10th Anniversary Conference is taking place 30 November—3 December, hosted by the current chair, Finland. Register here.
  • The annual meeting of the Global Forum on Cyber Expertise is taking place at the end of November. Register here.
  • The OAS has released all the outputs from its annual Cyber Symposium, including its tracks with civil society. Take a look here.

Listening post

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

On the trust and security side: 

  • Ecuador published its draft Cybersecurity, Cyber Defense and Digital Security Bill
  • Singapore and Georgia both approved new national cybersecurity strategies, and Namibia also held a validation workshop to present a draft of its updated national cybersecurity strategy
  • Ethiopia joined as the 95th member of the Global Forum for Cyber Expertise
  • Brazil’s Chamber of Deputies passed Draft Legislative Decree (PDL) 255/21, which approves the text of the Budapest Convention on Cybercrime
And in online content: 
  • The proposed Justice Against Malicious Algorithms Act in the United States seeks to make internet platforms liable for personalised recommendations of content that leads to physical or severe emotional harm
  • Pakistan’s Removal and Blocking of Unlawful Online Content (Procedure, Oversight and Safeguards) Rules have come into force 
  • Poland’s ‘anti-censorship law’ has been added to the government’s legislative agenda for Q4 2021 
  • South Korea’s controversial ‘Fake News Bill' has been paused, after widespread criticism from human rights defenders
  • Two bills to tackle fake news have been drafted by Brazilian Senator Renan Calheiros as part of his report on the Brazilian government’s handling of the pandemic
  • Belarus has listed more than 100 Telegram channels as ‘extremist’, including popular independent channels, threatening users who subscribe to them with up to seven years imprisonment
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