Recommendations for EU cyber diplomacy

1.Key issues for EU cyber diplomacy

There are two key issues that the EU should take the lead on. Extra-territorial surveillance by several countries, in partnership with private actors continues with aplomb.  In Schrems II, the Court of Justice of the European Union has already dealt a decisive victory for civil society actors campaigning against US law and surveillance policy, and protected the rights of EU citizens by doing so. Channelising the rich human rights jurisprudence in the European Convention on Human Rights, the court was able to highlight how existing US law and policy do not comply with the principle of proportionality in the ECHR..While the courts are an important avenue of resistance, other countries targeted by illegal and illegitimate surveillance often do not have judicial recourse or the clout to effectively counter surveillance practices.In line with the accepted principles of international law, the EU must engage in diplomatic posturing calling for reining in the use of extra-territorial surveillance,which includes  surveillance enhancing technologies, mass dragnet surveillance, and surveillance by private actors.

The second key issue is that of ‘data sovereignty’-or a recognition that notwithstanding the significance of cross-border data flows, the ultimate responsibility of guaranteeing citizen rights in the digital sphere lie with the state enforcing laws in that jurisdiction. Undoubtedly, this responsibility must be discharged in conjunction with the principles of international law but the policy space itself should be sovereign, and not be dictated by other states or private actors. This sovereign space includes the right to regulate private actors such as technology companies through taxation, anti-trust laws, and impose on them key human rights obligations. It also includes an obligation to protect citizen interests against foreign adversaries.Sovereignty must not be conflated with brazen technology nationalism that involves restrictions on foreign technology or investment that harms the economic welfare or civil liberties of a state’s own citizens.

Several jurisdictions including the EU are grappling with the precise contours of ‘data sovereignty’ and what it means in today’s increasingly fractured geo-political climate. However, as it set the ball rolling with privacy enhancing diplomacy across the world, the EU has an opportunity to work with several key partners, including emerging economies such as India, Brazil and South Africa to ensure that these debates culminate in digital ecosystems that preserve the rule of law while also increasing digital accessibility and reducing inequality.

2. Multi-stakeholder coalitions

 The EU has signed up for  multilateral coalitions such as the Global Partnership on Artificial Intelligence and EU countries have signed onto multi-stakeholder digital agreements such as the Paris Call for Trust and Security in Cyberspace. While coalitions have been dismissed (incorrectly I believe) as talking shops, often efficient coalitions can attain key goals and promote core democratic values. Through these coalitions, the EU should look to attract as vast an array of stakeholders as possible-both states and private actors.However, that should happen once the key principles, objectives  and mechanisms of engagement have been charted out by the coalition. Attracting too many stakeholders without having these clearly charted out allows for the agenda to be hijacked or limited.

3. Engagement with civil society abroad

 The EU has to some extent successfully engaged civil society actors from various parts of the world. The Closing the Gap Conference held successfully by EU Cyber Direct in July showcased quality scholarship from all around the world and enabled dialogue between participants that we do not see often. The dialogue we are having today is a critical form of engagement.The EU should also consider supporting and providing resources for transnational movements such as the #Keepiton coalition that is advocating against internet shutdowns around the world and other civil society consortiums that are upholding values the EU also believes in around the world. Further, it is clear that European policy innovations-be it the GDPR or the European Data Strategy deeply impacts the future of global digital spaces. Therefore, robust consultative mechanisms should be deployed to ensure that academics and civil society participants from all over the world have a meaningful opportunity to shape these policies, keeping in mind the resources available for organisations, specially those in the global south to do the same.

17th September 2020.

(Remarks delivered via video-conferencing)

(Note: This write-up is not meant to be an exhaustive representation of all recommendations for EU cyber diplomacy but captures the statement made by Arindrajit at the Civil Society Forum)