Ten Little Chances to be Free

Lizzie O’Shea is an Australian lawyer, author, and the founder and chair of Digital Rights Watch, which advocates for freedom, fairness, and fundamental rights in the digital age. She sits on the board of Blueprint for Free Speech, and in 2019 was named a Human Rights Hero by Access Now.

Interviewer: Jillian York

Jillian York: Hi, good morning, or rather, good evening for you.

Lizzie O’Shea: Hi Jillian, it's great to be here. 

JY: I'm going to start with asking a question that I try to kick off every interview with, which is, what does free speech or free expression mean to you?

LO: Yes, so Digital Rights Watch, which is the organization I founded and I chair, is focused on fundamental rights and freedoms in the online world. And so freedom of speech is obviously a big part of that. It's obviously a very vexed right, partly because of its heritage and interpretation in places like the United States, which sometimes sits in contrast culturally to other parts of the world. Certainly, if you ask Australians about it, they do not want to have a culture of free speech that looks like the United States. 

Australians understand that freedom of expression is a really important component of democracy. So one of my jobs is to make the claim that curtailing freedom of speech, including in online settings, can have a real impact on democracy. And I think that's fundamentally true, and you don't want to wait until it's too late to be able to make that argument, to ensure that the policies are in place to protect that freedom. So I think it's a really important freedom. It's got a vexed history and expression in the modern online world, but many people still instinctively understand that those in power see speech as something that is important to challenging their authority, and so it can be a really important place to fight back and protect democracy and other rights from being impacted by those who hold power at the moment.

JY: I want to ask you about your book. You're a critic of techno-utopianism. Your book, Future Histories, came out right before the pandemic, if I recall, and it looks to the past for lessons for our technological and cultural future. I really appreciated your take on Elon Musk. So I guess what I want to ask you about is two things. What, in your view, has changed since you wrote it?

LO: Yeah, that's a really interesting question. I must admit, I was thinking about it the other day whether some of what I wrote really holds up. And I think the fundamentals are still true, in the sense that I still believe that a lot of the discussions and debates we have about technology today are presented as fundamentally novel when they are very old, ancient discussions and debates about how power should be distributed through society, and how technology enables that kind of power distribution or works against it, right? So I feel like that fundamental analysis, whatever contribution to the field, is still valid, of course. In some ways though, those technical systems have become more opaque, like the artificial intelligence industry and how that's been built off the back of years of exploitation of personal information and centralization of power in technology companies. Those things have become more powerful and concentrated and difficult to understand—if you're not deep in the weeds—beyond an instinctive understanding that something's going a bit wrong, perhaps. 

So in some ways those trends have exacerbated things in ways that I think many other contributors, yourself included, have brought a really important set of analyses to these discussions. More generally, though, one of my fundamental understandings of how I frame some of these arguments is that there are two sources of power, right? Government power and corporate power that really shape how the online world is developing. And post-pandemic, there's a lot greater skepticism, criticism, and outright distrust of government authorities seeking to do work to protect people from some of those corporate excesses. Now that's obviously something that is much more part of American culture as opposed to European culture, and in Australia, we sit somewhere in between. But that skepticism and that mistrust of institutions, I don't know that that serves us well. I'm somebody who does treat with criticism policies put forward by government, because I think it's our job as civil society people, as people part of a social movement that want to have rights at the center of our society, to be critical of those in power and make sure that they're being held accountable. But that mistrust has fundamentally shifted how possible it is to do that in an effective way. And I think that poses real challenges for people who want to see government policy look different to how it is and how you can bring people into a sense of trust, investing in a democratic rights based society, rather than rejection and cynicism being the overriding, overriding kind of factor in how they shape their political arguments. Which is a real challenge, I think, for people like us who rely on some of that mistrust and skepticism in order to fuel the fire of some of these campaigns, but do want to see people still invested in democratic processes.

JY: Yeah, absolutely. So speaking of policies, you're in Australia, where the government's enacted some of the strictest social media laws for minors in the world, I would say. In one of our most recent interviews, which was with Jacob Mchangama, we talked about how the comparison of social media to Big Tobacco is spreading, and this idea that there's no utility in social media for minors, that it's a net harm. I'm curious what your thoughts are on that, and then we can dive into the more nitty gritty bits of the Australian law.

