Notes on Freedom of Expression and Digital Threats

Why Freedom of Expression Matters

• Inherent Human Nature:
  • People are intrinsically creative, social beings who desire to connect with others and express themselves.
• Civilizational Advancement:
  • The progress and growth of human civilization are contingent upon the free exchange of information and ideas.
• Dependence for Other Freedoms:
  • The ability to exercise other fundamental freedoms is directly dependent on an individual's capacity for free self-expression.

Freedom of Expression and Democratic Politics

• Broader Political Vision:
  • Freedom of expression fundamentally reflects a political philosophy that prioritizes the rights of the individual over the power and rights of the state.
• Associated Values:
  • It is frequently linked with other core democratic values such as: separation of powers, competitive elections, secular government, and freedom of the press.
• Focus on Ability, Not Content:
  • The concept of “freedom of expression” is not about the specific content of ideas, but rather the fundamental ability for individuals to freely express themselves, regardless of what those ideas may be.

Legal Frameworks Supporting Freedom of Expression

• Canadian Charter of Rights and Freedoms:
  • Section 2(b) states: “Everyone has the following fundamental freedoms: …freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”
• International Covenant on Civil and Political Rights (ICCPR):
  • Article $19$ declares: “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

Threats to Freedom of Expression in the Digital Age

• Paradox of Digital Technology:
  • Digital technology has simultaneously enabled groundbreaking investigative reporting, new cross-border collaborations, cooperative fact-checking with audiences, and access to vast data and diverse sources.
  • However, these same technologies have also created “unprecedented challenges and changes for the news industry,” as noted in “Reinforcing media freedom and the safety of journalists in the digital age” ($2022$) by Irene Khan, UN Special Rapporteur on freedom of expression and opinion.
• Specific Challenges (Irene Khan's $2022$ Report):
  • Violent attacks on and legal harassment of journalists.
  • Censorship of content.
  • Gender-based online violence.
  • Targeted surveillance of journalists.
  • Legislation restricting online information.
  • “Media capture” by state or corporate interests, leading to biased or controlled narratives.
  • Viral disinformation campaigns that manipulate public opinion.

Authoritarian Challenges to Freedom of Expression

Freedom of Expression in China

• Constitutional Guarantee vs. Reality:
  • Article $35$ of China’s constitution nominally guarantees “freedom of speech, the press, assembly, association, procession and demonstration.”
  • In practice, these fundamental freedoms are largely non-existent.
• Restrictive Legislation:
  • Legislation such as the Cybersecurity Law ($2017$) explicitly bans “anti-state content.”
  • Examples of prohibited speech include content that “jeopardizes national security, subverts the state power, or undermines national unity,” “damages the reputation of the state,” or “defames the deeds and spirit of heroes and martyrs.”
• Self-Censorship: 'Anaconda in the Chandelier' Metaphor (Perry Link, $2002$):
  • The Chinese government’s censorial authority operates not through explicit, constant threats, but through a pervasive, unspoken pressure.
  • Like a giant anaconda coiled silently in a chandelier, it rarely moves, yet its presence compels individuals to proactively self-censor.
  • The ambiguous yet constant message is “You yourself decide,” which leads individuals to make large and small adjustments to their expression “quite ‘naturally’” to avoid potential repercussions.

Freedom of Expression in the United States

• First Amendment Protections:
  • The First Amendment of the US Constitution states: “Congress shall make no law…abridging the freedom of speech, or of the press…”
  • Historically, the US has maintained robust protections on speech compared to many other nations.
• Threats Under the Trump Administration:
  • The Trump administration openly attempted to overturn these protections and criminalize expressions deemed “anti-state speech.”
  • Its challenge was the lack of fully institutionalized authoritarian rule, unlike in China.
• Building Authoritarian Rule Through Threats:
  • Given the US political culture's broad support for free speech, the Trump administration could not rely on the 'anaconda in the chandelier' method of subtle self-censorship.
  • Instead, it deployed explicit, overt threats (likened to “man-eating tigers” or “fire-snorting dragons”).
  • These challenges included revoking visas for journalists and directly threatening the press.
  • These actions represent deliberate attempts to erode democratic norms and replace them with authoritarian ones that prioritize state control over individual freedoms.
• Censorship and 'Obeying in Advance':
  • The Trump administration sought the cooperation of institutions traditionally committed to defending freedom of expression, such as major media outlets.
  • Instead of resistance, individuals or institutions might preemptively comply with a new regime in the hope that obedience will offer protection.
  • This phenomenon of “obeying in advance” inadvertently strengthens autocratic power by eliminating potential sources of opposition and normalizing oppressive practices.

The Role of Social Media in State Surveillance

• Dual Nature of Social Media:
  • Social media platforms enable broad self-expression, particularly for voices excluded from traditional media.
  • Conversely, they can compromise personal privacy and freedom of expression through pervasive data collection.
• Surveillance Capitalism:
  • This economic model, where tech companies monetize user data, is used to generate targeted advertisements, sell data to third parties, or influence individual behavior.
  • It offers users convenience at the expense of their privacy.
• Datafication (Arne Hintz, 'Freedom of Expression in a Datafied World'):
  • Refers to the process of transforming human behavior and social activities into data points that can be collected and analyzed, forming the bedrock of the digital economy.
  • While not a direct “hard restriction of speech,” the continuous monitoring of users has significant implications for both online and offline expression.
  • For malicious state actors, datafication and surveillance capitalism are immensely beneficial tools for control.

Surveillance Capitalism and State Surveillance in China

• Controlled Social Media Ecosystem:
  • The Chinese government aims for a vibrant yet tightly controlled social media environment.
  • Social media platforms are mandated to censor users and autonomously develop lists of banned words, based on a general understanding of prohibited content.
  • Platforms routinely share user information with law enforcement, leading to punishment of users for perceived anti-state sentiment.

Surveillance Capitalism and State Surveillance in Canada

• Surveillance in a Freer Environment:
  • Even within a relatively freer media environment, state surveillance exists.
  • In $2013$, the Office of the Privacy Commissioner reported that authorities had collected social media information from Cindy Blackstock, an advocate involved in a lawsuit concerning the underfunding of child welfare services on First Nations reserves.
  • In $2016$, Toronto police extensively reviewed social media profiles of Black Lives Matter activists who were organizing protests outside police headquarters.

Surveillance Capitalism and State Surveillance in the US

• Leveraging Surveillance Capitalism:
  • US law enforcement agencies have capitalized on surveillance capitalism for state surveillance purposes, a trend that continued under the Trump administration.
  • Recently, journalists revealed that Google covertly provided account information of a pro-Palestine graduate student to ICE agents seeking to detain and deport him due to his political activism.