Author: Aixin Dunn

Child Labor and the Mountain that Eats Men

by Sofia Bonilla

12 JAN 2018

The town of Potosí in Bolivia rests at the bottom of a soaring, 15,800-foot mountain called Cerro Rico. The mountain provides the primary, and nearly only, source of income for the town of 240,000 inhabitants. During their 16th-century conquest of Latin America, the Spanish enslaved the indigenous people there, imported African slaves from overseas, and forced both groups to mine silver from the mountain. At the time, Cerro Rico held one of the richest silver deposits in Bolivia and the world and was a source of abundant wealth for the Spanish Empire. Eventually, the slaves nearly hollowed out the mountain—although there remains a residual supply of silver, Bolivian miners mainly extract tin and zinc.[1]

As a result of years of mining activities, modern-day Cerro Rico is riddled with caverns, shafts, sinkholes, and precarious tunnels, so much so that engineer Nestor Rene Espinoza describes it as “a slab of Swiss cheese.”[2] The risks associated with mining this mountain are not new. Historians estimate that over eight million miners have died since extraction began at Cerro Rico in the mid-1500s.[3] However, these are not the only reasons it is called “The Mountain That Eats Men.” Miners, a majority of whom are of indigenous descent, still use equipment introduced in the nineteenth century: headlamps powered by fire, manual hammers and pickaxes, and outdated drills. Even more startling is the prevalence of child miners, some of whom start mining at age twelve. These children work in oxygen-scarce conditions, risk falling down mine shafts hundreds of feet long, and face being blown to pieces by a surprise detonation. Despite these treacherous conditions, the most common killer is silicosis—a lung disease caused by breathing in rock particles that reduces one’s lifespan to just forty years—locally known as “black lung.”[4] Miners wear face masks for protection, but the thin paper layer does little to stave off the disease.

The child miners earn less than two dollars and fifty cents (US) per day on the precarious mountain, sometimes less, depending on how much silver, tin, and other precious minerals they can extract. Many of these young miners have nowhere else to turn. Cerro Rico is their only option for work. Without their labor to supplement—or even provide—the family income, their families will starve. A majority of the child miners and their families live on the side of the mountain in huts powered by a single light bulb. They perform this extremely dangerous work in the early hours of the morning so they are able to attend school during the day.[5]

Though the many dangers of Cerro Rico loom over Potosí, “[n]either the labor ministry nor COMIBOL—the national mining agency that leases concessions to more than 30 mining cooperatives grouping together some 15,000 miners on Cerro Rico—even attempt to enforce health and safety laws.”[6] Oscar Cáceres, a COMIBOL geologic engineer, explains that the state is not responsible for deaths or accidents on or within the mountain, leaving miners of all ages to their own devices upon entry.[7] The child labor laws in Bolivia allow children as young as ten years old to work legally,[8] while the International Labor Organization sets the general minimum employment age at fifteen years and the minimum age for hazardous work at eighteen.[9] The Bolivian law was created in an effort to make child labor a safer, more regulated practice,[10] but work environments such as Cerro Rico suggest that the law has failed in this respect.

Rather than lowering the legal age of work, governments can create social insurance programs so that children are not expected to supplement household incomes. These programs, such as conditional cash transfers (CCTs), can help poor families—the main demographic that practices child labor—by awarding a monthly salary in exchange for their children attending school. This tactic was successfully implemented through Brazil’s state-funded Bolsa Família program which both prohibits child labor and “provid[es] financial incentives [of twelve USD per month] to poor families that ensure that their children attend school regularly and receive vaccinations.”[11] The World Bank testifies to Bolsa Família’s success, citing it as “one of the key factors behind the positive social outcomes achieved by Brazil in recent years.”[12]

The Bolivian government introduced its own national CCT program in 2006,[13] aimed at alleviating the pressure on children and enabling them to focus on school. The program, called the Bono Juancito Pinto, awards an annual two hundred Bolivianos (twenty-eight USD) to families whose children attend at least eighty percent of the school year. In 2012, President Morales announced that the CCT program had reduced the dropout rate from “6.1 percent in 2006 to 2.0 percent in 2012.”[14] Although UNICEF confirms the program’s positive impact on Bolivia, [15] research by James W. McGuire reveals that Bono Juancito Pinto mainly improved drop-out rates of preschool, first- and second-graders—not secondary school students, who are the main participants in child labor.[16] Even after the program was later extended to include secondary school students, McGuire found that the Bono Juancito Pinto had virtually no effect on child labor “given that the school day in Bolivia is only 4 hours long, and is, therefore, compatible with the average workday length of child laborers, which is about 5.5 hours.”[17] Despite these shortcomings, the program is still in use and is expected to assist 179,068 students in Potosí[18] as of October 2017.

The silver extracted and shipped internationally from Cerro Rico carries with it centuries of hazardous labor practices and millions of deaths. This phenomenon is not unique to Potosí. There are “218 million children between 5 and 17 years” working worldwide, with “almost half of them, 73 million, work[ing] in hazardous child labour.”[19] Children around the world are risking their safety in order to maintain their family’s livelihood in the face of poverty, violence, labor exploitation, and ineffective governmental regulation. Governments, in turn, must continue searching for impactful methods to aid poor families and end the dangerous cycle child labor produces. Programs like Bono Juancito Pinto and other financial plans serve as helpful starting points, but cannot alone resolve this problem. Without deliberate and effective action, the global economy will continue to place the lives of children at risk.

Work Cited

[1] Simeon Tegel, “Cerro Rico: The Mountain That Eats Men.” Public Radio International. March 20, 2013. Accessed November 14, 2017. https://www.pri.org/stories/2013-03-20/cerro-rico-mountain-eats-men.

[2] Juan Forero, “Bolivia’s Cerro Rico: The Mountain That Eats Men.” NPR. September 25, 2012. Accessed November 14, 2017. https://www.npr.org/2012/09/25/161752820/bolivias-cerro-rico-the-mountain-that-eats-men.

[3] Dan Collyns, “’Bolivia’s Cerro Rico mines killed my husband. Now they want my son.’” The Guardian. June 24, 2014. Accessed February 7, 2018. https://www.theguardian.com/global-development/2014/jun/24/bolivia-cerro-rico-mine-mountain-collapse-miners.

[4] See supra note1.

[5] Viktorija Mickute, “Mineritos: Bolivia’s Child Miners.” Global Journalist.org. September 4, 2014. Accessed February 8, 2018. http://globaljournalist.org/2014/09/mineritos-bolivias-child-miners/.

[6] See supra note 1.

[7] Jean Friedman-Rudovsky, “Mined to Death: Why Bolivia’s Cerro Rico Mountain Is Collapsing.” TIME Inc. June 16, 2011. Accessed November 14, 2017. http://content.time.com/time/world/article/0,8599,2077641,00.html.

[8] NPR staff, “Bolivia Makes Child Labor Legal, In An Attempt To Make It Safer.” NPR. July 30, 2014. Accessed November 14, 2017. https://www.npr.org/2014/07/30/336361778/bolivia-makes-child-labor-legal-in-an-attempt-to-make-it-safer.

