Information rights in a data age: #ICIC2019

By Anri van der Spuy

On the plane back from the recent International Conference of Information Commissioners(ICIC), an inflight magazine proudly presents an advertisement for the African Union’s common, electronic, biometric passport. While the passportis reportedly being developed to ‘facilitate free movement of persons across Africa’,[i]the advert neglects to mention that an African passport would not only facilitate the movement of people, but also of data.

The movement and use of data by the public and private sector is not inherently problematic, but it does pose significant risksfor further exploitation – especially for marginalised groups like refugees. Data the likes of what are gathered for biometric passports tell important, though oft hidden, stories of social and economic development. As data justice scholar Linnet Taylorrecently pointed out when she gave a public lecturewith Research ICT Africa (RIA), data enable us to infer a disconcerting level of detail about people’s movements, activities, and behaviour – and this leads to wide-ranging ethical, political and practical implications.

Access to information rights, privacy and transparency – along with other digital rights safeguards – are becoming increasingly important as societies become more digital and data-driven. Yet most countries in Africa lack the relevant institutions and regulatory frameworks to enhance the accountability and transparency that are crucial to preventing the abuse of Africans’ data. (Article 19 maintains a fascinating albeit depressing mapof right to information bills and laws around the world.) It is encouraging therefore that the 11thICIC took place on African soil for the first time, as it could hopefully provide much-needed impetus for African governments to prioritise such digital rights and freedoms.

South Africa’s Information Regulator, which is slowly but determinately getting to its feet, hosted the conference in Johannesburg on 11 and 12 March before closed sessions for information regulators only. With over 200 delegates from more than 50 countries, the conference theme was ‘building international co-operation to strengthen public access to information globally’.

Given wide-ranging concerns about foreign interference in elections via social media in a number of countries, as well as the proximity of the conference to South Africa’s upcoming election on 8 May, an unsurprising theme at the conference was the role of freedom of information and information regulators in elections. In a panel discussion on the topic, the impact of social networking and so-called “fake news” were highlighted along with the unjust advantages that data analytics can afford well-resourced groups. Panellists (including South Africa’s Information Regulator, Adv. Pansy Tlakula, and the UK’s equivalent, Elizabeth Denham) recommended that the ICIC and other relevant stakeholders like election management bodies and data protection authorities develop a set of principles and guidance on elections, access to information and data protection. 

While the potential impact of evolving technologies was therefore a cross-cutting theme at the ICIC, it was discussed in rather perfunctory fashion. It is somewhat worrying that there seemed to be a lack of sufficient awareness or scrutiny of not only the potential impact of data and technology on the right of access to information and other constitutional rights, but also more practically how emerging technologies like the Internet actually, practically, work. (During one panel discussion, for instance, a high-level delegate from an established national human rights commission asked a senior Google employee why the company couldn’t simply remove all racist content from the Internet. She made no mention or reference to how this could and indeed would impact freedom of expression.)

This perhaps reflects a broader lack of awareness of the potential impact of technology on evolving democracies. Though Adv Tlakula did admonished the South African President, Cyril Ramaphosa, for his rhetorical referenceto the popularly referenced “Fourth Industrial Revolution” (4IR) without any consideration of what it would mean for the protection of peoples’ rights. Of course, since the notion of the 4IR was first promoted by the World Economic Forum, it has become a touchstone for more than just South Africa’s governing party, who have attached 4IR references to all proposed future digital projects and institutions. (A Presidential Commission on the 4IRhas been established in the country with the disturbingly militaristic reference to the Minister of Communications as the 4IR’s “commander-in-chief”.)

If African countries are indeed to benefit from technological developments, they will only do so if policymakers have a sufficient and realistic understanding of technology and the opportunities and risks that accompany its adoption and use. Such an understanding must be accompanied by the creation of an enabling environment to harness the opportunities offered by global big data analytics, robotics and artificial intelligence; as well as the development of a governance framework that will mitigate the risks that inevitably accompany technological developments. Policymakers and regulators (including information regulators and commissioners) also need to better collaborate with other stakeholders in other policy ‘siloes’, like development practitioners and Internet governance communities, to understand the impact of data and technology on human rights.

If we and our regulators don’t have a more realistic understanding of the impact of data and technology on the right to information and other digital rights, developments like the African Union’s continental passport will not receive the scrutiny it deserves to prevent governments and the private sector alike to further discriminate against already marginalised communities.

 

[i]Sawubona(South African Airways), March 2019.