Anastasiya Kadukov
Whether it’s the algorithms of TikTok or the AI of ChatGPT, technology is becoming more sophisticated every day. The world is changing, and emerging technology is surpassing society’s expectations. These platforms are transforming our relationship with the Internet and one another. Through these everchanging accelerated times comes a lot of fear and lack of control. The lack of concrete regulation has the international legal community at a crossroads. India bans TikTok on the grounds that “the activities these apps engage in are detrimental to India’s sovereignty and integrity, national defense, national security and public order.”[1] On April 2, 2023, Italy temporarily banned ChatGPT due to a data breach, setting precedent and fear for other governments.[2] A regulator found that the “hot sensation of AI” could be in violation of the European Union’s General Data Protection Regulation (GDPR), requiring adherence to the protection of personal information in the EU.[3] The OpenAI allegedly violated the GDPR by not properly informing users of collected user data, not providing a legal reason for user data collection, inaccurate processing of personal information without use of facts, and not requiring users to verify their age.[4]
Regulators are concerned by the challenges these technologies pose for data privacy, AI manipulation, equality, false information, and national security.[5] Further, companies are processing biometric data or personal data, lacking transparency in its purpose of use.[6] The international community believes that safeguarding national security is the fundamental right granted to sovereign states by international law, including banning software and programs as they see fit.[7]
On the other hand, this type of control is challenged under the human rights framework and right to freedom of expression. In Article 19 of the Universal Declaration of Human Rights, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”[8] Further, the International Covenant on Civil and Political Rights (ICCPR) echoes Article 19, providing a foundational statement of state obligations to protect the freedom of opinion and expression.[9] The ICCPR sets out a three part test which requires speech restriction to be (1) provided by law and (2) necessary and proportionate to protect (3) a legitimate objective.[10]
Through these fundamental contradictions, the protection of personal privacy is the focus of protecting human rights and safeguarding personal information.[11] The privacy of an individual is an internationally recognized human right.[12] The Committee’s General Comment No. 34 interpreted Article 19 to promote ‘uncensored and unhindered’ media as essential to the cornerstones of a democratic society that enjoys freedom of opinion and expression.[13] When Turkey implemented a ban on Twitter, the Special Rapporteur included ICCPR’s test in their decision where “[c]oncerns about national security can be legitimate, but limitations to the freedom to seek, receive and impart information must conform to the strict test of necessity and proportionality to the aim pursued.”[14]
If the answer is not banning programs due to human right violations, then it is up to the international legal community to set stronger regulations encompassing data privacy expectations. European lawmakers have their hands full as discussion of a new European AI Act is to be conjoined with GDPR, heavily restricting the use of AI in critical infrastructure, education, law enforcement, and the judicial system.[15] While these regulations catch up to the technology and issues of today, the UN Human Rights Committee has set out 5 actions for States and companies to consider when moderating and regulating online content:
“1. Urging that the focus of regulation should be on improving content moderation processes, rather than adding content specific restrictions.
2. Restrictions imposed by States should be based on laws, they should be clear, and they should be necessary, proportionate and non-discriminatory.
3. Companies need to be transparent about how they curate and moderate content and how they share information, and States need to be transparent about their requests to restrict content or access users’ data.
4. Users should have effective opportunities to appeal against decisions they consider to be unfair, and independent courts should have the final say over lawfulness of content.
5. Civil society and experts should be involved in the design and evaluation of regulations.”[16]
Future generations rely on these pivotal discussions and regulations. Personal data and how it is used is at the forefront of concerns surrounding platforms like ChatGPT and TikTok. Every country is a member of the cyberspace; therefore, it is time to innovate the law and create global norms for tech accountability.
[1] India bans 59 mostly Chinese apps including TikTok, UC Browser, WeChat, Reuters (June 29, 2020), https://www.reuters.com/article/india-china-apps-idCNL4N2E63GF.
[2] Ryan Browne, Italy became the first Western country to ban ChatGPT. Here’s what other countries are doing, Cnbc (Apr. 4, 2023), https://www.cnbc.com/2023/04/04/italy-has-banned-chatgpt-heres-what-other-countries-are-doing.html.
[3] Clothilde Goujard & Gian Volpicelli, ChatGPT is entering a world of regulatory pain in Europe, Politico, (Apr. 5, 2023, 6:00AM CET) https://www.politico.eu/article/chatgpt-world-regulatory-pain-eu-privacy-data-protection-gdpr/.
[4] Kristi Hines, Exploring Italy’s ChatGPT Ban And Its Potential Impact, SEJ (Apr. 6, 2023) https://www.searchenginejournal.com/chatgpt-ban-italy/484157/#close.
[5] Id.
[6] See Miriam Kohn, Clearview AI, TikTok, and the Collection of Facial Images in International Law, 23 Chi. J. Int’l L. 205 (2022).
[7] Haokun Niu & Jiahui Hong, International Law Thinking on Data Security In TikTok Incident, in PROCEEDINGS OF THE 7TH INTERNATIONAL CONFERENCE ON HUMANITIES AND SOCIAL SCIENCE RESEARCH 268, 268-71 (May 20, 2021).
[8] G.A. Res. 217 (III) A, Universal Declaration of Human Rights, art. 19 (Dec. 10, 1948).
[9] International Covenant on Civil and Political Rights, art. 19, Dec. 16, 1966, 999 U.N.T.S. 171 (committing 173 state parties to the multilateral treaty).
[10] Human Rights Committee, General Comment 34: Article 19: Freedom of Opinion and Expression, CCPR/C/GC/34, Sept. 12, 2011.
[11] Id.
[12] Robert L. Rembert, TikTok, WeChat, and National Security: Toward a U.S. Data Privacy Framework, 74 Okla. L. Rev. 463 (2022).
[13] Necessary And Proportionate? Tiktok Bans And American Obligations Under International Human Rights Law, UC Irvine Sch. of L. Int’l Just. Clinic, 3 (Mar. 10, 2023) (citing to Human Rights Committee, General Comment 34: Article 19: Freedom of Opinion and Expression, CCPR/C/GC/34, Sept. 12, 2011).
[14] Turkey: First Twitter, now YouTube – UN rights experts concerned at attempts to restrict access before elections, Ohchr, (Mar. 28, 2014), https://www.ohchr.org/en/press-releases/2014/03/turkey-first-twitter-now-youtube-un-rights-experts-concerned-attempts.
[15] Browne, supra note 2.
[16] Moderating online content: fighting harm or silencing dissent? Ohchr, (July 23, 2021), https://www.ohchr.org/en/stories/2021/07/moderating-online-content-fighting-harm-or-silencing-dissent.