LO: I think that's a great place to start, because the overwhelming sense in how this policy was presented to the public in Australia is that this is a very dangerous place for young people to be, and that desperate times call for desperate measures. “We don't have time to fix these spaces. We need to just restrict access.” It's described as a delay. Many, including me, describe it as a ban for under 16 year olds. So what has been very interesting in this discussion is who's been left out of the conversation. And if you talk to young people—and there are many organizations working with young people—and you talk to them about what they use social media for, they often say that they wish adults understood that they used it for different reasons, or they're scared about different things than what adults think they might be scared of. And so that kind of fundamental failure of communication, which I suppose is not a surprise, when these people don't actually have the power to vote, have the power to do things a normal legal person would do, is somewhat unsurprising.

But when you're making policy about these people, that can be quite impactful, it can have very detrimental impacts. And if you take a human rights approach, that is your job to think about the negative impact on human rights, and what you're going to do about it, it's not really good enough. And this has been an experiment that Australia has led on, very much, looking for headlines, for a perception of boldness. Some of that claim is legitimate in the sense that they want to be seen to be taking action, and a lot of people feel very concerned that governments aren't prepared to take action against big tech companies. So, some of that is a valid feeling. But I think in this context, we lose so much when we don't actually listen to the people affected, and listen to the myriad ways in which they use social media. Some things they're concerned about, some things they find harmful, some things they're really sick of. But there's so many ways in which they use it to find a sense of community, to find a sense of empowerment, to talk to people they would never otherwise be able to access, sometimes because they're isolated, socially, geographically, whatever it may be, and it's so disappointing to me that that kind of part of the conversation was not had as we debated this particular policy.

JY:  So, what do you think some of the harms are for youth who can't access social media? What are young people losing out on? Who is harmed by these laws?

LO:  It's a great question. When we do a human rights analysis, we have to think about who's harmed by a particular policy, even if we think it's overall justified on a utilitarian ground, say it's better off for everyone overall who's harmed, is a really important question, and so much of that has been absent from this discussion. So it's not just me. It's like hundreds and hundreds of experts in Australia and organizations that represent many, many people, have provided commentary and input into this process and expressed many concerns about this policy, and there's a few different ways in which people are harmed. 

So the first thing, of course, is that if you require that age verification occur, you're engaging in a privacy violation for many people, there are cyber security risks with collecting that kind of information. There's deterrent effects and the like. Now that may not concern you, or you may think that's a justifiable kind of infringement on privacy rights, but I think that's worth mentioning. It is quite significant, especially in a world in which age verification doesn't tend to work very well on any measure. There are very serious cybersecurity risks that have been associated with age verification processes and the like. So it's certainly not nothing. The other set of people that are harmed are particularly vulnerable people. 

There's a variety of people who are still accessing social media. So it looks like about seven in ten of young people on the early data who had social media accounts are still accessing social media now. Now these are early figures, so there's a lot to be said for looking at how this works in a year's time, for example. But I think one of the interesting things to think about is when those people, young people, who are on still on social media—in breach of this ban or in defiance of this ban, however you want to put it—might need to engage in help seeking behavior, there may be a deterrent there, because they know that the law is they're not supposed to be accessing social media. So that is a selection of young people that we're particularly concerned about. And then, more generally, of course, there's a whole cohort of people who are particularly vulnerable. Maybe they're LGBTIQ, maybe they're in an isolated geographic area, far away from a city. Maybe they're experiencing harm at home and have no one to talk to about it. There's all sorts of ways in which young people use social media to manage their own challenges, harms, difficulties, and very effectively. They find people to talk to about their problems when other people may not be available to them. And that is an issue that is hard to map, right? We know that there's been an increase in calls to things like Kids Helpline, which does what it says on the tin. So those kinds of things have seen an increase. But I think that is something that is harder to map, but still very, very important, and may result in people going to other parts of the internet as well to seek help in different ways that might also not be very safe for them. 

More generally it's worth remembering that if platforms can say with some confidence, from a policy perspective, that young people are no longer on their platform, there is less incentive to design for them as well, which is another associated problem. Now, it remains unclear as to how platforms are dealing with that issue, especially in light of the most recent data, which suggests that a lot of young people remain on the platforms. But that's an issue. Do we then allow platforms to no longer design in a way that respects the autonomy of young people, the safety of them, their security and the like, because they have special needs and interests and all those sorts of things. So that's another problem. There's lots of operational problems. There's lots of conceptual ones. I don't think many of these have been considered or accounted for in the process.

JY: Absolutely, those are the same things that worry me as well. Okay, let's talk about the campaign. So what has the pushback to this, to the law, looked like, and what changes were you calling for?

