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.

A Russian-language TV channel would be a mistake for Estonia

The Estonian public discourse is engulfed in fear and paranoia about Russia, even more so today than usual. This is understandable because of the Russian actions in Ukraine and other countries and because of the large ethnic Russian population living in Estonia. According to the results of the latest census, there are ca 890 000 ethnic Estonians living in Estonia and ca 320 000 ethnic Russians. All other ethnic minorities have smaller numbers.

Many Russians (especially the majority that has either a Russian citizenship or is stateless) have little to no political representation rights, because non-citizens are not allowed to belong to political parties, vote or stand as candidates in the parliamentary elections and stand as candidates in the local elections (they can vote in local elections, however). This was a decision made by the Estonian political elites when Estonia regained its independence, to ensure smooth integration with Western political structures and escape influence of Russia. These decisions made 23 years ago have resulted in fast economic development (at least in terms of neo-liberal model) and membership of EU, NATO and OECD. The cost has been the political disenfranchisement of the ethnic Russian population which has fueled societal segregation and a created a flawed democracy.

Recently, however, the Estonian political elite has become worried that the Russian minority might be used against Estonian territorial integrity in a way similar to what happened in Crimea and is happening in Eastern Ukraine. The prevailing view is that many Estonian Russians watch Russian TV stations and are thus subjected to anti-Western propaganda. Thus it is necessary to offer them a more balanced and objective media channel, which is why the Estonian government decided last week that Estonian public broadcasting ERR will get 4 million euros to create a Russian-language TV channel.

This is fundamentally a wrong decision, albeit a convenient one.

It is a wrong decision because it treats Estonian Russians as objects not subjects and reinforces the idea that they are the problem and their minds need to be changed, very much similar to the employment benefits reform, which also saw the main obstacle for disabled people not working the lack of motivation of people with disabilities. This paternalistic view reinforces the understanding that people are not capable of thinking for themselves, that they can be influenced by propaganda and that it is the governments job to tell people what is right and what is wrong, who is enemy of Estonia and who is not.

It also creates a false impression that there is one ‘objective’ way of looking at things, which can easily lead into propaganda. I mean, if the Estonian government is creating a TV channel, which it says is not to be used for propaganda, then that they even have to mention this makes one doubt the objectivity of it. Coupled with the recent serious discussions on the need for “psychological defense” for Estonia, impartiality on issues of integration seems to be impossible if not intentionally then because of the difficult historical context. This is such a difficult topic for Estonia that wading into it cost Jürgen Ligi his job as the Minister of Finance a few weeks ago.

There are no easy solutions, because all the effective options need more equal treatment of Estonians with Russians, which is more difficult for Estonians to handle, because of historical wrongs perpetrated against Estonians and Estonia.

If I was in charge, this is what I would do to make sure that there is a democratic and independent Estonia:

1. Ensure that any and all instances of discrimination of Russians (and other minorities) in Estonia can receive an adequate legal response, either in employment or in other areas. Investigate in detail where are the more systematic problems (rental market, recruitment) and deal with them. Invest money in this, because this means a more just society that is more stable. The Estonian equality body (Gender Equality and Equal Treatment Commissioner) suffers from chronic lack of funding (it receives annually ca 70 000 euros from the state budget), last year only 2 people turned to the office with complaints based on ethnic or national origin. There are very few cases in courts and employment dispute commissions. This means that there are massive number of unresolved discrimination claims. If we deal with these claims and give access to remedies, the perception of Estonia discriminating against Russians can be easily countered.

2. Ensure that all people that live and intend to continue living in Estonia are part of the Estonian public sphere. This means that there has to be a solution to statelessness and citizenship issues. It is possible to create a radical plan to ensure that in 10 years almost all people who are permanently living in Estonia have (at least) Estonian citizenship. If there is enough time to prepare and everyone knows that it will happen, the political parties will have to be more inclusive or face the loss of the Russian votes to others. Any other solution for integration does not work, because citizenship is fundamental. This means that many more Russians will get a say in Estonian politics, which is more democratic and leads to a better governance on the whole. If Russians are 25% of Estonian people, then this should be also reflected in government, its policies and resource allocation.

3. Spend considerably more on educating all citizens to make up their own minds. The best guarantee of the continuation of Estonian democratic statehood is a citizenry of independent autonomous individuals that are able to make up their own minds. So what is needed is education of people to recognise propaganda, to evaluate and analyse information based on source and strength of argument, to make rational, research-based, not emotional decisions. I see every day that people cannot cope with all the information, they are unable to understand what is authentic and what is astroturfing, many people seem to lack functional reading skills and critical thinking is not appreciated or taught. Media has a key role in this, but not only. This also means that civil society must play a larger role than the state-dependent sideshow it is today.

Thus it is my argument that the Russian-language TV channel is really meant to placate the majority population that something is being done. It will have no impact on the situation or mindset of Estonian Russians, because it conveniently misidentifies the problem, as there is not enough political courage and/or will to do something that has a real impact.

Additional reading:

• Kjetil Duvold: Between Flawed and Full Democracy: 20 Years of Baltic Independence
  
• Peet Kask: Lonkava demokraatia ravi
• Licia Cianetti: Granting Local Voting Rights to Non-Citizens in Estonia and Latvia: The Conundrum of Minority Representation in Two Divided Democracies
• Aleksandr Aidarov and Wolfgang Drechsler: Estonian Russification of non-Russian ethnic minorities in Estonia?

