Regulating technologies for the future

Posted: June 4th, 2017 | Author: | Filed under: education, governance, human rights, politics, privacy, technology, thoughts | No Comments »
There is going to be some sort of regulation of the new technologies, sooner or later. Governments are getting involved and it is not necessarily a bad thing. Libertarian-minded people might not agree with this, but in the deployment phase of any techno-economic paradigm (as illustrated by Carlota Perez) governments are going to have to step in to guarantee the success of the deployment for all.
In the previous TEP, this was “The New Deal”, Marshall Plan and the development of global institutions. This resulted in the post-War Golden Age in the US and Western Europe, with the social safety net and a strong middle class. The one before (The Belle Epoque) was more of a Gilded Age, which benefited only a few.
The ICT TEP, which we are in the middle of, is going to be the greatest of those so far, because for the first time to paradigm shift is more or less global, impacting billions of people at once.
  • We need regulation to ensure that new technologies reach all people of the world and not benefit just the few (enacting strong net neutrality rules for example).
  • We need smart regulation to prevent tech monopolies from abusing their position.
  • We need rules that provide public oversight and participation.
  • We need to make sure that new technologies are not going to be used for unethical and immoral ends.
  • We need to make sure that there are strong privacy rules protect the individual, their freedom and autonomy.
  • We need to make sure that technology does not allow totalitarian and extremist propaganda to isolate individuals and destroy solidarity, trust and social cohesion that is more necessary that ever in an interconnected and interdependent world.
  • We also need to change our existing regulations to fit with the new world, in all levels of governance. Otherwise we are sailing the oceans with outdated maps (as Seyla Benhabib so well compared the lack of guidance that international law gives us in a new era of cosmopolitanism). This requires creativity and imagination, an open mind.
However, there are also those that want to step in and regulate in ways that work against those goals. There are those who want regulation to go the other way: expanding and legalising mass-surveillance, ban strong encryption, protect monopolistic technologies, prevent or limit access to technologies by poorer countries or help to deny the voice and participation for minorities and women.
The fight is not for or against regulation: not having rules is not a sustainable option. The fight is about what kind of rules we will have; whether there will be those that protect human dignity, freedom and rights, advance solidarity and mutual respect and understanding; or those that divide and threaten, limit freedoms and rights.

On human rights and Turkey

Posted: April 18th, 2017 | Author: | Filed under: governance, human rights, thoughts | No Comments »
It is very easy to succumb in light of the Turkish referendum in public discussions to the idea that with the distancing from Western-style democracy, Turkey is going to follow the path to a similar autocratic quasi-totalitarianism as Russia with its ignorance of human rights. However, when considering the historical experience of the Ottoman Empire, Islam as a distinguishing factor might help not hurt to protect human rights.
 
It should be noted that the Ottoman Empire did protect human rights quite extensively within its long existence (comparatively to the same time period in Europe). Although the rights were less individualistic, it was based on the Sunni application Sharia law, which gave both Muslims and non-Muslims extensive rights. These included rights for women and non-discrimination or at least non-persecution of followers of other religions (the segregation-based millet system). Indeed, it was the Ottoman Empire where the Sephardic Jews escaped to from Catholic persecution in the Iberian peninsula.
 
The Ottoman Empire existed for more than half of the millennium partly because of tolerance and rights. The treatment of non-Muslims only began to change in the decline period with the transition to a more European style nation state. Here is description of the situation for minorities under Ottoman rule:
“The fact that under Ottoman rule human rights were not perceived with the individual in mind should not lead us to the conclusion that minorities were generally oppressed by the state. Such an allegation could easily be refuted by evidence that, right from the beginning, a significant proportion of the Balkan Christians freely chose to live under the sovereignty of the Ottomans. Until the arrival of “the wind of nationalism” in the early nineteenth century, the Balkan subjects of the empire were generally content with Ottoman rule. This is the most reasonable explanation for the speedy expansion and consolidation of the Ottoman rule in the Balkans from the fourteenth century onwards. To give an example, in Hungary, which the Ottomans called Budin, the Ottoman Empire did not interfere with religious freedom, but instead protected the Christian subjects against local fiefs. Therefore, the claim that non-Muslims began to enjoy human rights and liberties only after the Tanzimat reforms of the nineteenth century is patently false. Except for the limitations imposed by the Shariah law and the deliberate policy of keeping the religious communities apart, Christians, Jews, and Muslims were treated equally under Ottoman rule. Among the rights they enjoyed were: civil rights; freedom of travel; freedom of religion and conscience; the right to education; and the right to privacy. It can be asserted with confidence that the Ottomans generally implemented the rights and liberties which the Quran grants the People of the Book (ehl-il kitab). The registers of the court of records of Islamic canonical law amply prove that the Ottoman courts generally observed and respected the rights of non-Muslim subjects.”
 
Read more: Aral, Berdal. “The idea of human rights as perceived in the Ottoman Empire.” Human Rights Quarterly 26.2 (2004): 454-482.

