We need to talk about lawyers

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.

The President of Exclusion

This year, Estonia will get a new president. This position is largely ceremonial, with very few executive or legislative powers except the possibility to block the proclamation of laws which do not conform to the Constitution. Despite this, the position of the president is seen as in an important symbolic role for the elites, mostly due to the persons that have fulfilled this before.

The current president Toomas Hendrik Ilves has been a liberal moderniser, supporting publicly same-sex partnerships and acceptance of refugees, which are not popular positions. His profile has been more to give voice to Estonia (and himself) abroad and has achieved a lot. This means he is seen favorably by the liberal elites, as well as future minded technologists. For others, his last few years have been overshadowed by his private life.

The president of Estonia is also weak in terms of democratic legitimacy. He is elected by a supermajority of the parliament, which is usually difficult to achieve, or, failing that, an ad hoc electoral body which includes also representatives of local governments in addition to members of parliament.

The institution also carries historical baggage. The first president of Estonia was Konstantin Päts,  who in 1934 overthrew the existing constitutional order and established authoritarian rule. In 1938 he was ‘elected’ president, being the only candidate, because only three state institutions were able to nominate a candidate (these all nominated him) and all political parties were banned. After WWII Estonia had fallen under Soviet Union rule and when it became independent again, the institution of the President was re-established, but this time having totally different powers.

The biggest issue with the legitimacy of the institution relates to that fact that president can only be someone who was born Estonian citizen, i.e. at least one of her or his parents should have Estonian citizenship. This means that current president Toomas Hendrik Ilves qualifies, even though he had been born in Stockholm, educated and brought up in the United States and had not lived in Estonia until he was 40 years old. He also had US citizenship until 1993.

Compare this to one of the more popular Estonian Russian politicians Yana Toom, who was born in Soviet Estonia and has lived in Estonia all her life. Her parents had moved to Estonia during the Soviet era and thus she did not get Estonian citizenship until 2006, when she received it for special services to the Estonian state (most Russians have the option to naturalise, but some have also taken Russian citizenship or remained stateless). In the European Parliament elections in 2014 she was the fourth most popular candidate and was elected as the first Estonian Russian MEP. Unlike Toomas Hendrik Ilves, she will never be able to run for president according to the Constitution, as cannot any other naturalised citizens who are predominantly Estonian Russians, which is ca 16% of the citizens (many more Russians who have been born in Estonia do not have Estonian citizenship, i.e. are either stateless or have Russian citizenship).

The president is the only state institution in Estonia which has this requirement, and this requirement did not exist the 1938 Constitution. It is, however, not the only distinction between Estonian citizens who were those at birth and those who have been naturalised. The citizenship of those who have been naturalised can be taken away in certain situations, which leaves them in position that is vulnerable and produces instability.

It is difficult for me to imagine how it must feel like to be born and live all your life in a country and be denied the right to run for the position of the president just because you happen to belong to a minority. It seems an injustice to me. So even though I generally agree with the liberal stance of the current president, the injustice in who gets to be president taints the whole institution and undermines its legitimacy.

P.S. Yes, there are similar limitations in the US (which some people exploit to question the suitability and discredit presidential candidates), but in the US the system of citizenship is different. Anyone born in the US gets automatic US citizenship. Even so, I also think that the US limitation is unfair and goes against what the US stands for. President Schwarzenegger could have been great.

2015 in review

Here are my personal, highly subjective best of 2015 awards as a fun way of rounding up the year. Mostly meaning impact, but also subjective taste (for entertainment stuff).

Politics (European and global/western)

Politician of the year: Federica Mogherini – for her leadership during the refugee crisis and Iran negotiations.
Runners-up: Angela Merkel (for her response to the refugee crisis), Justin Trudeau (for offering hope that a new kind of politics is possible), Barack Obama (for not screwing up too much, Cuba policy, Iran, etc). Promising potential: Jeremy Corbyn, Bernie Sanders.

Political event of the year: The refugee resettlement proposal, which re-ignited discussions about the identity of Europe and brought much-needed refugee issue to the forefront.
Runner-up: Eurocrisis

Politics (Estonian)

Politician of the year: Taavi Rõivas – PM proved much more resilient and smart than anyone had expected, leading the Reform Party to electoral victory and successfully forming a government later. Adept at avoiding controversies, Merkel-style.
Runners-up: Jevgeni Ossinovski – for re-energising the social democrats, Edgar Savisaar – Tallinn mayor held onto power amid great personal, legal and political turmoil.

Political event of the year: Parliamentary elections in Estonia
Runner-up: Refugee crisis.

