Is there a right to unplug?


To mark the 30th anniversary of Wardyński & Partners, a debate was held on 7 December 2018 entitled “The right to unplug: Dignity, privacy and new technologies.” The panellists considered whether the right to internet access we have won should be followed by recognition of a right to be free from the internet.

The title of the debate might seem provocative, considering efforts to achieve the broadest possible digitalisation of reality, but it also suggests a growing awareness of a very real danger.

As Krzysztof Wojdyło, the partner who heads the firm’s New Technologies practice, said, a debate on this topic is not only justified, it is late in the game, as to some extent we no longer have control over the course of events. States are powerless in dealing with cyber crime. Most cyber offences go unsolved. According to the US think-tank Third Way, out of every thousand reported cyber offences, the perpetrators are identified in only three cases. In the case of physical assault, the solution rate is 50%. The question is whether we want to live in a world ruled by anarchy—in a sense, we already do.

Moreover, decisions previously taken by humans have been handed over to algorithms, and from a systemic point of view the results are superior. This creates a temptation to cede further ground to technologies for the sake of efficiency. But there is a risk that this way we will not notice the crossing of further boundaries. We already have automatic crime prediction. A machine can foresee who has an inclination to commit offences. We are in danger of falling into the scenario from the film Minority Report, where people can be arrested when they haven’t broken the law but an AI system has determined that they have a predisposition to criminality.

On top of this are attacks on our privacy. Drivers on the high-speed rail line between Beijing and Shanghai must wear electroencephalographs monitoring their level of concentration. All in the name of safety, but the trend of changes can be disturbing. Hence the question whether human rights should include a right to digital exclusion—or what might be called a “right to unplug.”

But do we really have this option? According to Piotr Garstecki, scientist, cofounder and CEO of Scope Fluidics SA, even schoolchildren know that when they surf the internet they leave behind a digital trail that reveals a lot of information about them. But this doesn’t deter us from using digital services. We are social animals, and social life is moving online. Unplugging means ceasing to participate in civilisation—voluntarily condemning ourselves to the medieval punishment of banishment. Thus we shouldn’t seek to exclude ourselves, but to impose some standards on this new aspect of reality—particularly considering its undeniable benefits.

Mikołaj Barczentewicz, lawyer, philosopher and lecturer at the University of Surrey, gave the example of the great time savings in legal proceedings as a result of replacing elements of the decision-making processes of judges with algorithms. But the problem is that the algorithms predict the future based on the past, which may for example result in replicating and perpetuating racism. Nor should the human sense of justice be underrated. For the parties, interaction between the citizen and the court can be invaluable in itself, as it gives them the feeling that their voice has been heard. Perhaps the solution would be for cases to be decided at the first instance by robots, and on appeal by humans?

The social cost of conveniences was raised by Wojciech Orliński, journalist, writer and lecturer. In many fields, such as real estate or copyright, we agree to complicate our lives in the name of overriding values. For now we have a choice of whether to go to government offices in person or use the ePUAP online system. But the logic of technology drives towards elimination of choice. They say that blockchain will eliminate notaries. That was the case with vinyl record stores, which continue only as niche boutiques for wealthy collectors. The point should not be to make the world a better place by foreclosing other options.

Joanna Jeśman, cultural scholar and lecturer at the School of Ideas and SWPS University of Social Sciences and Humanities, pointed out that the overriding human right is freedom. France and Italy have recognised a right not to be contacted by your employer outside of working hours. Meanwhile, in Poland it has become mandatory to issue medical leave certificates electronically. No one knows yet how this affects employees’ desire to visit the doctor’s office. When introducing new solutions it is also essential to factor in megatrends such as the aging of society. Older people may have no desire to be modern. Another megatrend observable at the same time is “smart everything,” where everything is digital, connected to the web, operating at blazing speed. This means that insisting on following a single path may generate headaches for a large number of the population.

There was thus a consensus among the panellists that a right to unplug should be recognised. The moderator, Alek Tarkowski (CEO of the Centrum Cyfrowe Foundation), then inquired how such a right could be exercised in practice. The panellists agreed it would be difficult. Our only option, where it is still available, is to select analogue solutions.

Everything that is online is bound to leak sometime or other, said Wojciech Orliński, and this makes the notion of moving everything online a disturbing trend. Schools regularly use online class registers. We don’t ordinarily notice any danger in this, but that doesn’t mean there is none.

Krzysztof Wojdyło pointed out that we are on the threshold of the digitalisation of identity based on our logins to online banking. If a digital account can be cleaned out, so our digital identity can be stolen and used to make countless transactions around the world.

On top of this there is the issue of cultural choice: whether to prefer efficiency or individual dignity. China seems unaware of this dilemma and has gained a competitive advantage. It’s easier to generate added economic value when people don’t care about other values. Consequently, the technological gap grows. Chinese algorithms are more effective because they learn from a larger base of data. These algorithms are hugely important in medicine, for example. To develop treatment for rare diseases requires huge quantities of data which cannot legally be processed in Europe. How to find a golden mean between these conflicting values?

The speakers anticipated that unplugging may become a question of lifestyle, a luxury only the richest can afford, much as total darkness becomes a luxury in an era of light pollution.

The takeaway from the debate was not entirely pessimistic, however. As moderator Alek Tarkowski put it, the best way to predict the future is to create it. If we perceive dangers, we may be able to eliminate them.

The audience members also took an optimistic attitude. Dr Jarosław Deminet, a computer scientist, pointed out that along with the growth of technology we have lost many rights, like the right to travel by horse and buggy, and somehow that doesn’t bother us. Taking an ocean liner to New York has also ceased to be a realistic option. Meanwhile, many of our earlier fears (and hopes as well) have not materialised. So far the capacity of AI systems is limited to quite simple deductions.

Prof. Andrzej Blikle said that there are more urgent problems, such as consumers’ right to quality products and services. When purchasing apps, we must accept terms of use containing sweeping waivers of claims when errors in the system cause the user to suffer some loss. It may be an inconvenience when there’s a bug in a word processor, but it’s another story if there is an error in dosage of radiation in cancer treatment. Legal and IT tools should be developed to address this situation.

So there’s still a lot to be done by lawyers as well as users of technology.

Justyna Zandberg-Malec