Estonia has a female president

Posted: October 4th, 2016 | Author: | Filed under: diversity, human rights, thoughts | No Comments »

3 October 2016 was a historic day for Estonia, because after lengthy, incredibly convoluted political campaign the Parliament voted to install Kersti Kaljulaid as the country’s first president who is not a man. It is important and significant step for the development of the country.

The prospect of a female president is not so new. Already in 2006 Ene Ergma was almost elected as president, she was just three votes short in the parliament.

So in itself it does not seem such a big deal that the political elite considers women acceptable as leaders until one thinks about the poor situation in Estonia in terms of gender equality. Estonia’s parliament has had the number of women parliamentarians constantly hovering around 20%; in the government it is usual that one or two women make an appearance in an otherwise boys club. The gender pay gap is the largest in the European Union and the rate of gender based violence is remarkably high. The voice of women is constantly underrepresented in the media and even mainstream feminists considered radicals.

Already there have been voices that the gender of the president actually makes no difference. But it does. As a man I cannot really imagine what it must be like living in a society where almost everyone in government, and the vast majority of past political leaders not in your country but everywhere in the world are not the same gender as you are. Kersti Kaljulaid will be a role model and an inspiration to many of those who have been previously left out.

Of course, a female president alone does not automatically make men and women and others in Estonia more equal. But it is a step in the direction of a more representative, inclusive state which can heal the divide between the political elite and people.

The final frontier for a woman in Estonian politics is obviously the position of the Prime Minister, who actually is the Head of Government in Estonia.

In terms of my take on who Kersti Kaljulaid is, I will reserve this for a later date. It is not a good idea to build up one’s expectations too high regarding politicians, because these will be inevitably crushed at some point (see Obama). From the first look she seems a middle-of-the-road classical conservative, a rational and thoughtful person, not too far from my own views in terms of classical Kantian constitutional republicanism. In terms of values of Estonian people, she seems to click better than the previous president did, which makes her a good candidate for reaching out to, listening to and communicating with the Estonian people.

Read also:


Brexit and the cosmopolitan world order

Posted: June 27th, 2016 | Author: | Filed under: european union, governance, human rights, philosophy, politics, thoughts | No Comments »

There are those who see the United Kingdom’s exit from the European Union as a prelude to turning back to the times when the main sovereign actor in the world is the (nation) state. However, resorting to the intergovernmental model is not the only option to analyse Brexit, the other views (cosmopolitan pluralist, minimal world state and cosmopolitan democracy) should be analysed as well.

Intergovernmentalists probably see Brexit as a natural consequence of a political union that has stretched too far. There can be no (democratic) legitimate government above the nation state level and thus any attempts at political unions such as the EU are futile if not harmful, this thinking goes.

The negotiation of national parliamentary sovereignty and binding supranational rules have been unsuccessful in the EU-UK case and thus it is only normal that the state that has delegated powers to the EU can now take those back and leave. In this traditionalist thinking, the citizens of the UK had all the rights to vote for Brexit, because it is they who are ultimately in charge of the fate of their country and whatever they do (even if it harms themselves or others) is right.

The cosmopolitan pluralists believe that (nation) state is over or in decline and no longer the centre of sovereign power. Therefore power has been shifting to multiple other levels of government, global, regional, subnational, corporate multinational etc. The state is just one of the levels of a pluralist, complex, interdependent, networked world which does not have a centre of power.

From this perspective, Brexit as a decision by referendum of the UK citizens was unfair: in a cosmopolitan plural world order everyone who is affected should get a say and stakeholders consulted. In an interdependent world why are the citizens of one entity allowed to screw things up for everyone else? Scottish independence is a neat example of the subnational levels of governance exerting influence beyond the nation state. Even if the UK left, this does not mean that we should not continue to democratise the supranational levels of governance (i.e. the EU) and continue building a strong European polity.

The proponents of the minimal world state model are of the view that there are certain universal core principles that apply to all states and all people, which cannot be derogated from and the breach of which will limit state sovereignty. Universal human rights at their core are as such limiting state sovereignty: humanitarian interventions can be used to prevent mass grave human rights violations, such as genocide, in a sovereign state. Other violations might bring sanctions and trade restrictions. This minimal world state is institutionalised through the United Nations Security Council and General Assembly (and other UN bodies) and includes international NGOs as powerful actors. The deliberations at the global level in other matters than human rights as well (millennium development goals) exerts soft pressure to states to comply.

Brexit does not really have a consequence in terms of the minimal world state model, because both the EU and the UK remain a part of it and will need to comply with the core requirements. The influence of the EU and the UK in the world state level might be decreased because of the weakening of the position of the EU.

Cosmopolitan democracy model requires democratic decision-making in all levels, including global. This model sees the future creation of a world parliament and limits state sovereignty only to those issues that are internal to that state. In this case states are subordinated to a global democratic entity and transnational solidarity is the norm, because most problems are not confined to the borders of any one state.