Law

Court judgment of the year: C-362/14 Schrems (CJEU) – huge impact all over the world for invalidating US Safe Harbour agreement, establishing further protections of privacy.
Runners-up:  Obergefell v. Hodges (SCOTUS), Delfi v. Estonia (ECtHR)

Movies

Best movie: Bridge of Spies
Runners-up: Star Wars: The Force Awakens, The Walk
Disappointment of the year: Spectre
Worst film of the year: Chappie

TV

Best TV series: American Horror Story: Hotel
Runners-up: Empire, Veep, Cucumber

Games (Mac, iOS)
Note: I have played very few proper video games this year. Need to get a PS4.

Game of the year: Cities: Skylines
Runners-up: Prison Architect

Music

Artist of the year: Justin Bieber
Runners-up: The Weeknd, Troye Sivan

Happy new year! 2016 awaits.

Same-sex partnerships in Estonia – state of play

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?

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”

Estonian democracy in 2015: reflections on parliamentary elections

Estonia has progressed remarkably since 1991 in introducing democratic changes and adopting international standards. In recent years, however, progress has been slow and there is growing danger of erosion of democratic practices. This is worrying, especially in times of economic uncertainty and growing international tensions.

The basis of any representative liberal democracy are free and fair elections. The latest parliamentary elections took place on 1 March 2015 and on 29 May the OSCE/ODIHR election monitoring mission issued their final report. The report received no media coverage and raised no discussions in Estonia, although the conclusions paint a not so positive picture of representative democracy in Estonia. The missionwas limited only to three areas: internet voting, campaign finance and participation of national minorities.

Internet voting

Estonia has built an international reputation for its Internet voting system, which amounted to about 30% of the votes cast. However, a detailed examination by OSCE/ODIHR experts shows a lack of transparency, formalisation of procedures and other significant problems that continue to be ignored by Estonia when it comes to Internet voting. Surely, Internet voting system, if used, should be better regulated and more secure than regular elections, not vice versa.

One of the problem is the lack of transparency of the work of the newly created electronic voting committee, to which there are no formal qualification criteria of membership. In essence, an aspiring dictator could influence the appointments made there and there are very little ways how to ensure that the EVC is independent and balanced.

There is also very little formalisation of the organisation of Internet voting: there are no deadlines or formal procedures related to software development, testing and updates. Shockingly, there is also no backup plans in case a catastrophic event occurs at the server location, which could disrupt voting and cause a significant loss of votes (basically the votes given after the daily backup to a CD; there is no mirroring to another location for example).

There is no end-to-end certification of the system by an independent body, the full audit reports that cover only parts of the system are not made public.  There is still also no end-to-end verifiability of the vote without losing the secrecy of the vote, which means that there is no way to check whether the votes were allocated to the candidate that the person intended to vote for.

The problems with Internet voting are such that still, Estonia remains the only country to use it in an election where the stakes are so high (i.e. main parliamentary elections). Even in a more developed democracy, such system would be problematic on a technical level as the risks are too high, but it seems ill-advised to use it in the form it is today in a country which has only a short record of democracy. Perhaps the reason why Estonia has been able to get away with this, is not because Estonia is so advanced technologically, but because it is not so advanced in terms of democratic practices and respect for the right to vote.

Political party and campaign finance

In terms of party and campaign finances, some progress has been made. However, the report has some good recommendations in it:

• the limitation of how much can a single person donate in a year,
• better regulation of how and when public funds during the campaign period,
• reporting requirements by third parties (applicable for example to anti-gay lobby groups which promoted specific candidates),
• allow the national election committee, rather than police, to judge on what constitutes outdoor political advertising.

Significantly, the report maintains that the ban on outdoor advertising is not working and thus restricts freedom of expression. The report observes that the justification of the ban by the Supreme Court did not hold up:

The report also included some comments regarding the Political Party Finance Supervision Committee (disclosure: I am an alternate member of the Committee appointed by the Chancellor of Justice). The Committee could be influenced as the members do not have tenure and none of the members work full time there. The Committee is also hobbled by lack of resources and investigative powers.

Participation by national minorities

The political participation by the large ethnic Russian minority (ca 25% of the population) continues to be a great challenge for Estonia. The election observers noted that, except for two parties, less than 10% of the candidates were from a minority background. They also expressed concern that election-related official information was only available in the Estonian language, and not in Russian or English. This was also true of the electronic voting interface, which could account for the low level of Internet votes in the predominantly Russian-speaking areas.

The ca 85 000 stateless people living in Estonia continue to lack basic political rights, such as the freedom of association, because they are not allowed to belong to a political party (although they could donate money to them). The OSCE/ODIHR team recommends to step up efforts of naturalisation of stateless people in order to give them basic suffrage rights. However, Estonia’s citizenship policies are among the most restrictive in Europe, and there seems to be no political will to change this, so this issue will stay for a long time.

