Blog #5: The Case for Transparency

This Working Group and its individual members have committed substantial time to pushing both governments and companies to be more transparent. We do this work based on the conviction that having more information about how governments and companies act and interact—particularly around requests for user information or content restriction—is critical to helping individuals realize their human rights.

Yet working on this issue daily, we often take for granted why transparency is important—why it supports the exercise of human rights. We’ve heard from groups around the world that clearly making the case for transparency—to civil society, to companies, and to governments—would be helpful to this effort.

Governments frequently make requests to companies to restrict content, restrict or shut down service, and to share user data with authorities. Transparency reports published by several companies indicate that the volume of such requests is growing rapidly around the world. This post articulates why it’s important for governments and companies to be transparent about government requests to companies for user information or content restriction. The arguments below are based on the Freedom Online Coalition Working Group’s interviews with company and government representatives from around the world, as well as by the work of individual group members. We welcome your feedback.

The Case for Transparency

Transparency is a cornerstone of democratic governance. It enables governments to demonstrate that they are upholding obligations and commitments to protect human rights. Transparency is also a key element of corporate best practice when it comes to respecting human rights. By being transparent about how they handle users’ personal information, companies can demonstrate how they implement their commitment to respect human rights.

Transparency about requests made by governments to companies about online content and user information can serve three goals, without which the protection of and advocacy for human rights are not possible.

• Empowering individuals: Transparency empowers individuals to make informed choices as consumers so that they understand the risk they may take in using particular online platforms and services, thereby maximizing their ability to freely and safely exercise their rights online. Being transparent about what actions affecting freedom of expression or privacy are being taken, by whom, and on whose authority, educates users about potential direct restrictions on their rights. It helps people understand how their access to information, or ability to share certain content, may be restricted, or which authorities or private entities can access what information about them under what circumstances. Importantly, transparency also mitigates the “chilling effect” that causes people to self-censor or limit their online speech and activities because they do not know the scope of government or company actions, and therefore cannot make informed decisions or hold these actors accountable.
• Providing accountability: Transparency facilitates oversight. With knowledge of government and company practice, civil society, investors, and other stakeholders can hold each party accountable to contracts/user agreements, societal expectations, international human rights principles, and other commitments, such as those made by States through the Universal Periodic Review process or statements like the Tallinn Agenda for Freedom Online, as well as those made by companies through efforts like the Global Network Initiative. Without transparency, governments and companies face little public scrutiny when they fail to protect and respect human rights, including freedom of expression and privacy.
• Informing policy and advocacy: Transparency enables public debate about whether government requests to restrict content or share user information are being made within frameworks that reasonably consider individual rights together with national security and law enforcement interests. Transparency helps stakeholders focus their advocacy efforts, raise questions, and assist companies and governments in improving their practices. It keeps people informed in situations where a government or company may be infringing upon their human rights. It also enables regulators who oversee companies’ and government agencies’ activities to assess whether companies are respecting human rights and governments are complying with human rights obligations and commitments.

There are different benefits for governments and companies in being transparent. The reasons below are derived from interviews with government and corporate representatives.

THE VALUE TO GOVERNMENTS

• Demonstrating obligations and commitments: According to the UN Guiding Principles on Business and Human Rights, governments have the primary duty to protect human rights. Transparency about requests made to companies to take actions that affect human rights including online freedom of expression and privacy is essential to the fulfillment of human rights obligations, such as those set out in international and regional human rights treaties, national constitutions, or domestic laws, as well as commitments made by States through processes like the Universal Periodic Review or statements like the Tallinn Agenda. Governments are obligated to operate in accordance with the law. Transparent laws and policies—and transparency about how those laws and policies are implemented and by whom—are part of ensuring strong rule of law, enabling the governed to hold government accountable.
• Empowering people and building public trust: Being transparent is critical to building public trust in law enforcement and intelligence activities. A lack of information can breed mistrust over the intentions and practices of government authorities, and obscure the value of these activities.
• Fostering public dialogue: As public awareness of human rights online grows, providing more information about government requests to companies fosters an informed public debate. Transparency helps clarify what actions are taken on whose legal authority and surfaces effective policy recommendations for conducting these requests in a way that protects human rights.
• Facilitating a positive climate for investment and innovation: As Internet-based services and platforms increasingly expand internationally, transparency regarding relevant regulations, expectations, and policies can help foster a business environment that attracts investment and encourages innovation.
• Internal coordination: The process of compiling a transparency report or related materials can help improve coordination and communication across different parts of government about what requests are being made to companies, by whom, and for what purpose. Engaging different parts of government in the creation of a report can also educate people across government about the broader policy implications of their actions and the value of transparency to the public.
• International leadership: As general demand for transparency grows, governments can exercise leadership by pioneering new ways to disclose this information to the public effectively.

THE VALUE TO COMPANIES

• Building user trust: Being transparent about government requests assures users that the company is handling their information responsibly and transparently.
• Industry benchmarking: Publishing transparency reports and related measures is becoming the industry norm. Companies that are less transparent than their peers will increasingly be at a competitive disadvantage when it comes to public perceptions around the extent to which a company respects user rights.
• Good corporate governance: Transparency reporting requires internal tracking and consistency in how a company handles government demands across different jurisdictions. The process of being transparent—especially creating a transparency report—can help a company refine and improve its own internal processes for responding to government requests (ensuring consistency and efficiency, helping anticipate issues). It also enables companies to track trends in requests received from certain governments or specific authorities.
• Consistency with company mission: For companies that cite transparency as a core value, providing reports and taking other measures to be transparent with the public about how content is restricted or how user information is shared is a natural extension of that commitment. Transparency is also part of companies’ fulfillment of responsibilities under the framework of the UN Guiding Principles on Business and Human Rights.
• Pressure on governments: Lawfully publishing information about government requests may draw attention to the scope of a government’s demands, and whether those demands are changing over time. There is some evidence that some governments are sensitive to such scrutiny and may be more judicious or at least coordinated in their requests if they know information will be reported.

The views expressed in this blog represent the views of individual authors, informed by the Working Group’s goals, themes, and recommendations. They do not represent the views of the Freedom Online Coalition or its members.