LO: Well, if I can Jillian, what I might start with is where the push came from. Because I think that's quite instructive. One of the key sets of institutions that were pushing for this ban were mainstream news organizations, and we're learning a bit more about this over time, but the Murdoch press and other large news organizations in Australia—Australia has one of the most concentrated media environments in the world—were pushing for this ban. There was a petition run on one of their websites that was gathering tens of thousands of signatures. There were also others. Then there was a lot of advocacy towards specific kinds of political leaders in the country, and then a kind of competitive race to see who could be the most extreme in terms of putting forward a policy. But it's certainly the case that this very powerful set of actors in our democracy, at least, were a key driver of this campaign for a social media ban for young people. Now, I think there's a sense of moralism about it, a sense of desperation about it, tapping into genuine fears from parents, you know, and the like. And you know, The Anxious Generation, the book by Jonathan Haidt, has obviously been very influential with many people, but the research is still a bit unclear, right? About what this all means. And lots and lots of researchers will tell you that that book isn't making a reasonable argument based on the data that we have, right? So, it's a very febrile environment for this kind of discussion, and those kinds of institutional actors were incredibly important in getting this on the political agenda.

We then had an electoral campaign, definitely a vision that conservative politics would push for this. So labor politics, you know, center left politics pushed for it, and won the election, right? Not on this issue alone, but it was in that environment in which this policy was developed. There was a very small amount of time for submissions, for policy discussion about it. Initially, the government had said they weren't going to do it because they were concerned that the age verification technology wasn't up to scratch. That changed very, very quickly, and then the policy was introduced. I think it was in six days, some very small amount of time. So many different child rights organizations, academics, institutions, filed policy submissions to discuss this, did a lot of advocacy work, but the passage of time between the announcement of the proposal and the passage of the legislation was extremely short, and what followed has been a year of discussion around whether this was a good thing, a year of testing age verification technology, often finding it wanting, but setting up a set of of preferred providers that platforms could use in order to satisfy the legislative requirements. A lot of lobbying from platforms as to whether they're in or out. There was a big discussion about whether YouTube should be in or out. And a lot of back room dealing between relevant politicians and big tech companies. So the whole thing is very unseemly, and we're now in the world where it's been introduced, a lot of failure for it to actually operationalize now. Now, it may be that that changes over time, but that's quite telling, right? 

It's telling also because I don't think all parents particularly like this proposal either. It's very popular, but there's certainly a section of parents that are facilitating their children's continued access to social media. And I think that's interesting in itself. Part of what it is—something we were talking about actually earlier in our conversation—people don't like governments telling them how to parent their children. That has taken some very negative expressions in parts of the world, you know, resistance to things like the availability of medicine and treatment for kids who might be trans. But in this context, it's like, “I'm not going to let the government tell me that I can't let my kid on social media.” So, I don't think it's clarified much in the debate in terms of understanding how platforms behave towards young people, what they could do better, of which there's many things, and then how we get to the world in which children are able to be online but better protected. I'm not sure this proposal has contributed to that. It's really muddied the waters about what the government is capable of doing, what it should be doing, and what platforms, you know, what should be the process that platforms go through when thinking about designing for children.

JY: That's such a great answer. Thank you. And actually, that brings me to another question, which is so in your ideal world, taking this law, being able to throw it out the window if you want…What would you what would you want to see, not just from social media, but from from the platforms, from governments, both for the sake of youth, but also, you know, for all of us.

LO: I think that is the exact right question to be asking, and it's a good time that we've managed to talk now, because actually, in the interim, what's come out is at the first draft that we've got of a Children's Online Privacy Code. And to me, that is really revealing, because it is designed to apply to all services that might be accessed by children, like all online services, and it has a really kind of sophisticated understanding of what consent might look like, where you need help with getting consent, when it comes to parents or adults that are supportive in your life. And then at different ages that might look a bit different, like you might get notified if consent has been refused by your caregiver, for example, if you've wanted to do something. So there's a more sophisticated understanding of what consent looks like, and a range of different restrictions on when private, when personal information can be collected and used.

It's got things in it that I don't particularly like. I would like to see a prohibition on the commercial exploitation of children's personal information, because I don't think any targeted advertising is justified, for example. And I think that kind of measure of that commercial exploitation is hugely problematic. I think we have to think about what deletion looks like. I think you should have a right to deletion, for example. But you know, we also have to respect that children grow into young adults, that making decisions at 16 might look quite different to when they're three. So what you do with their personal information, how they carry that forward into their adult lives might be different depending on the age and so that kind of privacy reform actually is the fundamental thing. I’m sure your listeners don’t need reminding of this.

