Lawyer for a day

The day after I landed in Germany, my summer course on the European System of Human Rights began. The course hosted over 40 students from 21 different countries. We met every day for two weeks and were instructed by professors working in human rights and humanitarian law fields from all over the world. Because the course was so short, most of the modules focused on asking the core conceptual questions about human rights and presenting problems central to characterizing and enforcing those rights that were defined by the European Convention on Human Rights, which all 47 members of the Council of Europe have ratified. The secondary aim of the course (though in some ways even more valuable) was to bring together people from all over the world to exchange ideas and experiences. Many of the participants are already actively involved in human rights work and I learned from everyone I got to know. I have honestly never seen such a diverse group of people come together so easily to create such a valuable community.

I wanted to share the events of the last few days of the course, as I think they illustrate well the types of questions that motivate me to study this topic. Our last task in the program was to perform a moot court, which simulated (in very short form) the proceedings of a case before the European Court of Human Rights. The students were divided into groups, in the role of either the court, the applicant, who was alleging a human rights violation, or the State, which was defending against that accusation. Our case concerned a media station in the fictional state of Kasaria, which published an anonymous article on its website claiming that the prime minister and vice prime minister were involved in a large fraud operation. The article then called on readers to join an unregistered demonstration against the government. The Kasarian state brought legal action against the television station for spreading defamatory allegations about government officials, inciting public unrest, and anonymously posting content online, which is illegal in Kasaria. The Kasarian government mandated that the media organization remove the anonymous online forum and pay damages to the prime minister and vice prime minister. This is when the media organization brought the case to our “European Court of Human Rights”, claiming that their right to freedom of assembly and freedom of expression were violated. I was assigned to defend the state.

My role in this case was to focus on the right to freedom of expression, as guaranteed in the European Convention on Human Rights. For those interested, here is exactly how that right is defined:

ARTICLE 10 – Freedom of Expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The complexity of this right comes in the exceptions. In defending the state of Kasaria, we argued that the unsanctioned demonstrations would lead to civil disorder and that the allegations unduly harmed the reputations of our ministers. Most interestingly to me, we made the argument that the publishing of anonymous content on the website of a respected news agency implied that those who wrote the article have the same responsibilities as journalists to substantiate claims and be held responsible for the information being spread. If the author is anonymous, he or she cannot be held responsible for the content. By facilitating a forum in which unknown persons can publish unsupported news about our government and its officials, the media station is using its trusted reputation to threaten a fundamental requirement of a democratic society — that the people have factual information with which to make informed decisions in the democratic process.

I don’t actually believe this.

I think it is clearly necessary to be critical of a government limiting the posting of politically relevant content. Moreover, the Kasarian government outlawing the posting of anonymous content online is particularly insidious, and unfortunately never really became the focus of discussion. As we’ve learned from real-life examples, many journalists, activists, and informants put themselves in very real danger to do their jobs, and the ability to be anonymous in that position, both on- and offline, is imperative. The substantiation of their reports, despite what we argued as Kasaria, is not a new problem with the advent of the internet, and anonymous sources are something we as a society have been dealing with since the beginning of time. But spending several days searching for legal grounds to restrict the freedom of expression was something I had never been challenged to do before, even though the limitations of this and other rights are central to many of the problems I want to work on in the areas of mass surveillance, internet censorship, and anonymity.

There has always existed a tension between, for example, the right to privacy and the prerogative of the state to exercise its duty as law enforcement. Technology has not changed this dynamic, but it has amplified it. With this new, massive aggregation of information about individuals online rather than in private homes and locked desks, it is easy to see why states want power over and access to electronic communications. The problem is that the legal uses of data and technology have largely not yet been hashed out, leaving opportunities for companies, states, and other organizations to set precedents in data access and use that far exceed what is safe and what many people feel is appropriate. It’s easy to see that individuals need to regain some control over their personal data online, but how much access should remain is the million dollar question. Many people would be comfortable with the state maintaining access to some of their communications and identity as they move about the internet. States argue that they should maintain access to much more, and are certainly not going to cede all of their control. Some people, for very legitimate and sometimes life-threatening reasons, want to be sure that none of their identity is available to any third party. Just think — if Kasaria had the resources that the USA or the UK have, they likely wouldn’t have had to ask the media company to reveal the identity of this anonymous fraud-whistleblower. So what’s the compromise?

One of my many objectives in the International Human Rights and Humanitarian Law Master’s program is to learn to define, for myself and my own worldview, for my own peace of mind and for the sake of the work I want to do in the future, the lines between human rights their inevitable exceptions. The fact that I’ve rewritten the second half of this post with three different conclusions has demonstrated to me that even on the topic I’ve spent the most time thinking about, privacy and anonymity, I don’t feel completely comfortable with my own conception of where these rights end. I don’t know about you, but I think that sounds like an awfully exciting endeavor.

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