The European Declaration on Digital Rights puts people in the firing line of the digital transformation.

March 6, 2022

On January 26 this year the European Commission proposed a European Declaration on Digital Rights and Principles for the Digital Decade to guide the digital transformation in the EU. The aim is to ensure Europe will benefit from such a transformation (in terms of quality of life, innovation, economic growth and sustainability) while protecting European values and the fundamental rights of European citizens. I am not convinced by the actual guidance offered though: it puts responsibility solely on the individual, and completely ignores systemic risks. This is not sufficient.

It puts responsibility on the individual

The Declaration is fundamentally liberal in nature, aiming to provide individual agency to European citizens, instead of protecting them and caring for them (at a more structural level than bare legal protection). This should perhaps not come as a surprise, given that the European Union was founded to create a single market, wilfully ignoring that such an economic union needs to be based on a political union.

For example the Declaration “puts people at the centre, empowers individuals”, mentions that “everyone […] should have access to affordable and high-speed digital connectivity” and that “everyone […] should be able to acquire all basic and advanced digital skills”. Also

Everyone should be empowered to benefit from the advantages of artificial intelligence by making their own, informed choices in the digital environment, while being protected against risks and harm to one’s health, safety and fundamental rights.

At first sight these appear reasonable and even laudable goals. And in fact I wholeheartedly support them. But they are simply not enough. They ignore that a “right to education, training and lifelong learning” does not guarantee at all that everybody will actually be able to acquire these skills. Even today many people simply lack the mental capabilities to fully understand the increasingly digital world. Those people will never reach a sufficient level of ‘digital maturity’. Individual agency leaves these people to their own devices. These vulnerable groups of people need support, help, and care.

Now one could argue that the commission is aware of this issue. In fact the last quote ends stating that everyone should be “protected against risks and harm to one’s health, safety and fundamental rights”. Elsewhere the declaration mentions that “democratic oversight of the digital society and economy should be further strengthened” and that it commits to “fostering responsible and diligent action by all digital actors, public and private, for a safe and secure digital environment”. It also commits to “a digital transformation that leaves nobody behind” and “developing adequate frameworks so that all market actors benefiting from the digital transformation assume their social responsibilities and make a fair and proportionate contribution to the costs of public goods, services and infrastructures, for the benefit of all Europeans.”

But the last quote actually catches the Commission red handed: apparently the public good can be traded for private benefits, provided the market actors offer a fair and proportionate remuneration. Thus the major shortcoming of the declaration becomes painfully apparent: the protection of the ‘public’ is relegated to the individual, instead of creating resilience at the societal level through structural and institutional protection against the potential ills of the digital transformation. Whereas the Declaration does specify concrete measures to empower the individual (connectivity, digital education and skills, online access to public services, freedom of choice), the Declaration remains mostly silent on how to protect safety and human rights, how to strengthen democratic oversight, and how to ensure that nobody is left behind.

All this leaves me with a rather cynical interpretation of the term ‘at the centre’ in the title of the first chapter of the Declaration (“Putting people at the centre of the digital transformation”): the commission puts people in the line of fire of the digital transformation. Surely, that was not intended.

It completely ignores systemic risks

By focusing on the risk to individual citizens, the Declaration complete ignores the systemic risks introduced by the digital transformation (and in general the reliance on so called programmable infrastructures, as expressed by Seda Gürses and Martha Poon among others).

The privatisation of public space

The explicit goal of some of the major players in this transformation is to disrupt government itself. The Big Five, or MAMAA (Meta, Apple, Microsoft, Alphabet, and Amazon) as they are now called, are taking over control of the public space. In the process of digitisation governments have increasingly become dependent on the offerings of these monopolies, especially now that everything has become a service that you license (and no longer is a device or application that you own). The same disruption is taking place in education and health care for example. Slowly we relinquish control to these big, powerful players, who get to set the terms and conditions, and determine (or at least co-determine) the very nature of health care and education. They may offer us a few dials to turn to tune certain parameters, but the layout of that dashboard and the dials it shows is solely determined by them. The private sector is similarly constrained, and at a high risk of getting hollowed out or fall prey completely to the Big Five. This especially concerns purely ‘informational’ sectors like finance, insurance, notaries, publishing, and the news. We should bear in mind though that our society relies on the proper functioning of this private sector as well.

