NAF Submits Comments to the European Commission on ICT Sector Guidance

What are the human rights responsibilities of information and communications technology (ICT) sector companies? Specifically, how should these companies carry out their duty to respect technology users’ rights to free expression and privacy? These are some of the questions that our team sought to tackle in comments (pdf) that we recently submitted on the European Commission’s Draft Guidance for the Information and Communication Technologies (“ICT”) Sector on Implementing the UN Guiding Principles on Business and Human Rights.

In 2011, more than six decades after the Universal Declaration of Human Rights was adopted and almost 45 years since the adoption of international covenants on civil and political rights and economic, social and cultural rights, the United Nations Human Rights Council acted to clarify the human rights obligations of businesses by unanimously endorsing the UN Guiding Principles on Business and Human Rights.  While governments bear the primary responsibility of protecting human rights, the UNHRC affirmed that companies have a responsibility to respect human rights. That means companies should avoid infringing on or facilitating infringements of the rights of others - and further that victims of infringement should have greater access to judicial and non-judicial remedy.

Later that year, the European Union determined that further specific guidance should be developed for specific industry sectors on how to implement the Guiding Principles. The European Commission then contracted the London-based Institute for Human Rights and Business (IHRB) and Shift, a non-profit business and human rights consultancy, to develop guidance documents for three sectors: employment and recruitment agencies, the oil and gas sector, and the information and communications technology (ICT) sector. After a process of expert and stakeholder consultations, in December 2012 IHRB and Shift published draft guidance documents for all three sectors. New America Foundation Senior Fellow Rebecca MacKinnon is a member of the ICT Sector Advisory Group and also attended a stakeholder consultation meeting on the draft ICT sector guidance held in Brussels in late January. Drawing upon the results of that consultation process she and members of OTI policy team submitted detailed comments on the draft guidance, which have also been published on the IHRB website here.  

As we wrote in our comments, we hope the guidance will ultimately contribute to greater respect for human rights not only by the European ICT sector, but also by the entire ICT sector across the world. While the document focuses on all aspects of human rights (from conflict minerals to supply chain labor practices, e-waste, free expression, privacy, etc.) our comments focus primarily on issues related to free expression and privacy. In 13 pages we offer some over-arching suggestions about terminology used, framing and focus of the document, as well as specific and detailed suggestions related to the guidance document’s handling of a range of issues including government censorship and surveillance demands, intermediary liability, privacy, terms of service enforcement, and sale of “dual use” technology to regimes that may use it to abuse human rights.