Conclusion

The state of Estonian elections, based on the three themes that were covered by the OSCE/ODIHR report leaves a lot of room for improvements. It should be noted that the report did not cover other topics, such as the restriction of the right to vote for prisoners and other ongoing issues. In some areas, such as party finance and certain aspects of Internet voting, gradual improvements are possible, if there is willingness on the side of the Estonian authorities to consider these. However, in the area of national minorities and also major aspects of Internet voting, there are larger things in play. In terms of national minorities only a fundamental rethink of the citizenship policies would eliminate the issues and enhance the political participation of minorities. In the area of Internet voting, which is more of a PR project of the Estonian state, a mindset change in the attitudes towards technology and constructive criticism of e-Stonia needs to take place.

The right to vote is a basic and fundamental human right. One can question whether the continued limitation of suffrage to exclude a part of the Russian minority population from political participation and usage of a somewhat flawed and risky Internet voting system primarily for international image-building purposes is compatible with the preservation and strengthening of that human right.

Read:

Final Report of the OSCE/ODIHR Election Expert Team on Parliamentary Elections in Estonia on 1 March 2015

The danger posed by the far right in the Estonian Parliament

Last Sunday’s parliamentary elections resulted in a far right party Eesti Konservatiivne Rahvaerakond (EKRE) winning 7 seats in the 101 member Estonian parliament. Soon after the win, several scandals have rocked the party, as their record and previous statements are being analysed by the media, bringing out extreme views ranging from questioning the numbers of Jews killed in the Holocaust to discussions about positive sides of German Nazi politics. It appears that at least one of their campaign promises is mirrors one from that era. Aro Velmet has analysed why the media, analysts and other parties did not want to know or care about this before.

It would be easy to explain the success of EKRE as a counter-reaction to entrenched liberal democractic values or opposition of the same-sex partnership law by a vocal, frustrated minority that has failed to keep up with the times and adopt European values, but that does not tell the whole story (or explain why there are so many relatively successful young people involved). I use Cas Mudde’s framework to show that EKRE is much more mainstream (and thus dangerous) than the simplistic explanations show.

The ideological underpinnings of EKRE are fairly standard far right stuff: a mixture of nativism, authoritarianism and populism. Nativism plays an important role for EKRE, their leaders have emphasised time and again that they believe that people who belong to one ethnic group should live in their own land with their nation and not somewhere else. Nativism is a rather mainstream way of thinking in Estonia because of historical traumas, and many parties exploit it in one way or the other (but not as forcefully as EKRE). Authoritarinism is present in their election manifesto in which they strive to fight with “anti-state activities” and populism is embodied in their anti-establishment rhetoric, arguing that the “homogenuous will of the people” should override “undemocratic” institutional constraints or constitutional protections for minorities (most clearly evidenced by the demand to hold a referendum on same-sex partnership regulation). Each of these ideologies hold wide support in Estonia, which means that ideologically EKRE lands on a fertile ground and has considerable potential to grow.

In terms of nativist attitudes of the public, it is not a secret that tolerance towards people with a migrant background is low in Estonia. Even though Estonia gets the least number of asylum applicants in the EU (ca 100), public opinion surveys show that people perceive immigration as a threat to the Estonian nation. Strict citizenship and naturalisation policies have resulted in low integration rates for the ethnic Russians that make up ca 25% of the population. Fuelling ethnic based antagonism is still the main modus operandi of all parties to win votes at elections, depriving people of real free choices. Taking account of all the above, it is clear that nativist attitudes are present in Estonian mainstream.

Authoritarian attitudes are also present, people prefer a strong ruler and would like to regulate the behaviour of others even if it does not concern them. For example, the ban on drinking alcohol in public was quickly reinstated after protests in the media. Also there is wide support for harsh punishments for criminals.

Anti-establishment attitudes are also gaining ground, both because of fatigue with the long-term rule of the Reform party, the disconnect between successful elites and less successful masses. There are low levels of trust of the parliament and government. EKRE probably would have recieved more votes, if the anti-establishment centre-right Free Party had not also taken a lot of the protest vote.

Thus it would be wrong to claim that EKRE represents ideology or attitudes that are shared only by a minority. They gain support by presenting the same basic ideology that is espoused by mainstream parties, but in a purer, more ideological form. They exploit the same basic attitudes, but in more extreme ways.

The scary conclusion is that EKRE still has vast potential in terms of ideology and attitudes; what is holding them back is their lack of professionalism in messaging and internal organisation. Now that they receive funding from the state, they can work on these organisational matters. It is a stark warning for all centrist and mainstream parties that in order to defend liberal democracy, they have to let go of the previous antagonisms and be much more engaged with the public and willing to clearly articulate more value-based messages on issues that are not usually considered important by them.