Brexit is a setback to cosmopolitan democracy if one counts the EU as a precursor to eventual global democracy. In a fully developed cosmopolitan democracy Brexit would not matter because nation states would not matter either. The UK leaving the EU would be similar to a redrafting of the administrative borders of a county or district, which does not have global impact.

In conclusion: none of the models of international political theory offer a complete solution. The world is slowly turning away from the intergovernmental model, but neither the minimal world state and cosmopolitan pluralism models are fully existing yet. And even though cosmopolitan democracy is as an ideal an interesting one, it seems to be a long way to go before it can be realised. Brexit can be read as a countertrend towards intergovernmentalism, but it (and the reactions to it) also reflect the unsuitability of the current international political frameworks to deliver. The confusion and reactions in different countries (and the fact that we in Estonia also care deeply about Brexit) can be seen as supporting the emergence of cosmopolitan pluralism as the main framework, but as it also is vague and confusing it does not offer much help. Minimal world state does not seem to be affected much (even though prevalence of nativism might mean even less interest in responsiblity to protect doctrine and thus weakening of the applicability of the model).

Read more:

Zürn, Michael. “Survey Article: Four Models of a Global Order with Cosmopolitan Intent: An Empirical Assessment.” Journal of Political Philosophy 24.1 (2016): 88-119.


We need to talk about lawyers

Posted: May 12th, 2016 | Author: | Filed under: Estonia, human rights, law, politics, thoughts | No Comments »

I am a lawyer by training, I teach law and am also a member of the council of Estonian Association of Lawyers. I am proud of my profession and have contributed my small part in advancing the legal education in Estonia at Tallinn University of Technology (where I also was for a while in charge of curriculum development). I think law can play an important role in preventing harmful developments (like mass-surveillance), but sometimes law and lawyers can also fail the society they should be serving.

The on-going criminal trial of the writer Kaur Kender continues to bring out important issues related to the criminal justice system in Estonia. It appears that the prosecutor and the judge have asked during the trial (which is closed from the public) from at least one witness: “why do people waste their lives crossing boundaries?”. If true, that question is an important revelation about some parts of the law and justice system in Estonia.

In Estonia, the overwhelming majority of practising lawyers have graduated from the University of Tartu. Indeed, there was no other place to study law before Estonia re-gained its independence in 1991 and even after that government higher education policies did not (and do not) support diversification of legal education. This means that prosecutors, judges, and defence attorneys share common thinking that has been shaped by their alma mater. The same professor of criminal law has influenced nearly all lawyers in Estonian (criminal) justice system. This thinking is influenced both by the authoritarian Soviet legacy and by the legalistic and formalistic German legal tradition, which carries the thoughts of legal positivism and which became the bedrock during the transition to democratic government.

The lack of diversity of opinion and the conformist education has meant that many lawyers tend to think very much inside the box. They thus innately refuse to challenge authority: until some years ago it used to be an extremely radical proposition among lawyers to criticise the judgments of the Supreme Court. It seems that many lawyers consider themselves strict followers of the grammatical interpretation of specific rules, rather than seeing the social context and the larger goals of specific legal acts.

This is partly reinforced by the rigid legal system itself, which treats prosecutors not as people capable of independent thinking. Article 6 of the current Code of Criminal Procedure obliges the authorities to “conduct criminal proceedings upon the appearance of facts referring to a criminal offence”, even if they think that this does not make a lot of sense. Prosecutor Merika Nimmo has concluded in her analysis in an article published last year in Juridica, that “forgoing the strict application of the principle of compulsory criminal proceedings would, according to the author, undoubtedly help to design a faster, more effective and human-centred criminal procedure”.

In history, we have seen horrible results when lawyers stop thinking about the larger picture and construe their roles strictly legalistically. In the introduction of a booklet published by the United States Holocaust Memorial Museum, on “Law, Justice and the Holocaust”, historians wrote about the role of lawyers in Germany leading to Hitler’s rise to power:

Coming from a longstanding authoritarian, conservative, and nationalist tradition, judges believed deeply in reinforcing government authority, ensuring public respect for the law, and guaranteeing that state actions had a legal basis (Rechtsstaat). At the same time, they valued judicial independence in the form of protection from arbitrary or punitive removal from the bench and freedom from dictates regarding decision making. Above all, they rendered judgment based on such fundamental Western legal principles as the equality of all citizens, the right of an accused person to a fair trial, and the concept that there could be no crime or penalty without prior law.

In spite of these values, political democracy presented serious challenges to the judiciary. Many judges rejected the legitimacy of the democratic Weimar Republic, since it had come about through revolution, which they considered, by definition, a violation of the law. This attitude had long-term consequences for the republic. Judges routinely imposed harsh verdicts on left-wing defendants, whom they regarded with suspicion as revolutionary agents of various foreign powers, while acting leniently toward right-wing defendants, whose nationalist sentiments typically echoed their own. As a result, in the mid-1920s, supporters of the republic proclaimed a “crisis of trust,” demanding the temporary suspension of judicial independence and the removal of reactionary and antidemocratic judges from the bench. Judges regarded these developments with alarm, rejecting proposals for reform as a perversion of justice. Many were convinced that the criticism leveled upon them, which had come from the political left and from parliament, undermined the authority of the state.

