Break the Digital Monoculture

Nani Jansen Reventlow is an award-winning human rights lawyer specialised in strategic litigation at the intersection of human rights, social justice, and technology. Trained as a litigator and with an extensive background in defending journalists and human rights activists in some of the most repressive environments in the world, Nani built on this experience when she founded the Digital Freedom Fund to advance digital rights through strategic litigation in Europe.

Read more, here. 

You are the founder of the Digital Freedom Fund (DFF) and you have long been working at the intersection of law, human rights, and technology. What brought you into this exciting career?

I wish I could say that it was all a big master plan to end up working on digital rights and strategic litigation, but it wasn't. I became familiar with strategic litigation when I was working at the Media Legal Defence Initiative (now Media Defence), an organization based in London, that works to defend journalists and bloggers around the world. 

Two things came up in that context. One was strategic litigation as a tool for systemic change. I had the privilege to work on cases all over the world, in national jurisdictions and at international courts, that had to do with freedom of expression. Here you had the opportunity to leverage one case to bring about a bigger change in law, policy, or practice. For example, I got to litigate the first freedom of expression case at the African Court on Human and Peoples’ Rights. That case didn't only make a difference for the journalist in question, but it also helped strike down a law so that other journalists couldn't be imprisoned under that legislation. 

I saw the importance of the internet as a tool for information sharing and dissemination. Simultaneously, I got really fascinated with strategic litigation. After leaving Media Defence, I worked on a project at the Berkman Klein Center at Harvard to really look at collaboration across different disciplines in relation to strategic litigation. How can you get lawyers, activists, technical experts, and academics to work together to keep the internet open and free? At that point in time the opportunity to set up DFF came along, where we focused on strategic litigation at a field level. So instead of being involved hands on in cases, we focused on how we could facilitate support for those who want to bring about change and defend our human rights in a digital context.

And returning to the present, what is the main question that drives you at the moment?

There are two questions that drive the work. From a mission related point, we ask how we can enable better cases to advance and protect our human rights in a digital context. We currently do that through financial support for strategic litigation projects and through skills and knowledge building. 

The second question overlays that: how can we make sure that the work better represents the needs of everyone in our society? And that's where we come to the work we have initiated on decolonisation. 

What is your personal drive to focus on these two questions?

I can't stand inequality. And I often struggle with this question because people always expect a beautiful origin story. It’s actually nothing like that. If you were to dig deeper, growing up in The Netherlands as a girl with a mixed background, you are inherently aware that your position is different in whichever context you operate.  

But I have to say my work hasn't been driven from that identity perspective as such. I always hated unfairness. Also, from a law nerd perspective it's just fascinating to use the law as a tool for good. That is a wonderful strategic puzzle: how do you make sure that litigation works in tandem with campaigning, advocacy work, policy efforts, and legislative efforts to bring about bigger change?

We want to talk more about digital rights and strategic litigation. Before we go into greater detail, could you outline what we mean when we talk about digital rights? 

There's a very traditional view of digital rights as being online freedom of expression, data protection, and privacy rights, which is a very narrow view. 

I think the more correct view is that it concerns all human rights as they are engaged in the digital context. So it's not just civil and political rights, but also economic, social, and cultural rights. And I think that this view is becoming more relatable. 

Due to the pandemic, most of us were confronted with how much we depended on technology to fulfill basic needs. At DFF, we set up a specific COVID-19 litigation fund in the summer of 2020. One of the issues we supported was concerns around reproductive rights. During a pandemic and in lockdown, it became extra important to access information on this matter online. Because if a government decides to block websites that contain that  information, people – who cannot visit a doctor in person – are left in the cold. 

So at DFF we work with a more holistic view: “digital rights are human rights”. 

If we look at the current state of digital rights, what are the pressing global issues?

I always struggle a little bit with the most pressing issue because it's so difficult to compare. 

In light of the pandemic, a pressing issue is the lack of consideration about what governments are rolling out – resorting to tech solutionism – measures that will be very difficult to roll back. With COVID apps there was the assumption that if you collected and shared more data, you would be better able to combat the pandemic without actual proof that this was going to be the case. There's some sort of blind faith in technology coming in to save the day without anyone providing evidence to support these beliefs. 

When technologies are applied as a solution it usually comes from a privileged position. There's insufficient consideration of the negative impact that it can have on marginalized groups. To a large extent this has to do with the composition of those who are currently the “watchdog” of our society. The digital rights field is still mostly male, mostly white, mostly able bodied, cisgender, etc. 

What can strategic litigation look like or how does it work?

So strategic litigation is litigation that is really interconnected with other strands of activities. It interacts with campaigning, with advocacy work, with policy work, with generating public debate. It's much more than just the court case.