Same-sex partnership debate in Estonia: battle for egalitarian and liberal values

On Wednesday, the Estonian parliament Riigikogu will consider the draft partnership act, which will be gender-neutral. It will thus offer protection of law for same-sex couples and their children as well as different-sex couples who have opted not to get married. It would be the first time* a country that used to be in the Soviet Union would offer recognition for same-sex couples. If passed in the first reading, there will be second reading in September and law will hopefully pass before the end of the year for the law to become in force from 1 January 2015.

The draft law was submitted by 40 Members of Parliament out of 101, belonging to three of the four parties in Riigikogu. The only parliamentary party against this is the conservative IRL, but some prominent members of that party have also supported the law, while some members of the other parties have been against. The government of Estonia has stated that they support the law, although this was not a part of the coalition agreement. In terms of popular support, same-sex partnerships are supported by roughly half of the population while the other half is against, which is not so bad for a country in which homosexual acts were criminal acts 25 years ago.

There are some specific reasons why the window of opportunity exists. In Spring, the government changed in Estonia as a result of preparing for the parliamentary elections next Spring. In order to improve the image of the party, the Reform party switched out their prime minister and their coalition partner: the anti-LGBT IRL was replaced with pro-LGBT Social Democrats. As the partnership act had been in consideration for a long time already, IRL being in government holding it up, the obstacle was removed and the draft was to go forward.

The strategy of those for the law has been remarkably peaceful and quiet. There has been very little coordination and a number of messages have been used by different parties. The members of parliament who have initiated the act, have downplayed the significance of same-sex partnerships, focusing instead on those different-sex couples who live together, but have not married. There are more than 100 000 of these couples as marriage is not particularly popular among Estonians. When LGB angle has been brought up, this has been communicated as a part of Western values that we have to accept unless we want to be under Russian influence. LGB equality has not been among the main arguments brought forward and although there has been a huge number of supporting opinions for the law from various NGOs and groups (such as a feminist Facebook group), there has not been any demonstrations and even the annual Baltic Pride, which took place in Estonia two weeks ago, did not see any substantial controversy (it also lacked the basic Pride march).

Those against same-sex partnerships have been more organised and their messages have been better coordinated. The main antagonists are the Foundation for Protection of Family and Tradition (Sihtasutus Perekonna ja Traditsiooni Kaitseks, SAPTK), headed by Varro Vooglaid, the Estonian Council of Churches and its member organisations and the conservative IRL party as well as the more far-right EKRE party (which is not in the parliament currently). There are also some populist politicians from other parties that have opposed the law.

SAPTK has tried all types of direct and less direct actions to influence and intimidate people as well as parliamentarians, including gathering signatures (they managed to collect more than 40 000, which is considerable for a population of 1,3 million), publishing a booklet called “The Lies of the Homosexual Propaganda”, making weekly videos, organising a Facebook group, mass-emailed all members of parliament, etc. They refuse to publish their sources of funding, and a few years ago their leader Varro Vooglaid was involved with bringing a well-known anti-gay activist Paul Cameron to Estonia.

SAPTK does not make a secret of the fact that it seeks to spread a rather extreme form of traditional catholicism, which is based on the ideology of Plinio Corrêa de Oliveira, a Brasilian intellectual who founded the international movement Tradition, Family and Property (TFP). The basic ideology of Plinio Corrêa de Oliveira is expressed in the book “Revolution and Counterrevolution”, which has been translated to Estonian by SAPTK and which basically sees the protestant reformation, the Enlightenment and French revolution as well as Communism destructive to societal values, calling for a traditionalist counter-revolution to stop egalitarian and liberal developments and re-impose a hierarchical, sacral and austere social order that dates back not decades but centuries. It is somewhat paradoxical how in the least religious country in Europe, a group that follows this kind of fringe ideology has gathered a substantial number of supporters.

The basic arguments used for and against same-sex partnerships are centered around the definition of family. In Estonia family, unlike marriage, is not defined in law and different laws consider families to include different types of families. Following some recent decision of the European Court of Human Rights, the majority of the legal experts in the field (including the Chancellor of Justice) have adopted a view that same-sex couples can enjoy a ‘family life’ and this means that the Estonian Constitution requires that same-sex families must be afforded some kind of legal protection by the state. This argument is based on the prevailing egalitarian and liberal values and laws that the TFP movement tries to fight against.

Therefore, one can say that non-religious Estonia has surprisingly ended up as one of the battlegrounds between two very different ideologies: one that is extremely socially conservative and the other based on the Enlightenment values. Surely one of the reasons why there is a lot of resistance to the draft law is that homophobic attitudes are still present in the society, which SAPTK has successfully channeled to achieve their goals. For some, homophobia has trumped their distrust of organized religion, for others it is really the lack of contact and understanding of who LGBT people are, because there has not been and still is no wide-spread awareness-raising among the majority of people living in Estonia. The natural distrust of government and the extraordinary way that the draft partnership law has been introduced by its proponents, has probably created a more fertile ground for SAPTK. There are no other forces countering their fieldwork, as pro-parternship law NGOs and groups prefer to work on lobbying and not so much in the grassroots level. The only grassroots organising indirectly supporting the law has been a Facebook page called “thank you, but my traditional family does not need protection” that was created a few days ago and already has ca 10 000 followers (compared to less than 4 000 for SAPTK page).

It remains to be seen if the partnership law will be adopted, I think it will be, but there are a number of lessons to learn from what has been happening and for the wider equality debate. It shows that there are still a lot of people who do not consider liberalism in the wider sense and egalitarianism as shared values.  Even though SAPTK may lose this time, the process has radicalised and focused the forces working against the further entrenchment of these liberal and egalitarian values. It should not be taken for granted that everyone in Estonia shares these values and more work should be done to explain why these values are important in the grassroots level, an opportunity that has not been used very well in the context of the debate surrounding the partnership act.

