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Steiger 2019 – International law and new challenges to democracy in the digital age

In brief

Steiger examines whether and how democracy is threatened by big-data-based operations, and what international law can do about it (p. 71) [U]. He uses three examples: NSA mass surveillance, Russian troll farms (Project Lakhta) and Cambridge Analytica (pp. 74–78) [U]. These are mainly framed as privacy issues, but Steiger argues they also challenge democracy, which he breaks down into seven elements (pp. 78–84) [U]. International law protects democracy through a democracy-based approach to human rights and through the principle of non-intervention (pp. 74, 98) [U].

Research question and main claim

  • Two theses: (1) both state and non-state actors may undermine democracy through big data operations; (2) international law protects against this via a democracy-based approach rooted in human rights law and the principle of non-intervention (p. 74) [U].
  • Taking democracy into account, mass surveillance operations become illegal, and operations like those of Cambridge Analytica and Project Lakhta must be fought in a way that protects the right to democratic participation and privacy (p. 93) [U].
  • Project Lakhta passes the threshold of coercion and thus violates the principle of non-intervention (pp. 97–98) [U].

Theoretical perspective

  • Public international law and human rights law (ICCPR, ECHR, EU Charter), with case law from the ECtHR, the CJEU and the German Federal Constitutional Court (pp. 78–79, 86–93) [U].
  • Democracy is described as a contested notion; instead of a definition, the chapter uses seven elements drawn from case law, UN bodies and democracy scholarship (pp. 79–81) [U].

Empirical material and context

  • Three cases: NSA surveillance (Snowden 2013), Russian Project Lakhta in the 2016 US election, and Cambridge Analytica's micro-targeting (pp. 74–78) [U].
  • Also mentions China's Social Credit System and face recognition tested at Berlin Südkreuz (p. 72) [U].
  • Legal sources: Schrems, Google Spain, Digital Rights Ireland, the German Census Judgment (1983), the GDPR (pp. 78–79, 87–89) [U].

Method

  • Doctrinal legal analysis in international law [T – characterisation].

Key concepts

Concept How the source defines or uses it Page U/T
big data No single definition; collection, storage and use of data on a massive scale to predict and thus influence the future 74 U
seven elements of democracy Anonymity, freedom to form a political will, openness of discourse, democratic control and accountability, acceptance of majority decisions, pluralism, transparency 80–81 U
dark posts Ads tailored to a psychological profile, seen only by the addressee 73, 77 U
duty to protect The state's duty to protect individuals from human rights violations by private actors 86–87 U
democracy-based approach Using democracy in the proportionality test and as a legitimate aim 90–93 U
non-intervention / coercion Prohibits coercive interference in a state's domaine réservé; coercion judged by intended effect 94–97 U

How privacy and private data are understood

  • As a human right: all international human rights documents and most democratic constitutions provide a right to private life, which also protects personal data (p. 88) [U].
  • Privacy is linked to democracy: the German Census Judgment (1983) saw self-determination as a condition for a free democratic community (p. 79) [U]. But courts rarely explain why privacy violations threaten democracy (pp. 78–79) [U].
  • The use of data can generate new data (e.g. an Ocean Score), which amplifies the privacy implications (p. 89) [U].
  • Facebook users' general consent ‘buried’ in terms of service may not satisfy the GDPR's requirements for consent (p. 89) [U].
  • Via the state's duty to protect, the right to privacy also binds companies in Europe, mediated through data protection law (p. 87) [U].

Arguments and findings

  • The public and academic debate frames these cases mainly as privacy issues; Steiger seeks to expand this to democracy (p. 78) [U].
  • Anonymity is undermined by NSA and Cambridge Analytica, while the trolls themselves need anonymity (p. 81) [U].
  • Facebook and Twitter environments are characterised by echo chambers, lack of transparency and one-to-one communication that cannot be democratically controlled (pp. 82–83) [U].
  • Mass surveillance has chilling effects on behaviour and lacks democratic control (pp. 83–84) [U].
  • International law applies in cyberspace; human rights apply territorially to state officials (pp. 85–86) [U].
  • Espionage is neutral in international law, so non-intervention cannot protect against mass surveillance (p. 95) [U].

Limitations the source itself mentions

  • Democracy is underdeveloped in international law (p. 74) [U].
  • Not all elements of democracy are challenged by all three cases (p. 84) [U].
  • Whether Project Lakhta changed the election result cannot be proven (p. 97) [U].
  • The chapter concentrates on three examples only (p. 74) [U].

What the source does not cover

  • Norway [T].
  • The state's use of personal data for welfare or administration [T].

Possible relevance for the thesis

  • Shows a legal argument that privacy is not only an individual right but connected to democracy, which may be relevant if Norwegian documents justify privacy with democratic arguments [T].
  • The duty to protect (pp. 86–87) gives the state a role as protector against private actors, which may be compared with how Norwegian documents describe the state's role [T].

Connections to other sources

Key quotes

“This chapter aims to analyse whether and how democracy is actually threatened by big-data-based operations and what role international law can play to respond to this possible threat.” (p. 71)

“In the public and academic debate, the NSA system of mass surveillance, Facebook in general and the Cambridge Analytica case in particular are mainly framed as privacy issues.” (p. 78)

“Turning to the right to privacy, all international human rights documents as well as the constitutions of most democratic states provide for a right to private life” (p. 88)

“Thus, although democracy does not play a major role in international law, international law nevertheless is able to protect democracy against challenges from the inside as well as outside.” (p. 98)

Open questions for Rebekka

  • Do you use this chapter as part of the Richardson book, or separately?
  • Do Norwegian documents link privacy to democracy, or mainly to individual rights?
  • Is election interference / micro-targeting relevant for your research question?