You're really trying to make sure that the public at large understands what the issues are and what is at stake in the case to set the stage for bigger systemic change. You can have an impact also without necessarily winning your case in court. There’s often a lot of concern about what happens if you lose. Obviously, no one wants to set a bad precedent. But it can be a calculated risk that you put an issue on the map even if the courts might not go along with you. 

A great example in the Netherlands is the challenge to the system risk indication system. The Dutch government decided to connect a number of public institution databases and run an algorithm over those collected data to determine who was more likely to commit fraud. Based on who the system would highlight as a possible threat, this individual would become susceptible to further investigation by various government authorities. This was entirely based on what an algorithm was determining, rather than a person actually having done something. This was rolled out in neighborhoods that had a high immigration rate and a low income rate overall. It was targeted at specific parts of the Dutch population. 

In response to this, a coalition was formed together with different interest groups coming together with the Public Interest Litigation Project. Eventually, the law that was underpinning the use of this algorithm was struck down. So that is a nice example of how litigation can help challenge detrimental use of technology. 

How could strategic litigation become a way to challenge the development of the digital monoculture?

It would be so easy if we could just take Facebook or Google to court for this. Yet, I think transparency is the first step. Because we need to know what we need to act against. And quite often, we have a sense but not enough specifics. But, you know until harms are really transparent and they're visible, it's going to be really difficult to effectively address them, which is one of the reasons we are so far along with this problem already. 

There's currently this fake transparency by giving data at an aggregate level, but it doesn't tell us very much about what happens in individual cases. It also doesn't tell us what happens automatically behind the scenes. 

Together with European Digital Rights (EDRi), you proposed an initiative to decolonize the process of the digital rights field itself. Would you tell us a bit more about why you launched this initiative and what you want to achieve with it? 

When I set up DFF a couple of years ago, we had a strategy meeting in February of 2018. I looked at the group photo afterwards and I realized I was the only non-white person on that photo. And of course, skin color is only one dimension, but it was just a very stark illustration of what it looks like when you walk into most rooms in Europe and digital rights are being discussed. Like I mentioned before, it's mostly white, mostly male, mostly cis-gender, and ablebodied. Naturally that affects the priorities the field sets, which currently are very much focused on issues like privacy and data protection. 

Without applying any intersectional lens to that it doesn't represent the society we live in. It also doesn't do justice to the fact that quite often the harms of technology are mostly felt by those who are marginalized in our societies. So there's a huge disconnect there. I started thinking  about how we could address this, obviously acknowledging that we're just one organization. 

Nevertheless, I got really frustrated, at some point, hearing a lot of people talk about diversity, equity, and inclusion without doing anything. I just said “Okay, let's just start,” even if our effort isn't going to change the world at large and even if it will take a long time.

We call it a decolonizing processes because we want to address the power structures that hold the field in place as it currently stands. So we started last year with a listening and learning phase where we talked to organizations and individuals that we’re currently not seeing as part of the digital rights conversation. Organizations that work on racial justice, social justice, economic justice, or climate justice. We asked them how and if they engage with digital issues, what they would address in this regard, why  or why not they were engaging with this, and what it would look like if the digital rights field was decolonised. 

We started our design phase this year where we are collaboratively designing an initial multi-year program to set in motion a decolonizing process for the field. The participants have a background in digital rights, racial justice, social justice, economic justice, some in community organizing or academia, and we also have funders participating. 

In relation to this, there's also a need to communicate digital rights to wider groups in society. How can digital rights be made more accessible and concrete? 

I think we have to look at ourselves in the mirror as digital rights activists and think about how we're communicating with a broader audience. I've had so much difficulty over the years explaining what I do to my mother. And that actually shouldn't be the case, right?

I think part of the problem is that we're very focused on communicating about these issues in a very limited way, if I can put it that way. We rarely give people really concrete guidance on what they can actually do. Additionally, we need to rethink what is going to resonate with people. Perhaps it is not the doomsday scenario. It is interesting to look at hope based communication and at framing the positive alternatives. That feels counterintuitive to a lot of us working on human rights and on digital rights, but research shows that it actually works much more effectively. 

And what do you think about the role of popular culture and film? Are there any examples you would highlight as important to this discussion? 

I do not think I have an answer to this. But I can tell you about something else I am really excited about. Besides our decolonizing work, we also have our Digital Rights For All program. We are working with organizations that work on racial, social, and economic justice, to see how they can expand their work into the digital context and develop policy, advocacy, and litigation strategies around those issues. For this project, we're working with an artist who is going to be developing an interactive video game. I never would have thought of that and I'm just really curious what that's going to look like.