GNI Assessment Finds ICT Companies Protect User Privacy and Freedom of Expression

Introduction

In January 2014, the Global Network Initiative (GNI) published the Public Report on the Independent Assessment Process for Google, Microsoft, and Yahoo. GNI is an industry consortium that was started in 2008 with the objective of protecting user’s right to privacy and freedom of expression globally. The main objectives of GNI are to provide a framework for companies that is based on international standards, ensure accountability of ICT companies through independent assessments, create opportunities for policy engagement, and create opportunities for stakeholders from multiple jurisdictions to engage in dialogue with each other. The Centre for Internet and Society, Bangalore, is a member of GNI. Companies based in India have yet to join as members to the GNI network.

Overview of the Public Report

The Public Report provides an overview of assessments completed on the practices and policies of Google, Yahoo, and Microsoft from 2011 - 2013 to measure company compliance with the GNI principles on freedom of expression and privacy. The principles lay out broad guidelines that member companies  should seek to incorporate in their internal and external practices and speak to freedom of expression, privacy, responsible company decision making, multi – stakeholder collaboration, and organizational governance, accountability, and transparency. The GNI principles have also been developed with Implementation Guidelines to provide companies with a framework for companies to respond to government requests. The assessment carried out by GNI reviewed cases in each company pertaining to governmental: blocking and filtering, takedown requests, criminalization of speech, intermediary liability, selective enforcement, content surveillance, and requests for user information.

Importantly, the assessment undertaken by GNI finds Yahoo, Microsoft, and Google to be in compliance with the GNI principles on freedom of expression and privacy. The Report highlights practices by the companies that work to protect freedom of expression and privacy such as conducting human rights impact assessments, issuing transparency reports, and notifying affected users when content is removed, have been, adopted by these companies. For example, Google conducts Human Rights Impact Assessments to assess potential threats to freedom of expression and privacy. Google also has in place internal processes to review governmental requests impacting freedom of expression and privacy, and the legal team at Google prepares a “global removal report” to provide a bird’s eye view of trends emerging from content removal requests. If Google has the email address of a user who’s posted content is removed, Google will often notify the user and directs the user to the Chilling Effects website. Google has also published a transparency report since 2010. Like Google, Microsoft conducts Human Rights Impact Assessments before making decisions on whether to incorporate certain features into its platforms when operating in high risk markets. Microsoft has also issued two global law enforcement requests reports in 2013. Yahoo has established a Business and Human Rights Program to ensure responsible actions are taken by the company with regards to freedom of expression and privacy, and now issues transparency reports about government requests. Yahoo’s Public Policy team also engages in dialogue with governments  on an international level about existing and proposed legislation impacting and implicating privacy and freedom of expression.

The Report highlights challenges to compliance with the GNI principles that companies face – namely legal restraints and mandates that they are faced with. On the issue of transparency, the assessment found that companies do not disclose information when there are legal prohibitions on such disclosure, when users privacy would be implicated, when companies choose to assert attorney client privilege, and when trade secrets are involved. Despite this, the assessment found that companies do deny and push back on governmental requests impacting freedom of expression and privacy for reasons such as the request needed clarification and modification, or that the request needed to follow established procedure.

A number of findings came out of the assessments undertaken for the Report including:

1. As demonstrated by the lack of ability to access information about secret national security requests, and the lack of ability for companies to disclose information on this topic there is a dire need for governments to reform surveillance policy and law impacting freedom of expression and privacy.
2. The implementation of the GNI Principles is challenging when a company is undergoing an acquisition. In this scenario, contractual provisions limiting third party disclosure are critical in ensuring protection of privacy and free expression rights.
3. Companies need to pro-actively and on an ongoing basis internally review governmental restrictions on content to determine if it is in compliance with the commitment made by that company to the GNI Principles.

The assessment resulted in GNI defining a number of actionable (non-binding) recommendations for companies such as:

• Improving the integration of human rights considerations in the due diligence process with respect to the acquiring and selling companies.
• Consider the impact of hardware on freedom of expression and privacy.
• Improve external and internal reporting.
• Review employee access to user data to ensure that employee access rights are restricted by both policy and technical measures on a ‘need to know’ basis across global operations.
• Review executive management training.
• Improve stakeholder engagement.
• Improve communication with users.
• Increase sharing of best practices.
• The GNI principles are focused on freedom of expression and privacy and are based on internationally recognized laws and standards for human rights.

NSA leaks, global push for governmental surveillance reform, and the Public Report

With special attention given to the various companies responses to the NSA leaks, the Report notes that in response to the NSA leaks the assessed companies have issued public statements and filed legal challenges with the US government  and filed suit with the FISA Court seeking the right to disclose data relating to the number of FISA requests received with the public. All three companies have also supported legislation and policy that would allow for such transparency. Furthermore in December 2014, the companies , along with other internet companies, developed and issued the five Principles on Global Government Surveillance Reform.  Similar to other efforts to end mass and disproportionate surveillance, such as the Necessary and Proportionate principles, the Principles on Global Government Surveillance Reform address: Limiting Governments’ Authority to Collect Users’ Information, Oversight and Accountability, Transparency about Government Demands, Respecting the Free Flow of Information, Avoiding Conflicts Among Governments. Other companies that signed these principles include AOL, Facebook, LinkedIn, and Twitter.

Along these lines, on January 14^th, GNI released the statement “Surveillance Reforms to Protect Rights and Restore Trust”, urging the U.S Government to review and enact surveillance legislation that incorporate a ‘rights based’ approach to issues involving national security. In the statement, GNI specifically recommends the Government to action and: end mass collection of communications metadata, protect and uphold the rights of non-Americans, continue to increase transparency of surveillance practices, support the use of strong encryption standards.

Conclusion and way forward

Looking ahead, GNI is planning on developing and implementing a mechanism to address effectively address consumer engagement and complaints issued by individuals who feel that GNI member companies have not acted consistently with the commitments made as a GNI member. GNI is also looking to expand work around public policy and surveillance.

The Public Report on the Independent Assessment Process for Google, Microsoft, and Yahoo is an important step towards ensuring ICT sector companies are accountable to the public in their practices impacting freedom of expression and privacy. The assessment comes at a time when ICT companies often find themselves stuck between a rock and a hard place – with Governments issuing surveillance and censorship demands with mandates for non-disclosure, and the public demanding transparency, company resistance to such demands from the Government, and a strong commitment to users freedom of expression and privacy. Hopefully, the GNI assessment is and will evolve into a middle ground for ICT companies – where they can be accountable to the public and their customers and compliant with Governmental mandates in all jurisdictions that they operate in. It will be interesting to see if in the future Indian companies join GNI as members and being to adopt the GNI principles and undergo GNI assessments.