A/HRC/41/41 public space. 90 These forms of identification and data collection violate the individual’s anonymity in public spaces and exert significant “chilling effects” on decisions to participate in public gatherings.91 57. The use of surveillance techniques for the indiscriminate and untargeted surveillance of those exercising their right to peaceful assembly and association, in both physical and digital spaces, should be prohibited. Surveillance against individuals exercising their rights of peaceful assembly and association can only be conducted on a targeted basis, where there is a reasonable suspicion that they are engaging in or planning to engage in serious criminal offences, and under the very strictest rules, operating on principles of necessity and proportionality and providing for close judicial supervision. C. Digital technology companies: key concerns 58. By virtue of their control of online platforms and tools, these companies are liable to States’ requests for access to users’ data. At times, such demands may come in the form of informal requests or pressure. Where domestic laws are in violation of international human rights standards and norms, companies are confronted with competing legal obligations that threaten their compliance with human rights as well as their ability to operate in certain jurisdictions. This may result in infringement of users’ rights to peaceful assembly and association, and raises questions regarding transparency and accountability. Companies around the world often fail to adequately disclose information about data collection and Governments’ requests.92 Transparency reports issued by major global digital technology companies from the United States and Europe are positive examples that should be scaled up and improved on. 59. The way in which content is moderated by online platforms under their own community standards also raises human rights concerns, including with regard to peaceful assembly and association rights. In particular, the content policies of social media companies reflect varying interpretations of what is acceptable expression and behaviour, which may not be compliant with international human rights standards and norms. Furthermore, the way in which these content policies are enforced through content moderation may also be inconsistent with human rights standards and raise issues of arbitrary interference, despite some attempts at improvements. Enforcement of content policies also seems to affect those with a public profile in a disproportionate manner. In fact, by relying on users to report violations of community standards (i.e. community policing), enforcement of content policies places activists and those calling for mass mobilization at risk of facing arbitrary content removal and account suspension or deactivation. Those with a public profile are not only more likely to be reported than a less popular user (given their visibility) but are also often victims of targeted campaigns aimed at triggering content removal and deactivation. Compounding this problem is the use of artificial intelligence for content moderation, as platforms are increasingly using automated processes to flag content for takedown. 60. Algorithmic systems are also used to influence the findability, visibility and accessibility of the material – meaning what content people see, who they connect with and what groups they find. This means that the delivery of content can be based on historical or inferred political affiliation, or other lines of association, which can be an asset for those trying to reach a particular audience and communicate with like-minded people but is also problematic. Algorithmic systems have the power to silence stories and movements, prevent civil society actors from reaching a wider audience, and reinforce echo chambers or 90 91 92 The Human Rights, Big Data and Technology Project, “The Universal Declaration of Human Rights at 70: putting human rights at the heart of the design, development and deployment of artificial intelligence”, 20 December 2018, p. 31. Daragh Murray and Pete Fussey, “Bulk surveillance in the digital age: rethinking the human rights law approach to bulk monitoring of communications data”, Israel Law Review, vol. 52, issue 1. Ranking Digital Rights, The Ranking Digital Rights 2018 Corporate Accountability Index, chap. 3, “Inadequate disclosure”. 15