‘On the need to incorporate an ethnic-differential approach into the design of digital public policy’
By Dr Antonio Tejeda Encinas | President of the Euro-American Committee of Digital Law - CEA Digital Law | CEO of Meta Channel Corporation
On 30 October I had the extraordinary honour of taking part in an event that went beyond the academic to become history: the 6th Afro-Colombian Congress of Interdisciplinary Studies in San Andrés de Tumaco. We were not there merely to debate, but to witness and take part in a foundational dialogue – the one that will give birth to the new Afro-Colombian University.
In that context of immense responsibility, my paper was not just another theoretical talk. Its title – and its intention – was a declaration of principles and an urgent warning: ‘The need to incorporate the ethnic-differential approach into the design of digital public policy’.
My central message was direct: the territory of the 21st century is no longer measured only in hectares; it is measured – and fought over – in terabytes. Sovereignty is no longer defended solely at physical borders; it is defended in networks, in servers and, critically, in the algorithms that are beginning to mediate our reality, our rights and our opportunities.
We are at a crossroads. We face a real and imminent risk of a new digital colonialism – subtler, but no less devastating – in which communities historically marginalised in the analogue world now watch as their culture, their identity, their ancestral knowledge and their own data are extracted, processed and monetised without their consent, without their control and, tragically, without any return of value.
If the new Afro-Colombian University is being born to break the cycles of exclusion, it must be born with sovereign digital DNA.
My central ‘pitch’: fusing the soul of Colombia with the tools of Europe
My work at the head of the Euro-American Committee of Digital Law - CEA Digital Law puts me in a unique position to observe two realities that need each other.
On the one hand, there is the European Union, which is building the most advanced regulatory ‘arsenal’ on the planet. With the General Data Protection Regulation (GDPR), the groundbreaking Artificial Intelligence Act (AI Act), the Data Act and the cybersecurity rules (the NIS2 Directive and the CRA), Europe is forging the tools to govern the digital age. It has created sophisticated armour for the individual.
On the other hand, there is Colombia: a country that, thanks to its 1991 Constitution, the visionary ‘Ley 70’ (the statute on Afro-Colombian communities) and ILO Convention 169, possesses something Europe is only just beginning to debate – a deep and robust recognition of collective rights, and an ethnic-differential approach as a pillar of the state.
My proposal in Tumaco was not to copy the European model. It was a strategic fusion: Europe provides the method; Colombia, the purpose. The idea is to use European technical tools and governance principles not simply to protect the ‘individual’ (as Brussels does), but to shield the ‘collective ethnic subject’ (as the Colombian Constitution requires).
The danger of the ‘neutral’ algorithm: the automation of racism
The need for this approach is urgent. The great lie of our age is the supposed ‘neutrality’ of technology. An algorithm is not a divine entity; it is a mirror that reflects, amplifies and automates the data and the biases of those who trained it.
If we feed an AI system decades of biased historical data – data in which Afro-descendant communities were denied access to credit, justice or education – the AI will not magically ‘correct’ that injustice. It will learn from it and turn it into operational policy. An algorithm trained on biased data is not a tool of progress; it is the automation of racism on an industrial scale.
A facial recognition system that fails more often with darker skin is not a ‘technical error’; it is programmed digital exclusion. A language model that penalises or fails to understand the linguistic varieties of the Pacific region is not ‘neutral’; it is a tool of forced cultural assimilation.
That is why my central argument was forceful: in the 21st century, any digital public policy that is not explicitly ethnic-differential will, by omission, be a policy of exclusion. It is not enough for technology to ‘not be racist’; we must demand that it be actively anti-racist and differential in its very code.
My proposals for action
To move from denunciation to action, I presented a set of key concepts, conceptual tools and practices designed specifically for this new university.
1. Operational Ethnic Habeas Data
This was perhaps the central concept. We are all familiar with individual habeas data: the right to know, update and rectify our personal data. But what about data that belongs not to an individual but to an entire community?
Who owns a database of ancestral knowledge about medicinal plants? Who owns the linguistic data of Palenquero Creole? Who controls the genomic data of the population of Chocó?
This is where I coined the term ‘Operational Ethnic Habeas Data’. It is not merely a declaratory right; it is a right of agency. It is the real, legal power of the Afro-Colombian community, as a collective subject of rights (recognised by Ley 70), to exercise control, auditing, portability, management and the right to be forgotten over its collective data heritage. It is the right to ask: ‘What data do you hold on my community?’, ‘What do you use it for?’ and, above all, ‘What value comes back to my community from its use?’
2. ‘Digital Prior Consultation’
How do we make this Ethnic Habeas Data ‘operational’? We do not need to reinvent the wheel. We must adapt the most powerful tool Colombia already has: prior consultation (consulta previa).
I proposed creating a ‘Digital Prior Consultation’ protocol. Under this framework, any project (public or private) that seeks to deploy AI, collect data at scale or implement technologies in collective territories, or that affects ethnic identity, must undergo this consultation. Not a cosmetic consultation, but one in which the community, advised by its own university, can:
- Audit the algorithm’s training data.
- Demand that biases be corrected before deployment.
- Define the intellectual property terms of the resulting model.