* Currently, limited legal protection is already available in Estonia for same-sex partners of citizens of other EU Member States who are not EU citizens, based on the Citizen of European Union Act.

The end of collective technophilia?

2014 could be the year that a serious shift happened in our attitudes towards technology.  A more critical, perhaps mature attitude seems to be developing, initiated by the Black Swan event created by Snowden revelations, the so-called Snowden effect. Our societies will be better because of it, especially in terms of protection of human rights and democracy.

For a long time, there has been a concern that human rights do not get enough emphasis in our constant drive for better and more efficient living through constant improvement of technology. This has meant that technology has become and end and not means to achieve something.

In Estonia, this is even more prevalent, because the national narrative and international image of the country has been built to depend on technology. The success of e-stonia is seen as source of national pride and international scholars are also usually not focused on such a small country, which prevents any critical analysis of the situation and opens Estonia up to huge vulnerabilities. This perverse view of technology is seen particularly strongly now, when e-voting is touted by the ruling political elite (while one major party is totally against it). This view can be seen for example in the statement by President Ilves: “Minule on e-hääle andmine mitte ainult mugav, aga eelkõige usaldusavaldus maailma ühele paremale IT-süsteemile, usaldusavaldus Eesti riigile.” (“For me, e-voting is not only convenient, but foremost a statement of trust towards one of the world’s best IT-systems, a statement of trust towards the Estonian state”).

Worldwide, the shift to a more reasonable, less hype-filled approach is evidenced by various courts trying to better balance freedom of information and speech with privacy rights and other rights. Freedom of information and speech has seen an unparalleled Golden Age with the Internet, however, previously there was not much discussion related to the fact that human rights are interdependent and indivisible. Thus, a much greater emphasis on freedom of information also means that some other rights are going to be less protected.

In some remarkable recent court decisions courts have finally begun to critically evaluate the impact of technology to the society and, specifically, human rights. They have attempted (arguably not most successfully), to rebalance freedom of information with other rights. This has been mostly happening in Europe, since the EU has the strongest data protection laws in the world.

• In the Delfi vs Estonia ECtHR case the ECtHR placed the responsibility for libelous anonymous comments on the online news portal that published them, rather than the author of the comment. The case has been referred to the Grand Chamber so there still might be a change, but the initial chamber decision stated pretty clearly: “The ease of disclosure of information on the Internet and the substantial amount of information there means that it is a difficult task to detect defamatory statements and remove them.”
• The CJEU invalidated the Data Retention Directive in its landmark judgment in which it declared mass surveillance illegal. The CJEU went further than anyone expected when it said: “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 /…/ 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.”
• The CJEU also ruled in its very recent Google Spain decision that there is a strong “right to be forgotten” and the search engine must remove links to information that a person does not want to be linked to. The CJEU said: “As the data subject may, in the light of his fundamental rights under Articles 7 and 8 of the Charter, request that the information in question no longer be made available to the general public by its inclusion in such a list of results, it should be held, /…/ that those rights override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in finding that information upon a search relating to the data subject’s name.”

There are also some other interesting developments:

• In popular culture, tech culture has increasingly become subject of criticism. See the series Silicon Valley and, most poignantly, a recent episode of HBO’s Veep.
• Recently it was reported that German economy minister Sigmar Gabriel suggested that it might be necessary to break up Google, while current President of the European Parliament and one of the top candidates for the next president of the European Commission Martin Schulz stated on Google: “Whoever knows everything about citizens, firms and politicians achieves a level of power which doesn’t belong in a pluralistic democracy.”
• There are also growing grassroots citizen movements that target the tech giants such as Europe v Facebook.
• MOOC courses are increasingly seen as mostly hype and not the transformation that it was claimed to be.
• The Estonian Supreme Court also decided in a less reported case last December that charging less for online court proceedings than traditional ones is unconstitutional, because of the importance of fundamental rights at stake (access to justice). The Court among other things heavily criticised the concept of efficiency behind the introduction of the e-justice system and accused the government that it is trying to shift the burden of entering and submitting complicated legal documents from the courts to the general public who might not be best prepared for it.
• The Estonian online election system has been called highly vulnerable and recommended to be abondoned by leading scholars in the area.

Thus the shift consists of better rebalancing freedom of speech and information with other human rights in the online context and a more cautious and realistic view towards the danger that the likes of Google and Facebook are posing to the lives of all individuals, our human rights and democracy due to their omnipresence in the Internet. In terms of Carlota Perez’s Techno-Economic Paradigm Shift theory, this could be signal that the world has moved on the a more stable and peaceful deployment period of the currently dominant ICT paradigm from the turbulent installation period.

The elections that nobody cared about

Today the European Parliament elections started in Estonia with the pre-voting and e-voting. Leaving aside the debate sparked by the questioning of the integrity of the e-voting system, it is quite remarkable how uninteresting the European Parliament elections have been for everyone: the general public, the political parties and the candidates themselves. Sure, there have been interesting candidates. Sure, the campaigns have reached a new low. But there does not seem to be anything remotely fresh in these elections. The EP elections have become a sideshow, a marginal affair. Why?

