UC Irvine Journal of International, Transnational, and Comparative Law

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This Article examines the ongoing dynamics in the regulation of disinformation in Europe, focusing on the intersection between the right to freedom of expression and the right to privacy. Importantly, there has been a recent wave of regulatory measures and other forms of pressure on online platforms to tackle disinformation in Europe. These measures play out in different ways at the intersection of the right to freedom of expression and the right to privacy. Crucially, as governments, journalists, and researchers seek greater transparency and access to information from online platforms to evaluate their impact on the health of their democracies, these measures raise acute issues related to user privacy. Indeed, platforms that once refused to cooperate with governments in identifying users allegedly responsible for disseminating illegal or harmful content are now expanding cooperation. However, while platforms are increasingly facilitating government access to user data, platforms are also invoking data protection law concerns as a shield in response to recent efforts at increased platform transparency. At the same time, data protection law provides for one of the main systemic regulatory safeguards in Europe. It protects user autonomy concerning data-driven campaigns, requiring transparency for internet audiences about targeting and data subject rights in relation to audience platforms, such as social media companies.

In remarkably short order, there has been growing convergence, especially in academia and civil society, around the idea that major social media platforms should use international human rights law (IHRL) as the basis for their content moderation rules. Even platforms themselves have begun to agree. But why have these legendarily growth-obsessed companies been so quick to voluntarily say they are jumping on this bandwagon? Afterall, advocates for incorporating IHRL into content moderation governance generally envision it operating as a constraint on social media platforms’ operations. There are both encouraging and less encouraging explanations. For the glass half-full types, there is the straightforward explanation that perhaps these companies genuinely care about human rights. But there is also a less optimistic possibility: companies are embracing the terminology so readily because they know that, in reality, it will not act as much of a constraint at all. This is the prospect explored in this Article. This Article is a sympathetic critique of the contributions IHRL can make to content moderation, highlighting the very real limits of IHRL as a practical guide to what platforms should do in many, if not most, difficult cases. It surveys the many arguments in favor of IHRL as a basis for content moderation rules. Ultimately, however, it argues that failing to acknowledge the considerable limitations of IHRL in this context will only serve the interests of platforms rather than their users by giving platforms undeserved legitimacy dividends, allowing them to wrap themselves in the language of IHRL even as what is required by that body of norms remains indeterminate and contested.

In this Article, I will review the origins of data protection laws and reestablish the concept of “data surveillance” as the primary evil that data protection laws should try to abate. From this review, I discover a transnational principle that strong data protection laws are must-haves for all jurisdictions wishing to protect privacy for their people, but that data protection laws should not be applied to data that have been made publicly available through legitimate process. I then find legislative examples embodying such principle. Next, I will look at “scientific research” exemptions from data subjects’ control on pseudonymized data, and using GDPR’s exemption as an example, will demonstrate that ownership-like control by data subjects is not absolute. Finally, I will examine the possibility and morality of data socialism whereby data (including personal data) are regulated as public goods or infrastructure like scenery, sunlight, air, etc., and whereby data silos are replaced by a data commons for the benefit of all. “Data socialism” is proposed despite its negative connotation among contemporaries intentionally in order to highlight the libertarian pitfalls of the mechanistic application of data protection law.

This Note discusses the effect of U.S. foreign policies on the reproductive rights of women in developing countries. Many international human rights treaties and their progeny have consistently found that reproductive rights are intertwined with basic human rights, such as the right to privacy, the right to health, the right to education, and the right to start a family. Despite considering itself a superpower among all other countries, U.S. policies like the Helms Amendment and the Mexico City Policy fail to adhere to these basic international human rights standards. At the same time the United States recognized the constitutional right of its female citizens to have an abortion, it began restricting that right for women in countries that are dependent on the United States for health aid. U.S. foreign policies go far beyond abortion and affect almost all health services, even those tangentially related to reproductive health services. These policies reinforce the notion that women, especially non-American and impoverished women, should be delegated to a second-class version of citizenship because of their anatomy. In order to prevent this continuing and harmful discrimination against women in developing countries, the United States must immediately repeal these foreign policies, prevent any future iterations from being enacted, and ensure that all subsequent policies are consistent with international human rights standards.

This Note uses the example of the United States’ immigration policies to analyze the following questions: (1) what type of rights international human rights are; (2) where these rights come from; (3) how their content should be determined; and (4) what conditions need to exist in order for them to be enforced. The Note argues that answering these questions is an essential prerequisite to enforcing human rights in a way that is truly universal. Part I of the Note grounds these questions in human experience through the case of a refugee seeking asylum at the U.S. border in San Ysidro and discusses the various international human rights laws that are at stake. Part II discusses the meaning and content of human rights and highlights the problem of the indeterminacy of rights. Part III expands on the problem of indeterminacy, provides a critique of current discourse of universal human rights, and suggests that politicization of the concept of human rights is necessary in order for the content of international human rights law to serve its purpose of guaranteeing rights for all. Finally, Part IV returns to the problem at the U.S. border in order to provide an example of what politicization of human rights discourse would look like.