When Hitler came to power, he promised to restore judges’ authority and shield them from criticism even as he curtailed their independence and instituted reeducation programs designed to indoctrinate jurists in the ideological goals of the party. The Nazi leadership used a series of legal mechanisms—which, in contrast to the revolutionary overthrow of power in 1918, judges tended to consider legitimate— to gradually assume and consolidate Hitler’s power. Then, step by step, and always under the guise of safeguarding the state, the Nazi leadership imposed legislation that fulfilled its ideological goals of rearmament, military expansion, and racial purification.

In reality, judges were among those inside Germany who might have effectively challenged Hitler’s authority, the legitimacy of the Nazi regime, and the hundreds of laws that restricted political freedoms, civil rights, and guarantees of property and security. And yet the overwhelming majority did not. Instead, over the 12 years of Nazi rule, during which time judges heard countless cases, most not only upheld the law but interpreted it in broad and far-reaching ways that facilitated, rather than hindered, the Nazis’ ability to carry out their agenda.

Nazi Germany is, of course, a thing of the past. But there are lessons to be learned from here. Judges, prosecutors and lawyers do not operate in a vacuum. They are human beings with beliefs, biases and opinions, which do play a role in the work of the judiciary at any country. The US judge and legal scholar Richard Posner argued after the 9/11 attacks that judges should go with the times and prioritise security over liberty:

If it is true, therefore, as it appears to be at this writing, that the events of September 11 have revealed the United States to be in much greater jeopardy from international terrorism than had previously been believed—have revealed it to be threatened by a diffuse, shadowy enemy that must be fought with police measures as well as military force—it stands to reason that our civil liberties will be curtailed. They should be curtailed, to the extent that the benefits in greater security outweigh the costs in reduced liberty. All that can reasonably be asked of the responsible legislative and judicial officials is that they weigh the costs as carefully as the benefits.

Even though I strongly disagree with the position stated above, at least these issues are discussed in the United States. In Estonia, we do have a mostly impartial judiciary according to international standards, but there has not been much discussion about the influence of the authoritarian Soviet legacy among the legal community and the impact of the prevailing conservative legal thinking due to the prevalence of legal positivism as well as the conformism and groupthink which stems from common educational background and the domination of a single law school. Such debates might turn out to be useful.

However, I also think it is equally important that the critics of the criminal justice system learn from the past and do not antagonise lawyers, as a part of the Centre party and some supporters of Kaur Kender or more lenient approach to prosecution of drug-related crimes seem to want to do, but instead work together to change the system to be more fair. It is important to learn from the past and, most of all, encourage independent, out-of-the-box thinking among lawyers as well as cultivate pluralism among legal education in Estonia. This is not only in the interests of better protection of the right to fair trial, but also for the safeguarding of the constitutional order, democracy and all other human rights.

Further reading:


Why A Chairman’s Tale matters

Posted: April 14th, 2016 | Author: | Filed under: cool, diversity, Estonia, human rights | No Comments »

Today, an exhibition entitled “Not Suitable for Work. A Chairman’s Tale” opens in Tallinn. It is a remarkable and important work which details the life story of a gay man living in Soviet Estonia. Added significance is that the exhibition is displayed at the Estonian Museum of Occupations, which is a museum dedicated not to careers or professions, but the military occupations of Estonia during and subsequent to World War II.

The oppression of totalitarian regimes against minorities is a well-known fact, but repression against gays, lesbians, bisexual and transgender people and other such minorities has not received similar attention as against other groups. This is due to the fact that discrimination and violence against LGBTQI+ people has occurred and continues to exist in even the most democratic and progressive countries. It was only in 2009, 55 years after his death that the UK Prime Minister Gordon Brown apologised for the prosecution and chemical castration of Alan Turing, the father of computers, for being gay. Many people who were prosecuted like this all over the world have yet to receive an apology or any compensation. A memorial to homosexuals persecuted during Nazism was only opened in Berlin in 2008, although it was known before that Jews were not the only group that suffered at the hands of the Third Reich. The first groups of people sent to die in the concentration camps were actually people with disabilities.

It is essential for the fight against intolerance based on sexual orientation and gender equality that past injustices do not stay covered up. Remembering violence and discrimination helps to prevent it from happening again. It is also important to recognise that such minorities have always existed even though history books do not tell about them. When discussing the Soviet period in Estonia, too little focus has been placed on the situation of minorities such as LGBTIQ+ people.

Therefore the Estonian society has to be grateful to Jaanus Samma and his team for shedding light to this aspect of Soviet era and help us to understand this period better. Hopefully there will be more people like him who will expand the so far very incomplete knowledge about the history of gay and lesbian, bisexual and transgender Estonia and Estonians, which will be useful not only to us, but also for generations to come.