There are some global reasons:

1. The constitutional nature of the EU: Joseph Weiler has written about the legitimacy crisis and why the EP elections does not solve this. Due to the nature of the EU, the results of the EP elections do not automatically and directly translate into changes in the EU level (because the Council also has a say). Even the Commission president might not come from the party that gets the most votes.
2. The lack of pan-European polis. There are no pan-European political debates or media space which would bind people together in a common discussion. There is no platform in which to commonly discuss European issues: instead there are 28 different debates on different issues going on in 28 different member states.
3. The disconnect between EU level political parties and national level political parties. The campaign in Estonia has been very bizarre, because some people talk about European issues and others about national ones. This complexity deters voters.

Specific reasons in Estonia:

1. Six seats is a really marginal number. People cannot see how six members out of 750 can have any kind of influence over EU policy. They are also divided between different parties, so basically there is also no interest from any of the EU level parties, because the two big ones are sure to get at least one seat, liberals two and the other two are the only ones that are in limbo.
2. Extreme disconnect between EU level and national level in elections. Two of the main opponents in the Estonian campaign are actually going to be in the same political group in the EP. The Reform Party (ALDE group) is campaigning mostly against the Centre party (also ALDE group).
3. E-voting has probably made voting less relevant, more ephemeral. Although e-voting might increase the turnout (although there is research suggesting otherwise), it seems to lower also the overall relevance of voting as a ritual. Thus it becomes a mere functional, mechanical process in which customers click to choose the best government that provides best service (boosting clientelism and lowering the meaningfulness of the democratic processes).
4. Parties are saving resources for the elections that truly matter. In one year there will be national parliamentary elections, which is the main focus of the political parties. EP elections are used mostly as a testing ground for messages and new faces, not as a separate election.
5. Other topics overshadow the lackluster campaign. The Russia-Ukraine conflict, the debate surrounding the new government, the draft gender neutral co-habitation law, the Eurovision song contest and other topics take up space from EP elections.

As a true European, I hope that the EP elections will go well and the voter turnout increases even despite the lack of attention to the campaign. But it does show that something fundamental has to change in the electoral process and the architecture of EU in order for the EP elections to truly matter.

P.S. An idea how to increase voter turnout (not necessarily the quality of the debate though) is to allocate seats based on voter turnout. In this way each country should get a minimum number of guaranteed seats in the EP, but they can increase this number if a certain threshold of voter turnout percentage is surpassed. This requires, of course, more uniform election procedures in all MS. You could not have compulsory voting like in Belgium. And probably also no e-voting.

The invalid Data Retention Directive and Estonia

One of the most important decisions about protection of human rights in Europe (and perhaps the world) in recent times, was the 8 April 2014 decision of the European Court of Justice in Joined Cases C-293/12 and C-594/12 Digital Rights Ireland and Seitlinger and Others. The case concerned the contentious Data Retention Directive, which required all Member States to keep so-called metadata about mobile and fixed phone and internet connections. The Court found that the directive interfered disproportionately the right to private life of all European residents and declared the so-called Data Retention Directive invalid in its entirety and from the time it came into force. There case came about because of Digital Rights Ireland and more than 12 000 private individuals in Austria had contested the validity of the data retention requirement (as it amounts to mass surveillance). There had already been constitutional challenges to the laws adopted based on the directive in many member states (Germany, Romania) and several refused to transpose the directive (Sweden), so it is clear that the directive was controversial. After all, it had been adopted in a three-month expedited proceeding after the London and Madrid terrorist attacks.

In Estonia the data retention requirements have so far not raised in formal legal constitutional issues. Looking through the procedure of adoption of the law, it seems that privacy rights argumentation was never really raised and there was almost no opposition to this (what many call totalitarian) law. The law was passed after six month legislative procedure with 82 members of parliament out of 101 voting in favour (with no votes against or abstaining). The explanatory note of the draft law states that the proposal was put together by two public officials (one from the Communications Board and another from the Ministry of Economy and Communications), with participation of “surveillance and security authorities” and the Estonian Information and Telecommunications Union. The only contentious issue that was raised seemed to be that the telecoms were not happy with having to pay for the data retention themselves (they still do).

The Estonian provision seems to be much wider than the directive, for example allowing the retained data to be used not only for serious crimes, but has been expanded to include also misdemeanours (even by the tax authorities!). This in itself seems excessive and disproportionate even if the directive was still valid. There are a number of other issues, but the most fundamental one is that according to European Court of Justice, mass surveillance is not allowed by law. It is disproportionate (even to fight terrorism) to preemptively gather, retain and process data about every single person.

So why did our constitutional system of protection of basic human rights (and the right to privacy) fail so spectacularly in this issue? In my opinion the reasons were the following:

• Not enough detailed human rights scrutiny of laws made due to harmonisation of laws based on EU directives. The Estonian authorities seemed to assume that since this was based on an EU directive, there was no inherent risk to human rights protection. The human rights architecture in Europe assumes that there is scrutiny in terms of human rights BOTH in EU level and in national level, but this time there seemed to be neither worked. President Ilves failed in his duties as he can refuse to sign the laws he believes are unconstitutional and instead proclaimed it without problems.
• The lack of independent NGOs dealing critically with human rights (and specifically with data protection). There was simply not enough specific expertise in Estonia to challenge the draft at any stage of the process.
• Lack of discourse critical of technological development, also unfounded trust in technology. Since the belief in the positive impact of technology is so engrained, any opposition to using mass data collection could be seen as standing against the ‘normal’ technological development of the society. The so-called tech and data protection experts are rather evangelists who stand to personally benefit from lack of critical discourse.
• Overall weak position and awareness of human rights. In many ways human rights are seen as declaratory, self-evident principles that have little impact in the daily lives of Estonian people, especially in specific matters.
• Hightened sense of vulnerability brought about by fear of terrorism. I think that in Estonia this is not so relevant, since the number one fear is still Russia and there has been no terrorist attacks on Estonian soil. However, decision makers might be influenced by this.

