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Human Rights and Standards Development Organizations

Do human rights come into the picture when technology and policy work are involved? If so, where?

This is a question that has come up multiple times during the last dozen years, and occasionally even before, in Internet Governance discussions. These discussions have included debates on whether human rights were specifically applicable to protocol design or to the organizations developing protocol standards. It is still being debated and is becoming more of a central issue. Some might argue that human rights policy and technical design are separate realms that should not be conflated. Some argue that any protocol that can’t be shown to be consistent with human rights should not be allowed to be part of the Internet unless it can be regulated. Some argue that neither of these extreme positions will do. One basic perspective taken in discussion is that while human rights declarations and policy define what should be done, technology defines what can be done, and the global market will define what actually gets done. Understanding how these various perspectives fit together becomes important.

In the article Human Rights and Standards Development Organizations, Avri Doria, an Advisor to Layer 9 Technologies with experience in both human rights and Internet technology, delves into the recent undertakings of the United Nations High Commissioner for Human Rights’ report (OHCHR Report) on the importance of Standards Development Organizations embedding human rights in their work on emerging technologies and AI.

Her article looks at some of the background circumstances that led to the release of the report “Human rights and technical standard-setting processes for new and emerging digital technologies” Report of the Office of the United Nations High Commissioner for Human Rights to the Human Rights Council” (OHCHR Report). With the advent of the pervasive nature of social media, and its effects on most every aspect of society, concern among users and the governments that they are subject to has brought the issue to the fore. Now with AI causing additional concerns, and in some cases fear, in many sectors of society, the role of human rights in developing new technology is increasingly being discussed in many fora. The degree to which rights respecting approaches to technology and to the business of technology are being discussed made it useful for the OHCHR to bring the discussions together in a cogent manner.

Secondly, the article gives an overview of the content of the OHCHR Report. The report itself looks at the current landscape of technical standards setting, breaking down the various types of standards development organizations and giving definitions that help illuminate the landscape. The article then goes on to discuss the relevance of technical standards and human rights to each other and the challenges that are encountered in the standards setting process when attempting to take human rights into account. The report ends with a set of considerations, mitigations and recommendations that are applicable to each of the defined stakeholder groups. This is done within the context of the Human Rights Guiding Principles.

Finally, the article looks at some of the ongoing work of some Internet-related SDOs and the uptake of the report over the last year. Both the work of Intergovernmental Organizations and of Technical Community organizations are covered briefly in the article.

One theme that runs through the article is the acknowledgement of the importance of the issue and the indication that the work in the SDOs began before the OHCHR Report was published. While various SDOs are already working on the issue, some are mentioned in the OHCHR Report, and are trying to understand how to meet the requirements of human rights, the report also serves as input to policy makers. While in some sense an old topic, human rights and protocols is now an active topic of discussion and will remain so moving into the future. A recommendation in both the OHCHR Report and the Layer 9 article on the report in the current environment, is the need to come to basic understanding about both the human rights impact on the work done to improve technology, and the impact of the technology, its development, and its deployment on the human rights due to Internet users. Without serious attention to Human Rights Impact Analyses (HRIA), it may be difficult to pin down the relationship between technology and human rights, and to ensure the best possible human rights experience for people when living in our evolving technologically driven world.

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By David Conrad, Co-founder, Partner & CTO at Layer 9 Technologies

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Comments

Disappointing Anthony Rutkowski  –  Aug 14, 2024 8:15 AM

This treatment of the subject was disappointing if not significantly disconcerting at several levels, including Avri’s article “Human Rights and Standards Development Organizations and the “United Nations High Commissioner for Human Rights’ report (OHCHR Report)”.

1) The articles completely ignore what are by any measure the most significant developments in SDO human rights law over the past two years. One is the “Opinion of Advocate General Medina” delivered on 22 June 2023, Public.Resource.Org, Inc., Right to Know CLG v European Commission.  See
https://curia.europa.eu/juris/document/document.jsf?text=&docid=274881&pageIndex=0&doclang=en&mode=req&dir;=&occ=first&part=1  Medina is a highly regarded human rights lawyer advocate.  Her persuasive opinion also led to perhaps the most significant juridical decision on SDOs and human rights.  See “Judgment of the Court (Grand Chamber), 5 March 2024,“https://curia.europa.eu/juris/document/document.jsf?text=&docid=283443&pageIndex=0&doclang=EN&mode=req&dir;=&occ=first&part=1&cid=6479909 Although these decisions were made under European Human Rights Law, the provisions have global analogs, and similar judicial determinations exist in other venues such as the U.S.

