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Project

Background

In recent years, concern has grown related to the negative impact of new information and communication technologies.  This concern is centered on the desperation of people who recount their own negative experiences or those of their friends, how their rights or interests were violated and how the justice system has been unable to correct the situation.  To these we add human rights defenders and academics who debate possible situations and concrete cases. These negative impacts are also related to cybercrime, pornography, defamation of character, or spam, among others.  One of these concerns ―sometimes seen as an associated cost of the advantages of an information-based society― has been the invasion of privacy and the spreading of personal data, and its correlative impact on privacy and the proliferation of discriminatory practices (particularly in access to employment).  To deal with this situation ―within the limited framework of judicial information― has been the theme of the IDRC (International Development Research Center) Project “Internet and the Judicial System” which concluded with the creation in 2003 of the “Heredia Rules” (Reglas de Heredia) for the distribution of judicial information.

From that date until today, not only have the concern and the debate about new risks grown, but we have also observed a positive but still very timid reaction in public policy.  It is probable that other risks ―such as intellectual property rights violations― have monopolized interest.

With the rise of the social movement on Internet ―known as Web 2.0― the risks have multiplied significantly and situations that were once isolated are now seen as much more associated with vulnerable groups.  One example ―and only an example― is the growth of the use of children and adolescents in pornography, for which the medium of Internet commerce offers a very special attraction.

The background mentioned and the new risks already identified allow us to see that it is necessary to obtain a greater consensus regarding the need for prevention, and to generate public policies that are capable of reaching a balance between the benefits of a significantly greater access to the information which the Internet has generated and the policies of prevention, regulation and compensation for the disadvantages.

Justification

The development of Internet has been widely recognized for its successes in terms of access to knowledge, facilitating communication and hope for more freedom of expression; but ―as all new technologies which preceded it― it also assumes certain risks.

These new risks must be identified and it is necessary to develop laws, policies, institutions and public awareness that allow for their control.   Unlike previous risks, since a vast majority of the uses of the Internet are protected by the freedom of expression, the emphasis should be more on prevention (excluding censure), self-regulation and judicial controls than on laws and strict policies.

It is also necessary to create a permanent risk identification system.  The Internet is a great creative space and change happens very quickly, much faster than the processes of creation of public policies, approval of laws, or well-intentioned self-regulation.

Another difficulty is that not all of the victims of these risks are conscious of their status as victims.  This means that the identification of risks must be accompanied by identification of and communication with vulnerable groups.

The risks and the policies that must be developed determine two dimensions for action.  In the first dimension, one finds the electronic government, in the context of policies for access to government information (the State is one of the principal accumulators of personal data, for which clear policies of protection and data security are required).  A second dimension is clearly defined in the context of Web 2.0, where the users themselves share intimate situations and personal data, many times due to a lack of understanding of the risks they may run.

Information and Communication Technologies and Privacy in balance with other Fundamental Rights

Why a special vision for Latin America and the Caribbean?

The U.S. vs. Europe continues to be the dilemma, but none of the policies that have been developed there are automatically able to be transplanted into Latin American and Caribbean Countries.  The policies in the U.S. and Europe are not only different ―and even contrasting— but also accompanied by strong pressures over Latin American and Caribbean countries to ascribe to these models, always with a partial vision (whether it be in relation to commerce, integration, the fight against corruption, etc.). In this context, Latin America and the Caribbean has not yet succeeded in developing its own equilibrium, due to pressure in both senses, and due to its status as a region both significantly slower to react (with other more urgent problems to deal with) and paradoxically much quicker in the process of implementing new technologies.

In other countries and regions the administration of justice has had ―and currently has― a relevant role in the reestablishment of the balance of rights after a technological impact.  For example, in Canada the Judicial Council has regulated appropriately and carefully the rights of privacy that are due to those people who access the judicial system. Even considering the differences that exist between Europe and the U.S., in both cases, the justice system is assigned the function of correcting situations that are not adequately regulated after a technological change.  However, in Latin America and the Caribbean the judiciaries are barely reacting to this new dimension; even when the processes of reform include a strong incorporation of Information and Communication Technologies. In Latin America and the Caribbean the justice has gained a great transparency ―more than in other regions― but still the prevailing inefficiency limits the possibilities of assuming a more active role in the new conflicts: today ―due to the incorporation of technology― delays, congestion generated by trivial cases and limited access to justice continue at the center of the criticism.

GENERAL OBJECTIVE

To develop a knowledge base that includes an analytical systemization of the risks and an updated synthesis of the solutions tested, oriented toward facilitating an informed debate about the risks generated by Information and Communication Technologies over vulnerable populations (especially children, adolescents and young people) and the possible corrections.