So what now? At the moment the law in Estonia is in place and the massive breach of privacy rights is allowed to continue. There has been almost no public debate and the governmental authorities seem to be waiting for the reaction of someone else (in Finland, the review of retention laws was announced a couple of days after the judgement).

The situation is remarkably problematic not only because of the continuing disproportionate infringement of privacy rights, but the credibility problem this poses for Estonia’s image as a technologically advanced country both internally and externally. Are Estonian people going to continue to trust in e-services when it is clear that the human rights safeguards are not working? Is the international community ready to admit that Estonia is not such a great example of tech-friendly society after all if it also means lack of regard to basic human rights?

Annex: The provision in question is as follows (English translation is only available for the future version, but there seems to be no change in terms of this provision):

§ 1111. Obligation to preserve data
(1) A communications undertaking is required to preserve the data that are necessary for the performance of the following acts:
1) tracing and identification of the source of communication;
2) identification of the destination of communication;
3) identification of the date, time and duration of communication;
4) identification of the type of communications service;
5) identification of the terminal equipment or presumable terminal equipment of a user of communications services;
6) determining of the location of the terminal equipment.
(2) The providers of telephone or mobile telephone services and telephone network and mobile telephone network services are required to preserve the following data:
1) the number of the caller and the subscriber’s name and address;
2) the number of the recipient and the subscriber’s name and address;
3) in the cases involving supplementary services, including call forwarding or call transfer, the number dialled and the subscriber’s name and address;
4) the date and time of the beginning and end of the call;
5) the telephone or mobile telephone service used;
6) the international mobile subscriber identity (IMSI) of the caller and the recipient;
7) the international mobile equipment identity (IMEI) of the caller and the recipient;
8) the cell ID at the time of setting up the call;
9) the data identifying the geographic location of the cell by reference to its cell ID during the period for which data are preserved;
10) in the case of anonymous pre-paid mobile telephone services, the date and time of initial activation of the service and the cell ID from which the service was activated.
(3) The providers of Internet access, electronic mail and Internet telephony services are required to preserve the following data:
1) the user IDs allocated by the communications undertaking;
2) the user ID and telephone number of any incoming communication in the telephone or mobile telephone network;
3) the name and address of the subscriber to whom an Internet Protocol (IP) address, user ID or telephone number was allocated at the time of the communication;
4) the user ID or telephone number of the intended recipient of an Internet telephony call;
5) the name, address and user ID of the subscriber who is the intended recipient in the case of electronic mail and Internet telephony services;
6) the date and time of beginning and end of the Internet session, based on a given time zone, together with the IP address allocated to the user by the Internet service provider and the user ID;
7) the date and time of the log-in and log-off of the electronic mail service or Internet telephony service, based on a given time zone;
8) the Internet service used in the case of electronic mail and Internet telephony services;
9) the number of the caller in the case of dial-up Internet access;
10) the digital subscriber line (DSL) or other end point of the originator of the communication.
(4) The data specified in subsections (2) and (3) of this section shall be preserved for one year from the date of the communication if such data are generated or processed in the process of provision of communications services. Requests submitted and information given pursuant to § 112 of this Act shall be preserved for two years. The obligation to preserve the information provided pursuant to § 112 rests with the person submitting the request.
(5) The data specified in subsections (2) and (3) of this section shall be preserved in the territory of a Member State of the European Union. The following shall be preserved in the territory of Estonia:
1) the requests and information provided for in § 112 of this Act;
2) the log files specified in subsection 113 (5) and the applications provided for in subsection 113 (6) of this Act;
3) the single requests provided for in § 1141 of this Act.
(6) In the interest of public order and national security the Government of the Republic may extend, for a limited period, the term specified in subsection (4) of this section.
(7) In the case specified in subsection (6) of this section the Minister of Economic Affairs and Communications shall immediately notify the European Commission and the Member States of the European Union thereof. In the absence of an opinion of the European Commission within a period of six months the term specified in subsection (4) shall be deemed to have been extended.
(8) The obligation to preserve the data provided for in subsections (2) and (3) of this section also applies to unsuccessful calls if those data are generated or processed upon providing telephone or mobile telephone services or telephone network or mobile telephone network services. The specified obligation to preserve data does not apply to call attempts.
(9) Upon preserving the data specified in subsections (2) and (3) of this section, a communications undertaking must ensure that:
1) the same quality, security and data protection requirements are met as those applicable to analogous data on the electronic communications network;
2) the data are protected against accidental or unlawful destruction, loss or alteration, unauthorised or unlawful storage, processing, access or disclosure;
3) necessary technical and organisational measures are in place to restrict access to the data;
4) no data revealing the content of the communication are preserved.
(10) The expenses related to the preserving or processing of the data specified in subsections (2) and (3) of this section shall not be compensated to communications undertakings.
(11) The data specified in subsections (2) and (3) of this section are forwarded to:
1) an investigative body, a surveillance agency, the Prosecutor’s Office or a court pursuant to the Code of Criminal Procedure;
2) a security authority;
3) the Data Protection Inspectorate, the Financial Supervision Authority, the Environmental Inspectorate, the Police and Border Guard Board, the Security Police Board and the Tax and Customs Board pursuant to the Code of Misdemeanour Procedure;
4) the Financial Supervision Authority pursuant to the Securities Market Act;
5) a court pursuant to the Code of Civil Procedure;
6) a surveillance agency in the cases provided for in the Organisation of the Defence Forces Act, the Taxation Act, the Police and Border Guard Act, the Weapons Act, the Strategic Goods Act, the Customs Act, the Witness Protection Act, the Security Act, the Imprisonment Act and the Aliens Act.

