The right to freedom of thought, religion and belief enshrined in international human rights law (e.g. Article 18 ICCPR and Article 9 ECHR) has two aspects, firstly an internal aspect, the right to hold thoughts and beliefs in the "forum internum" and secondly, an external aspect, the right to manifest religion and belief. This differentiation is crucial when considering the kind of protection the right attracts. Unlike many other rights, the right to freedom of thought in the "forum internum" has been recognised by the Human Rights Committee (General Comment 22) as absolute. While limitations on the manifestation of religion or belief may be permissible if they are lawful, justified, proportionate and non-discriminatory, what goes on inside our heads can never be subjected to interference for any reason.
Where this line is drawn is therefore a crucial question, but in the digital age, that question is a thorny one. In relation to the related right to freedom of opinion, the Former UN Special Rapporteur on Freedom of Opinion and Expression, David Kaye pointed out in his Report on encryption, anonymity, and the human rights framework that "“[I]ndividuals regularly hold opinions digitally, saving their views and their search and browse histories… In other words, holding opinions in the digital age is not an abstract concept limited to what may be in one’s mind.”
Google's former CEO Eric Schmidt was famously reported as describing what he called "the creepy line" and Google's policy to get right up to the "creepy line" and not cross it. The right to freedom in the forum internum is so fundamental to our humanity that, perhaps, one could view the line around the forum internum as that "creepy line" - crossing it would be such a violation of human dignity that it could never be acceptable. But the stories about the way big data is used to analyse and monitor individuals and communities on an industrial scale raise serious questions about whether that line is being respected in practice.
An article by Joseph Cox that appeared in Vice.com earlier this week claiming that personal data from a Muslim prayer and Quran app was being harvested and sold to buyers including the U.S. Military was a stark reminder of how far technology can reach into our most intimate spaces and the urgent need for clear parameters to protect the forum internum. This app was one of many described in the article, but there can be few things more clearly associated with the forum internum than the experience of private prayer. The company behind the app in question issued a statement refuting the claims in the article and announcing it was going to launch an investigation. But the fact that such a window into users' inner spiritual lives could be accessed or sold at all is a wake up call on the need to protect our most intimate thoughts, beliefs and ideas in the digital space. The pandemic has pushed many of our most personal experiences online and the inferences that can be drawn about our inner states are increasingly complex. The need for regulation to protect the forum internum has never been more pressing.