Digital Rights Implications of the COVID-19 Crisis

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This is the start of a pandemic. The new challenges facing our society are enormous and we can only overcome them by working together. We all have to stick together and contribute towards shared solutions. At the moment, the most important thing we can do is follow the recommendations of the health authorities and the scientific community, especially when our own behaviour can help relieve the crisis. Nonetheless, we are convinced that we must make a contribution as a digital rights policy organisation. Now in particular, when our lives are happening mostly within our own homes, social contact and economic activity have moved online and the State is massively intervening in our fundamental rights, we have to take on a new responsibility.

1. State action must be transparent and responsible

As we speak, new laws are being passed to protect citizens. Nevertheless, every law must remain within the bounds of democratic rule of law. Every law passed still has to be grounded in our constitution. Fundamental rights must not be damaged by unnecessary, excessive, or even damaging symbolic legislation. Over the past few decades and in particular in the field of anti-terrorism, the efficacy of many measures has been judged exclusively on the size of the outcry from the so-called data protection lobby, rather than on what the measures actually achieved. Such an approach in this crisis would be fatal.

Restrictions of our fundamental rights can only be implemented under specific conditions. Many of these rights can only be restricted to a certain extent and some only with a legislative basis, which necessitates parliamentary involvement. Every implemented measure must be a necessary and appropriate tool for achieving a legitimate goal. Moreover, any restriction must be proportionate to its use. Through transparent and constitutional action, the legislature can gain trust even in times of crisis, but this trust can also very easily be lost.

As we have seen through their intensification over the past week, more drastic measures are conceivable in the current crisis than previously thought. For this reason, we have to pay even closer attention to them, so that this crisis is not used to restrict our fundamental rights permanently or disproportionately. We are deeply concerned by the use of geolocation data or mobile network analyses. Luckily, neither the technical nor legal foundations for comprehensive video surveillance and the use of facial recognition technology are given in Austria.

2. No societal participation without internet access

By European standards, Austria has exceptionally good internet infrastructure. Through healthy competition, we were able to establish a stable internet. However, according to figures from the Austrian Regulatory Authority for Broadcasting and Telecommunications (RTR), less than 50% of people in Austria possess a landline internet connection. Few have an unlimited flat-rate tariff for their mobile phones. This entails that with the increased need for mobile internet, many people will reach their monthly data limit within the coming days. For many workers, being sealed off from the internet in the current situation can render working from home impossible. School-aged children will no longer be able to keep up with online teaching and could as a result lose a school year. A lack of internet access hinders everyone in democratic participation, prevents contact via video calls to family and friends, and disconnects them from online sources of information.

There have already been considerations by one mobile service provider to lift the monthly data limit during the crisis. These plans were then not followed up. Mobile service providers will be making a small fortune in these times. However, the variable costs associated with data use within a mobile network, namely electricity and Interconnect (forwarding data into the rest of the internet) are very low. This is why we recommend lifting data limits for the current crisis, fixing data costs for a time period for pre-paid tariffs and financing the costs of these measures through state compensation.

Capacity utilisation has risen drastically for most providers over recent days. This capacity can be extended through timely intervention and hopefully the infrastructure will be capable of withstanding increased demand. Should this not happen, there will be data jams and the question of net neutrality will become essential. When we worked on the EU Regulation on net neutrality, we introduced a safety net for precisely this case. The regulations, which apply to all member states, allow internet service providers to implement the most intensive traffic management measures in order to “prevent impending network congestion and mitigate the effects of exceptional or temporary network congestion, provided that equivalent categories of traffic are treated equally.” (See the EU Regulation here) This case now obtains and internet service providers can thereby undertake whatever they deem necessary in order to stabilise the network, provided that they do not discriminate against individual applications. Concretely, this means that video streaming can be slowed down, so that only HD quality is permitted instead of 4K, or file-sharing and video conferencing traffic can be restricted. However, individual providers, for example, may not be treated differently; all services of the same category must be treated equally. Accordingly, Netflix or the Austrian Broadcasting Corporation’s Mediatheque cannot be slowed down while providers’ own services are transmitted in the highest quality. The Austrian Telecom and Broadcasting Regulatory Authority RTR shared this legal interpretation in a briefing sent to all internet providers on 16th March 2020, which we welcome. Proportionality must always be protected in any intervention in data traffic. A1 protested against this obligation to equal treatment and attempted to influence the RTR, until now without success.

3. Information is like water: the dosage and the quality are important

People require sufficient information to be able to follow rapid developments and thereby adapt their behaviour accordingly. The extreme measures taken by Austria last week cannot be enforced with even the most substantial police intervention if the population does not willingly comply. Therefore, the quality of the information provided is of particular importance, as with a new kind of health threat, false information can have disastrous consequences. This is why the government should make available statistical data such as case numbers, recoveries, fatalities and vaccination rates down to the district level as open data.

Quality media in particular should therefore turn off their paywalls for articles on the COVID-19 crisis. Certain media outlets have already led by example. Information which can save lives should be freely available. People who protect themselves from cyber-attacks using an ad-blocker should also have access to this information.