Estonia 10 years in the EU

Estonia celebrates today 10 years as a member of the European Union. Today, this seems not like a big thing anymore, which means that the celebrations are also rather muted, possibly because people have gotten so used to the idea that they consider it nothing special. In a way, there might also be less celebrations due to the flux the EU seems to be in, constantly, and the disappointment that membership of the EU did not mean an arrival to a permanent paradise, secure and free. Sure, Estonia has developed, but membership of EU (and NATO) has also meant the search of a new national goal. Although there have been sporadic attempts to define this new goals in technological advancement terms: the first State in a Cloud (most recently), search for the Estonian Nokia, e-voting experiments, these have been largely outward marketing exercises aimed at establishing Estonia as an indpendent country in the international stage, which have not really resonated that much with the general population.

Instead, some sort of paradigmatic shift is taking place, which was eloquently put to words by president Ilves in this year’s independence day speech “Mis toond on meid siia, see enam edasi ei vii.” (“this, which has brought us here, no longer takes us forward”), followed by prime minister Taavi Rõivas’ suggestion to focus on small narratives, rather than seek a new big one. Estonia has always depended on some big national narrative, so the lack of it is a test of the resilience (or antifragility?) of the Estonian state. If the leaders do not define a new national narrative, is it going to be defined by someone else? If yes, by whom? Perhaps we should satisfy ourselves with the thought that the Estonia is largely finished, mature state that only needs small tinkering in specific areas, but no overarching national narrative. However, we might also think that such stability means a quiet before the storm, that changing dynamics of the world will require new changes from us as well. 

It is interesting to look at how Estonia seems to view its role in the EU. There is almost two opposing extremes and no middle ground. There is a (pragmatic) view that as a small state we are never going to play an important role of the development or policies of the EU, simply because we lack the human resources, the deep knowledge gained by specialisation possible only in large countries, the capacity to speak on global topics due to our history. This view relegates Estonia among passive followers which should fall in line behind the power that is most useful for us (in terms of our own narrow national interests as defined by the ruling politicians). There are also others who state that Estonia must take the lead in the EU federalization process, these optimists (or utopists?) talk about Estonia punching way above its weight and hosting and managing the ‘upgrading’ of the EU to be like we want it to be. This view will probably be more visible within Estonia as we become closer to Estonian presidency of the Council of the EU in the first half of 2018, coinciding with the celebrations of 100 years of the Estonian state. Both the pessimistic passive and the optimistic active roles are somewhat extreme and the reality will fall somewhere between those two.

A discussion of 10 years in the EU would remain one-dimensional if one does not look at how Estonia has impacted the EU during these 10 years. From an economic development point of view, Estonia (and Latvia) have been the poster boys for austerity measures. Austerity regime would have been rather more difficult to sell in the EU without the example of Estonia’s ‘success’ in this. Also, the e-Stonia image is surely also benefitial for the EU that is trying (and failing) to regain competitiveness in order to preserve its social model. Estonia has probably given the US a slightly bigger voice inside the EU (it follows closely US foreign policy goals, president Ilves is essentially an American), has promoted the EU neighbourhood policy (and scepticism towards Russia). Estonia has been one of the better spenders of the EU structural funds (although one can of course debate whether all of the money has gone for legitimate purposes) for the upgrading of its economy and society. Also, Estonian membership has possibly stregthened the role and influence of the Nordic states in the EU, with which it has very good relations. But it has also highlighted the social chasm between rich and poor states, which has contributed to brain drain from Estonia for the benefit of the more established and developed member states, not to mention the pressures this has put on the generous social welfare models (as evidenced in the Viking and Laval cases in the ECJ).

Of course the impact of Estonia’s EU membership is something that is quite difficult to begin to analyse at such a short temporal distance, but these first ten years have shown to be ready for the unexpected. My personal hope for 2024 is that the positive impact of EU membership is more evenly distributed among the Estonian population and the situation of not only the elite has been considerably improved, but also that of the people belonging to various minorities.

Some thoughts on local election results in Estonia

Yesterday local government elections took place all over Estonia. Most of the local governments are miniscule, and there are a lot of them; Tallinn as a capital is, however, huge and has one third of Estonia’s population. That is why most commentators and analysts focus on Tallinn mostly. Tallinn has ca 50% of ethnic Estonians and about the same number of non-ethnic Estonians (including stateless persons and foreign citizens who are also allowed to vote). Tallinn has been embroiled in corruption scandals, the Mayor Edgar Savisaar has been accused of using public funds to advance his election campaign, etc. Savisaar’s Centre Party has the majority of seats in the city council.

In my opinion one needs three things to be elected: visibility, credibility and no perception of desperation or lack of cool factor. This obviously relates to the target group you want to attract (since credibility and coolness are different things to different people).

The election strategies were quite divergent:

1. The Centre Party relied on their base of ethnic Russians, so they touted their achievements (free public transport, social benefits) and used Tallinn’s coffers to promote them. In a typical day during the run-up to the elections there would be three or four openings of different buildings or roads. The most egregious of them was the opening of the Ülemiste crossing for which a giant plastic doll was constructed at a considerable expense. This meant that it defined the elections, both in a good and bad light, and thus ensured constant media attention. This allowed them to have constant visibility, their previous reign had shown their credibility as to their governing ability and their electorate perceived them mostly as a rebel underdog trying to fight for their rights and interests. Thus very good results was ensured, despite, maybe even because of their constant vilification in the national media.