That is my favorite right. Because I think restricting access to personal information is a rights-respecting way to improve the online environment for everybody. And what I think is really interesting about this Children's Online Privacy Code that is still in draft form, is that all these things should be available to adults as well. Like adults in Australia don't have the right to deletion at the moment. We don't have a right to comprehensively know where our information has traveled and to delete it. You know, look, we have fewer rights than Californians, for example, certainly fewer rights than Europeans. What this code has highlighted is that, in fact, all people should be enjoying this kind of protection that comes from restricting access and use of personal information and giving people more control over that, because that personal information is the raw material of the business model, and it leads to a very loose approach to its collection and leads to many negative downstream consequences, I would argue, including business models that prioritize engagement, that prioritize and monetize polarizing, extremist content, mis- and disinformation.

I think we could have a real crack at trying to ameliorate some of these problems, or certainly reduce their impact, if we started that fundamental raw material that fuels the business model. So that, I think, is a really telling alternative that we're now considering as a society, and I like to think that people will come to an understanding that you can you can find ways to elevate improve the online world, particularly for young people, without restricting their access to that online world in a way that is empowering for them, rather than patronizing or infantilizing. 

JY: I completely agree, and I think it's funny that people often see privacy and expression at odds with each other, when actually I think privacy enhances expression.

LO: I think it makes spaces safer, makes people freer to be able to say what they think, but also to have those discussions in ways that are more meaningful, that can help find connections, even across divisions, rather than exploiting that division for profit, which is so much of the current business model.

JY: Are there any other things happening in Australia that EFF’s readers should know about?

LO: Well, we're about to go through the second tranche of our privacy reform. So we did engage in our first tranche of privacy reform. We have a Privacy Act that was passed in 1988 and hasn't been meaningfully updated in the decades since. So we got a few small changes, which included the enabling provision to allow a Children's Online Privacy Code to be developed, which is why we're getting the benefit of that now. But we're about to see a range of different privacy laws introduced. What the content is, of course, will be the subject of a lot of discussion and debate. We're going to argue for the right to deletion, the right to a private right of action for privacy harms, better processes for consent, and improved definitions of personal information to really bring Australia in line with lots of other similar jurisdictions around the world. And we're really keen to advance that for all the reasons that I just mentioned. 

The other big change that I think is coming is that, you know, which is perhaps more on topic for this conversation, is that we've had this online safety policy that is constantly being touted as the first in the world, and world leading and this and that, and it's really been a very flawed and vexed process working out how we could develop codes that were designed to govern how certain services were provided in the digital age, in line with safety expectations. There’s been a lot of focus on complaints and take down notices and things like that, there's obviously been that vexed litigation with Elon Musk, trying to get him to take down a particular video, and ultimately, the failure of our regulators to succeed on that front, I think, probably correctly, because giving a regulator in Australia the right to take down content from anywhere in the world seems to me a very concerning development, if that was allowed to proceed. So this history of online safety, it's been a big part of successive Australian governments’ identities. We're about to see the introduction of a digital duty of care. So that's certainly the stated position of government. What that looks like in practice, I think will be really interesting. 

I like the idea of a digital duty of care. I like the idea of a flexible, overarching concept. What the content is, though, will be really important. So what I would like to see is proactive disclosure of harm or risk of harm, and then actions taken by platforms to do it. So more onus on platforms to provide transparency about what they know about how their online spaces are being used and what might be harmful. I mean, there's a question around whether we'll see an introduction of a civil right, something similar following from the litigation that’s taken place in California and New Mexico, and that is going to be leading, really, multiple claims that are being made all around the country in the US, against companies like Meta and Google and other social media platforms. So I think there may be a flow-on effect from that, as in, it might turn into a civil right to sue for failure to meet the requirements of digital duty of care. But I'm really interested to hear from any of your listeners, or anyone who's working in this space about what the content should be of that digital duty of care, because there's obviously limits as well. Like it can be not rights-respecting, and we're interested in making sure that's not the case. And I think there's probably a range in which it could be more protective or less and working out how to do that—there are examples from around the world, but that's going to be something I reckon we could use help with that we want to get right and make use of that opportunity as best we can. 

The last thing I'll say, I suppose, is that our government is always looking for ways to deal with mis- and disinformation, and that comes with real risks of censorship. And so, I think there's a strong argument to focus on privacy reform, because it's a rights-respecting reform as an antidote to mis- and disinformation. Greater transparency on platforms—I think about how they prioritize content in your feed, for example, can be useful, or reporting on what content is really popular, like ad libraries. There's all sorts of ways in which we can introduce greater transparency, but I do worry that as governments around the world feel emboldened to do so, they might look for more ways to to remove content, to be more involved in content moderation policies that have the real potential to to become censorship if we're not careful. So that's the other abiding concern I've got about Australian policy at the moment.