On Untitled12

Posted: February 13th, 2016 | Author: | Filed under: Estonia, human rights, things that suck, thoughts | No Comments »

In Estonia, the controversial author Kaur Kender has published a piece of transgressive literature at nihilist.fm, a free-for-all alternative publishing platform that he himself has helped to create. The Untitled12 story depicts the character’s gradual loss of humanity and includes vile and depraved sexual acts, including against a minor. The publication of the work has resulted in the author being the subject of criminal trial, which has divided the public opinion.

The more traditionalist-conservative people seem to enjoy with glee that a subversive counterculture figure who criticises the status quo, existing hierarchies of power and stagnation of Estonian culture has finally received punishment. They see him as a symbol of a wider threat to nativist culture, Estonian language, to bourgeois living. For them, he is an outsider who is interested in ‘foreign’ rap music and who refuses to conform with the safe, static mainstream of the small Estonian cultural circles. Because he cannot be easily marginalised otherwise, he has to be dealt with some other way: boycotted or possibly put into jail.

Putting Kender to trial seems intuitively wrong to any person who has grown up with liberal democratic ideals. Tolerance of publications that shock, disturb and insult other people is a part of the bedrock of freedom of expression. It would be hollow and meaningless if only conformist mainstream expressions that everyone agrees with are allowed. Indeed, freedom of expression can only be limited if it incites violence against minorities. Even then, books and other forms of artistic expression require from states to meet a much higher burden than other types of expression.

Artists usually occupy spaces in the margins of the society, because they create original works that challenge the status quo in order to shape the culture in a continuous communication. If those margins were cut off and only conformist works allowed, the culture would wither and die quickly. The government and society needs to accommodate these expressions, even if they go against the most basic moral standards. This case is about morality, and not the abuse of children.

The more liberal part of the elite support the view that the trial is a misguided enterprise and blame the authorities in having a too wide of a interpretation of the criminal code, which puts many other works of art in danger. For them, the eventual vindication of the author would be a statement of Estonia as a liberal country. However, it can also be a Pyrrhic victory.

Hannah Arendt described in the Origins of Totalitarianism the public mood in the 1920s. The ‘anything goes’ roaring twenties were a time of redefinition of morality. She wrote:

arendt3

arendt4

Hopefully we are not re-living the preWWII era, but there are dangerous similarities with the current case. Kender is so effective in his onslaught against moral values that he risks (with considerable help from the prosecutors) that the effect of his work could be the opposite of his intentions. That it trivialises the sexual abuse of children or that it actually helps to bring about more mob-mentality, not less. For the mob that is currently rallying behind extreme right this is a sign that the liberal elites have lost it, because they are defending someone who is so profane and who has written something so vile and unacceptable. The liberal elite may become more amoral in the eyes of the masses.

It is difficult to know how this case ends. The debate around it already shapes the reality and creates unintended consequences. It would have been best for the authorities not to get involved, in which this niche work could have remain just that. Whatever the solution that the justice system comes up with, it seems to be a lose-lose proposition for everyone involved.


Same-sex partnerships in Estonia – state of play

Posted: December 13th, 2015 | Author: | Filed under: Estonia, human rights, politics | No Comments »

On 9 October 2014, the Estonian Parliament narrowly adopted the kooseluseadus (Registered Partnership Act), which enables two persons to register their partnership, regardless of their genders. This means that for the first time in Estonia, people who are gay, lesbian or bisexual can enjoy many of the family related benefits and rights that married couples have (marriage is currently only available for different-sex couples).

However, due to concerns that an absolute majority of the parliament (i.e. 51 votes for out of 101 members) was not reachable at that time, those provisions which required an absolute majority along with implementation related changes to other laws were not included in the adopted law. According to the Estonian Constitution, certain areas of regulation need to have an absolute majority, in this case matters related to court proceedings and registers, as well as citizenship issues were the ones which required 51 votes for. The partnership law indeed passed last year with a simple majority of 40 votes for and 38 against, but the matter of passing the implementing acts was delayed until after the parliamentary elections in March this year.

When the implementing acts were initiated by 38 members of the parliament mid-October, they only narrowly stayed in the legislative process after the first reading on 25 November 2015 with 41 MPs voting for and 42 against dropping the implementing acts from the Parliament’s agenda.

Based on the vote in the first reading, here are the positions of different parliamentary factions on the law:

Supporters:

  • Reform Party (30 seats in the Parliament, right-liberal, EU level affiliation ALDE): supports the adoption of implementing laws, but has left the vote open in the Parliament, 25 MPs voted for the acts to stay in the process, 3 did not vote, 2 were not present. Has not taken the lead role as it is also mindful of the position of the coalition partner IRL.
  • Social Democratic Party (15 seats, centre-left, EU level affiliation S&D Group): has been the foremost supporter of registered partnerships and considers it an important issue. In coalition government with Reform Party and IRL. All of its MPs voted for the implementing acts to stay in the legislative pipeline.

