“!On the need to incorporate the ethnic-differential approach into the construction of digital public policies”
By Dr. Antonio Tejeda Encinas | President of the Comite Euro Americano de Derecho Digital -CEA Digital Law Euroamericano de Derecho Digital – CEA Digital LAW | CEO of Meta Channel Corporation
On 30 October I had the extraordinary honour of taking part in an event that transcends the academic sphere to become history: the VI Congreso Afrocolombiano de Estudios Interdisciplinarios in San Andrés de Tumaco. We were not there merely to debate, but to be witnesses to and participants in a foundational dialogue, the one that will give birth to the new Universidad Afrocolombiana.
In that context of immense responsibility, my presentation 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 construction of digital public policies”.
My central message was direct: the territory of the 21st century is no longer measured only in hectares; it is measured, and contested, 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 stand at a crossroads. We run the real and imminent risk of a new digital colonialism. A more subtle colonialism, but no less devastating, in which the communities that have been historically marginalised in the analogue world now watch as their culture, their identity, their ancestral knowledge and their very data are extracted, processed and monetised without their consent, without their control and, tragically, without any return of value.
If the new Universidad Afrocolombiana is born to break the cycles of exclusion, it must be born with a sovereign digital DNA.
My Central “Pitch”: Fusing the Soul of Colombia with the Tools of Europe
My work at the head of the Comité Euroamericano de Derecho Digital places me in a unique position to observe two realities that need each other.
On the one hand, we have 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 Regulation (AI Act), the Data Act and the cybersecurity directives (NIS 2, CRA), Europe is forging the tools to govern the digital era. It has created a sophisticated shield for the individual.
On the other hand, we have Colombia. A country that, thanks to its 1991 Constitution, the visionary Law 70 and ILO Convention 169, possesses something that Europe is only 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 raison d’être. 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 mandates).
The Danger of the “Neutral” Algorithm: The Automation of Racism
The need for this approach is urgent. The great lie of our era 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 biases of those who trained it.
If we feed an AI system with decades of biased historical data — data in which Afro-descendant communities were denied access to credit, to justice or to 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 does not understand the linguistic variants of the Pacific is not “neutral”; it is a tool of forced cultural assimilation.
For this reason, my central argument was emphatic: in the 21st century, any digital public policy that is not explicitly ethnic-differential will be, by omission, a policy of exclusion. It is not enough for technology “not to 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 and practical tools designed specifically for this new university.
1. The Operational Ethnic Habeas Data
This was, perhaps, the central concept. We all know individual habeas data: the right to know, update and rectify our personal data. But what about the data that belongs not to an individual, but to the entire community?
Who owns a database of ancestral knowledge about medicinal plants? To whom does the linguistic data of Palenquero Creole belong? 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 declarative right; it is a right of agency. It is the real and legal power of the Afro-Colombian community, as a collective subject of rights (recognised by Law 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 returns to my community for its use?”.
2. The “Digital Prior Consultation”
How do we make that Ethnic Habeas Data “operational”? We do not have to reinvent the wheel. We must adapt the most powerful tool Colombia already possesses: Prior Consultation.
I proposed the creation of a “Digital Prior Consultation” protocol. Under this framework, any project (public or private) that intends to deploy AI, collect massive amounts of data 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 the correction of biases 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”.
An airbag in a car does not prevent the accident (the attempted 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” is triggered.
What does this mean in practice? The system does not deliver the harmful response. Instead, it blocks it and activates a mandatory and immediate human review. This serves a dual function: it protects the user from harm and, at the same time, generates a record of attempted abuse, allowing the system to learn and strengthen itself in a supervised manner.
The dialogue with the audience: when the Questions Confirm the Thesis
The true acid test of these ideas was not my presentation, but the vibrant dialogue that followed it. The audience’s questions, full of sharpness, allowed me to demonstrate that this framework was not theoretical, but a practical and immediate solution.
A lawyer in the audience threw me a direct and pragmatic challenge: “Doctor, all of that sounds excellent. But you speak of European regulations that took years. Here in Colombia we do not have that specific AI legislation. How can we, at the Universidad Afrocolombiana, start working on digital sovereignty tomorrow?”
I welcomed the question, because it allowed me to go to the core of my argument. My answer was emphatic: “We do not 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. Law 70 and Convention 169 already grant them the right to consultation and the protection of collective identity.
My proposal for the Operational Ethnic Habeas Data and the Digital Prior Consultation is not a legal fantasy; it is the direct implementation of Law 70 in the 21st century. The Universidad Afrocolombiana must not wait for permission to innovate; it must, starting tomorrow, begin designing those protocols and become the entity that audits and certifies that any technology deployed in its communities complies with this standard.
Immediately afterwards, a student with an admirable technical vision went even deeper: “Understood, but how do we protect AI ‘from the inside’? How do we prevent it from being trained for evil, or from generating hate speech, even if it is programmed ‘not to show it’? How do we control that training?”
This 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 proceeded to articulate the answer:
One (Before Deployment): Protection does not begin when the user types. It begins in the training. And here, the Universidad Afrocolombiana has a mission: to create its own datasets. Curated, verified, de-biased data. And the Community Ethics Committee I propose must have real veto power. If the training data is not representative, the model is not released. Full stop.
Two (During Use): This is where I explained in depth my concept of the “Digital Airbag”. It is not enough to program the AI to “be good”. It must be programmed to know what to do when it encounters “evil”. The airbag stops the blow (the hateful response) and calls the human supervisor.
Three (After the Failure): And this is where I dropped my most important conceptual “bomb”, the phrase that sums up my entire philosophy on this technology:
“Artificial Intelligence bears no guilt. Artificial Intelligence is not responsible. Artificial Intelligence has authors, configurators 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, see what data it used, what weighting it gave it and who configured that system. Responsibility is, and must always be, human.
The Manifesto of the Tumaco Lighthouse
My visit to Tumaco leaves me with an unshakeable conviction. The Universidad Afrocolombiana is not born to be a mere user of technology created in Silicon Valley or in Beijing. It is born, at this historic moment, with the opportunity to become a governor of technology, to fuse the legal soul of Colombia with the most advanced tools of digital law.
The challenge this new university takes on is monumental, because, as I argued, territory is no longer measured in hectares, but in terabytes. In this new digital geography where the power of 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 secure the entire technological scaffolding.
The path must not be walked blindly, nor must everything be invented from scratch. Herein lies the beauty of the strategic fusion I proposed: Europe provides the method; Colombia, the raison d’être. The Afro-Colombian people today have the advantage of those who learn from the trials of others; we can observe Europe’s successes and, more importantly, its legal gaps, in order to build a superior model, one that protects not only the individual, but the community.
A model that does not remain rhetoric, but materialises in legal and technical tools. The key legal tool we coined, the “Operational ethnic habeas data”, is the shield. The technical tool we must demand without concessions, “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: to ensure that the law does not follow technology, but guides it. The historic work that now begins 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.
