New Technologies and Human Rights

Challenges to Regulation

Norberto Nuno Gomes de Andrade, Lúcio Tomé Féteira, Mario Viola de Azevedo Cunha

• Publisher: Routledge
• Year: 2016
• Print ISBN:
  9780367601409
• eBook ISBN:
  9781317087908
• Topic: Diritto
• Subtopic: Diritti civili in ambito legislativo

Whilst advances in biotechnology and information technology have undoubtedly resulted in better quality of life for mankind, they can also bring about global problems. The legal response to the challenges caused by the rapid progress of technological change has been slow and the question of how international human rights should be protected and promoted with respect to science and technology remains unexplored. The contributors to this book explore the political discourse and power relations of technological growth and human rights issues between the Global South and the Global North and uncover the different perspectives of both regions. They investigate the conflict between technology and human rights and the perpetuation of inequality and subjection of the South to the North. With emerging economies such as Brazil playing a major role in trade, investment and financial law, the book examines how human rights are affected in Southern countries and identifies significant challenges to reform in the areas of international law and policy.

PART I
General Legal and Philosophical Aspects of the Interaction between Human Rights and New Technologies

Chapter 1
Human Rights in the Information Society: Utopias, Dystopias and Human Values1

Giovanni Sartor

Introduction

Information and communication technologies (ICTs) are bringing about a pervasive economic, social, and anthropological transformation. They are changing productive processes: the production of physical commodities by means of other physical commodities is accompanied by, and integrated with, the production of information by means of information, i.e., new productive processes where information is both the rough stuff and the outcome (consider for instance, the creation of software, digital content, and web services such as searching, mining, filtering, aggregating, hosting and organising data, etc.). ICTs involve new ways of organizing economic activities: distances become largely irrelevant, flexible organization is enabled by the adaptable informational infrastructures, the enhanced capacity to produce and communicate favours new forms of cooperation. They support the integration between industry and culture, production and socialization, in the interlocked development of software and digital contents, through commercial firms, individual endeavours, or peer-based networks. ICTs drive the convergence between different technologies, pertaining to hardware, software, telecommunication, electronics, biotechnology, etc. Being based on knowledge, ICT provide the environment for producing new knowledge, in all other domains of culture, science and technology, including first of all ICTs themselves.

This emerging technological, economic and social framework (the so-called information society, or knowledge society),2 offers new huge opportunities for individual and social development, as well as serious risks.

ICTs: Opportunities for Human Development

1. Economic development. First of all, ICTs provide many new opportunities for economic development. They support a vast increase in productivity, in industrial production as well as in related administrative and commercial processes. As machines for processing matter enabled a huge increase in productivity during the industrial revolution, so informational machines (the innumerable virtual machines realized by putting software on top of the hardware) now enable a similar increase in information-processing productivity – an increase that also affects the computer-driven production of material objects. Moreover, the fusion of computing and telecommunication allows innovation and development to be rapidly transmitted and distributed, transcending geographical barriers. While centuries were necessary for industrial technologies to spread outside of Europe, ICTs have conquered all continents in a few decades.

2. Efficiency in the public sector. Second, ICTs can contribute to the efficiency of public organizations, reducing the administrative costs involved in delivering public services, and providing more information, transparency and accountability, so favouring equal access. Workflows can be redesigned and accelerated, mechanical activities can be automated, citizens’ interactions with the administration can be facilitated, documents can be made publicly accessible, participation in administrative proceedings can be enhanced, and so can controls over the exercise of administrative and political functions. The preservation of a ‘social state’ under increasingly stringent economic constraints depends on the ability of using information technologies for reducing the cost of the delivery of public services.

3. Culture and education. ICTs can contribute to deliver information, education and knowledge to everybody. There is the possibility of packaging information and education as digital goods that can be distributed at zero marginal costs: once information goods are made available (and the cost for their creation has been sustained) providing them to additional on-line users is costless. This makes a significant difference as compared with traditional hardware-based media, where each new copy had production, transportation and commercialization costs. Moreover, new technologies dramatically reduce the costs involved in the production of intellectual goods (e.g., typesetting, recording, revising, modifying, processing data, etc.).

4. Creativity and progress. ICTs deliver unprecedented opportunities for individual creativity. Not only can individuals communicate more easily, but ICTs also provide new creative tools for producing information goods. Now it is possible to publish texts, make movies, record music, develop software at a much smaller cost, and with much greater effectiveness than ever before. An increasing section of humanity can contribute to the decentralized production of culture, creating contents that can be made accessible to everybody.