2) The treatment of what constitutes an SDN in the articles/report was highly skewed and touched on only very few of the many relevant SDOs today.  In just the cybersecurity sector alone, the number of bodies number near a hundred, and in the larger ICT field, in the hundreds.  Ref. https://cyberpublicwiki.etsi.org/index.php?title=ETSI  The some of the most significant and largest were ignored.  The total number of SDOs is much larger beyond these.  The reports seem to cherry-pick a handful SDOs and ignores the ecosystem.

3) The articles completely ignore the long and generally positive history of including human rights provisions into the organic documents of ICT SDOs.  Human rights provisions can be found in the earliest intergovernmental instrument - the 1850 Vienna Convention establishing the bases for international telecommunication and interconnection protocols.  Multiple provisions thread through numerous successor instruments ever since.  Indeed, in the early 1980s, a commission under noted human rights leader Sean McBride produced an exhaustive treatment of applying human rights to development of ICT capabilities. https://archive.ccrvoices.org/articles/the-macbride-report.html

4) Five years ago, an Internet Draft was introduced to create an enumeration of all relevant human rights, as well as a means of expressing how they relate to standards work items.  https://datatracker.ietf.org/doc/draft-rutkowski-hrpc-hraas/00/.  It went nowhere.

Response to Disappointing by Anthony Rutkowski Avri Doria  –  Aug 19, 2024 3:24 PM

Dear Tony,

Thank you for having taken the time to read, evaluate, and critique the article and sorry you found it disappointing. In a sense you are right, there is so much more that could and should be said on the whole subject of Human Rights and Protocol Development. However, for this article, doing so would have been beyond its limited scope, namely providing an introduction to those unaware of the report put out by the Office of the United Nations High Commissioner for Human Rights in July 2023 and highlighting some efforts related to "Human rights and technical standard-setting processes for new and emerging digital technologies" within communities likely familiar to the CircleID audience.

On some of the specifics in your note: I appreciate the references you gave to the "Opinion of Advocate General Medina" and the resulting juridical decision. It was not a case or a reference I had come across in my work, and it made interesting reading. Thank you for that. Taking on the subject of the judiciary reaction to the requirements and especially any reinforcement it gave to the OHCHR report under European law, however, was beyond the intended scope of the article. Had it been in scope, it would have required an extensive discussion of the case, its relevance to the OHCHR Report, and its impact in cross jurisdictional discussions. Writing such an article could be rewarding, though it would also require extensive study and research for other legal work being done in the area for comparison and reference. I think this would make for a very interesting and useful, if not extensive, body of work. The subject of the effect of national and regional law on businesses operating under the conditions of "Protect, Respect and Remedy" as defined "Under the Guiding Principles on Business and Human Rights" would provide a valuable coda to the work being done to develop Human Rights aware protocols, implementations, and deployments. It would have also been beyond the simple scope of the story of the OHCHR report and the technical community that I had adopted for this primarily introductory article.

In terms of the second point you made, that I had ignored "the long and generally positive history of including human rights provisions into the organic documents of ICT SDOs " again, you are right, I did not include the long history of efforts, though did make some reference to previous efforts made by some of the SDOs involved in the Internet infrastructure. I think a thorough history of such efforts would, once again, have pushed a relatively short article on a specific point to a much longer piece of work. There is also other works that explores this theme from various perspectives. Some of these may agree that positive work has been done, some of them may not. For anyone interested in this subject, I recommend "Human Rights and the Internet" [(Joy Liddicoat, Human Rights and the Internet, Intersentia; First Edition (July 29, 2021)] by Joy Liddicoat as a good and interesting book to read for a basis on the subject. Perhaps putting together a bibliography on this subject would be useful and should be considered.

Finally, in reference to your Internet Draft on the subject of "Human Rights as a Service (HRaaS)," while it does provide a useful elucidation of the Human Rights defined in a few of the UN Human Rights instruments, and is still available in the archives, the decision of whether it should have been accepted as a research group document was also beyond the scope of this article. The Human Rights Protocol Considerations Research Group (HRPC) is still ongoing and there is no time limit to getting work accepted as a Research Group work item. One direction that might be useful for such a work is to update and extend the Internet Draft to discuss how it contributes to meeting the recommendations given in the OHCHR report. I have no way of knowing whether the HRPC would pick it up as a research item, but It is also possible to get such a document published as an independent publication with the agreement of the Internet Research Task Force. While your Internet Draft has a good recitation of the various Human Rights, I am not sure what mentioning it would have added to this article.

Again, thank you for your comments.

Avri Doria (as author of referenced Article)

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