The section on artificial intelligence seems to be blissfully unaware of the tremendous shift in power this technology causes. Relying solely on “ensuring transparency” is not enough to give citizens any meaningful level of agency, and “ensuring that technologies, such as algorithms and artificial intelligence are not used to pre-determine people’s choices” does not rule out that we will be nudged and profiled at length. Moreover, the problem lies not only at the individual level, but also at the societal level: to build and train AI one needs to have huge data sets and sufficiently large computational resources at one’s disposal; only few large corporations have. Also the problem of fake news, deep fakes and others simply cannot be solved at the individual level. These need intervention at the structural level.

Public discourse itself is also increasingly mediated (and steered, and fragmented) by search engines like Google (which determine what you find) and the social networks like Meta/Facebook (which determines what you get to see at the top of your news feed). This has an impact on political campaigning, has allowed for interference in elections as witnessed by the Cambridge Analytica scandal, and has lead to increased polarisation of our societies.

Again the text of the Declaration is not very reassuring. To “be able to effectively choose which online services to use, based on objective, transparent and reliable information” and “to have the means to know who owns or controls the media services they are using” is of little use to most of the users if there are no alternatives, or if switching means that you will be cut of from your family and friends

Relying on critical infrastructure

Although I fully understand the intention of (and even subscribe to) a goal like “everyone should have access to all key public services online across the Union”, I dread the implicit implication that soon all our public services will only be available online. It is becoming harder by the day to get to speak to a real civil servant to discuss your case; often you will be fended off by an ill-informed and unhelpful ‘help-desk’ person, or a chat bot on a website. But the more fundamental problem is this: as these public services increasingly rely on the proper functioning and availability of the services offered by MAMAA, they are prone to disruption and interference by those companies themselves, and those entities (most notably the US government) that still exert some power over these companies.

If data is the new oil (to use a bad analogy against the very people that are so keen to use it otherwise), then we should be ready to face all the consequences of that analogy. As the Russian invasion of Ukraine (again) shows us, relying on a single supplier for a large fraction of a critical resource (gas in this case) means that we are powerless against its whims. This is also true for such a virtual ‘good’ as data, that can only exist by virtue of the infrastructure (in terms of devices, networks, software and service) that carries it and brings it to life. Any such infrastructure is critical, as Russia is now discovering with its partial disconnect from the international SWIFT network that processes financial transactions, Apple and Google closing their app stores for Russian users (thus making it impossible for them to update or install new apps), and the call by Ukraine to block the .ru and .su top-level internet domains as well.

This means that the Declaration should also address such less optimistic scenarios, and explicitly mention the necessity of creating fall back options and encouraging more diverse ecosystems.

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, 2022-03-10

Reading the term ‘people’ I think of real persons, reading the term  ‘everybody’ I immeddiately realise that this stands for real persons and legal persons (e.g. companies). Reading official texts requires a sharp awareness of this trick, in Dutch: de ‘burger’ loopt rond, de ‘persoon’ in een juridische tekst is een natuurlijke en een rechtspersoon.
, 2022-03-15

if you read the declaration as a list of rights for the citizenry, you are completely right and I agree with your analyses. but if you read it as a assignment to governments, things change.

You can also read it as a list of commands to governments. Then, according to the declaration, a city has to make sure that it “Empowers everyone to benefit from the advantages of ai by making their own, informed choices in the digital environment, while being protected against risks and harm to one’s health, safety and fundamental rights”. For Example.

When a city sets out to design a new system to govern the city and in the design and the making they have to take these kind of considerations into account, the outcome will be a collective measure to protect the individual citizen.

Still it holds that the declaration falls short on any advice on how this can best be achieved…