The mainstream parties should not allow the far right to monopolise divisive issues, because this is what makes them thrive. EKRE was the only party that took up the civil partnership law and made opposition to it into their issue. Not having any other party to challenge them on this issue was the reason they were able to gain support quickly.

Kant and Facebook

This essay was originally written as a final assignment for the State and Governance class I took this Fall.

This essay aims to consider the concept of the autonomous individual and its role in the political philosophy of Immanuel Kant. This applicability of the concept to a world that is changing due to social media is then analysed in parallel with other pressures. Finally, possibilities to uphold individual autonomy in this new context are explored briefly.

Kant’s autonomous individual

Kant believed strongly in the rationality and morality of an individual. In order to be moral one needs to be able to make choices, which is where individual autonomy comes in. If an individual makes a moral choice, only then she can be praised for it (Berlin 1971). Berlin puts it:

“If I choose to do what I do, not because I am free to choose between them, but because I am conditioned to do so, by whatever it may be – by education, by my passions, by the behaviour of my body, by the pressure upon me of my society, by any kind of force, whether the external forces of nature or the forces of nurture or education or, as I say, my own emotions – if I am in fact conditioned, if I am simply an object in nature like stones and animals, who cannot help acting as they do, so that some men are generous because they cannot help being generous and others are mean because they cannot help being mean, how then can praise and blame be rationally used?” (Berlin 1971)

This central tenet of Kant’s political philosophy distinguishes human beings from other animals and objects. Kant believed that human beings as autonomous individuals are able to tell right from wrong, if the time comes for such a decision. The autonomous individual is, in turn, an important cornerstone for Kant’s political philosophy.

This autonomy is not mere right to make choice and decisions, but it is the possibility to make choices without influence of others, without social conditioning. It places value in the individual uniqueness of each person and her dignity. In this way human beings can make moral judgments that are also rational. This also means that human beings are capable of self-government and is the basis behind the formation of constitutions and democratic constitutional republics.

Autonomy and freedom are not the same. Autonomy is a state in which a person can be in whereas freedom can refer to specific actions: it can even mean a choice to reduce one’s personal freedom (Feinberg 1982):

“Where manipulative techniques are used to open a person’s options with his voluntary consent, there is an enlargement of freedom and no violation of autonomy; hence, this is the least troublesome category. A harder case is that in which a person consents to behavior control which closes some options irrevocably for the sake of a good he has come to value more than his freedom. Respect for autonomy requires noninterference with such choices provided they are genuinely voluntary and fully informed. On the other hand, manipulation of a person without his consent in order to close his options restricts freedom and violates autonomy too. This third category is the most obviously impermissible kind of case. The most troublesome and controversial kind of case, in contrast, is that in which a person is manipulated without his consent for the benign purpose of enlarging his future freedom of choice, but even here, the doctrine of personal sovereignty requires that a person’s moral right to govern himself within his sovereign domain be given precedence even over his future defacto freedom.” (Feinberg 1982).

The loss of autonomy has a much more profound impact on an individual than the (temporary) loss of freedom. In the Kantian sense, individual autonomy is an ideal state.

Kant’s political philosophy is the basis of liberal democracy and the current organisation of the world into states as political entities. We live in a Kantian world, with the concept of the Rechtstaat, a constitutional state which is constrained by human rights and the underlying principles of which stem from the moral values and consent of its citizens.

Focusing on the individual, Kant believed in a republican political order and not in direct democracy. He stated: “… that of democracy is, properly speaking, necessarily a despotism, because it establishes an executive power in which “all” decide for or even against one who does not agree; that is, “all,” who are not quite all, decide, and this is a contradiction of the general will with itself and with freedom” (Kant 1795). Thus Kant sided with the individual always, and not with the will of the majority, which he saw as despotism. This is an important distinction that highlights how important Kant considered individual human beings and their autonomy.

Indeed, individual autonomy is a necessary building block from which the Rechtstaat can be built. Autonomous individuals who have an innate understanding of morality choose to associate themselves with others in a political entity in which they agree to be bound by a constitution that reflects those basic moral values. In this state that is based on the principle of Rechtstaat, those individuals retain autonomy and are protected against misuse of power. Other states, which are constructed in the same way, are co-existing peacefully with each other in a global setting.

The Kantian concept of individual autonomy is very much present in John Stuart Mill’s philosphophy, in which he claims it to be “one of the elements of well-being” (Mill 1859). This has been further advanced by Rawls, who considers individual consent essential for his theory of justice (Christman 2014).