JY: One of my big concerns now too, is all of these authoritarian governments watching Australia, watching the UK, and enacting laws that are modeled on, but much more severe than than the ones in those places? Do you share that concern? 

LO:  Yeah. I mean, the other way in which it's come about in Australia, certainly like anti-doxxing laws, which, at the moment, we've got laws on our books that came about attached to a privacy reform. I'm hesitant to say it's a privacy reform, because it's not, but it's very egregious. It's a criminal offense to disclose basic details about someone online, if it's done with a set of intents and the like, about their particular status as a group, and that, I think you could drive a truck through in terms of how you could interpret it, right? There's such a wide variance, and bringing a proceeding against someone like prosecuting them for that is such a life altering experience. And I think if governments did want to focus on particular activists. And I'm particularly thinking of, you know, the way it was framed was certainly around the the discussion and debate about the genocide unfolding in Gaza. Like, I think, particularly about that movement, they're very vulnerable to crackdowns by government for speech that is perceived to be unacceptable by government. 

And I'm not even trying to debate it. I think there's certainly antisemitic commentary occurring in Australia, and indeed, there have been some people, like genuine Nazis arrested, which, you know is, is a different kettle of fish. But I think progressive movements, not just the defense of Palestine movement, but lots of other progressive movements are a particular risk of those kinds of laws. But I think mis- and disinformation is the other vehicle. So we have to be very careful about giving platforms, giving regulators both the mandate and then the authority to police content based on particular criteria. And often what they talk about, or they talked about in proposals that have now died in Australia, were things like public health issues. So, you know, that's a particular consent that drives a lot of people who are very concerned about the years of Covid up the wall. So it inspires a lot of reaction to it. But I think there's lots of ways in which undermining political stability is put forward as a proposal, as a justification for removing content. That's just so broad that I think you could really start to see censorship. It's just not good enough. I just don't think we can tolerate those kinds of proposals. I like to think that's not the case in Australia, but I just think there's a tendency among governments now to see this as an opportunity. It's an anxiety lots people have about mis- and disinformation, and so they draw on that as a mandate to act. And I think we should be very cautious about those proposals.

JY: Definitely. Okay, I’m going to ask the final question that I ask everyone. Who is your free speech or free expression hero? Or someone from history, or even someone personal who has influenced you?

LO: There’s a chapter in my book where I talk about the Paris Commune, which happened a long time ago, but I still think it’s a really interesting experiment in applied democracy. This is when a bunch of communauts took over Paris and started doing things differently in a variety of different ways. Gustave Coubert is this artist who’s leading the artist collective during this time, and I always found him entertaining because he would paint things that weren’t expected. So, often, nudes that were considered quite scandalous because they were everyday women who weren’t angelic or Madonna-esque in their style, but he’s got a very famous painting of female genitalia—

JY: Yes! Facebook took it down! [laughs]

LO: Exactly. It’s always been a very confrontational image. People find it sexist sometimes, because they think it’s very pornographic. I understood it differently. It’s called “The Origin of the World,” so I sort of see it as a force of giving life. Interpret however you like, the point is that Facebook couldn’t tolerate it and took it down. There’s a nice little bit of litigation where a schoolteacher had a page where he was teaching people that art, and Facebook could just not tolerate this art. In my mind, it was so telling that a communaut from hundreds of years before was basically revealing, as an expert troll almost, how conservatives—someone like Mark Zuckerberg—view, and how he shapes these platforms. And how they subtly reshape what we think is appropriate, what we think is free, what we think is within the realms of good society. And that you really do need artists telling you that that might not be true, and they’re some of the most effective actors at revealing that about those who hold power, like reshaping our understanding about what acceptable debate is, and how we can show power to be exercised in our online world, where in other circumstances it might be quite okay.

I love that story, and I love the communauts. There’s a lot of beautiful writing about them, there’s a beautiful book called Communal Luxury where they talk about all the different ways in which they were trying to reimagine their society and do it collectively, from things like having the first union of women but also having the design of clothes and furniture look different. I want to see a world in which people take that power in both the micro and macro and start to reshape their society in really creative ways. And I feel like digital technology has the real capability of allowing that to occur and I want to revive that sense of concrete democracy rather than just delegated democracy or deferred representative democracy where you tell someone else what you want but don’t have a say in a lot of decisions. And so, that really grassroots idea of democracy is something, and I think we’re in a world in which that could really occur with the assistance of digital technology. It’s a matter of working out how to bring it into being. And that’s what I see this movement as doing. People with digital rights as being their primary concern are trying to recreate that world so that there’s more communal, collective spaces for discussing what the future should look like.