Against:

  • IRL (14 seats, centre-right, EU level affiliation EPP): is mostly against, as it blames its loss of 9 seats in the last elections on not standing against the act strongly enough in the previous composition of the parliament. Allowed its MPs to vote freely, and one MP voted with the supporters of the act (11 voted against, 2 did not vote). In coalition government with Reform Party and Social Democrats, currently polling as least popular of all the parties in parliament, with single-digit support.
  • EKRE (7 seats, far right): considers opposition to gay partnerships one of the reasons for its electoral success, aims to use it to gain further support. All members voted against the implementing acts.

In between, but leaning against:

  • Centre Party (27 seats, centrist, EU level affiliation ALDE): mired in internal power struggles and corruption court cases, as well as long-term marginalisation by other mainstream parties, they have not had a consistent position on the law and also allowed a free vote. Its electorate Estonian Russians are more socially conservative than average Estonians. 16 MPs voted against the law, 6 did not vote and 5 were not present.
  • Estonian Free Party (8 seats, conservative?, new party): still looking for a place in the political spectrum, the party proposed its own watered-down proposal that would only apply to same-sex partnerships. 7 members opposed the implementing acts, 1 voted for them to stay in consideration.

In order to obstruct the process of adopting the implementing legislation before the Registered Partnership Act is due to become in force on 1 January 2016, EKRE and Free Party proposed more than 300 amendments to the law. Most of the amendments are meaningless or repetitive and serve the purpose of delaying the discussion of the law. The Legal Affairs Committee of the Parliament was not able to go through all of them so the implementing legislation is not adopted this year and an unpredictable legal limbo has developed.

What has lead to this?

The adoption of the partnership act as well as its implementing acts have not followed the usual route of legislative process. The governing coalition government has not put its full weights behind the law and its implementation; it has been introduced most irregularly by MPs themselves. The issue was omitted from the coalition agreement and the law is one of the points of contention among the coalition partners. The Reform Party has taken a passive approach, preferring to work behind the scenes and not make the passing of the implementing legislation their priority, in fear of losing the support of more conservative elderly voters.

The results of the parliamentary elections meant the addition of two new parties to the parliament is a factor, because electoral volatility could be one of the reasons of less progressive stances on the issue (see Pelz). The conservative vote was essentially split into three, with IRL, Free Party and EKRE all fighting in a crowded conservative space. This makes it more difficult to agree on a compromise. EKRE sees their vocal opposition to the law a chance to gather support for themselves so they have nothing to gain from any kind of compromise.

A longer analysis of the whole process could also be interesting, because the communication decisions made at the introduction of the law (trying to downplay the same-sex part of the act), not having clear and persuasive messages, not sufficiently involving the LGBTI community or other NGOs have all contributed to the situation as it is. The powerful and well-funded counter-campaign by conservative-religious activists and lack of resources and strategy of supporting activists, have also had a considerable impact to how the issues have been framed.

What happens now?

There are several options after the Registered Partnership Act comes into effect in Estonia on 1 January 2016 (i.e. in less than three weeks). As there are no implementing acts, there is going to be considerable confusion initially, but Estonian officials are surely creative enough to be able to find ways how to implement parts of the law without having the implementing legislation (i.e. the notaries will be able to register the partnerships), at least if there is enough will to do it. If there are hiccups in some aspects, these will probably solved in courts or by some ad hoc solution, but there is a strong likelihood that some things remain in a serious legal limbo. In terms of legislation, there are the following options:

  1. Only those implementing acts will be adopted early next year which require a simple majority. This is at the moment the most likely outcome, which leaves some of the more important issues (like intra-partnership adoption) to be fought for in courts unless an alternative solution is found. The changes that need to be made will remain for future consideration.
  2. The implementing acts will not be adopted at all. This means a lot more uncertainty than option 1 (and also more options for court cases).
  3. The implementing acts will be adopted in full. In this case most issues will be solved and the topic will not be returned to until and if there is interest in making marriage gender-neutral, which would not  probably be in the near future.

Could the whole partnership act be annulled?

The Registered Partnership Act cannot be lawfully annulled by the Parliament. Although there are a number of MPs working to annul the act, they do not have enough votes to do it. Even if they did, this would be a breach of the European Convention of Human Rights. It is one thing if the state is not making a positive step of granting same-sex couples equal rights, but a whole another thing if the state deprives those couples of the rights that they already have from 1 January 2016. ECHR case law is quite clear on this and because its jurisprudence is part of Estonian constitutional law, the annulment of the Registered Partnership Act would be clearly unconstitutional. Thus the President would not confirm such an annulment and if there is a referral to the Supreme Court, it would simply confirm the ECHR case law so that the law cannot be annulled.