Web 2.0

We live in a ICT-centric techno-economic paradigm (Perez 2009). The most powerful technology in this era is the World Wide Web that is changing our society and our behaviour. The Internet was initially text-based and mostly one-way communication in which information was made available on various websites for individual users. Although Web 2.0 is a buzzword that is difficult to define, it is commonly used to denote innovations in websites, including the use of new technologies such as AJAX, social components such as user profiles, friend links and like buttons, user-generated content in different formats (text, video, photos) that also invite comments and ratings (Cormode and Krishnamurthy 2008). The social aspects of Web 2.0 include:

• users as entities in the website system, with individualised profiles that includes information about the user that may be added by the user or other users;
• formation of connections between those users, either individual connections between “friends” or membership of common groups or subscription to information shared by other users (“following”);
• the possibility to add text, photo, video or other content to the site and to content published by other users, with some control of privacy and sharing
• other social features including public APIs that allow third party content to bed fed to other sites or embedded in the site in question, as well as real-time chat features. (Cormode and Krishnamurthy 2008).

The social and “sharing” features have enjoyed considerable success, with social media sites among the most popular on the web. At the time of writing of this paper, there were 1,35 billion daily Facebook users and 323 million daily users of twitter (out of a total of ca 3 billion internet users).  In the United States in January 2014, 74% of all internet users used social networking site of some kind whereas 89% of users aged 18-29 do.

The implications of Web 2.0 and its impact on the protection of privacy has divided experts. According to a recent report by Pew Research Center, experts remain divided over whether there will or will not be a global widely accepted privacy infrastructure in 2025 (Pew Research Center 2014). Those who were more sceptical believed that only a few can protect themselves against “dataveillance”, global agreements are difficult to reach and Internet of Things will make the situation a lot worse. Those who were more optimistic believed that there will be a more tiered approach to privacy and consumers will have new tools to self-manage privacy settings, that there will be a backlash against invasion of privacy. However, experts agreed that revealing personal information to the state and corporations is the new default and that people will adjust their norms to it.

Web 2.0 also has additional implications for democracy in addition to privacy issues, it is questioned whether the existing democratic systems are suitable for the constantly networked young people (Loader et al 2014). Loader reprints Russell Brand’s defence of non-voting:

“I’m not voting out of apathy, I’m not voting out of absolute indifference, and weariness and exhaustion from the lies, treachery, deceit of the political class that has been going on for generations and which has reached fever pitch where we have a disenfranchised, disillusioned, despondent underclass that are not being represented by that political system so voting for it is tacit complicity with that system. And that is not something I’m offering up.” (Loader et al 2014)

 Younger generations might consider representative democracy archaic and “uncool” and thus will be even more disillusioned and uninterested in the existing systems. Although efforts are being made to make voting cool for the connected generation (by introducing e-voting for example), this can have unintended consequences on the overall functioning of the democratic governance system and infringe on the basic safeguards that guarantee against fraud and abuse.

Autonomy and social media

Social media also changes our individual selves, because a person continues to have a singular identity that is the same in both online and offline world (Ess 2015). This means that what happens in social media has changes offline lives as well. In this context, Ess considers that in Western countries there is a shift away from the rational, individual and autonomous individual towards emotive and relational individual that increasingly defines herself through relationships she has with others. This is supported by the changing attitudes towards privacy and (intellectual) property that are no longer exclusive and individual, mainly due to the virtual abundance offered by the internet (Kostakis and Drechsler 2013). At the same time, in Eastern countries there is a shift from relational to a more individual emphasis, which means a kind of convergence in the middle.

The key factor in autonomy is individual privacy. The right to privacy became relevant with the advent of the first mass communication technologies, i.e. photographs in a newspaper (Warren and Brandeis 1890). As a consequence of abuses by totalitarian regimes that took advantage of technologies that allowed for infringement of privacy, a strong framework of laws has been in place that guarantees individual privacy, especially in Europe. In the current era right to privacy is seen by some as unimportant, but it would be more correct to note that the understanding and usage of the right to privacy has transformed. Research has shown a phenomenon that could be described as “partial publicity” or “public privacy” which essential means that privacy has become multilayered and that there are several shades of gray between total publicity and total individual privacy (Ess 2015). A new form of subactivism has been identified occurring in the social media space that “is not about political power in the strict sense, but about personal empowerment seen as the power of the subject to be the person that they want to be in accordance with his or her reflexively chosen moral and political standards.“ (Bakardijeva 2009).

As a consequence of the developments of social media, especially in the sense of loss/transformation of privacy, the Western understanding of self is moving away from individual sense of selfhood (that is essential for an autonomous and rational individual) towards a more relational sense of selfhood (Ess 2015).

