In a move that seemingly fails to recognise the serious current and future implications it will have on everyday people, Congress has revoked online privacy protections for Americans. This action chisels away at the bedrock on which democracy rests: freedom of expression.
The House and Senate have voted to allow internet service providers (ISPs) to collect and sell all information it has on us, and since virtually all web and internet traffic in America goes via ISPs, that is pretty much everything. Every embarrassing web search, including those for pre-existing medical conditions, will be accessible.
Congress’ actions have eliminated the FCC’s Broadband Consumer Privacy Rules that would have prevented ISPs from collecting and selling sensitive user information from customers without first receiving permission, including any data related to a user’s finances, information from children, health, web browsing history, precise geo-location data and app usage history.
Information not considered to be sensitive could be collected by default, but internet service providers were required to offer customers the ability to opt out of the collection practices. The Rules also would have enforced new requirements for ISPs to report data breaches that may have harmed customers or put their data at risk within 30 days of identifying it, and required the carriers to alert the FBI of within seven days.
This action sends a signal to the world that people have no right to privacy online, and that fundamental democratic values can be bought for a price. For, while it is disturbing enough in the present American context, it is a matter of life and liberty in many of the more authoritarian-minded places in the world.
Freedom of expression and privacy are mutually reinforcing rights – all the more so in the digital age. Both are essential foundations for open and democratic societies. For democracy, accountability and good governance to thrive, freedom of expression and opinion must be respected and protected. The same is true of the right to privacy, which also acts as a powerful bulwark against state and corporate power in the modern age. Privacy is a pre-requisite to the meaningful exercise of freedom of expression, particularly online. Without privacy, individuals lack the space to think and speak without intrusion and to develop their own voice.
David Kaye, a Professor of Law at UC Irvine and the United Nations Special Rapporteur on the freedom of opinion and expression, noted that privacy “empower[s] individuals to browse, read, develop and share opinions and information without interference and enabling journalists, civil society organisations, members of ethnic or religious groups, those persecuted because of the sexual orientation or gender identity, activists, scholars, artists and others to exercise the rights to freedom of expression and opinion.”
This connection between privacy and freedom of expression was noted in the landmark UN Human Rights Council resolution on “Privacy in the Digital Age,” which affirmed “that the same rights that people have offline must also be protected online, in particular freedom of expression.”
To explore the intersection of these rights and their implications for people around the world, ARTICLE 19 just launched The Global Principles on Protection of Freedom of Expression and Privacy. These Principles offer a progressive interpretation of international law and best practice in individual states, as reflected in national laws and the judgments of national courts.
That the vote by the US Congress to overturn privacy rules seems to run counter to so many of the Principles calls into question their legitimacy under the international treaties to which the US is a signatory.
But more importantly, by scrapping the FCC rules, Congress has placed a short-term win for the ISP lobbyists above the clear best interest of the American people - themselves included - and those at risk of persecution around the world.
Sooner or later, it will become clear that the data collected and sold by the ISPs are being used in a prejudicial way that harms consumers, or a hack will expose the data and allow it to be exploited. And at that moment, members of Congress will realise that the ISPs have been collecting information on them for years, too.