[9] International Labor Organization, Minimum Age Convention, 1973, (No.138). The convention does provide for the possibility of initially setting the general minimum age at 14 (12 for light work) where the economy and educational facilities in a given country are insufficiently developed.

[10] See supra note 6.

[11] Council On Hemispheric Affairs, “Made in Brazil: Confronting Child Labor.” COHA. November 16, 2010. Accessed November 14, 2017. http://www.coha.org/made-in-brazil-confronting-child-labor/.

[12] World Bank staff, “Bolsa Família: Changing the Lives of Millions in Brazil.” World Bank. August 22, 2007. Accessed February 8, 2018. http://www.worldbank.org/en/news/feature/2007/08/22/bolsa-familia-changing-the-lives-of-millions-in-brazil.

[13] James McGuire, Conditional Cash Transfers in Bolivia: Origins, Impact, and Universality. (Wesleyan University, 2013).

[14] See supra note 9.

[15] Mariana Perez, “UNICEF Destaca El Pago de Los Bonos Sociales Para Los Niños.” Cambio. November 4, 2017. Accessed December 8, 2017. http://www.cambio.bo/?q=node/24663.

[16] See supra note 10.

[17] See supra note 10.

[18] Rocío Ruiz,. “El bono Juancito Pinto beneficia a 179.068 estudiantes en Potosí.” El Potosí. October 23, 2017. Accessed December 8, 2017. http://elpotosi.net/local/20171023_el-bono-juancito-pinto-beneficia-a-179068-estudiantes-en-potosi.html.

[19] International Labor Organization. “Child Labour.” ILO. September 2017. Accessed November 14, 2017. http://www.ilo.org/global/topics/child-labour/lang–en/index.htm.

Sofia Bonilla is a senior at the University of Texas at Austin majoring in Plan II Honors, International Relations & Global Studies, and Iberian & Latin American Literatures & Cultures. She is an Undergraduate Intern at the Rapoport Center for Human Rights and Justice.

Sierra Leone’s Experience with In-Country Outsourcing

by Francis Kaifala

23 DEC 2017

In 2007, I was in my first year as a lawyer working for a firm in Freetown, Sierra Leone. The managing partner of the firm forwarded an email from some foreign clients and instructed me to provide a well-researched, comprehensive response to the clients’ inquiries. The questions on “doing business in Sierra Leone” were fairly routine, as I had already responded to similar ones before. However, one question left me a bit confused – it asked what local legal and regulatory regime existed with respect to “outsourcing practices” in Sierra Leone. Until then, I had never heard the term “outsourcing” and had no idea what the clients were asking.

My research led me to one conclusion: there was nothing in our laws specifically regulating either cross-border or in-country outsourcing practices. Sierra Leone’s labor laws are primarily concerned with traditional employee-employer relationships.[1] Other practices such as consultancies are governed almost entirely by contract law. Our laws had paid little attention to outsourcing and there were scarcely any regulatory references to the practice. I came to learn that outsourcing—reflecting neoliberal motivations—aims to cut costs and reduce other liabilities associated with standard employee-employer relationships. This is achieved by creating an outside company that hires workers and then outsources them to other institutions to provide services.

I reported my findings about outsourcing to my Head of Chambers. After listening to me, he calmly said, “that which is not prohibited, is lawful.” My understanding of his statement was that because our laws did not explicitly prohibit outsourcing, it was an acceptable practice. We later explained to the clients that Sierra Leone’s labor laws protect workers but allow outsourcing based on a business’s right to contract freely.

As years went by, we provided similar opinions to additional clients, particularly in the US, UK, Nigeria, and Senegal. By 2010, Nigerian banks and service providers, many of which had benefited from our advice, started businesses in Sierra Leone. While cross-border outsourcing did not take really take root in Sierra Leone as in other countries like South Africa and Nigeria, in-country outsourcing – the phenomenon whereby workers are hired by an outsourcer and then sent to provide services to another company on a contractual basis – has become more prevalent.

Before the influx of foreign companies, most local banks and other financial sector businesses directly hired their employees (from janitors to managing directors) who typically enjoyed full rights and relatively good conditions of service. Employees worked within the normal structure of the company and were paid reasonable salaries, ensuring that they and their families lived at least middle-class lifestyles. Apart from normal sub-contracting, outsourcing of work was not known.

With the introduction of the Sierra Investment Promotion Act of 2007,[2] which opened the market and guaranteed incentives for foreign investments, more and more Nigerian companies started establishing branches and subsidiaries in Sierra Leone. These included banks, insurance companies, mining companies, oil companies, technology companies, general supplies companies, and general services providers.

With the advent of outsourcing, newly launched financial institutions, insurance companies, and mining companies capitalized on this trend: staff members were laid off then heavily recruited and hired by outsourcers. Companies could then hire (or rehire) workers directly from outsourcers, sidestepping the standard worker protections required in employee/employer relationships. Payments were made directly to the outsourcer who then paid the worker a lesser amount. Other Nigerians established their own outsourcing companies to create a ready pool of local workers with a range of skills, providing a market for companies that needed them. They took advantage of the fact that in Sierra Leone, one could hire workers on “contract” for specific periods.[3]

Because contract workers are not categorized as employees, they cannot benefit from collective bargaining agreements or union rules. Thus, workers lacked formal employment relationships with both the outsourcer and with the company where they might be stationed. In some cases, contractual workers found themselves placed at the very same institutions that had fired them in order to make way for outsourced hires. Those affected mostly included custodial staff, security personnel, cashiers, and tellers. They were no longer part of the staff structure of the businesses and were not classified as employees. As contractors, they lost employment benefits like employee loans, car loans, leave allowances, sick day allowances, paid holidays, and medical insurance.

Today, businesses that once offered competitive wages and good benefits to employees have outsourced jobs to institutions that do not prioritize workers’ well-being. This has left workers with lower wages, disadvantageous terms and conditions of service, and many unregulated harmful labor practices. With outsourcing practices growing,[4] the livelihoods of workers affected in Sierra Leone are declining, leaving them worse off than workers from previous decades.

Without some protective intervention from the government this pattern will continue. Workers ought to be treated fairly, not exploited. A company’s environment and conditions must include respect for workers and protect their human rights. Therefore, domestic standards need to be developed to create a level playing field. Such standards should prescribe a minimum set of worker rights and conditions in labor and employment agreements. This action would balance the benefits that businesses accrue from outsourcing with their obligation to safeguard the vulnerable workers’ rights.

Work Cited

[1] “Traditional” here refers to direct employment relationship between and employee and employer whereby all responsibility and work is for the employer.

[2] After the end of the civil war, this Act was introduced to encourage and attract foreign investment in the country.

[3] With proper framing, these contracts would not be employment contracts to attract the application of Collective Agreements to them.

[4] In 2014, it was estimated to be growing at 12% to 26% according to the International Organization for Standardization (ISO).

Francis Kaifala was a Fall 2017 Human Rights Scholar at the Rapoport Center for Human Rights and Justice. He is also a Fulbright Scholarship recipient and a native of Sierra Leone.