The other impact that social media has, is the changes in communication. The (national) public sphere is weakened due to the fragmentation enabled by the web, which is dominated by commercial interests. There is a fragmented public sphere in which people are in their own social bubbles in which they engage in computer-mediated communication using non-neutral algorithms programmed to maximise profit or potentially used for something more sinister.

It is well known that Facebook and other social media sites exploit privacy for commercial gain. The business model relies on individuals using social media and reveal more to others, i.e. “if you are not paying for it, you are the product”.

Jürgen Habermas has stated in an interview with FT:

“The internet generates a centrifugal force, …[i]t releases an ­anarchic wave of highly fragmented circuits of communication that ­infrequently overlap. Of course, the spontaneous and egalitarian nature of unlimited communication can have subversive effects under authoritarian regimes. But the web itself does not produce any public spheres. Its structure is not suited to focusing the attention of a dispersed public of citizens who form opinions simultaneously on the same topics and contributions which have been scrutinised and filtered by experts.”

Seyla Benhabib also sees profound changes in the democratic models induced by new forms of media:

 “The emergence of new media technologies, and new centres of information is leading to everyone doing their “own thing,” so to speak. It’s as if people are going around with bubble wrap around their brains. And inside the bubble wrap is the informational world that they themselves have generated. When we first articulated this model about the interaction of the strong and weak public spheres in the late 1980s and 1990s, many of us were thinking of transformations in Eastern Europe, the emergence of civil society movements, strong women’s movements, ecology and youth movements in the West, and so the model was one of a decentred, weak public sphere of anonymous conversations and networks that would then have some impact on the decisional public sphere. Now, we need to reconsider this model in the light of the complete proliferation of the electronic media and public spheres – the rise of FaceBook; YouTube; community and citizen journalism, etc…”

Thus in an abundance of information and communication options, people are for the first time able to choose for themselves also which spheres to belong to and which to form. Communication no longer knows state and community boundaries, people are no longer bound by their associations in a spatial ways. Also, the former borders of specific ingroups and outgroups are becoming fuzzy and individual identities are becoming blurred as well, which adds to the pressure of relational rather than individual selves, because the latter are not so easy to define any more.

One could imagine a not so distant future in which Facebook and/or its descendants have become even more persuasive than today. Already today, Facebook has shown that it is willing to ethically questionable and possibly illegal social experiments that change the mood of its users. It also already manipulates voting patterns by pushing people to vote by creating peer pressure to go to polls. Thus it is not difficult to imagine that at some point in the not so distant future Facebook could manipulate and nudge users to vote for a particular candidate or political party. For example, it could manipulate its feed algorithms to show more news stories that could make people vote progressive or conservative. As the algorithms are secret, it is not possible to know whether this is already not done.

Currently Facebook already allows paid political advertising. In Estonia, where outdoor political advertising has been banned to improve the quality of democratic debate, an extremely poor decision upheld by an even worse judgment by the Estonian Supreme Court, it is allowed to have banner ads that direct you to the e-voting site where you can vote for your candidate. As social media advertising techniques surely improve, it will be easier than ever to nudge you to vote in the “right” direction, by analysing the commercially available data. You can then be targeted with tailored messages.

The autonomous individual is not only in danger during elections, but social media has also helped to create the conditions to impact the state in other ways.

As social media offers technological tools for bringing together large groups, potentially the whole population, there has been renewed interest towards direct democracy and deliberative democracy. Direct democracy was considered to be despotism by Kant and there is no reason to believe that widespread use of direct democracy would not result in worsening of the status and conditions of minorities. Even when Facebook itself has tried to emply direct democracy methods, it has had to face failure.

Mediacratisation has also been heightened by social media, in which it is much easier to induce moral panics that can be used to force changes in policies or even impact legislative processes. In November 2014, Estonian Minister of Finance resigned due to a arguably Russophobic comment he made on Facebook when commenting there. Even if one agrees that such comment was unacceptable (and I personally do), it shows that politicians are facing new pressures from social media sources, which can organise quickly for or against a specific cause. This could lead to a world of emotional voting which was depicted in the sci-fi TV series “Black Mirror” episode “The Waldo Moment”.

Possibilities for “Facebook Kantianism”

For a Kantian autonomous individual to survive there are several ways to preserve it and keep Facebook too. This requires to regulate Facebook on a global scale, which is difficult, but nevertheless achievable.

If one considers Kantianism as the perseverance of the autonomous individual in a social media setting, then interesting possibilities arise. It partly depends on whether one considers Facebook as a neutral and mechanical platform that simply replicates online the processes that happen offline. However, it seems that Facebook goes far beyond that. The algorithms that define what gets shown to whom are programmed by human beings and even if they try to stay neutral, it is rather impossible to do.