The only constitutional option to get rid of registered partnerships now is to open up marriage, which in Estonia is a secular institution and constitutionally not limited to a man and a woman (as it is in many other Central and Eastern European states) or offer another, equally good or better solution (which is why a watered down version cannot work as a compromise). In that case, registered partnerships could be slowly phased out (i.e. people could choose to convert them to marriage and no new partnerships would be registered). There is some support for that option, but it is not clear how serious it is. It would surely be pragmatically the best way out of the whole situation.

Further reading:

Overview of the Civil Partnership Act at Estonian Human Rights Centre website.

Full text of the Civil Partnership Act in English.

Pelz, Michael. “Europeanization, Party Systems, and LGBT Rights: The Cases of Estonia, Latvia, Montenegro, and Serbia.”


The End of Mass Surveillance?

Posted: October 21st, 2015 | Author: | Filed under: human rights, politics, privacy, technology, thoughts | No Comments »

Mass surveillance, introduced hastily under the pretence of guaranteeing security, is hopefully seeing the beginning of its end in many countries. A perfect example of technological step forward that was made because we could, but actually should not have, mass surveillance was set back only after several protracted legal battles in Europe. It was also an attempt by some to fundamentally reconfigure the relationship between the state and the individual (because without privacy there can be no constitutional democracy, no free elections, no freedom of speech, no human dignity).

The Court of Justice of the European Union (CJEU) showed in several decisions that privacy as a fundamental right is here to stay. The Court started with the quite unprecedented nullification of the Data Retention Directive (Joined Cases C-293/12 and C‑594/12 Digital Rights Ireland) in April 2014:

As regards the necessity for the retention of data required by Directive 2006/24, it must be held that the fight against serious crime, in particular against organised crime and terrorism, is indeed of the utmost importance in order to ensure public security and its effectiveness may depend to a great extent on the use of modern investigation techniques. However, such an objective of general interest, however fundamental it may be, does not, in itself, justify a retention measure such as that established by Directive 2006/24 being considered to be necessary for the purpose of that fight.

As for the question of whether the interference caused by Directive 2006/24 is limited to what is strictly necessary, it should be observed that, in accordance with Article 3 read in conjunction with Article 5(1) of that directive, the directive requires the retention of all traffic data concerning fixed telephony, mobile telephony, Internet access, Internet e-mail and Internet telephony. It therefore applies to all means of electronic communication, the use of which is very widespread and of growing importance in people’s everyday lives. Furthermore, in accordance with Article 3 of Directive 2006/24, the directive covers all subscribers and registered users. It therefore entails an interference with the fundamental rights of practically the entire European population.

It then continued just one month later to establish a strong pro-privacy stance in the Google Spain decision (C-131/12) in which it established “the right to be forgotten” and forced Google to remove certain search results if people legitimately request it.

The latest blow to mass surveillance came earlier this month, when the CJEU declared the EU-US Safe Harbor arrangement void in the Schrems case (C-362/14). Safe Harbor had been used by many US corporations to process the personal data of EU citizens as the US itself lacks as strong privacy laws as the EU requires (which are the toughest in the world). The case, which was brought by Austrian student and privacy activist Maximilian Schrems against the Irish data protection body for their reluctance to take on Facebook resulted in the CJEU stepping in an declaring the whole Safe Harbor arrangement invalid [1].

Apple, Google, Facebook, Microsoft and a lot of others have all been impacted and have made alternative arrangements. Many of them have come out in the support of stronger privacy rights. Microsoft Chief Legal Counsel Brad Smith writes:

But privacy rights cannot endure if they change every time data moves from one location to another. Individuals should not lose their fundamental rights simply because their personal information crosses a border. While never stated quite this directly, this principle underlies every aspect of the European Court’s decision, and it makes sense.

Add to this the daily reality that personal data is often moved not by individuals, but by companies and governments. Typically, individuals are not even aware of where their information is being moved or stored. It is untenable to expect people to rely on a notion of privacy protection that changes every time someone else moves their information around. No fundamental right can rest on such a shaky foundation.[2]

Apple CEO Tim Cook has explained their approach to privacy:

We do think that people want us to help them keep their lives private. We see that privacy is a fundamental human right that people have. We are going to do everything that we can to help maintain that trust. …

Our view on this comes from a values point of view, not from a commercial interest point of view. Our values are that we do think that people have a right to privacy. And that our customers are not our products. We don’t collect a lot of your data and understand every detail about your life. That’s just not the business that we are in.[3]

Cook’s mentioning that “our customers are not our products” is a dig against Alphabet (formerly known as Google) and, of course, Facebook, which are the companies that have built a huge business by enticing a big part of the world’s population to trust them with their private data. Those companies are the ones with the most to lose from the resurrection of the right to privacy. Facebook is already grasping at straws by claiming somehow that better privacy protections endanger the security of users[4]. Google has in the past tried to undermine the privacy concerns against it by riding the freedom of information horse, but has recently also started to take things more seriously as it understands that its business model is threatened. Google’s SVP Rachel Whetstone even offered a rare mea culpa early this year at a speech in Bavaria:

Finally, let me turn to privacy. I want to start by making clear Google hasn’t always got this right. It’s not just about the errors we have made–with products like Buzz or the mistaken collection of WiFi data–but about our attitude too. These have been lessons learned the hard way. But as our swift implementation of the Right to be Forgotten has shown, they are indeed lessons we have learned. [5]

There are plenty of politicians, (security) officials, companies and others who took the decision to ignore the right to privacy and contributed to the creation and utilisation of mass surveillance which has resulted in probably the most large-scale infringement of human rights so far in history. Meanwhile this cost has had no significant benefits: it has not made anyone safer or prevented crimes and even if it did manage to prevent some in the future, it would not be close to the worth the cost to our values, democracy, society and economy.