Society Pays for Unpaid Internships

by Patrick Aana

13 DEC 2017

Unpaid internships are often criticized for taking advantage of students and recent graduates who are expected to contribute labor without compensation. But under another paradigm, unpaid interns are the lucky ones—many potential candidates cannot even consider such positions because they lack the funds to support themselves throughout the experience. This class-based disparity is worrying, especially considering that internships increasingly determine future job opportunities and that unpaid positions are more prevalent than ever.[1] The unequal access inherent in unpaid internships has led some to call for their prohibition, criticizing them not only for exploiting young workers but also for perpetuating inequality across generations.[2] These criticisms are particularly relevant to the public and nonprofit sectors, where internships are more likely to be unpaid than paid,[3] and to international institutions like the United Nations where internships indirectly affect relationships among future generations of world leaders. But requiring that all internships be paid positions will not necessarily increase opportunities available to less privileged candidates; other solutions should also be considered to ensure that barriers to such positions are effectively addressed.

In 2015, unpaid internships drew scrutiny when David Hyde, a 22-year old United Nations intern, apparently unable to afford rent in Geneva, was discovered living in a tent.[4] The proliferation of unpaid internships has seen rapid growth in international institutions like the UN, where the number of unpaid interns each year has increased from 131 in 1996 to over 4,000 in recent years, most of whom serve in the high-cost cities of Geneva and New York.[5] Hyde admits that he falsely confirmed to interviewers that he would be able to support himself in Geneva, but claims that he was only driven to do so when telling the truth about his circumstances led to several rejections.[6] His report highlights the troubling implications of unpaid internships: candidates must reveal their socioeconomic status, meaning that one’s personal financial situation becomes a condition for gaining employment. Since a disproportionate number of interns at the UN are from developed countries, one cannot ignore the likelihood that many qualified candidates around the world (and especially in the Global South) self-select out of applying.[7]

In the United States, unpaid internships are subject to some regulation, but they are generally acceptable in public service organizations. The US Department of Labor (DoL) applies six criteria when determining whether or not an unpaid intern is actually entitled to minimum wage and overtime.[8] While this test allows unpaid internships to exist in the private sector, it subjects them to scrutiny. But because it is difficult to enforce, its effectiveness is dubious.[9] In contrast to the theoretical scrutiny of private firms, the DoL sympathizes with public service organizations that may not have the capacity to compensate individuals who may opt to volunteer their time regardless, considering unpaid work to be “generally permissible” in the public and nonprofit sector “where the intern volunteers without expectation of compensation.”[10]

But as a matter of policy, should we accept unpaid internships in public service organizations as more palatable? Regulations like those seen in the US attempt to address the problem of exploitation,[11] but they do not address the inequality that unpaid internships appear to perpetuate. Even if an unpaid internship does not exploit the individual intern, it can exclude those who cannot afford to work without an income. Should exposure to nonprofit or government work be limited to those with the means to work for weeks or months at a time without making money? While it is these public service organizations that often lack the resources to compensate, they, most of all, should be inclusive—on principle and to better serve their communities.

Reasoning that unpaid internships are damaging to social mobility, official calls to end them are beginning to emerge.[12] In October 2017, the United Kingdom’s Social Mobility Commission released a study showing that a majority of Britons supported a ban on long-term unpaid internships.[13] The chair of the commission, Alan Milburn, described unpaid internships as a “modern scandal which must end,” stating that “young people from low income backgrounds are excluded because they are unpaid. They miss out on a great career opportunity and employers miss out from a wider pool of talent. Unpaid internships are damaging for social mobility. It is time to consign them to history.”[14] Even on an international level, European Union ombudsman Emily O’Reilly called for the European External Action Service to pay all of its almost 800 interns so as to “allow greater access for young people of all backgrounds.”[15] Corroborating what many firms have indicated about their preference for hiring graduates with internships, O’Reilly remarked that such internships “can be a significant stepping stone in young people’s careers and should be available to as broad a range of people as possible.”[16]

However, an outright ban on unpaid internships seems unlikely to improve the opportunities accessible to young people.[17] It is likely that a resulting smaller supply or higher demand in these positions will still disadvantage those of lower economic means.[18] Similar to arguments made on the issue of the minimum wage, organizations may have no choice but to offer fewer positions, and those internships that are still available will still be more likely to go to students with better networks and an elite-university education.

There are other ways of increasing accessibility of these positions without increasing the financial pressure on the host organization, such as providing a universal basic income[19] or fundraising from third parties. Interns may be able to obtain stipends and grants from the host organization, or from universities and third-party foundations as well.[20]

Though no landmark changes have been implemented at the UN since Hyde was discovered in his tent, it is worth noting that the International Labor Organization, more than a decade ago, decided to pay its interns after one was found sleeping in the basement.[21] The UN as a whole should follow suit, but the organization claims that it does not have the resources to pay interns and that mandating paid internships requires authorization from member nations.[22] Perhaps a quota system, parallel to that already in place in its hiring practices but unfortunately not replicable in local and national organizations, would make these positions more accessible and ensure proper representation of young people around the world.

Unpaid internships enable privilege to follow privilege and limit the career opportunities for those from disadvantaged backgrounds. Change is desperately needed and simply ending unpaid internships may not be the best solution. The problem is especially striking at the United Nations, an institution that should represent the height of integrity and rights-based practices given its organizational mandate. Currently, the UN’s unpaid internships marginalize developing countries and thus undermine the organization’s moral appeal and institutional legitimacy instead of promoting international inclusion and equity. Perhaps the more prudent question to ask is not whether unpaid interns should be compensated, but how can they be compensated in a way that reduces obstacles and elevates future generations.

Work Cited

[1] Cf. Generation i, The Economist (Sept. 12, 2014), https://www.economist.com/news/international/21615612-temporary-unregulated-and-often-unpaid-internship-has-become-route; Jamie Doward and Matilda Munro, Poorer Graduates struggle for jobs as unpaid internships soar, The Guardian (April 15, 2017), https://www.theguardian.com/society/2017/apr/15/unpaid-internships-soar-poorer-graduates-struggle-ippr-study (describing the growth of internships as a whole as well the increasing use of unpaid positions).

[2] See generally Rob Davies and Elena Cresci, Growth in unpaid full-time internships raises fears for social mobility, The Guardian (April 21, 2017), https://www.theguardian.com/money/2017/apr/21/growth-in-unpaid-full-time-internships-raises-fears-for-social-mobility.

[3] Kate Newman, For interns at nonprofits, don’t expect a paycheck, Aljazeera America (Aug. 25, 2014), http://america.aljazeera.com/articles/2014/8/25/nonprofit-interns.html.

[4] Aisha Gani, Unpaid UN intern who slept in tent quits after media uproar, The Guardian (Aug. 12, 2015), https://www.theguardian.com/world/2015/aug/12/unpaid-un-intern-who-had-to-sleep-in-a-tent-quits-after-media-uproar.