Specific Objectives

• Bring to light direct and concrete cases of violations of fundamental rights through instruments created for this purpose (Ombudsman);
• Identify key persons and institutions in the selected countries that facilitate and collaborate in the debate for the approximation of a consensus about the public policies to promote;
• Design software tools (directly or by definition of standards) that lead to the maximum use of Information and Communication Technologies while maintaining a balance of rights (e.g. anonymization of government documents, administration systems);
• Promote and facilitate a debate in Latin America and the Caribbean about the conflicts and the solutions necessary to achieve that Information and Communication Technologies are developed with a balance between fundamental rights and coherent with the characteristics of the region;
• Generate information and recommendations;
• Raise awareness in civil society about the necessity to prevent and counteract risks;
• Inform governments and insist upon the generation of public policies for Information and Communication Technologies while maintaining a balance of rights;
• Support the judicial branches so that they can assume a more active role in the correction of the risks of use of Information and Communications Technologies;
• Support the judicial branches in the incorporation of Information and Communications Technologies in order to achieve greater efficiency in their performance.

Methodology

The methodology of the research: clear identification of the problem and of the solutions that have been presented up to the present, of the needs and gaps existing in the region, and a description of the risks and the groups most vulnerable to said risks.

Once the investigation phase is concluded, a certain consensus will be promoted as to what is the best solution for Latin America and the Caribbean, keeping in mind all the variables of pressure and social context that are unique to the region. In order to construct a consensus it will split up, to facilitate understanding and allow all the involved sectors to participate.

The central point of the project is its strategy of diffusion (awareness of the problem and spreading of its recommendations).  Although its temporary centerpiece will be National Seminars, an extensive action will be developed utilizing the mass media.

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Phase I – research, study and compilation of results.

In order to increase the knowledge base an announcement will be made seeking research and studies regarding the project theme. This has the double objective of (1) hearing visions and new proposals; and (2) obtaining a comprehensive group of studies that will serve as a basis for the debate and formulation of recommendations. The announcement will take place proposing a more detailed series of topics and will support the proposals that —keeping to a central theme— include and make the best synthesis of all the involved concepts.  A preview of the topics includes the following:

• Legislation and jurisprudence: characteristics of the necessary legislation, regulatory capacity of the law, necessary legal and institutional structures, difficulties due to the lack of jurisdiction in some applications of Internet;
• Policies for a secure Internet: successes and weaknesses of these policies, particularly in terms of children, adolescents and young people;
• Impact of social networking sites on the Internet (blogs, photo blogs, personal web pages, video sharing sites, etc.);
• Commercial nature of the Internet: discussion of apparently free services (e.g. rapishare, imagevenue) and their possible impact on fundamental rights (especially image copyright and right to privacy).  Impact on Latin America and the Caribbean of the commercial designs created by and for developed countries;
• Identification of vulnerable groups: qualitative and quantitative analysis of these groups and the associated risks, discussion of the possibilities of a class action suit or a campaign of prevention and awareness. Before and after comparison of Web 2.0;
• e-Government; discussion of services and content (especially personal data) and their capacity to generate e-citizenship (especially for municipal sites).  Analysis of the politics of transparency;
• Freedom of expression: impact of Internet and Web 2.0 on the freedom of expression, analysis of barriers and limitations.  Advantages and disadvantages of the generalization of anonymity or the use of pseudonyms.  The need for responsible editing (a professional journalist) for opinion sites.  Regulation of search engines and of their criteria for sorting information, evaluation of the impact on access to opinions. 

An Internet site will simultaneously be created —Ombudsman of Cyber-citizen Rights— in which cases and testimony regarding possible violations of privacy will be heard. The primary objective of this space is to expand the knowledge base of possible conflicts and vulnerable groups.  The victims will be able to be oriented, but no judicial or administrative actions will be sponsored.  Through the characteristics of the conflicts and the victims’ profiles, the convenience of generating a permanent regional defence service will be debated.  A systemization of risks and victims will be completed.  The underlying methodology is that by amplifying the data gathering to the entire region, we gain early detection capacity for new types of conflicts that may initially appear in isolated and infrequent forms.

Final product: approximately 6 studies that will be complemented by the project team with other studies that give the overall product a coherent structure (among these studies will be the view of gender which will be explained further in the corresponding chapter). An economic printed copy, as well as an open access copy will be presented and distributed at the Seminars, and additionally, a study about the risks presented to the Ombudsman (or defender) of the rights of the cyber-citizen.

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Phase II – development of consensus and detailed recommendations.

In order to promote consensus, discussion spaces will be generated which will consist in two seminars that will unite experts and government leaders.  In these seminars, the studies and empirical data (cases and statistics) will be presented in order to encourage a wider discussion regarding the project themes, but directed toward producing clear recommendations that will direct both programs to promote awareness and the generation of public policy.

At the same time, during this phase an anonymization software for judicial sentences will be developed.  This software will have as its base the <!> developed during the Internet and Judicial System Project, the NOME application developed by the LexUM Group, and the PJEditor developed by the Supreme Court of Costa Rica.

All the documents and details of the seminars will be published as open access on the project site.

Final product: with the presentations or narratives from the seminars, a second volume will be prepared (much shorter than that of the studies) which will include the recommendations of the initial seminar and a synthesis destined for the political effect which will be created by the project team. Anonymization software and a virtual community for the exchange of experiences in e-government (or judicial) applications.  Expansion of the project web site to include a module with resources for educators of children and youth.

