How a Technology Becomes a Rights Question

A technology that changes none of the five is usually not a rights question. A technology that changes three or four of them is almost always one.

Step three: list the rights on both sides

Every serious technology advances some rights and threatens others, and an answer that gives only one side is incomplete on this paper. The chapter on dual use develops the point; here it is a discipline of the method.

Ask first which rights the technology serves: health, education, work, information, participation, the enjoyment of the benefits of scientific progress. Ask then which rights it threatens: life, privacy, equality, expression, fair trial, bodily integrity. Write both lists before choosing a side.

The examiner is not asking whether the technology is good. The examiner is asking whether the student can see both columns and then reason about the trade between them.

Step four: name the duty bearer and the duty

A right with no identified duty bearer is a complaint, not a legal claim. The chapter on what a human right is sets out the three duties of the State, to respect, to protect and to fulfil; the step here is to apply them.

Respect is engaged when the State itself deploys the technology: a police force running the facial recognition, a hospital run by the government holding the records.

Protect is engaged when a private actor deploys it, and this is the duty that does most of the work in this subject, because most technology is developed, owned and operated privately. The State's failure to regulate is itself the breach.

Fulfil is engaged when the complaint is that the technology is absent: no diagnostic equipment in the district hospital, no assistive technology in the school.

The 1975 Declaration writes the first two duties into an instrument. Paragraph 2 requires States to take appropriate measures to prevent the use of scientific and technological developments, "particularly by the State organs", to limit or interfere with the enjoyment of human rights. Paragraph 8 requires States to take effective measures, "including legislative measures", to prevent and preclude the use of scientific and technological achievements to the detriment of human rights and of the dignity of the human person. The words "including legislative measures" are the treaty language of the duty to protect.

Step five: test the interference

Almost no right in this field is absolute, so identifying an interference does not end the argument. An interference must be justified, and the four questions are always the same: is it prescribed by law, does it pursue a legitimate aim, is it necessary for that aim, and is it proportionate, meaning that no less restrictive measure would do and that the harm imposed does not outweigh the benefit gained.

Module IV develops that test in the form Indian law now applies. At this stage what matters is the discipline of asking it. A student who writes that a technology "violates the right to privacy", and stops, has not answered the question, because every lawful search and every lawful interception also interferes with privacy.

Step six: ask about distribution and remedy

Two questions close the analysis, and both are frequently forgotten.

Distribution. Who receives the benefit and who carries the risk? The two are often different people, and where the population that bears the risk is not the population that gets the benefit, the objection is one of equality and of benefit sharing rather than of safety. The chapters on benefit sharing and on the digital divide take this further.

Remedy. What can the affected person actually do, and against whom? A right without a remedy fails at exactly the point where it matters. Ask whether the person can find out that the technology was used on them, whether they can obtain the evidence, whether there is a body with power to order the use stopped, and whether compensation is available. The chapter on remedies when technology causes harm follows those routes through.

What the instruments add

Two treaty provisions are worth carrying into any answer on this topic, because they show that the method is not merely an academic construction.

CEDAW, article 11(3). The Convention on the Elimination of All Forms of Discrimination against Women, adopted by General Assembly resolution 34/180 of 18 December 1979 and in force from 3 September 1981, provides that protective legislation relating to the matters covered by article 11 "shall be reviewed periodically in the light of scientific and technological knowledge and shall be revised, repealed or extended as necessary". That is a binding obligation to keep the law in step with what science now knows. It is the clearest treaty statement that a change in scientific knowledge can, by itself, make an existing law unlawful.

CEDAW, article 14(2)(g). States must ensure to rural women the right "to have access to agricultural credit and loans, marketing facilities, appropriate technology and equal treatment in land and agrarian reform". Access to a technology is stated as a component of equality, which is the treaty form of step three's second column: the absence of a technology can breach a right just as its presence can.

The 1975 Declaration adds the general obligation in paragraph 7: States are to take the necessary measures, including legislative measures, to ensure that the utilization of scientific and technological achievements promotes the fullest realization of human rights "without any discrimination whatsoever on grounds of race, sex, language or religious beliefs".

A worked example

Godavari English School in Nashik installs a camera at its gate that records attendance by recognising each pupil's face. Mrs Kulkarni, the principal, buys the system from a private vendor, which stores the images on its own servers. Ayesha, aged fourteen, is marked absent three times because the system misreads her when she wears a headscarf.

Step one, the capability. The school, and in fact the vendor, can now identify and log the movement of every child at the gate, continuously, automatically, without any adult present, and at negligible cost per child.

Step two, what changed. Scale: every child, every day, instead of a register read by a teacher. Permanence: a biometric template of a minor is stored indefinitely. Invisibility: neither Ayesha nor her parents can see what is recorded or by whom. Delegation: the decision that Ayesha was absent is now taken by software. Four of the five changes are present.

Step three, both columns. Served: education administration, punctuality, the safety of children whose arrival can be confirmed. Threatened: privacy, the special protection owed to a child, equality, because the error rate is not evenly distributed, and the right to a remedy.

Step four, the duty. The school is private, so the primary duty engaged is the duty to protect: the State must regulate what a private school and a private vendor may do with a child's biometric data. That is the duty the 1975 Declaration puts in paragraph 8 as a duty to take effective measures, including legislative measures.