[5] Brandon Jordan, Why Doesn’t the United Nations Pay Its Interns?, The Nation (March 10, 2017), https://www.thenation.com/article/why-doesnt-the-united-nations-pay-its-interns/.

[6] Aisha Gani, supra note 4.

[7] Cf. Brandon Jordan, supra note 5 (noting almost as many interns came from France as those from all African nations).

[8] Fact Sheet #71: Internship Programs Under the Fair Labor Standards Act, Department of Labor Wage and Hour Division (April 2010), https://www.dol.gov/whd/regs/compliance/whdfs71.htm

[9] Steven Greenhouse, The Unpaid Intern, Legal or Not, The New York Times (April 2, 2010), http://www.nytimes.com/2010/04/03/business/03intern.html.

[10] Fact Sheet #71, supra note 8.

[11] See id (including “similar to training” and “for the benefit of the intern,” among the Department of Labor’s criteria for unpaid internships).

[12] Social Mobility Commission, Unpaid internships are damaging to social mobility (Oct. 23, 2017), https://www.gov.uk/government/news/unpaid-internships-are-damaging-to-social-mobility.

[13] Kevin Rawlinson, Public backs ban on long-term unpaid internships, study finds, The Guardian (Oct 23, 2017), https://www.theguardian.com/money/2017/oct/23/public-backs-ban-on-long-term-unpaid-internships-social-mobility-commission.

[14] Id.

[15] Aleksandra Eriksson, EU foreign service should pay its interns, EU watchdog says, EUobserver (Feb. 17, 2017), https://euobserver.com/social/136937.

[16] Id.; see also Generation i, supra note 1 (discussing the growth of internships as a hiring pipeline for organizations).

[17] Darren Walker, Internships Are Not a Privilege, The New York Times (July 5, 2016), https://www.nytimes.com/2016/07/05/opinion/breaking-a-cycle-that-allows-privilege-to-go-to-privileged.html (noting that “while compensating interns is necessary, it is not sufficient.”).

[18] See generally Kate Newman, supra note 3.

[19] Sirena Bergman, If you really care about social mobility, you won’t support paying interns, Independent (Oct. 23, 2017), http://www.independent.co.uk/voices/social-mobility-paying-interns-rich-poor-divide-income-workplace-dont-support-a8015171.html.

[20] See, e.g., Darren Walker, supra note 19; Anemona Hartocollis, When Internships Don’t Pay, Some Colleges Will, The New York Times (Nov. 2, 2017), https://www.nytimes.com/2017/11/02/education/edlife/paid-internships-colleges-social-service.html.

[21] Brandon Jordan, supra note 5.

[22] Id.

Patrick Aana is a Human Rights Scholar at the Rapoport Center for Human Rights and Justice and a member of the 2017-2018 Working Paper Series Editorial Committee. 

Shining Light on Bad Practices: Re-assessing Tools for Corporate Accountability in Burma

by Kate Taylor

30 NOV 2017

Over the last twenty years, transparency has become a watchword within international policy-making institutions. Specifically, enhanced transparency has emerged as a critical component in the pursuit of corporate accountability for human rights abuses. Transparency-enhancing initiatives related to corporate accountability have proliferated enormously over this period, and their various forms have diversified substantially — from voluntary codes of conduct to mandatory reporting requirements. Despite this breadth, nearly all transparency-enhancing initiatives, whether legally mandated by the state or voluntary private initiatives, push corporations to make periodic public disclosures of financial and non-financial matters (primarily regarding human rights, labor, environmental and anti-corruption).

For human rights advocates embracing transparency as an accountability tool in the business and human rights arena, the broadly stated theory of change is that shining light on bad corporate practices can lead to remedy and reform. Of course, human rights advocates who promote such transparency do not accept corporate disclosures at face value — and many are willing to scrutinize their veracity and completeness. Yet, in assessing advocacy and accountability tools in the business and human rights arena, it seems necessary to examine the opportunity cost of this focus on transparency, querying what it both overlooks and obscures.

Recent reforms to Burma’s investment law illustrates the risks of over-emphasizing transparency as an accountability tool. Throughout 2016-17, the newly-sworn-in National League for Democracy (NLD) Burmese government rewrote its investment law, as well as its subordinate rules and regulations.  The reform process was undertaken by Burma’s Directorate of Investment and Company Administration (DICA) with technical assistance from the International Finance Corporation (IFC).

Human rights NGOs provided feedback with the aim of embedding respect for human rights and the environment within Burma’s new investment law regime. Ensuring that the Law and Rules incorporated rigorous transparency provisions was of fundamental importance to human rights advocates — bearing in mind the country’s egregious legacy of business-related human rights abuses and the opacity which has long-characterized Burma’s particular brand of crony capitalism.

Civil society feedback submissions covered a number of human rights issues and included transparency as a key concern. Notable among these suggestions was that the new government impose a set of “Responsible Investment Reporting Requirements,” which would require businesses investing over a certain monetary threshold to publicly disclose an annual report addressing a wide range of issues, including human rights, environmental matters, labor rights, anti-corruption measures, property acquisition and military communications.

Ultimately, civil society submissions regarding transparency were among the few suggestions taken up by DICA and the IFC in the re-writing of the new Investment Law and Rules. The final iteration of the Rules requires basic project information to be publicly disclosed before the government makes large-scale investment decisions. Additionally, it requires investors to submit annual reports on certain financial and non-financial matters to the Myanmar Investment Commission (which the Commission may decide to make public), including details of the investments’ impact on the environment and local community — but the disclosure requirements are bare-boned and are not accompanied by serious institutional buy-in on the part of the Myanmar Investment Commission. Ultimately, the drafters were hostile to rigorous human-rights based reporting requirements, which would have required due diligence on the part of companies, despite the urging of human rights NGOs. It seemed that the government, together with the IFC, was willing to incorporate only the smallest measure of transparency into the legal regime.

Without much more, embedding strong transparency requirements into Burma’s new investment law regime would do little to rectify the serious pathologies which characterize its business and human rights landscape. Enhanced transparency in Myanmar’s investment climate may begin to foster responsible business practices and encourage due diligence, but it does not promise to address broader structural issues that directly cause or exacerbate business-related human rights abuses extant in Burma, such as reckless investments in conflict-affected areas, systemic corporate tax avoidance, mammoth land grabs and displacement, and chronically weak labor-rights institutions.

Indeed, allowing irresponsible businesses to proceed as long as their disclosure requirements are met annually may actually legitimate a range of harmful business practices and obscure others that are undisclosed. Frequently, corporate disclosure efforts (especially in weak institutional contexts, where the prospects for audit and scrutiny are scarce) are little more than public relations exercises, with scant connection to the businesses’ real impacts on the ground. By emphasizing transparency as a global governance tool, we risk allowing corporations to give the allure of being a ‘rights-respecting’ or ‘socially responsible’ entities, with no substantive responsibilities being met to those most affected by their operations.