5. Social knowledge. ICTs enable the aggregation of individual efforts into social knowledge. In the so-called web 2.0,3 content is mainly provided by the users, through platforms delivering and integrating their contributions. This happens in the simplest way through the non-organized ‘crowd-sourcing’ in the content repositories available on the web (YouTube, Twitter, etc.), which constitute collective works by aggregating separate individual contributions. It is not the first time that users appropriate a communication medium to transmit user-generated content. It happened with traditional phones, when public switchboards disappeared and communication costs dramatically decreased so that phones could be filled with commercial communications and the chatter of the subscriber.4 In the Internet case, however, there is a major difference: user-generated content can be permanently stored and asynchronously accessed, becoming a shared source of information. More self-conscious kinds of participation in collaborative efforts are provided by open source projects for the production of software (Linux, Firefox, OpenOffice, Tex and Latex distributions, etc.), intellectual works (like Wikipedia), and peer-production of artistic or scientific contents.5 Moreover, the combination of individual actions can generate new information content even without individual intentions, as it happens when individual choices are aggregated into outcomes relevant to others (blogs get clustered around relevant hubs, individual preferences are combined into reputation ratings, spam filtering systems aggregate user signals, links to web-pages are merged into relevance indexes, etc.).

6. Communication. Information technologies allow individuals to interact with their peers, regardless of physical distance. Here the focus is on the integration of computing and communication technologies, which diminishes the cost of telecommunications, makes them ubiquitously available (through digital phones, Internet connections, etc.), and consequently facilitates the interaction between individuals (from e-mail, to social network, to chats and voice over IP, etc.). This has expanded each one’s chance to find and exchange opinions, and freely establish associative links having different degrees of intensity. In particular, it provides new opportunities for those belonging to minorities (in culture, ethnicity, attitudes, interests, etc.), enabling them to enter social networks where they can escape solitude and discrimination. In a way, ICTs realize the dream of Nozick,6 i.e., the idea of a polity resulting from a network of multiple freely formed associations, built by the unconstrained choices of the concerned individuals.

7. Public dialogue and deliberation. ICTs (and in particular the Internet) have enabled the formation of a new public sphere, where individuals merge their opinions and build social knowledge in a variety of ways. Not only can individuals engage with one another, as they have always done in face-to-face interaction and debate. New ways of political communication have emerged, where one can post one’s contribution to an unlimited number of hearers, or people can merge their cognitive efforts in a variety of ways. In a way the Internet realizes the dream of Habermas,7 namely, the idea of polity whose choices result from open uncoerced dialogues, under conditions of equality and rationality. Equality can be enhanced by the fact that people can assume an on-line identity that abstracts from their particular condition, and thus be immune from the (racial, social, etc.) stereotypes associated to that condition. Competence can be enhanced by the fact that citizens can avail themselves of the evidence accessible through ICTs and of the insights obtainable by processing such data. The idea that media could be used not only for broadcasting, but also for communicating is not new. For instance, Brecht ([1932] 1990) argued that the radio should be used not only for transmitting but also receiving information, becoming ‘the most wonderful public communication system’, it should connect the listener rather than isolate him, transform him into a speaker, rather than a mere hearer. According to Brecht, the radio could include its users as main providers of information, it could become the place where democratic dialogue takes place, where citizens interact with political rulers and consumers with producers, where proposals are made, questions are asked, explanations and reasons are given. While these expectations have not been fulfilled by traditional media (such as the radio or the television), which have remained mainly or only within the broadcasting model, the Internet has shown the ability to fully integrate distribution and communication, effectively working as a two way many-to-many communication channel. It remains to be seen to what extent our social and political systems and our social networks will be able to profit from this opportunity for enhancing the quality of politics.8

8. Universalism and moral progress. ICTs may promote moral progress: by overcoming barriers to communication, offering people new forms of collaboration, by reducing costs involved in engaging in creative activities, it may favour attitudes inspired to universalism, (reasonable) altruism, and participation, beyond what may be expected from a merely self-interest individual.9 In fact, when costs are removed, or limited to a minimum, then performing a creative activity without expecting a direct monetary reward may become more attractive, even to those having only moderate moral (altruistic) motivation. Moreover, the idea of benefiting others through one’s own work can become more appealing when the work to be done is rewarding in itself, there are little costs attached to it, and a universal audience can access it. Similarly, the idea of reciprocity can become more attractive (and free-riding on others less so) when reciprocation becomes easier, being included in a broader set of interactions. Altruism and reciprocation may indeed merge (as in the so-called indirect reciprocity), so that one may expect some reward from one’s participation in a virtual community, but this reward is not conditioned to one’s contribution, and comes from people different from those that have benefited from that contribution (as is the case for open source software, Wikipedia, etc.).