It could be that the solution is the regulation of Facebook according to an understanding of hybrid self (Ess 2015), which means that Kantian autonomy is consciously and deliberately preserved for those purposes which require moral judgment and which have wider political consequences, whereas in other relationships a more relational side prevails. There needs to be some way of delineating these aspects and also regulation that prevents any infringements of the independent side. This means certainly more regulation of Facebook and the likes and an enforceable ban on those activities that intrude on autonomy. Regulation of Facebook is, however, somewhat difficult as it already wields enormous political influence.

Another option would be a move towards cosmopolitan federalism, which would expand the Kantian concept of autonomy beyond the borders of the state. This is supported by the fact that democracy is undergoing a transformation also due to the decoupling of state and citizenship. Nation state is losing its monopoly to trans- and supranational, but also local levels of governance, leading to a growing ideas of globalised governance.

This does not necessarily mean the end of a nation state. Benhabib writes:

“This sketchy vision of cosmopolitan federalism is not based upon a hostility toward the nation-state; quite to the contrary. Only within a framework of sub- and transnational modes of cooperation, representation, and collaboration is it possible to protect the fundamental values of liberal and republican liberty, that is of private and public autonomy.”  (Benhabib 2005).

The fate of the autonomous individual is uncertain. However, if enlightenment values such as human rights, equality and democracy, upon which Western societies have so far prospered and which have managed to maintain a relative level of peace and non-violence in the world, were to be upheld more attention should be diverted towards the impact of social media on the concept. It might be necessary to create global regulation that would ensure that technology does not end up controlling human beings, but human beings continue to have autonomy in the dynamically changing world. There are no reasons why the principles of the Enlightenment could not be equally applied social networking sites. If done properly, this could bring about unprecedented levels of growth, peace and stability, because it is an opportunity to apply those principles not within Rawlsian self-contained nation states, but globally, to all those that are connected.

Tallinn, 6 January 2015

References

Bakardjieva, M. 2009. Subactivism: Lifeworld and politics in the age of the internet. The Information Society 25:91–104.

Benhabib, S. 2005. Borders, Boundaries, and Citizenship. PS: Political Science and Politics 38.4: 673-677.

Berlin, I. 1971. The Assault on the French Enlightenment. Kant and Individual Autonomy. John Danz Lectures, University of Washington, 22, 24 and 25 February 1971. Unpublished, available at: http://berlin.wolf.ox.ac.uk/lists/nachlass/assault2.pdf

Christman, J. 2014. Autonomy in Moral and Political Philosophy. The Stanford Encyclopedia of Philosophy (Winter 2014 Edition), Edward N. Zalta (ed.)

Cormode, G., & Krishnamurthy, B. 2008. Key differences between Web 1.0 and Web 2.0. First Monday, 13(6).

Ess, C. 2015. The Onlife Manifesto: Philosophical Backgrounds, Media Usages, and the Futures of Democracy and Equality. in: The Onlife Manifesto Being Human in a Hyperconnected Era (ed. L. Floridi). Springer

Feinberg, Joel. 1982. Autonomy, Sovereignty, and Privacy: Moral Ideals in the Constitution. Notre Dame L. Rev. 58: 445.

Loader, B., A. Vromen and M. A. Xenos. 2014. The networked young citizen: social media, political participation and civic engagement. Information, Communication & Society, 17:2, 143-150.

Kant, I. 1795. Perpetual Peace: A Philosophical Sketch. 

Kostakis, V. and W. Drechsler. 2013. “Commons-based peer production and artistic expression: Two cases from Greece. New Media & Society

Mill, J. S. 1859. On Individuality, as one of the elements of well-being. On Liberty.

Perez, C. 2009. Technological revolutions and techno-economic paradigms. Working Papers in Technology Governance and Economic Dynamics no. 20

Pew Research Center. 2014. The Future of Privacy. Available at http://www.pewinternet.org/2014/12/18/future-of-privacy/

Warren, S. D. and L. D. Brandeis. 1890. The Right to Privacy. Harvard Law Review, Vol. 4, No. 5 (Dec. 15, 1890), pp. 193-220

Holding on to our values

Terror aims to divide and isolate us. As Hannah Arendt wrote, this is true for the rule of terror in totalitarian regimes, but it is also the aim of fundamentalist extremists today whatever their ideology. They aim to disrupt our lives and frighten us to force us to change our values, beliefs and behaviour. In this fear we already lost our way for a while as evidenced by torture and extrajudicial detention in secret prisons, mass surveillance of everything and everyone, etc.

Instincts and emotions tells us to give in to fear, to blame an entire religion or group of people, to make compromises that should not be made etc.

As rational and moral human beings interested in organising our lives so that we can live peacefully together, we should not give in to those raw emotions and instincts. Instead, we must be even better at adhering to our values of democracy, freedom, pluralism, equality and tolerance.