The focus on enhancing transparency also fails to support local communities affected by large-scale investments that frequently face intimidation and repression for speaking out against projects. Merely having information does little to open up spaces for contestation and access to justice. In addition, without linkages to domestic or transnational advocacy networks, ‘access to information’ means little for impacted communities. In the case of highly technical corporate disclosures, such reports can easily become sites of exclusion. The disclosure of a company’s Environmental Impact Assessment (EIA) is a salient example. EIAs are largely unintelligible for those untrained in environmental management (and in Burma, are frequently disclosed in languages and terms not understood by impacted communities). Yet, in producing and disclosing an EIAs, companies often claim to have met their obligations toward community consultation.

As a governance tool, information disclosure and transparency fit well within the prevailing neoliberal logic and its preference for due process rights over substantive equalities. Human rights advocates would be remiss in their work to solely focus on such tools. Transparency is a laudable beginning for investments in Burma, but it is the start, and not nearly the end of the broader accountability project. The risk that mere transparency is conflated with accountability and justice should not be overlooked.

Kate Taylor is a human rights lawyer and Postgraduate Fellow at the Rapoport Center for Human Rights and Justice, and is a member of the 2017-2018 Working Paper Series Editorial Committee. Her impressions in this post are drawn from her experience working in Burma on human rights reforms to the country’s investment law regime. 

3 Reasons Why We Need Critical Feminist Theory More Than Ever in the Age of Big Data

by Inga Helgudóttir Ingulfsen

8 NOV 2017

This post is a follow-up to Helgudóttir Ingulfsen’s paper “#RefugeesNotWelcome: Making Gendered Sense of Transnational Asylum Politics on Twitter”, which was published in the Rapoport Center’s Working Paper Series in 2016 (available here). That paper was also the winner of the Audre Rapoport Prize for Scholarship on Gender and Human Rights (2016), and was responded to by Courtney McGinn and Reina Wehbi in the piece “Are Refugees Really Not Welcome?“

In the age of Big Data­­—when Silicon Valley “tech bros” are busy convincing us of the merits of machine learning, and the US president pretends to govern while flirting with his white supremacists followers on Twitter—I make the case for why we need critical feminist scholarship now more than ever.

  1. Gender is at the Core of Xenophobic and Nationalistic Discourses

In December 2015, I was in my third semester of graduate school at New York University. Concerned about the rising tide of xenophobia (little did I know how much worse it would get), I wanted to look at online discourses about immigration and was interested in applying a feminist lens to the research. I typed #Refugees and #RefugeesNotWelcome in the search bar on Twitter and what I discovered was so dense with explicit sexist and misogynistic imagery and language that a few months later it amounted to a 120 page thesis.

My dataset revealed conversations littered with images of young white women covered in blood – supposed European victims of rape perpetrated by male immigrants from Muslim-majority countries. Twitter users from the US, Europe, and Japan alike portrayed the flow of refugees crossing the Mediterranean to Europe as a carefully calculated Muslim invasion of Europe, threatening to destroy Western civilization. The Twitter users employed powerful gendered language and imagery to construct a binary opposition between ‘Us’ – the White, Western, Enlightened community – and ‘Them’ – refugees, particularly Muslim refugees, construed as threats to the racial and cultural preservation and physical safety of the Western community.

Ironically, Enlightenment ideas – civil and political rights, feminism, freedom of speech – were used to justify fundamentally illiberal immigration and integration policies. The appropriation of feminist ideas was a prevalent strategy among the Twitter users I studied. These strategies are fraught with contradictions. The Twitter users call for the protection of both Western and Muslim women against the supposed violent nature of Muslim men, while consistently attacking what they see as hypocritical liberal and multicultural feminists, framed as naïve traitors of the Enlightened White community. The below meme from my dataset is one example of this strategy, accompanied by the following tweet: “RT@……….: The perks of multiculturalism #refugeesnotwelcome”.

(Image 8: Dataset 2 tweet 120)

  1. Feminist Research as a Tool to Understand and Combat Xenophobia

The realization that gender is instrumentalized in nationalistic and xenophpobic narratives is not new. Feminist scholars like Cynthia Enloe and Nira Yuval-Davis have been arguing as much since the 1980s. However, feminist studies of gender and nationalism have tended to be primarily based on interpretation of elite discourses or political statements. The vast amount of data produced by the billions of social media users around the world represents a new opportunity to develop more rigorous and empirically driven feminist studies of xenophobia. Social media are not just accessible pools of data that can be sampled for quantitative studies of social interactions; they are just as interesting for the richness and detail of the data produced by their users. Images, memes, and videos are combined with text commentary, providing detailed insight into how an individual user constructs a narrative and the types of visual and rhetorical tools employed to support that narrative. Knowing whether hashtags like #RefugeesNotWelomce, #Rapefugees or #WhiteGenocide are trending is not as valuable as understanding how each user justifies a narrative that frames male Muslim refugees as violent or racially inferior. If we want to combat xenophobia we have to understand what makes xenophobic narratives powerful and why they resonate with particular groups of people. Rather than counting hashtag use and “likes,” we need to delve into the stories behind the hashtags. Feminist discourse analysis is a powerful tool to do just that because gender binaries are key organizing principles behind these stories.

  1. Feminist Scrutiny of Algorithms: Exposing Patriarchal Bias in the Big Data Universe

My study, published in 2016, highlights why we should be careful to mine Facebook and Twitter to study public sentiment: social media users differ from the general population in multiple ways, and the algorithms that structure information on social media are built to generate profit rather than organic conversations and interactions. Returning to the topic now, I see that my study failed to explore in detail a critical component of algorithmic bias – the ways in which gender and race biases are themselves integral to the structure of online information and interactions. Scientists have revealed how “machine learning algorithms are picking up deeply ingrained race and gender prejudices concealed within the patterns of language use.” The data that is used to train algorithms is after all generated by humans. One study found algorithms have adopted implicit biases commonly detected in psychology experiments: “[t]he words “female” and “woman” were more closely associated with arts and humanities occupations and with the home, while “male” and “man” were closer to math and engineering professions.” How might for example, Twitter’s algorithms have learned these types of implicit gender biases and how could those in turn be helping to make certain (gendered and racialized) content more prominent?

Phrases like artificial intelligence, Big Data, and machine learning give off a false aura of objectivity that can lead to fatal misrepresentations and uses of the data generated by social media users. I have witnessed first-hand how policy-makers can be seduced by Big Data’s false promise of objectivity. Participating in a meeting on Big Data and evaluation hosted by the Rockefeller Foundation and attended by UN evaluation officers and data scientists, algorithmic bias was not adequately addressed and Twitter was presented as a promising source of information on public sentiment. UN Global Pulse – the UN’s Big Data Initiative – was the main proponent, and several of their projects make use of social media data for perception studies. Presenting my findings to the data and research team at UN Women, I warned of the algorithmic biases in social media data and argued for extreme caution in using Twitter data to track public sentiment or perceptions on gender.

Feminist scholars would make ideal methodological foot soldiers in the battle to discount false narratives of Big Data objectivity, as feminist epistemology is inherently critical and skeptical of any tradition that lays claim to objective truth. We need more strong feminist voices like Soraya Chemaly to counter the corporate spin of Silicon Valley “tech bros.” We should ramp up investments in initiatives like the Women’s Media Center’s Speech project and the Algorithmic Justice League to begin to construct a more just and inclusive internet.

