An Interview with David Kaye
In its 2020 annual report, GNI includes an interview with its new independent chair David Kaye.
Give your past role as United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (2014–2020), your current position as a law professor, and your long-standing dedication to constructive engagement with different stakeholders around the world — can you share some examples about how these experiences may assist you in your new role as GNI Independent Board Chair?
DK: Technology issues dominate public debate right now in ways that often gloss over what should be the central question: how should state regulation and company behavior be structured and constrained to ensure that individuals and communities may benefit from advances in the digital age and exercise their human rights within it? Put another way, individual human rights should be at the center of these discussions, and they are increasingly diminished in favor of seemingly larger questions of international security and geopolitical competition. To my mind, it’s critical to ask hard questions of governments and companies to ensure that they are accountable for their decisions that affect individual rights. Needless to say, this is at the core of the GNI’s theory of change and it’s why I think it’s such a valuable space for these issues.
For one example, as Special Rapporteur I tried to steer security-oriented discussions toward human rights obligations and responsibilities. I have a particularly vivid memory of having a discussion with senior security officials in Tajikistan on an official country mission in 2016. Tajikistan had already become a deeply repressive place for freedom of expression, with the country harassing journalists and activists and shutting down mobile service in instances of public protest. A senior security official insisted on the importance of limiting extremism in this context, but when pressed on the government’s obligations to protect expression and freedom of assembly, he was at a loss, unable to justify such draconian clampdowns. Did it change Tajik policy? No. But I think it’s important to demand that governments fully and publicly justify their actions in the context of rights.
Meanwhile, private companies seek ways to resist government demands that fail to meet human rights standards. They are not always successful, and there is variation among, for instance, telco’s and over-the-top services in terms of their vulnerability to government harassment. But I found, as Special Rapporteur, that engaging with them, sometimes even connecting them to activists and journalists on the ground, could deepen their understanding of the issues they face and the potential tools they have to mitigate human rights harms. Meaningful engagement — that is, the kind of genuine outreach that is designed specifically to improve human rights outcomes, not merely business profiles — can be done quietly and effectively in ways that offer stakeholders opportunities to identify common strategies, or at least strategies that work in tandem and not at cross-purposes.
How has the COVID-19 pandemic impacted free expression and privacy in the ICT space?
DK: My guess is that we are only beginning to see the impact of the pandemic on freedom of expression, privacy, and other rights. In an immediate sense, we can see how essential Internet access has become to public debate, the economy, education, and every other human endeavor. In more specific ways, I think certain pandemic responses have brought home to people the impact of digital technologies. This is especially evident in the context of contact tracing and emerging debates over digital vaccine passports and their impact on privacy, as one can easily imagine abuse if these initiatives are tied up with concerns around surveillance technologies and practices. It is also evident in the context of company efforts to limit the spread of public health disinformation, which can have a definite impact on individual and community safety. Whether these obvious instances of the pandemic’s impact have a broader, long-term effect, I think it’s up to us to translate these issues to the bigger policy debates around tech regulation in positive, rights-respecting ways.
In your opinion, what is the role that GNI plays within the broader ecosystem of accountability in the ICT sector as a multistakeholder initiative and how does it complement public regulation?
DK: There are few spaces globally where the different stakeholders in the ICT sector can engage, share information, and ask hard questions in an environment of shared norms. GNI offers that in the context of its assessment process, its policy initiatives, and its learning activities. Public regulation should be seen as a matter of democratic obligation, but it is also fraught with complexity because of the way that government requirements can often lead to consequences that undermine, rather than promote, freedom of expression or privacy. Because of the way in which civil society and corporate actors engage in GNI, it can be a place for thoughtful reaction and policy development. That does not mean that the different stakeholders must agree on policy or outcome, but it does provide some measure of transparency for those debates and it may provide some grounds for shared approaches particularly to government initiatives at odds with fundamental human rights protection and promotion.
In the next three years of your term as GNI Independent Board Chair:
What do you see as the GNI’s role in the ever-changing regulatory environment we are in — with new forms of government demands that companies and individuals are facing having significant implications for freedom of expression and privacy?
DK: GNI has a special role to play given its history, its Principles, and its membership. That role could be policy oriented, according to which GNI can speak to emerging regulatory efforts in democratic environments and forms of government intervention in authoritarian ones. It can also have a convening function in which GNI members engage with policymakers and legislators who do not necessarily appreciate the technical and human rights features that should be centered in policy discussions. It can also enable its members to see where there is common ground amongst themselves and where they diverge, which itself is a useful exercise.
What opportunities do you see ahead for the GNI Principles to increasingly become a global standard for freedom of expression and the right to privacy in the ICT sector?
DK: The GNI Principles themselves are drawn from the human rights framework that obligates States to protect and promote freedom of expression and privacy. If we think of them in the context of the UN Guiding Principles on Business and Human Rights, we can see how the GNI Principles can be a link between human rights obligations (i.e., the State obligation to protect) and the corporate responsibility to respect those rights. There is a real opportunity for the public and private sectors not only to integrate human rights norms into their work but also for them to promote their application to protect individuals across the technology sectors and into other non-tech spaces as well.