Public broadcasting content is the most significant method the government is using to communicate with the population, as demonstrated by their high viewing figures at present. This taxpayer-funded content, however, is only available in the archive for seven days. The regulation in the ORF-law prescribing the wilful depublication of content after seven days should be revoked. Content we have paid for should not be taken away from us.

Finally, a lot of false information is circulating, both online and in print. We must learn to distinguish scientifically grounded information from disinformation, which requires media competence. Critically questioning reports and using multiple sources necessitates training. The importance of correctly identifying information is more evident than ever in this crisis, in which our health is dependent upon it. Until now, politics has not given the topic of media competence the necessary attention.

4. Elections are turning into challenges

It was probably the right decision to cancel the elections in Styria and Vorarlberg. We will perhaps soon see whether holding elections in France and Bavaria led to more new cases. The longer we are in these exceptional circumstances, the more pressing the question becomes of whether and how to hold democratic elections in this situation.

Many people will almost certainly have the idea of using technology-based or even internet-based solutions. We advise very strongly against this! Electronic elections are not compatible with basic electoral principles in Austria, because the process of a secret ballot using a computer can never be fully transparent. You cannot watch a computer counting, and the mathematical procedures available to create transparency are too complex to be understood by many people. This leads to a lack of trust in the electronic electoral process. However, the basic function of a democratic election is to create legitimacy for power, and accordingly this function cannot be fulfilled without sufficient trust. We have dealt with this question in detail in our position paper on e-voting (in German). Furthermore, electronic elections can never be completely safe from cyber-attacks and unfortunately we have seen that, even in this crisis, hospitals are falling victim to trojan ransomware.

5. Solidarity through democratic participation

With the current restrictions on free movement, our fundamental right to assembly has been massively curtailed. It might be conceivable to hold a demonstration with a minimum safe distance of one metre between all the participants. However, this would doubtless pose a significant health risk to the demonstrators. This is why it is of particular importance to consider new forms of participation in our democracy. With all of our campaigns, we have been active in this field and have developed numerous online tools for giving people a voice in democratic debate. Given the current situation, we should experiment with new deliberative and directly democratic models of participation. In doing so, we can protect the fundamental right to democratic participation, even in this crisis.

6. If everything is happening online, it mustn’t be under surveillance

Almost all forms of social and economic contact are taking place online at the moment. Unfortunately, the internet has become a surveillance machine over recent years, recording almost every click and interaction and passing this on to third parties. Individuals have to take special measures to prevent this. Popular video conferencing systems such as Zoom have unsatisfactory data protection measures and are currently being surfeited with information from profuse, often very sensitive business meetings. At present, even private conversations within the most intimate family and friendship circles are taking place via technology and, without adequate protection, are susceptible to being tapped by simple methods.

We are hoping for more awareness within the population, which is why we have been warning about these issues for many years. Adequate protection would be possible with a consistent implementation of the General Data Protection Regulation GDPR and by urgently passing the ePrivacy-Regulation, in order to protect the privacy of correspondence even when using messenger services such as WhatsApp. Fortunately, Austria no longer practises data retention. If every phone call, almost every e-mail and every movement were being saved today, this would represent a much greater infringement on our privacy than it did then.

7. No copyright-based obstacles for socialising

It isn’t just our privacy that is important in our virtual social lives. Restrictions via copyright protection can also play a role. Our social lives are being displaced onto the internet, as can be seen through examples of home concerts via live stream or online parties. These opportunities are particularly important for societal participation and social exchange and must not be hindered by legal uncertainty. As upload filters do not work on live streams, copyright violations are not automatically checked in these cases.

Therefore we want to remind people that they do not need to have any copyright-based concerns in a private context. You do not have to pay licensing fees for original musical works, provided the copyright has not been transferred to a record label or publisher. For “public” online events, registration of other people’s works used (e.g. music or film) may be necessary with the relevant Copyright Management Organisation. In the current situation, an accommodating and user-friendly licensing solution  for non-profit organisations would be welcomed, in order to facilitate people’s social lives. On top of this, there are diverse public-domain works which do not require any licensing fees to be paid.

This piece certainly does not mark the end of the debate on this topic and nobody knows how the situation will develop over the coming weeks and months. We all share the responsibility of shaping these new circumstances in such a way as to protect human and fundamental rights as much as possible. We hope that politicians will take some of these suggestions on board and we invite all of you to take part in the debate via social media.

Our digital rights policy recommendations in the current situation:

  1. State action must be transparent and responsible: no restrictions of our fundamental rights through unnecessary, excessive or even damaging symbolic measures
  2. Remove data limits in mobile networks, fixed costs for pre-paid tariffs
  3. Open-data publication of COVID-19 statistics down to the district level, free COVID-19-related articles from paywall restrictions, public broadcasting content should not be removed after seven days, media competence should be strengthened
  4. Elections will become challenges: e-voting is not the answer
  5. Compensate cancelled demonstrations with online participations
  6. If everything is happening online, it mustn’t be under surveillance
  7. No copyright-based barriers to socialising: simpler licensing solutions for non-profit organisations

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