Inga H. Ingulfsen is a Research Analyst in Global Partnerships, at Foundation Center and graduated from NYU’s Center for Global Affairs in May 2016 with an MS in Global Affairs, specializing in gender, immigration and peacebuilding.

Mixed and Clashing Patterns in Fashion and Between Shanzhai Culture and Copyright Law—A Unique Perspective for Women Designers

20 JUL 2017

Sara Liao’s article, “Fashioning China,” delves into the juxtaposition of copyright laws and creative women entrepreneurs in China. Shanzhai culture refers to the detailed-oriented reproduction of clothing, accessories, and other consumer goods. Copyright laws and governmental entities claim these goods are counterfeit and damage the economy. For the women entrepreneurs, however, these reproductions are a source of livelihood and a form of artistic expression. Shanzhai culture promotes an alternative view of their work that does not characterize the makers as criminals manufacturing counterfeits, but as artists creating fashion and as women aspiring to a greater life—the Chinese dream.

The paper details the design and manufacturing process of reproduction starting with an online polling process and ending with delivery of the reproduced project. The items produced through Shanzhai are not the cheap knock-offs many associate with made-in-China counterfeit products. Instead, these products are intricate. Immense detail is required down to the stitching and attaching buttons to a garment.

The strength of this paper lies in the author’s ability to weave the human element and the true impact on women’s livelihoods into the legal discussion of the government restrictions on counterfeiting. Traditionally, discussion of copyright law and product reproduction are narrowly focused on the economic harm befalling the companies whose products are being reproduced. These accounts are cold and the actors are nameless. Instead, this paper shines light on the faces of the women who create products by giving them space in the narrative. The paper exposes the true complexity of the tension between Shanzhai culture and government regulation and gives the reader room to consider each aspect of the debate.

There are ample opportunities to further this type of research investigating the cultural and political implications of the fashion industry in China and throughout the rest of the world. There is much to be dissected from the growing feminisms of these producers and business women. Further inquiry into the implications of Shanzhai on intellectual property laws and the rights of these property holders would be illuminating to discover the cause of these problems as well as some potential solutions. Where is the exact departure between creative appreciation and a copyright violation? Where exactly will the line for protected speech be drawn? Is it in a designer’s sketchbook or a line in a settlement of litigation? Further research is necessary to advise those who might be trying to bridge these cultural divides to protect freedom of expression as well as protect individual property rights.

Additionally, analysis on free speech issues and expressive product creations could create a wealth of opportunity for scholarly work. This individualistic approach to speech strengthens with the rise of social media. In today’s information age, in this political climate where the internet and e-commerce is itself in a precarious position due to the potentiality of “net-neutrality” policies, and with globalization blending cultures at an ever accelerating rate, speech issues are a “hot” topic.

Comment on Violence, Mobility, and the Borders of Bengal

by Jason Cons

3 JUL 2017

Rimple Mehta’s ethnographic exploration of the violence of mobility in “Mobility across Borders and Continuums of Violence: Experiences of Bangladeshi Women in Correctional Homes in Kolkata” is a critical intervention in studies of migration across the India-Bangladesh border and of border crossing more generally. Through a study of Bangladeshi women in correctional homes in Kolkata, she foregrounds the ways that migrants crossing this border are exposed to multiple forms of gendered violence. Moreover, unlike much of the rapidly expanding body of work on the India-Bangladesh, she follows the trajectory of this violence outwards from the border—tracing it from Ready Made Garment factories in Dhaka to correctional homes in Kolkata and back across the border again. Thus, we learn from her work not only about the precariousness of border crossing, but also the violence of detention and return. In recent years, scholarship in the US and Europe has increasingly turned its attention to what Nicholas De Genova and Nathalie Peutz (2010) have provocatively called “the deportation regime”. Mehta’s study reminds us that we must attend to the particularities of such regimes in other spaces where borders purport to curtail movement between radically unequal states.

Mehta’s work raises questions that scholars of borders, of migration, and of violence need to consider with more care. One of these is the need for a better understanding of violence and its specific articulations with gender. Mehta’s work shows that border crossing is an act fraught with gendered precarity. That said, it remains less clear how we should understand and differentiate these specific forms of violence in the context of the broader violence of borders (Jones 2016). As the Human Rights Watch study on shootings at the India-Bangladesh border that she cites makes clear, the vast majority of those shot-on-sight by India’s Border Security Forces are men. Moreover, in the tragic case of Felani Khatun that Mehta raises at the outset of the paper, there is ample evidence to suggest that she was shot simply because she was seen as a border crosser (moving from India back into Bangladesh). There is less evidence to suggest that she was shot specifically because she was a woman. How then might we better trace and understand the relationship between gender, mobility, and violence at this border?

As the work of Malini Sur (2007), Sahana Ghosh (2014), and Delwar Hussain (2013) has recently shown, gender plays an intimate role in mediating mobility at the India-Bangladesh border. Women crossing this border are certainly exposed to often horrific forms of violence. Yet, gender also plays a critical role in enabling certain kinds of movements even as it restricts others. This suggests that greater attention is needed to the micropolitics of crossing and the ways that bodies of both women and men are exposed to regimes of violent regulation.

Perhaps the most exciting aspect of Mehta’s paper is that it furthers the project of restoring voice to women who are often systematically reduced to statistics or glossed as abject victims in reporting on human trafficking. In the narratives of women in detention centers in Kolkata, we can begin to glimpse the ways that women who move across this border make difficult choices in conditions very much not of their own choosing. As Diana Tietjens Meyers (2011) has argued, much of the literature on trafficking is trapped in a two-victim paradigm—unable to represent women as anything other than abject victims or heroic resisters of their conditions. Mehta’s paper shows the realities to be much more complicated. It is an ethnographically rich exploration of what Meyers calls “burdened agency.” Through this reading, we begin to understand the often painful decisions that women make that expose them to often horrific forms of violence. Moreover, it forces us to reckon with these decisions as choices. Her work thus demands that we confront the question of agency and humanity in mobility even as it exposes the dehumanizing technologies and techniques of violence in border crossing and detention.

Work Cited

De Genova, Nicholas and Nathalie Peutz (eds). 2010. The Deportation Regime: Sovereignty, Space, and the Freedom of Movement. Durham: Duke University Press.

Ghosh, Sahana. 2014. “Anti-Trafficking and Its Discontents: Women’s Migrations and Work in an Indian Borderland.” Gender, Place and Culture: A Journal of Feminist Geography. 1220-1235.

Hussain, Delwar. 2013. Boundaries Undermined: The Ruins of Progress on the Bangladesh-India Border. London: C. Hurst & Co.

Jones, Reece. 2016. Violent Borders: Refugees and the Right to Move. London and New York: Verso.

Meyers, Diana Tietjens. 2011. “Two Victim Paradigms and the Problem of ‘Impure’ Victims.” Humanity. 2(2). 255-275.

