Human rights focus missing in the State of the Union 2021 address
On 15 September, the yearly State of the Union 2021 address took place. The address is the event where the European Commission evaluates the preceding year and the Commission President announces key legislation or reactions to crucial international events.
In the 2021 edition of the State of the Union (also known as State of the European Union, SOTEU), Ursula von der Leyen, the European Commission President made the following statement:
“We have made ambitious proposals in the last year:
- To contain the gatekeeper power of major platforms;
- To underpin the democratic responsibility of those platforms;
- To foster innovation;
- To channel the power of artificial intelligence.”
The first two points touch on EDRi’s priorities for platform power: the Digital Services Act (DSA) and the Digital Markets Act (DMA) must bring significant positive change for people and we are working to ensure those expectations are met. One key aspect is to ensure how the Internet works, this is by protecting freedom of expression from arbitrary removals of speech and censorship. At the same time, the DSA and DMA must significantly change the imbalance of power between corporations and people by enabling effective redress mechanisms, guaranteeing that people are in control of recommender systems, not controlled by them and that existing illegal practices in ad tech are phased out and transformed into a system which is not based on 24/7 commercial surveillance. In addition to this, in order to open platforms up and to enable innovation through a real gatekeeper, we must ensure interoperability wherever possible as long as privacy and safety will not be undermined.
Regarding the last point of the European Commission President’s focus on digital issues, artificial intelligence (AI), we welcome the requests to “channel” AI’s power. But as we have said elsewhere, and as the United Nations Human Rights Commissioner has pointed out, we need to go beyond “channelling” and decide which practices should even be used in our societies. Specifically, we have called in the Artificial Intelligence Act (AIA) to ensure that biometric mass surveillance is banned in law and practice and that there are clear red lines against AI-based applications that spy on, categorise and discriminate against people.
What was missing?
- More ambition on privacy and data protection: The European Commission, as the EU’s executive power and the Guardian of the Treaties, must guarantee that the General Data Protection Regulation (GDPR) is enforced effectively. While the GDPR has set global standards on what should or should not be done with our personal data, and how that can happen, the EU has not yet developed a comprehensive, harmonised and credible enforcement system. The European Commission, the European Parliament and Data Protection Authorities should, with the support of civil rights organisations leading the litigation and complaint efforts, have an open discussion where the problems are laid out and where concrete solutions are proposed. Furthermore, another piece of legislation missing – the ePrivacy Regulation needs to be upgraded to protect people from future invasions on journalists and human rights defenders such as the Pegasus revelations. Confidentiality of communications must be protected from corporate and government’s surveillance, and necessity and proportionality tests need to be passed before new legislation aims at protecting children or anyone else. Finally, the EU must ensure that encryption is not being broken to allow mass surveillance of conversations.
- Guaranteeing that the corporate world does not over-represent its interests in EU policy-making: As leading NGO Corporate Europe Observatory (CEO) wrote, “Big Tech are lobbying hard to shape new [digital] regulations”. 612 companies, groups and business associations lobby on the EU’s digital policies, spending over €97 million annually, ahead of any other lobby sector. In comparison, you see EDRi’s financial report here. The EU should ensure that private interests are not over-represented, that civil society has easy access and that the Transparency Register (the register for interest groups) keeps a better account of influences, including by ensuring that there are adequate funding transparency requirements for think tanks and other organisations, and many other suggestions.
- Human rights focus – “File not found”: “Fundamental rights” were not mentioned even once, and “human rights” were mentioned three times: One in relation to NATO, another concerning trade wars with China and another one related to Afghanistan (also linked to NATO).