Challenges and opportunities for minors’ data protection legislation in Uruguay: their rights, the future of our democracy

01.12.2020

Author: Soledad Magnone

Global challenges in the digital era: data protection and privacy

Digital technologies are deeply entrenched in society, becoming increasingly evident how online and offline spaces are not differentiated. The digital ecosystem is represented by a plethora of formats, from hardware, software, media platforms and data, to the interconnections between these. In parallel to the increasing digitalisation of our lives, concerns have emerged amongst human rights organisations and public opinion in general, regarding consistent misuses and abuses of personal data. It has been indicated how these practices, by governments and technology corporations, have been hindering individuals’ right to privacy, security and human dignity in light of what Zuboff deemed as “surveillance capitalism” (2015).

To address some of these concerns, the European Union (EU) created in 2016 its General Data Protection Regulation (GDPR) which, after long debates, enshrined special considerations for individuals under the age of sixteen through its Article 8. This was influenced by timely reports highlighting the great extent to which minors’ lives were being digitised by showcasing that one in three global internet users were under the age of eighteen (Livingstone, Carr and Byrne, 2015). With this number doubling in low and middle income countries, debates were further triggered over how the internet governance has systematically ignored the United Nation’s (UN) Convention of the Rights of the Child (CRC), the most widely ratified international treaty (Livingstone and O’Neill, 2014).

The creation of the GDPR’s Article 8 was as well embedded within the emergence of a body of knowledge from the field of minors’ rights online urging governments and international agencies to implement strategies in this regard. These have increasingly problematised negative implications of children’s data mining practices for the purposes of commercial, monitoring and behavioural change conducted through welfare policies, schools and tech companies (Alston, 2019; Barassi, 2020; Hope, 2018). In addition, recent revisions of the UN CRC have actioned the fostering of strategies to redress dominant approaches that have overlooked minors’ voices in decisions that affect their lives. These revisions have especially signalled that protectionist solutions that have been limiting minors’ right to be heard.

Uruguay’s digital development achievements

Uruguay’s digital government policies have been widely recognised for a decade, reaching top positions in global and regional rankings. Examples of this are the Information and Communications Technology (ICT) Development Index from the International Telecommunications Union (ITU) (2019) and the UN’s E-Government and E-Participation Indexes (UN, 2020). These have been outcomes of the launching of a wide and sustained Digital Agenda since 2006 which was initially built upon Plan Ceibal. Through Ceibal, the government managed to almost eliminate digital divide of access amongst low and high income households by delivering laptops to all public-school students and by connecting every school to the internet (Plan Ceibal, 2017).

To contextualise Uruguay’s results, Ceibal signified that by 2016 82% of children in this country accessed the internet through schools, while 64% did so in Chile and 32% in Brazil (UNICEF, 2017:53). Since Ceibal was launched, children’s online engagement surged because laptop prices dropped, yet especially through the extended access these have had to smartphones across sectors of the population. By 2017 a national survey amongst children and adolescents between ages six and seventeen showed that 48% used a mobile phone to go online “almost all the time” or “several times a day” a number which dropped to 17% if done through laptops (UNICEF, 2018:51).

Uruguayan children’s right to data protection

The Uruguayan population’s wide and early internet access can be compared to the ones of high-income countries. However, concerns over issues of privacy and personal data mining practices have not been in the public agenda as, for instance, in the case of the EU region. An exception to this happened in 2015, when the topic caught the local media attention around controversies emerging after Ceibal signed an agreement with the tech giant Google for its services “Apps for Education”. Arguments from those against these decisions were connected to Google’s complicity with unlawful United States government citizen surveillance programme showcased through the 2013 “Snowden revelations” (El País, 2015; Saeta TV Canal 10, 2015).

While these discussions happened in Uruguay, Google was in the midst of yet another controversy in relation to accusations from the online rights advocacy organisation Electronic Frontier Foundation (EFF). This time EFF denounced the tech giant non-compliance with the Children’s Online Privacy Act (COPPA) claiming that its Apps for Education had constituted misconduct. EFF claimed that Google had failed to comply with COPPA and its Terms of Service for a consecutive year by keeping track of students’ online behaviour on every single Google-operated site they visited regardless of its relation to schoolwork, within and outside of the Google Apps for Education suite (EFF, 2015:7).