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Phase III — Impact on government (creation of policies) and informing and increasing awareness in users (prevention)

• Conducting national seminars;
• Media interviews and preparation of press releases;
• Interviews with government authorities, legislators and lobbyists/interest groups;
• Awareness campaigns.

The methodology for the impact will be based on a one-day national seminar in each of the selected countries. At the same time focusing on the individual objectives of each seminar, the intent is to create an event which can be covered by the media in order to give more coverage to the issues and recommendations. Each seminar will be conducted seeking one or more local members, and with the participation of experts, academics, Non-Governmental Organizations and local politicians.  In each case an international expert who can interact with the media and present the conclusions and recommendations will be invited. Prior to each seminar an advance will be developed with the local media to gain presence, and press releases will be prepared that can be edited and published by the press. Each seminar will also have a web space on the project site with photos and short videos which will support the key ideas.

Additionally, the final seminar will be regional in nature and will include the participation of various international experts and politicians (among them legislators).

Final product: the national seminars, which will be the crux of the process of impact, are designed to inform and motivate civil society so that governments will define and execute policies of prevention and correction of the risks involved.  In each seminar a media communication strategy will be developed in order to present the recommendations. All possible forms to raise awareness and inform will be south, from press interviews, posters in cyber-cafes, video for television or the inclusion of the material in other spaces which may better reach vulnerable groups (e.g. soap opera scripts, magazine articles, interviews).  The two volumes edited in the previous stages will be distributed at the seminars.
 

Beneficiaries

It is hoped that the beneficiaries of the project will be all citizens, regardless of whether or not they utilize Internet (given that many of them are victims without ever having navigated the Internet).  For those who use Internet extensively as a means of communication, it is hoped that their awareness may be increased and that they will commit to responsible use.

Countries in which this will take place: Argentina, Brazil, Colombia, Costa Rica, Chile, Ecuador, Mexico, Panama, Peru, Dominican Republic, Uruguay, Venezuela (and eventually in El Salvador and Paraguay).

Desired Results

Research phase: a coherent collection of research and studies able to completely inform the debate regarding the necessary policies;

Construction of consensus phase: creation of debate and elaboration of recommendations that imply key participants and that will produce clear guidelines that strengthen the demand from civil society for solutions and adequate responses from governments and international organizations;

Effect and dissemination phase: (1) offer instruments of public policy development to governments (prevention and correction) conceived with an integral vision of rights and based on the Latin-American reality (2) offer tools so that privacy protection may be informed and free from economic barriers; (3) make civil society ―particularly youth― aware, so that they develop a responsible and risk-free use of the growing and surprising communication possibilities that Web 2.0 offers.

Gender

The vision of gender will be a particular aspect of the investigation.  There is no doubt that pornography has found in the Internet an adequate space for its development.  The use of children in pornography ―and its defence― is strongly opposed, as is the generation of false pornographic images of any person.  Without making a global judgment regarding pornography, it is still possible to evaluate its impact on gender relations.  It is known that a strong relation between sexuality and the right to privacy ―very strong in the construction of these rights in the U.S. and practically non-existent in the evolution of legislation regarding personal information in Europe. This relation leads to the belief that it is necessary to reflect upon the different impact of Internet social networking tools on men and women, and whether these could be favouring traditional gender roles or not.  A value judgment will not be made as to an aspect which is legitimately influenced by the people of this (and every) era, but will only try to bring this set of impacts into evidence so that the change or evolution may be more informed.

Ethical Norms

No particular case will be used as an example (utilizing the situation of a victim by first and last name), nor will any Internet site that generates damage be given additional publicity.

In the process of defence (Ombudsman) information will be collected about specific cases (possible violations of people’s rights), and a promise will be assumed not to reveal the web addresses of those sites nor to mention or publish these cases in such form that their victims could be identified.

To exemplify these situations, abstract descriptions will be used, and examples will be created to describe precisely what the vulnerability is, or sites will be referred to only when they do not affect personal rights (e.g. it would be very easy to exemplify the risk of uploading a photo of a child which has been touched up and converted into pornography, but to utilize this example would be a new and greater victimization.  In this sense the site developed by Fernando Javier Moya Suárez could be an example of one methodology of the tolerance boundary).

It is not expected that any methodology of study will present a conflict or a violation of laws currently in force; however, and fundamentally due to the existence of vast legal gaps in the regulation of Information and Communication Technologies, a standard (which will be designed especially for these studies by external consultants) will be developed. One situation of this nature could present itself during the study of the dissemination of child or amateur pornography; in effect some sites only give a rapidshare address and a decryption password. If the file were to be downloaded, it would be an offence, possession of child pornography (clearly regulated in more than half of the countries in the region, but not in all of them) or of amateur pornography (with possible intellectual property rights violations to the image itself). The planned methodology for these cases is to describe the potential procedures and the abuses of Internet resources, and it would not be necessary to establish whether the offered archive does or does not contain child pornography (the only reason for the download).  On the basis of this paradigm it is supposed that a sufficient standard would consist in the methodology applied not violating applicable laws in Canada ―in its condition as a donor― and of the law in the country in which the research is being conducted.