Update: Now that the election has been decided, we want to remind the Biden-Harris administration to prioritize a digital rights agenda. Tech issues affect everyone’s lives, and the election itself exemplified the need for coherent, rights-protecting policy, given the rampant election-related disinformation that still flows online. We continue to believe the priorities identified below are of utmost importance and should be addressed as quickly and thoroughly as possible.
Protecting digital rights has never been more critical in both the United States and around the world. The global pandemic has highlighted the urgent need to protect our personal data against surveillance, connect the disconnected, defend encryption, and combat misinformation while safeguarding free speech.
As the U.S. approaches its presidential election this November amidst an unprecedented public health emergency and racial justice movement, we urge the parties to address the following issues:
A strong federal data protection law is the best way to protect privacy. That law, and those in charge of enforcing it, must treat privacy as a civil and universal human right rather than framing it as a consumer protection issue, the failed approach the U.S. has taken for the past quarter century. Data protection reforms, including responses related to the COVID-19 pandemic, should focus on the following principles and guidance:
- Adopt strong civil rights protections. Our personal data has become fuel for automated discrimination. Federal data protection law must prevent such data-driven discrimination, allow for equal opportunity, and recognize and address data practices that disproportionately harm marginalized communities.
- Move beyond consent, even if it affects business models. Legislation should move beyond consent and place the privacy burden on companies by focusing on Fair Information Principles like data minimization, use limitation, and privacy by design, even if those requirements affect online business models, which themselves cause serious harm.
- Ensure user control of data. Individuals should be given the right to access, correct, port, and delete data companies have about them, and should be able to vindicate their privacy rights through a private right of action.
- Create a new data protection authority. Legislation should create a new data protection authority that will be adequately funded, with proper authority and independence, to address all privacy-related harms.
- Build strong enforcement capacity and ensure no preemption of state protections. Enforcement of a privacy law is key to its effectiveness, which we learned from the European Union’s experience with the General Data Protection Regulation. The law should not preempt or prevent the creation of stronger privacy protections at the state level.
- Protect human rights when addressing emerging technologies. Human rights, such as rights to life, liberty, security, privacy, and expression, should be at the center of the debate for emerging technologies including artificial intelligence-powered systems and tools that employ discriminatory algorithms. Emerging technologies should not be used to create mass surveillance systems or unlawful targeted surveillance programs.
Access to high-quality internet is a foundational issue. Regrettably, access eludes billions of people worldwide and millions in the U.S. Notably, Indigenous populations’ access in Tribal areas needs significant improvement. Even where access exists, people may be disconnected because the service is unaffordable. This problem affects low-income people and people of color, primarily Black and Latinx people, disproportionately. COVID-19—also much more likely to affect people of color—has made the problem worse. The political parties should center broadband access and affordability in their platforms, focusing on the following issues:
- Help close the digital divide.
- Expand and increase the Lifeline benefit and/or pass a separate benefit as in the Accessible, Affordable Internet for All Act.
- Connect schools to high-quality broadband through the E-Rate program and allow students to access that connection at home when they lack such a connection. Provide the necessary technology to students in need.
- Expand Tribal consultations to understand and address their needs, particularly by expanding high-quality broadband infrastructure into Indigenous areas.
- Consider expanding the Universal Service Fund contribution base to help ensure “specific and predictable support mechanisms” as required by law.
- Fund digital literacy programs and prevent digital red-lining of broadband services.
- Collect and analyze better and more broadband data.
- Improve broadband mapping accuracy so investments go to the right areas, which requires following through on the Broadband DATA Act.
- Require collection and publication of broadband pricing data.
- Bring back Title II and Net Neutrality protections.
- Reclassify broadband as a Title II service to ensure the FCC has the authority to police broadband provider behavior.
- Reinstate the 2015 Open Internet Order to ensure Americans have access to a broadband connection that does not allow undue ISP influence.
- Overturn state-level burdens on community and municipal networks.
- Community and municipal broadband projects represent desperately needed competition in the broadband provider market. The federal government should overturn state laws that limit competition by burdening those networks.
- Oppose all internet shutdowns.
- Internet shutdowns continue unabated throughout the world. Our #KeepItOn coalition recorded at least 213 internet shutdowns in 2019, an increase relative to 2018. Shutdowns are becoming more commonplace, lasting longer, affecting more people, and targeting more vulnerable groups. Internet shutdowns are a human rights violation, and should be strongly opposed.
End-to-end encryption, which ensures the privacy of the contents of communications and the security of everyday transactions, is integral to the security infrastructure of the internet and crucial for maintaining trust in the digital economy. It is also essential for protecting the privacy of people at heightened risk, such as journalists, people of color, the LGBTQ community, and members of other oppressed or marginalized groups. Recent Black Lives Matter protests and associated law enforcement surveillance have highlighted the importance of encryption for avoiding unwarranted monitoring and engaging in Constitutionally protected speech activities. The parties should push for the wide adoption of strong encryption to ensure the integrity and security of our communications and take action to promote and defend it in the following ways:
- Stand against legislation that threatens encryption and appoint an Attorney General who values encryption. Encryption has been under attack from the Department of Justice and Congress (particularly through the EARN IT Act and the Lawful Access to Encrypted Data Act). The next administration must embrace encryption and actively oppose efforts to undermine it.
- Abandon the Five Eyes efforts to weaken encryption. Recently, the U.S. has been involved in efforts to erode encryption along with Five Eyes allies, the U.K., and Australia. Canada has rolled back protocols for strong encryption. These misguided initiatives will serve to undermine the security and privacy of the citizens they are supposed to protect.
- Ensure that U.S. government partners under the CLOUD Act protect secure communications. The U.S. CLOUD Act allows the U.S. to enter into agreements with other countries so they can directly request data from companies in the U.S. Such agreements must contain strong provisions protecting user privacy and secure communications, and the nation negotiating with the U.S. must not engage in efforts to weaken encryption. It is also essential to reform the many problems and privacy harms the CLOUD Act presents given that it was passed hurriedly and without adequate debate.
Given the rise and weaponization of algorithmically curated services and the prevalence of harmful content online, pressure is building for governments and the private sector to take further action to protect users of online platforms. The parties should work toward implementing approaches that align with international human rights standards, while also striving to protect the right to free speech. Platforms should retain the ability to moderate their services, as otherwise online spaces are likely to become more harmful, especially for users-at-risk and underrepresented groups. Online platforms, however, should create meaningful transparency and accountability mechanisms in their content moderation and content curation practices.
Finally, the parties should reject nonsensical proposals to limit Section 230 of the Communications Decency Act.
The political parties should prioritize digital rights in 2021 and beyond. Only then can the government begin to address the inequities in public policy on technology that results in serious harm to the civil and human rights of communities of color and other marginalized groups. As we respond to COVID-19 and rebuild to strengthen our communities nationwide, the protection of our fundamental rights will be paramount.