Sur, Malini. 2007. “Bamboo Baskets and Barricades: Gendered Landscapes at the India-Bangladesh Border.” In Transnational Flows and Permissive Polities: Ethnographies of Human Mobilities in Asia. Amsterdam: Amsterdam University Press. 127-150.

Jason Cons is in the Department of Anthropology, University of Texas at Austin

Legalized Slavery in the United States Implemented Through the “Justice” System

by Courtney McGinn

26 APR 2017

The prison system in the United States equates to modern-day slavery due to its targeting of racial and ethnic minorities. There are 2.2 million people in the nation’s prisons and jails, which amounts to a 500% increase over the last 40 years. One in seventeen black men, aged between thirty and thirty-four, were in prison in 2015, as were one in forty-two Hispanic males, and one in ninety-one white males in the same age group. Today, people of color make up thirty-seven percent of the United States population but sixty-seven percent of the prison population. African Americans are “more likely than white Americans to be arrested; once arrested, they are more likely to be convicted; and once convicted, they are more likely to face stiff sentences.”  Similarly, African American men are six times as likely to be incarcerated as white men and Hispanic men are more than twice as likely to be incarcerated as non-Hispanic white men. One in three African American males are expected to go to prison, while one in seventeen white males are expected to do the same.[i]  In fact, no other country in the world imprisons as many of its racial or ethnic minorities as the United States does, even the highly repressive regimes in Russia, China, and Iran.[ii] Currently, the United States imprisons a larger percentage of its African American population than South Africa did at the height of apartheid.[iii]

The increase of the incarcerated population, especially the population of incarcerated minorities, is a result of a series of law enforcement and sentencing policy changes in the “tough on crime” era, not a result of more crimes committed by these individuals.  Since the official beginning of the “War on Drugs” in 1982, the number of people incarcerated for drug offenses in the United States drastically increased from 40,900 in 1980 to 469,545 in 2015, with most of those incarcerated being African Americans. The War on Drugs was allegedly in response to the crack cocaine epidemic, but this has been dispute by several civil rights activists. For example, Michelle Alexander, a highly acclaimed civil rights lawyer and the author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness, points out that President Ronald Reagan officially announced the current drug war in 1982, well before crack even became an issue in the media or a crisis in poor black neighborhoods.[iv] It was actually a few years after the drug war was declared that “crack began to spread rapidly in the poor black neighborhoods of Los Angeles and later emerged in cities across the country.”[v] In Michelle Alexander’s view, shared among others, this drug “epidemic” was created by the United States to continue the oppression of African Americans.[vi] In fact, the CIA admitted that the guerrilla armies it actively supported in Nicaragua were smuggling illegal drugs into the United States – “drugs that were making their way onto the streets of inner-city black neighborhoods in the form of crack cocaine.”[vii] The CIA also admitted that during the War on Drugs era, it blocked law enforcement efforts to investigate illegal drug networks that were helping to fund its covert war in Nicaragua.[viii]

As the War on Drugs continued, law enforcement began focusing on urban areas, on lower-income communities, and on communities of color. Therefore, minorities became a target for incarceration. While crack cocaine was considered an inner-city issue mostly affecting African Americans, whites were directly tied to the use of powder cocaine.[ix]  Since the 1980s, federal penalties for crack were 100 times harsher than those for powder cocaine, with African Americans disproportionately sentenced to much lengthier terms. In 2010, the crack/powder sentencing disparity reduced from 100:1 to 18:1, but the disparity still remains, leaving minorities vulnerable to inequitable treatment by the criminal justice system.

Studies show that people of every color use and sell drugs illegally at substantially similar rates to their white counterparts.[x] Such studies even frequently suggest that whites, particularly white juveniles, are more likely to partake in drug crime than people of color.[xi] Although African Americans comprise only fourteen percent of regular drug users, they account for thirty-seven percent of those arrested for drug offenses. Despite this, minorities, specifically African Americans, are far more likely to be stopped, searched, arrested, prosecuted, convicted and incarcerated for drug law violations than are whites. Today, there are more African Americans behind bars for a drug offense than the number of people who were in prison or jail for any crime in 1980. If current trends continue, one in three young African-American men will serve time in prison.[xii]

Once incarcerated, most “criminals” are required to perform mandatory, essentially unpaid, labor.  While not all prisoners are “forced” to work, most “opt” to because they have no other choice – they need the pay, no matter how low, in order to purchase food, toiletries, and other basic necessities not provided to them. Some individuals experience additional financial strain by having to pay legal fees or support their families. In places like Texas, however, prison work is mandatory and unpaid.  According the Texas Department of Criminal Justice, prisoners start their day with a 3:30 a.m. wake-up call and are served breakfast at 4:30 a.m. All prisoners who are physically able are required to report to their work assignments by 6 a.m. For prisoners who refuse to work, they are placed in solitary confinement. The Texas Department of Criminal Justice states that one of its goals is to reduce operational costs by having prisoners produce their own food, but also admits that the prison system earns revenue from “sales of surplus agricultural production.” This is all too familiar to the slavery practices that occurred years ago – the “slave” works tirelessly with no pay while the “slave master” reaps those benefits.

After incarceration, individuals continue to be marginalized by their status as “criminals.” Once labeled a felon, the older forms of discrimination that were deemed illegal after the collapse of the Jim Crow era become legal again; employment and housing discrimination, denial of the right to vote, denial of educational opportunities, denial of food stamps and other public benefits, and exclusion from jury service. [xiii] Because of these realities, it is hard to view the prison system in the United States as anything but a modern form of slavery. As Michelle Alexander stated, “[w]e have not ended racial caste in America; we have merely redesigned it.[xiv]

Work Cited

[i] Film: 13th.

[ii] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), 6.

[iii] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), 6.

[iv] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), 5.

[v] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), 5 (citing “The Crack Attack: America’s Latest Drug Scare, 1986-1992,” in Images of Issues: Typifying Contemporary Social Problems (New York: Aldine De Gruyter, 1995), 152).

[vi] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), 5.

[vii] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), 6.

[viii] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), 6.

[ix] Film: 13th.

[x] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), 7.

[xi] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), 7.

[xii] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), 9.

[xiii] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), 2.

[xiv] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), 2.

Courtney McGinn is an LLM student at Texas Law, concentrating in Human Rights and Comparative Constitutional Law, and member of the 2016-2017 Working Paper Series Editorial Committee.