While it may have seemed to some (including Estonian president and chief tech evangelist Toomas Hendrik Ilves [6]) that so-called Little Sister (i.e. private businesses) is more dangerous to privacy than Big Brother, then now they have been proven wrong. Preserving privacy in the digital age is as much in the interests of tech companies as it is for the consumers and it is still the governments that we should be most worried about. The fight will continue, but in more balanced way because there is more awareness of the cost of mass surveillance. There are a number of court cases pending and there are stronger and stronger voices globally that something has to be done in order to guarantee better privacy protections for everyone.

Thankfully there are those who have dared to start this fight against great pressures. Edward Snowden of course, along with Glenn Greenwald, the Guardian and others deserve thanks from all of humanity for what they did at great personal cost. But we also should be very thankful to the judges who have done their job and used their powers for good. They have proven themselves as the last bastions of rule of law, democracy and human rights (even of our political leaders terribly failed us) and saved us from immediate privacy dystopia. We should all thank them and the people and organisations who brought the cases and continue to do so. They are heroes who have helped and continue to help to nudge humankind to a better future.

Post scriptum: My own small contribution to the fight against mass surveillance was the application I submitted to the Chancellor of Justice (the only independent constitutional rights watchdog) in Estonia to check whether mass telecommunications data retention is unconstitutional (as this was introduced resulting from the now invalid data retention directive). After long deliberations, the Chancellor sadly did not think that data retention is necessarily illegal, but nevertheless considered that privacy safeguards need to be strengthened and requested that the Ministry of Justice conduct a comprehensive analysis of the legislation. See her opinion here (in Estonian).

Further reading:

  1. Behind the European Privacy Ruling That’s Confounding Silicon Valley, New York Times, 9 October 2015.
  2. Smith, Brad. The collapse of the US-EU Safe Harbor: Solving the new privacy Rubik’s Cube, Microsoft on the Issues, 20 October 2015.
  3. Apple CEO Tim Cook: ‘Privacy Is A Fundamental Human Right’, Interview on NPR, 1 October 2015.
  4. Facebook Goes On Privacy Offensive in Europe, WSJ, 13 October 2015.
  5. Whetstone, Rachel. Privacy, security, surveillance: getting it right is important, Google Europe blog, 13 February 2015.
  6. President Ilves: we should worry about the “little sister” instead of the “big brother”

The uniqueness of Yogyakarta

Posted: September 18th, 2015 | Author: | Filed under: cool, diversity, human rights, thoughts, travel | No Comments »

I have just returned from a brief trip to Yogyakarta, Indonesia (better known as Jogja locally), which was interesting in many ways.

First of all, for governance scholars Jogja is quite unique because the Yogyakarta special administrative region is governed by the Sultan of Yogyakarta who is both the hereditary monarch and an executive governor like other heads of regions. During colonial times, the Dutch agreed to have self-government by the Sultan and at the independence of Indonesia it was agreed that the Sultan could continue on as a regional governor. After controversially not appointed as the governor in 1998, the current Sultan, His Majesty Sri Sultan Hamengkubuwono X was democratically elected as governor in 1998 and in 2012 the Indonesian parliament passed a law that the Sultan of Yogyakarta would also inherit the position of the governor. One can say that this is not democratic, but if the Sultan continues to have output legitimacy based on superior performance, then why to bother with the instability, hassle and cost of elections and adopt a wider concept of democratic governance? It is a credit to the Indonesian system that such traditional governance system can exist within a democratic, predominantly muslim country.

Secondly, Jogja is the centre of education and Javanese/Buddhist/Hindu culture and history. This means a lot of students which creates a special kind of liberal vibrance and a relaxed peaceful atmosphere unlike some of the bigger cities. It is also diverse city and one of the most liberal Muslim cities as the Muslim faith and tradition is mixed with ancient Javanese traditions and Hindu and Buddhist legacies. The flexibility of Islam in accommodating and facilitating other religions side by side is very visible and real in Indonesia (which is also the world’s largest Muslim country) and other countries in South East Asia, including also Malaysia.

My previous knowledge of the place was only based on the Yogyakarta Principles, which were adopted in the meeting of international human rights experts at Gadjah Mada University and which formed the second part of an exhibit on LGBTI tolerance which we brought to Estonia from Poland (see the online gallery).