2. Conservative IRL had the most energetic strategy which was built on attacking corruption in Tallinn and aimed to represent the ethnic Estonians in Tallinn. The campaign was highly visible thanks to a hot-tempered candidate Eerik-Niiles Kross with a past in intelligence agencies and national defence who seemingly did not care much about traffic rules, paying taxes on time or having been accused of piracy by Russia. The attacks on Savisaar, however, seemed to have no other substance than some sort of calculation of the cost of corruption, which was never clear. They attacked the way Savisaar governs, indirectly Russians. Thus IRL stoked national tensions and ensured no significant Russian votes for anyone, but Savisaar. Their aggressive guerilla campaign provided visibility and brought them up as the main foe of the Centre Party. He was cool and credible mostly because the media refused to scrutinise him in any significant way.

3. The Reform Party, which is the main government party, had lost a lot of steam. Their strategy was to run a positive, soft campaign on the theme of “Proud of Estonia”. They probably considered Tallinn to be a lost cause, which is why their message targeted mostly places outside of Tallinn, where they were in power. They were also embroiled in a party financing scandal recently and thus thought a good idea to lay low for a while. This of course meant that their popularity plummeted not only in Tallinn, but in Estonia as well. The soft, positive campaign was contrasted with a desperate attempts to get some sort of traction in Tallinn, which included a fake-FEMEN stunt and the idea to plant more than hundred thousand trees to Lasnamäe. There were no credible new ideas and they were simply overshadowed by Centre Party vs IRL fight. The cool factor, which Reformierakond had always had, was lost due to desperation and governing fatigue (they have been in power in the country since 2005). It remains to be seen whether they will be able to turn around their slow stagnation with fresh ideas.

4. Social Democrats were with great potential, but, as usual, blew their chances. Their strategy was even less visible than Reform Party’s and consisted of the idea of winning Tallinn first and national parliament second. Now, if they had received some sort of traction in Tallinn, that would have been great, but now it seems that they have lost the wind from their sails due to the meager results in Tallinn. Social Democrats had enjoyed a high level of support in between of election, their strategy being doing nothing to piss anyone off. That does not work during elections. So instead of fresh ideas, they offer nothing. The Social Democrats have also always had a credibility problem and their reputation is not particularly cool either.

5. Electoral unions: I do not believe in them as a principle (though I do like many of the individual persons). I do not think long-term impact and democratic governance is possible by ad hoc groups of people who are united only in their anti-establishment and anti-political party views. It reminds me of the Simpsons episode when Mensa club started to govern Springfield and how that turned into a chaos quite quickly. Like it or not, representative democracy is based on political parties and rather than trying to destroy them or bully them, citizen activists should try to help them to overcome their issues and become stronger, more democratic and more responsive. There is ample room in all parties for change and bright people, wasting resources on ad hoc electoral unions is not a sustainable way forward.

It seems that Estonian politics have become rather entrenched and stable. No big changes happen unless the ethnic divide between Estonians and Russians is overcome. Then and only then we can say that our representative system is also sufficiently democratic. Parties have to work harder and become much more inclusive, representative, smarter and professional in what they do, otherwise the elections are going to be a farce-like experience with no winners, and only losers.

Why it is not a good thing to have only one law school in Estonia

Disclaimer: I am currently employed by Tallinn Law School at Tallinn University of Technology.

Recently, a little fight broke up in the media between the Faculty of Law at University of Tartu (UT) and Tallinn University  (TLU) Law School, in which the Dean of the former claimed that TLU lacks resources and capacity to teach lawyers. The latter of course responded and others have chimed in, including Ministry of Education and my own boss from Tallinn Law School at Tallinn University of Technology (TUT).

The backstory is a bit long and complicated: The Faculty of Law of University of Tartu has enjoyed a dominant position among law schools in Estonia. It used to be the only law school in Estonia before Estonia re-gained its independence, and is still considered by many as the only ‘true’ law school in Estonia. In many ways it is, as although many private law schools were established in the 1990s, these have not survived various financial and administrative challenges (some of which were possibly orchestrated by University of Tartu and Ministry of Education and Research). However, two private ‘new’ law schools merged with the other bigger public universities and thus pose a greater potential challenge for UT. This is the way I ended up working at TUT (the law school was based on the law school at now defunct American-style, international-oriented Concordia International University Estonia). TLU ended up getting merged with Academy Nord, politically well connected more widely oriented law school.

The current higher education policy favors consolidation and avoidance of duplication. After the financing reform of higher education, ‘responsibility’ of teaching law was assigned to UT. TUT and TLU thus were not supposed to teach law in Estonian and tuition-free. Our law school sensibly chose to offer studies in English, with some Estonian law courses in Estonian (which has been the strength of our law school). TLU, however, is admitting 90 students this year to study law tuition-free, which has ticked off both UT and Ministry. Some of their concern regarding capacity and capability of TLU is legitimate, but mostly TLU goes against government policy.

But is it a good policy to have only one strong law school in Estonia? The obvious argument is that Estonia with 1.3 million inhabitants is unable to support more than one high quality law school. Arguments of efficiency and most rational use of public funds are used to argue that only UT should teach law. This is the way it has been previously (and in many fields is still today).