In the case of Uruguay, Ceibal’s agreement with Google prevailed, yet changes implied that the programme shared at its official site that (a) teachers and students had no obligation to sign up; (b) how ‘cookies’ track personal information; (c) presenting Ceibal’s responsibility for the data collected which international transfer is aligned to the data protection national regulation (Plan Ceibal, 2019a); and (d) sharing Google’s Terms of Service and other documents, available in most cases in English language (Plan Ceibal, 2019b). The result of this debate was a major step for recognising children’s rights locally. However, its effectiveness and inclusiveness are highly questionable. To what extent can adult (carers and educators) and students comprehend Google’s Terms of Service? Which are the options for those not consenting?

Finally, and non the less relevant to highlight, is Uruguay’s data protection legislation which is referenced at Ceibal’s website in connection to Google’s Apps for Education agreement. The Regulatory and Controlling of Personal Data Unit (URCDP) was created within the frame of the Digital Agenda. In 2019, the URCDP updated the local data protection legislation (Law 18.331) in order to align it with the EU’s GDPR (URCDP, 2019). However, regardless of Uruguay’s significant population online under the age of eighteen and the recent controversies over Ceibal’s responsibility for the student’s data protection, these updates completely excluded references to the much debated GDPR’s Article 8.

Minors’ voices essential to ensure digital and social inclusion

The absence of a data protection legislation for minors’ presents Uruguay the opportunity for enquiring how can this be better adjusted to the population’s needs, especially to children and adolescents’ best interest. For instance, the same reports that urged policymakers to take into consideration the CRC in the internet governance matters have highlighted the need to outbalance protectionist strategies which have hindered children’s right to participation. As the former UN Special Rapporteur on Freedom of Expression, Frank La Rue, has stated, internet is a vehicle for children’s exercising their right to freedom of expression, education, freedom of association and to participate. This aspect, he argued, “is also essential for the evolution of an open and democratic society, which requires the engagement of all citizens, including children” (La Rue 2014:16).

The same way that recent UN CRC revisions evidenced to be a global problem, taking into consideration the voices of its underaged population is not a common practice in Uruguay. A recent study from the local Committee for the Rights of the Child (CDNU) revealed a critical situation in this regard. Despite widely recognising the relevance of learning their rights, six out of ten surveyed adolescents between the ages of twelve and seventeen declared not knowing them. This gap can severely affect the CRC comprehensiveness, as it is a necessary condition for minors to advocate for its protection. Moreover, this study underscored that when asking children where they feel can give their opinion, six out of every ten felt they can do so at home, five with friends, and dropping to four within their school (Save the Children – CDNU, 2018).

Critical digital education for all

To bring a material change to this deficit, it has been noted the significance of enabling spaces for children to participate that are sustained in time and based on an iterative dialogue since the policy design (Third, Livingstone and Gerison, 2019). To do so, it is essential to promote a critical “digital education”, understood as the practice of teaching and learning with and about digital technologies (Bayne and Ross, 2011; Buckingham, 2015). In the case of Uruguay, policies for digital access have not been equally paralleled with digital education programmes. Educators have not been comprehensively trained and students’ digital literacy have been left to their own capacity, often bound to their socioeconomic status (Pittaluga and Rivoir, 2012; UNICEF, 2018).

In view of this, opportunities are presented for Uruguay to regain its once progressive standpoint for digital inclusion policies. Ceibal was recently integrated to the Ministry of Education and Culture which could lead to finally integrating digital education into teacher training and school curricula. For this to not fall into common shortcomings, it should have a cross-curricular approach that can boost individuals’ understanding of how the digital ecosystem works and reflect over its social, economic, political and environmental implications. This is essential for adults and minors’ to promote a meaningful use of digital technologies, to collaborate in developing alternatives and to participate in its policy governance. In the case of children and adolescents, this is an utmost urgent matter. It entails ensuring their lifelong development and, therefore, the future of our democracy.

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