Step five, the justification. Is there a law permitting it? Is marking attendance a legitimate aim? Certainly. Is a facial biometric necessary for it, when a card, a register or a fingerprint-free roll call would do the same job? That is where the system probably fails, because a less restrictive means plainly exists. Proportionality asks whether a lifelong biometric record of a child is a fair price for saving a teacher five minutes a day.

Step six, distribution and remedy. The benefit goes to the school in saved time, and the risk is carried by the children. Ayesha's remedy is the weakest part: she cannot see the data, cannot test the error, and has been marked absent by a decision with no author. The absence of a remedy is not a side issue in this problem. It is the strongest part of her case.

When a technology is NOT a rights question

The method has to be able to say no, or it says nothing. Three filters, and all three must be satisfied.

It must touch an interest that a right protects. A better gearbox on a bicycle affects convenience and nothing else. Convenience is not a protected interest.

The effect must be attributable to somebody who owes a duty. Harm caused by nobody in particular is a misfortune. Harm caused by a State organ, or by a private actor the State was obliged to regulate, is a rights question.

The effect must be more than trivial. Every technology has some effect on somebody. A right is engaged when the effect on the protected interest is real, not notional.

Applying those three keeps the answer honest. Many complaints about technology are complaints about a policy choice, a commercial practice or a personal taste, and calling them human rights violations weakens the phrase for the cases that deserve it.

The three ways a technology enters rights law

Most examination questions are about the first route. The best answers notice that the second and the third exist, because that is what distinguishes a student who has understood topic 2 from one who has learnt a list of dangers.

What beginners get wrong

Describing the technology instead of analysing it. Half a page on how a system works earns nothing. One sentence naming the capability earns everything, because it is the sentence the rest of the answer is built on.

Assuming a new technology needs a new right. It almost never does. The existing rights are re-applied to new facts. Claiming a new right is an exceptional move that has to be argued for, and the chapter on access to the internet shows what that argument looks like.

Treating the State as the only actor. Most of the technology in this paper is private. The question is not only what the State did but what the State allowed, which is the duty to protect.

Stopping at "this violates a right". Interference is the beginning of the analysis. Justification is the rest of it, and an answer that skips step five has skipped the law.

Quick revision

• A new technology becomes a human rights question when it changes the practical conditions on which an existing right depends, by creating a capability that can be used against a protected interest or by supplying a means of realising a right.
• Six steps: name the capability; ask what it changed; list the rights on both sides; name the duty bearer and the duty; test the interference; ask about distribution and remedy.
• Five changes to test for: scale, cost, permanence, invisibility, delegation.
• The duty to protect does most of the work, because most technology is private. 1975 Declaration, paragraphs 2, 7 and 8.
• CEDAW article 11(3): protective legislation must be reviewed periodically in the light of scientific and technological knowledge and revised, repealed or extended as necessary. Article 14(2)(g): access to appropriate technology as a component of equality for rural women.
• Three filters before calling something a rights question: a protected interest, an attributable duty bearer, a more than trivial effect.
• Three routes into rights law: threat, means, re-reading.

Test yourself

1. Set out the six steps of the analysis and say why the order matters. Name the capability rather than the device; ask what the capability changed, testing scale, cost, permanence, invisibility and delegation; list the rights the technology serves and the rights it threatens; identify the duty bearer and which of the duties to respect, protect or fulfil is engaged; test whether the interference is prescribed by law, pursues a legitimate aim, is necessary and is proportionate; and ask who gets the benefit, who carries the risk and what remedy the affected person has. The order matters because each step produces the material the next one uses: without the capability there is no right to identify, and without the right there is no duty to allocate.

2. Why is the duty to protect the most important of the three duties in this subject? Because the great majority of technology is developed, owned and deployed by private actors. If the framework reached only the conduct of State organs it would leave the hospital chain, the platform, the laboratory and the vendor untouched. The duty to protect makes the State answerable for failing to regulate them, which is why the 1975 Declaration speaks in paragraph 8 of effective measures including legislative measures.

3. A district administration proposes to distribute tablets to schoolchildren. Is this a rights question, and if so which route? Yes, by the second route, technology as a means. The complaint in such cases is usually not that the tablet threatens a right but that its absence prevents the enjoyment of one, which engages the duty to fulfil. The equality analysis matters most: who is left out, and does the distribution widen an existing gap. CEDAW article 14(2)(g) is the treaty analogue, stating access to appropriate technology as part of equality rather than as a benefit.

4. Give an example of a technological change that is not a human rights question, and explain why. An improvement in the gearing of a bicycle. It fails the first filter, because the interest it affects is convenience, which no right protects. It also fails the second, since no duty bearer is responsible for anyone's ordinary preference between one gearbox and another. Keeping the filters strict matters: describing every commercial or policy complaint as a human rights violation devalues the term where it is genuinely needed.

5. What does article 11(3) of CEDAW add to this topic that no other provision in the base supplies? It states, in binding treaty form, that laws must be re-examined when scientific knowledge changes, and revised, repealed or extended accordingly. It is the textual foundation of the third route, in which a technology becomes a rights question not by creating a danger but by making an existing rule obsolete, and it shows that the obligation to keep law in step with science is a legal duty rather than good practice.