However, what is the impact of the dominance of one law school?

Everyone knows everyone. Estonian legal community is already incredibly small. In a situation where almost all of the practicing lawyers, judges, prosecutors, many politicians and policymakers, know each other from the university, it means that important legal decisions might not be made based on justice, but based on other things such as personal friendships or animosity. Former Chief Justice of the Supreme Court Märt Rask has stated that there are serious issues regarding the Tartu Court House, into where both judges and prosecutors work. Mr Rask claimed that judges and prosecutors had become so familiarised working in the same building that judges no longer asked prosecutors any questions during trials. Indeed, when one new judge challenged this practice, prosecutors got angry at the judge. Having more than one law school would help to alleviate this problem somewhat (and not putting judges and prosecutors into the same building as well).

All students study under the same faculty members. If there is only one professor of criminal law, or labour law or European law, then this means that students are exposed to only one point of view. Professors and instructors are not machines, they are human beings with specific leanings and understandings. Some are good, some are bad, some emphasise certain things, some other things. Having only one person teaching all lawyers legal principles and approached in any field is a huge incentive for groupthink. This is compounded by the lack of problem-based learning and overreliance on lectures.

Lack of diversity in terms of schools of thought and development directions. There is a difference in what kind of values are instilled into students at law schools. There are law schools that value legal positivism, there are more liberal law schools. There is a difference in how law is taught at different universities as well as what is emphasised. The Estonian educational authorities seem to think that there is only one way and that this role can only be played by UT. This means that the institutional choices made by this one law school apply for all of Estonia. For example, the internationalisation efforts of UT are rather limited in the field of law. They teach exclusively in Estonian and Estonians, their faculty is Estonian (excluding a few visiting scholars). Thus, if they were the only law school in Estonia, Estonia would be rather blank in the international legal space.

Lack of diversity leads to stagnation and poor quality of teaching and learning. So having only one law school would lead to further diminishing of the status of legal education and law in general.

The remedy would be to be more lenient regarding diversity in the area of teaching and research in law in which international competition is limited (it is hardly likely that any other university outside Estonia gets involved with Estonian law), supporting more universities to offer studies in Estonian and about Estonian legal system. This means that state educational policy must change considerably, which is extremely unlikely at the moment. The only other solution is to study abroad and hope that students return to Estonia, but this takes much more resources from the society and skills and knowledge acquired from other jurisdictions can only be applied in Estonia to a limited degree.

It would be interesting to see a more detailed analysis on the impact that havinga domionant law school has for the society in terms of protection of human rights (especially procedural rights), the legal profession in the country and the quality of legal education. Sadly, no-one has looked into this, because there are very few countries in a similar situation.

Race and racism in Estonia

Current scientific understanding based on modern genetics is that race is not a scientific category, but a completely inaccurate and useless way of distinguishing between groups of people. According to the Human Genome Project:

DNA studies do not indicate that separate classifiable subspecies (races) exist within modern humans. While different genes for physical traits such as skin and hair color can be identified between individuals, no consistent patterns of genes across the human genome exist to distinguish one race from another. There also is no genetic basis for divisions of human ethnicity. People who have lived in the same geographic region for many generations may have some alleles in common, but no allele will be found in all members of one population and in no members of any other. Indeed, it has been proven that there is more genetic variation within races than exists between them.

Therefore I might have more in common in my DNA with someone living somewhere in Africa than someone in Estonia. The European Union has already in 2000 clarified in recital 6 of the Racial Equality Directive (Directive 2000/43/EC), that “[t]he European Union rejects theories which attempt to determine the existence of separate human races.”

It seems, though, that very many people in Estonia have not yet got this message or refuse to believe it. If you read Estonian wikipedia, distinct races do exist (and are also mentioned and described in detail). The same information is still taught in schools, as I understand. In public discourse, races are usually referred to, probably due to the Soviet understanding of races and the widespread dissemination of that information.

Trying to categorise people based on their perceived race, has led to a lot of horrific events in the past, which is why using race even in sociological or self-identification way might not be the best idea. If you subscribe to the idea that distinct races exist, then it is not difficult to find people who argue that this or that race is inferior or superior. There already are a number of classifications based on which people irrationally discriminate or hate groups of people, like ethnic origin, skin colour, language, gender, sexual orientation and beliefs. Unfortunately there are people who not only believe that races exist, but also attribute specific characteristics to people belonging to these made-up races and considering them inferior, which is where racism comes from.

It seems to me that racism is alive and quite prevalent in Estonia. I do not have any substantial research on this (there is a lack of reliable research on this), but I will offer a number of anecdotal evidence, which has made me feel this way. I already mentioned that many people is Estonia react with extreme incredulity when I mention that races are not a scientific basis for categorisation of human beings.

First, there is the word ‘neeger‘ in Estonian language that many people still defend as a valid word to use for black people. It should not be used, but people still do. Second, there are the experiences of people with other skin colour. I recently read Abdul Turay’s fantastic book about Estonia, in which he describes his ordeals when crossing the Estonian border. Similar notions of racism among police and border guards seem to be quite common for asylum seekers also. At Human Rights Centre, where we work with asylum seekers, there are a number of stories of racist behaviour among officials. The final example relates to the media coverage related to the bunch Vietnamese people who were discovered illegally in Estonia, which was anything but fair.

I do not understand why pretend that there are no problems? There is racism in Estonia as well as racist hate crimes. As long as the problem is not faced, the victims of racism will remain marginalised and victimised not only due to the attacks, but also due to the attitudes of the society, which pretends that there is no problem.