Human beings are currently living together in an increasingly interdependent and interconnected world, having empathy with other individuals, and their human dignity, because of rational and moral choices people have made, because of the constitutional states and international legal system that we have built up. We are all not born equal, we have decided to organize our lives so as to treat everyone equally, because it is good for us all.

This means that we currently live in the most peaceful, least violent times for the human species. Statistically speaking, in terms of reduction of violence in the world we live in an utopian paradise that could not have been dreamed of even 100 years ago. So lets not let anyone change this and strive to be even better at achieving those values.

The case for investing in human rights in Estonia

Note: The bulk of this post was originally written in November 2014 for publication at an another site, but since it has still not been published, I will publish it now here with minor changes.

My country, Estonia, has changed tremendously in the last decades. In many ways, a lot of progress has been made. Estonia is a member of the EU, NATO and OECD, it ranks among highest in various rankings, including the Press Freedom Index and Freedom Online index.

Estonia has build up a modern and efficient state. There is relatively little open corruption, the state seems very open and transparent and there seems to be no problems with human rights. It is a hotbed for startup and innovation. And there are no hate crimes reported. Estonia seems to be an ideal place to live in many ways.

At the same time the success seems to be largely for show. It is an open question still whether the mechanical and formal reforms have actually made a change in the hearts and minds of people? Has it all been a huge lie, self-deception to live the Western dream? At the latest Estonian Lawyers Days the word self-colonization was used to describe application of European law in Estonia. The state is efficient, but ultimately meaningless, because it holds no values. The same could be said for the business sector or civil society.

What has happened in Hungary is not an exception. It is a rather extreme form of the processes that take place elsewhere, including in Estonia. There is gap between how things are and how things are shown to be. In Estonia, there is a word combination JOKK that means “legally it is all correct”, which is used derisively for business deals that use legal loopholes to make money. It seems that the Estonian state has been built up using the same principle.

In order to integrate to the Western structures which is driven by current fear of Russia and historical experiences, Estonia has had to bow to external forces in the form of conditions and prove itself as worthy of protection. This has resulted in formal, but strict fulfilment of all demands with very little understanding or analysis of what these mean or what is behind those demands.

Because these requirements were set at a time of neo-liberal rule in Western Europe, Estonia became a poster boy of these reforms. The thin state mentality has created a state that is largely irrelevant and cannot do much for economic or social development, its toolbox is rather empty. The state has become a very well-developed machine that has little corruption and is transparent, but does not deliver the growth and progress that it should.

The Estonian state is very good at the outward promotion of Estonian success stories, which mostly deal with technological achievements (Skype, paperless government, e-voting, etc), but not only. Estonia tries to show itself as a beacon of human rights and democracy as well. Many of the technological advancements have been possible not because Estonia is a particularly creative and innovative, but because of the lack of constraints by the state. There is no strongly developed understanding of human rights, which means that e-government solutions that represent a massive possibility for infringement of human rights, are not critically evaluated, but just adopted. In Estonia, there has been no serious and critical discussion about data retention laws and mass surveillance, instead a state infrastructure has been developed that allows the state rather easily to track a lot of things. Likewise, any criticism of the dangers of e-voting is met with derision and accusations of lack of patriotism.

At the same time, civil society has not taken to fulfil its democratic role. Largely dependent on state funding and mostly interested in service provision, there are only very few organisations that engage in advocacy. As the interest of foreign private donors in the region has vaned, these organisations are struggling to find funding in the form of project-based support, which prevents them from working effectively.

So there is a state that is more interested in efficiency of government and not in development of tricky value-based issues that require smarter, inclusive and sometimes unpopular decisions, a mostly irrelevant civil society and a free press that is however struggling with its business model, there is a growing danger towards backsliding in human rights and democracy.

The three main topics of discussion this year in Estonia has been the disability benefits reform that was opposed by most independent disabled people organisations, but adopted nevertheless; the same-sex partnership act, which has been left half-adopted with implementing legislation delayed until after the next elections in March; the creation of the Russian language TV channel to battle Russian propaganda. In these discussions, human rights based arguments have not taken center stage.

Thus, there is still a way to go towards functioning democracy and inclusion of minorities. The reason for the lack of interest in my opinion is the lack of willingness to actually to change something as human rights and democracy are seen as foreign transplants even by many inside the political establishment that are either not really necessary or just a part of a transaction in exchange for access to EU and NATO.

Thus there is an enormous opportunity in Estonia for stable and prosperous development, but this requires a fundamental change of mindset towards recognizing the flaws in terms of human rights and democratic development. This requires a huge investment in human rights and democracy involving the state and citizens, but also genuine political and moral leadership.