ICTs: Risks

The ICT opportunities outlined above need to be combined with the awareness of the risks related to use of information technologies. I shall summarize and emphasize these risks by linking them to some literary works, which give fantastic reality to dystopian perspectives. In fact science fiction writers have paid much more attention to dystopias than utopias, focusing on the dangers of a technological future.

1. The first risk is Orwell’s nightmare, i.e., the use of technology for surveillance, from the story in the novel Nineteen Eighty-Four10. Orwell describes a society where every aspect of human life is controlled through telescreens and microphones located in houses and streets, so that people were forced not only to behave according to the expectations addressed to them but also to assume corresponding attitudes and beliefs. Today’s ICTs have made surveillance much easier than before, since the costs of surveillance have dropped enormously, while its accuracy has increased. This is brought about by the increased possibility of using information technology for uploading information from life scenes, with or without human supervision, both in physical and virtual scenarios (consider for instance street cameras and the possibility of monitoring e-mail communication as well as any Internet-mediated activity). As Dobrzeniecki11 observes, this nightmare may be viewed as a society-wide realization of Bentham’s Panopticon (a prison where inmates would always be potentially visible to the invisible guardian in every moment of their life), which Foucault12 sees as a paradigm of ‘disciplinary’ power (based on surveillance and control). In fact, information automatically uploaded from life scenes can be stored in digital form and processed automatically, enabling those in power to detect any unwanted behaviour. New forms of surveillance can be brought about by the combination of neuroscience and computing, such as the possibility of identifying states of mind on the basis of the electric activity of the brain.

2. The second risk is Kafka’s nightmare, i.e., the use of technologies for cover control and judgment, from the novel Trial13 where a man is prosecuted (and in the end executed) for a crime whose nature is never revealed to him.14 As the trial goes on, the man progressively loses his autonomy and self esteem, the very sense of his dignity. ICTs may contribute to this nightmare, since the information collected and stored can be used for assessing individual behaviour, according to any criteria, and make decisions on the concerned individuals (from minor one, such as those on giving a loan or an insurance policy, to those involving access to work or even to criminal prosecution or political repression). This issue has indeed been taken into account to some extent by the EU data protection directive (95/46/EC, art. 15), which grants every person the right ‘not to be subject to a decision based solely on automated processing’. We may possibly say that what is at issue is not just the possibility of a negative judgment, but also a double attack on one’s position as a legal and moral agent. On the one hand, one is deprived from the possibility of articulating one’s perspective, of expressing one’s point of view of one’s own case, as a partner in a legal or moral dialogue. Thus one is denied the status of a moral subject, namely, the capacity of bringing one’s arguments upon one’s case, as an input the decision-maker should take into account. On the other hand one may also be denied the status of a moral object, being viewed as a mere thing, rather than as an ‘end in itself’: a comprehensive consideration of one’s interests, the personality of individuals (as they can be captured by the empathic understanding of another person) plays no role in the decision. It is true, disregard for one’s compre...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• List of Figures and Tables
• About the Editors
• List of Contributors
• Preface
• Introduction
• PART I GENERAL LEGAL AND PHILOSOPHICAL ASPECTS OF THE INTERACTION BETWEEN HUMAN RIGHTS AND NEW TECHNOLOGIES
• PART II FREEDOM OF EXPRESSION IN THE ONLINE ENVIRONMENT
• PART III INTELLECTUAL PROPERTY, COMPETITION RULES AND NEW TECHNOLOGIES
• PART IV BIOBANKS, BIOETHICS AND HUMAN RIGHTS
• PART V REPRODUCTIVE TECHNOLOGIES AND HUMAN DIGNITY
• PART VI BALANCING PRIVACY AND SECURITY
• PART VII EMERGING ISSUES
• Index