- Establish clear mechanisms for returning value (economic, academic, social) to the community.
3. The ‘Digital Airbag’ (AI governance)
The risk of AI generating hate speech or discrimination is real. But we cannot simply ‘switch it off’. I proposed a concept of active governance that I called the ‘Digital Airbag’.
A car’s airbag does not prevent the accident (the attempt to crash), but it deploys in milliseconds to prevent the impact (the harm). In the same way, an ethical, differential AI must have an algorithmic ‘airbag’. When the system detects – whether from the user’s prompt (the instruction) or from the output it is about to generate – that a red line is being crossed (racism, hate, disinformation), the ‘airbag’ goes off.
What does this mean in practice? The system does not deliver the harmful response. Instead, it blocks it and triggers a mandatory and immediate human review. This serves a dual purpose: it protects the user from harm and, at the same time, creates a record of attempted abuse, allowing the system to learn and grow stronger under supervision.
The dialogue with the audience: when the questions confirm the thesis
The real litmus test of these ideas was not my presentation but the lively dialogue that followed. The audience’s incisive questions allowed me to show that this framework was not theoretical but a practical and immediate solution.
A lawyer in the audience put a direct and pragmatic challenge to me: ‘Doctor, all that sounds excellent. But you are talking about European regulations that took years. Here in Colombia we don’t have that kind of specific AI legislation. How can we, at the Afro-Colombian University, start working on digital sovereignty tomorrow?’
I welcomed the question, because it allowed me to go to the heart of my argument. My answer was emphatic: ‘We don’t have to wait’. The solution is not to wait for a new AI law that copies Europe. The solution is to take the laws Colombia already has – laws Europe would envy. Ley 70 and ILO Convention 169 already grant you the right to consultation and to the protection of collective identity.
My proposal of Operational Ethnic Habeas Data and Digital Prior Consultation is not a legal fantasy; it is the direct implementation of Ley 70 in the 21st century. The Afro-Colombian University should not wait for permission to innovate; starting tomorrow, it should begin designing these protocols and become the body that audits and certifies that any technology deployed in its communities meets this standard.
Immediately afterwards, a student with an admirable technical vision took the point further: ‘Understood, but how do we protect AI “from the inside”? How do we stop it from being trained for harm, or from generating hate speech even if it is programmed “not to show it”? How do we control that training?’
That question was the perfect culmination. It allowed me to explain the three-phase governance framework I had outlined.
‘Your question’, I told him, ‘is the key to everything.’ And I went on to set out the answer:
One (before deployment): Protection does not begin when the user starts typing. It begins with training. And here the Afro-Colombian University has a mission: to create its own datasets. Curated, verified, de-biased data. And the Community Ethics Committee I propose must have a genuine power of veto. If the training data is not representative, the model is not released. Full stop.
Two (during use): This is where I explained my ‘Digital Airbag’ concept in depth. It is not enough to program AI to ‘be good’. It has to be programmed to know what to do when it encounters ‘evil’. The airbag absorbs the blow (the hateful response) and calls in the human supervisor.
Three (after failure): And this is where I dropped my most important conceptual ‘bombshell’, the phrase that sums up my whole philosophy on this technology:
‘Artificial intelligence is not to blame. Artificial intelligence is not responsible. Artificial intelligence has authors, configurers and supervisors.’
The era of hiding behind the algorithm’s ‘black box’ is over. We demand full traceability. If an algorithm discriminates, we must be able to ‘rewind the tape’ and see what data it used, how it weighted that data and who configured the system. Responsibility is – and must always be – human.
The Tumaco Lighthouse Manifesto
My visit to Tumaco leaves me with an unshakeable conviction. The Afro-Colombian University is not being born to be a mere user of technology created in Silicon Valley or Beijing. At this historic moment, it is being born with the opportunity to become a governor of technology, fusing Colombia’s legal soul with the most advanced tools of digital law.
The challenge this new university is taking on is monumental because, as I argued, territory is no longer measured in hectares but in terabytes. In this new digital geography, where power in the 21st century will be contested, the first law must be clear and immutable: there is no digital sovereignty without identity. Ethnic and collective identity is the anchor that must hold the entire technological scaffolding in place.
The path must not be walked blindly, nor does everything have to be invented from scratch. Herein lies the beauty of the strategic fusion I proposed: Europe provides the method; Colombia, the purpose. Today the Afro-Colombian people have the advantage of learning from others’ trials: we can observe Europe’s successes and, more importantly, its legal gaps, in order to build a model that goes further – one that protects not only the individual but the community.
A model that does not stop at rhetoric but takes shape in legal and technical tools. The key legal tool we coined, ‘Operational Ethnic Habeas Data’, is the shield. The technical tool we must demand without compromise, ‘algorithmic accountability’, is the sword that guarantees transparency.
Armed with this shield and this sword, we can at last fulfil the fundamental mission of our time: ensuring that law does not follow technology but guides it. The historic work now beginning in Tumaco is living proof that digital sovereignty is not a dream: it is a legislative project, an academic one and, above all, a project of community dignity.
النشرة
فعاليات وأخبار وتحليلات في القانون الرقمي تصلك على بريدك، ولا نراسلك إلا حين يكون لدينا جديد.