#JungleRepublic: Where a Facebook Status Can Cost You Your Freedom

by Reina Wehbi

12 APR 2017

An enraged young Lebanese activist, Ahmad Amhaz, was detained in March over this Facebook status: “Three kinds of animals currently rule our country: a donkey, a crocodile and a third whose kind is yet to be discovered.” Referencing the Lebanese president, prime minister, and speaker of parliament, Ahmad used the popular social media network to express his dissatisfaction with what he perceives as the “incompetency” of the country’s leaders, using the hashtag #JungleRepublic. After being stopped at a check point by intelligence officers for an alleged traffic violation, Ahmad was driven to a police station where he was later told he was arrested for online libel. Ahmad was then transferred to the Bureau of Cybercrime and Intellectual Property Rights for investigation. One week later, the investigative judge confirmed charges of libel and defamation against Ahmad who was kept in detention. Meanwhile, popular outrage from Lebanese civil society and human rights organizations—including Human Rights Watch and the Lebanese Center for Human Rights—grew stronger, propelling the release of a statement condemning the “arrest, detention and prosecution of Ahmad,” which constituted a violation of Lebanon’s human rights obligations under International Law. The fury of human rights defenders led the president and the prime minister to relinquish their personal rights regarding the case and the activist was released on bail after 9 days of detention. However, Ahmad is still on trial and could face up to two years in jail for violating Article 852 of the Lebanese Penal Code, which prohibits defaming the office of the President and national emblems.

The wave of arrests targeting journalists and activists in Lebanon over online statements— especially those made on Twitter and Facebook—during the last few years has escalated at an alarming rate. The Penal Code that the Cybercrime Bureau relies on to prosecute those who commit online libel, slander, and defamation dates back to the Ottoman Era, and thus does not comprehensively cover online crimes, modern norms of free expression and punishable dissemination of information. In the absence of clear law regulating cyberspace, the credibility of the Cybercrime Bureau, which was established by the Internal Security Forces in 2006 following the rise of cybercrimes, continues to be tested. Moreover, the broad and vague language of Lebanese criminal laws allows for discretion in applying the law. The Bureau enforces these vague laws against those with no political power as a way of intimidating the public. The legality and proportionality of pre-trial detention prior to conviction also remains in question and puts at stake the right to due process.

Article 13 of the Lebanese Constitution guarantees freedom of expression “within the limits established by the law.” Although the article seems to protect this basic freedom, it grants public officials immunity against criticism and results in “self-censorship” of journalists, activists and civilians who often use social media to voice their concerns and respond to officials’ activity. Although it is hard to draw a line between protected speech and extreme speech, Lebanon remains in a dire need of updated laws that are compatible with modern modes of communication. In the opinion of the young activist Ahmad, “officials should not be immune to criticism or defamation when they are not diligently serving the public.”

Reina Wehbi is an LLM student at Texas Law, concentrating in Human Rights and Comparative Constitutional Law, and member of the 2016-2017 Working Paper Series Editorial Committee.

Finding a Balance: Privacy and Safety

by Leo Mata

5 APR 2017

Considering the most recent release of information by WikiLeaks, and the ongoing 2016 election investigation, it seems as apt a time as ever to reevaluate the right of privacy and how far it truly protects the individual. In the United States, while the right to privacy is not specifically mentioned in the Constitution, the Supreme Court has looked to various amendments to establish this right through decades of court jurisprudence. In contrast, the right to privacy has been enshrined in at least 170 constitutions across the globe. Moreover the United Nations Special Rapporteur on the right to privacy, Joseph Cannataci, has stated that “[article] 12 of the UNDHR and [article] 17 of the ICCPR do not state that the right to privacy is a right which is only enjoyed by the citizens of one’s own state.” So, it should not matter whether your own country has a constitutional provision safeguarding individual privacy, as long as that country has signed onto the Universal Declaration of Human Rights or the International Covenant on Civil and Political Rights. Yet, it is worth noting that even within each of these avenues for protection, constitutional or treaty based, there are limits to the protection. The line for protection is usually drawn around the ideas of unlawful interference or arbitrariness. The important question here, then, is: How do we balance our need to prevent attacks by foreign agents and our right to privacy?

Looking at the United States, we can track a variety of spying scandals as examples. The idea of spying on U.S. citizens is neither uncommon or unheard of. The Federal Bureau of Investigation (FBI) in its history has tracked such notable figures as Rev. Martin Luther King Jr. and Eleanor Roosevelt, and was implicated, along with other agencies, in the Watergate scandal. The government said it monitored Rev. King out of fear that his movement was being infiltrated by communists, and this reasoning was enough for the Attorney General to approve monitoring. In the modern era, combating foreign actors is often the guise under which government agencies justify domestic spying. Learning from our past mistakes, the United States established the FISA Court which is designed to act as a safeguard against unnecessary intrusions into our lives while allowing the government to monitor for foreign intelligence purposes. However, despite this level of protection there have been numerous reports of the National Surveillance Agency (NSA) acting beyond their legal scope. So, we must ask, is the FISA Court a sufficient level of protection against the abuse of an individual’s right to privacy? Even the Court itself has acknowledged it has a limited ability to protect our right to privacy.

The recent trove of documents released by WikiLeaks identify methods, such as the installation of spyware into your smart TV or smart phone, that the Central Intelligence Agency (CIA) could use to gather information. The idea that the CIA can hack into devices is nothing new, spying is in fact what their job entails as a means of protecting the United States, but when placed side by side with a history of abuse, it is hard to not fear a violation of privacy. This has, justifiably, put many on edge. However, it is important to note that the tools released are older and have reportedly been patched by the respective technology companies.

Putting the WikiLeaks release aside, there seems to be little concern from the public over what U.S. intelligence agencies do in their efforts to conduct foreign surveillance. However, what has raised some concerns is when foreign surveillance includes the surveillance of U.S. citizens. Recently, this has come to the attention of many Americans with the announcement that surveillance of U.S. citizens occurred while intelligence agencies monitored Russian communications during the 2016 election. It should be noted that this type of surveillance on U.S. citizens falls into a category known as incidental collection. While incidental collection is nothing new, the ongoing 2016 election investigation has resulted in the release of names and information of U.S. citizens. The disclosure of personal information has caused some people to worry that the intelligence community is not protecting our information as closely as they contend. However, this is the FISA Amendments Act doing exactly what it is designed to do. While incidental surveillance will always be an issue if surveillance exists, the recent focus on it is more relevant than ever as the FISA Amendments Act is set to expire on December 31, 2017. This presents an opportunity for Americans to voice their concerns and either continue down the path we are on, or request that changes be made.

For some, these methods of spying and releasing of personal information will create paranoia, for others anger, but for most they will create no disruption to their daily lives. Each of these responses alone demonstrates a failure within our society. In the face of the ever-growing foreign threats, it is of the utmost importance that we have a conversation about how we combat it. As members of society do we not owe a duty to one another to prevent harm from befalling us? If so, to what length does that duty extend? Should the government be given greater leeway in protecting civilians from terrorism, or would we rather risk greater harm for greater privacy? Is it enough to leave it to private companies to push back against government intrusions? If history is any indicator it seems that our privacy rights will continue to give way to combat the grave threats before us. To prevent this seemingly inevitable future, as we move forward in our efforts to protect Americans—and whatever the next threat may be—the logic behind the need for surveillance should not go unchallenged or be considered infallible. Just because the right to privacy was not designed to be an absolute right does not mean it should be cast aside.

Leo Mata is a J.D. student at Texas Law, Rapoport Center Fellow, and a member of the 2016-2017 Working Paper Series Editorial Committee.