A Resolution for 2013: No More Bad Internet Laws
Photo Description: An image protesting a controversial new copyright law - Ley 510 - in Panama.
Photo Credit: Global Voices Online
One year ago, U.S. lawmakers discovered what happens when you mess with the internet, as Google, Wikipedia, Facebook, and millions of ordinary users helped “black out” the net on January 18 to protest SOPA and PIPA—two controversial pieces of legislation that were designed to fight online piracy, but threatened instead to censor the internet and disrupt the way it functions. Since that day, there has been a rise in new laws around the world that restrict free speech online and prompt arrests of internet users, a key trend identified in Freedom House’s 2012 Freedom on the Net report.
There are, of course, legitimate reasons for internet regulations, such as combating identity theft, human trafficking, and trade in child pornography. To ensure that new legal measures are compatible with human rights and democratic principles and effectively meet their intended goals, lawmakers must follow several basic guidelines. Below are five essential principles for internet regulation, and five laws from 2012 that violated them.
1) Be transparent. Governments must ensure transparency when drafting and enforcing laws. The free flow of information is a core principle of the internet, and is impossible without transparency. If a government determines that content should be taken down or blocked, it must disclose every instance of such censorship. Though not a government, Twitter follows this principle—when the service blocks content, the action is documented in the Chilling Effects database.
#RuWikiBlackout: A broadly written internet blacklist law in Russia allows authorities to block websites deemed to contain information that would be “harmful to children.” Sites have only 24 hours to comply with government takedown requests before they are totally blocked. Although the government announced that it would publish a full list of all blocked websites at http://zapret-info.gov.ru/, users can currently only search for one website at a time to determine whether it is blocked. Although this is a step in the right direction, requiring users to search for individual sites falls short of true transparency.
2) Seek and incorporate input from technical experts and civil society. Lawmakers must consult technologists and internet experts when drafting internet regulations to ensure that they will not have unintended consequences and are fair, effective, and reasonable. As U.S. Representative Jason Chaffetz warned of the SOPA process, “We’re going to do surgery on the internet, and we haven’t had a doctor in the room tell us how we’re going to change these organs.”
Photo Credit: tarawnah
Protesters march to Parliament holding a coffin which reads, "Internet Freedom."
#BlackoutJO: In Jordan, an amendment to the 1998 Press and Publications Law ordered “electronic publications” to obtain media licenses and regulate site comments, prohibited insulting the royal family online, and allowed authorities to block websites without a court order. The amendment was approved despite the valid criticism that it is unreasonable to require site owners to monitor high volumes of user comments, and to force sites that could fall under the vaguely defined category of “electronic publications” to follow the same restrictive policies as print media outlets.
3) Use specific, not vague, language. Much of the danger in bad internet laws comes not from the language the authors put in, but rather from what they leave out. For example, legislation may seek to control “sharing” of content, but what does this mean? Sending a file? Tweeting a link? “Liking” a Facebook post? When terms aren’t carefully defined, laws have the potential to go beyond the issues they were meant to address and restrict the activities of innocent internet users.
Photo Credit: erwanjheussaff
#NoToCybercrimeLaw: The Philippines’ Cybercrime Prevention Law of 2012 would extend the country’s vague libel law to online speech, with a maximum penalty of 12 years in prison, and leaves open the possibility of writers facing “double punishment” for libel if their work appears both online and in print. Anyone who “shares” offending content online could end up behind bars, but the term “share” is undefined. Following petitions from civil society, the Supreme Court suspended the law until it can rule on its constitutionality in a hearing set to begin on January 15, 2013.
4) Include provisions for judicial oversight and due process. If websites must be blocked, individuals must be punished, or content must be censored, judicial review is essential to ensure that such actions are legitimate and the law is not being abused. Those charged with violating the law must be presumed innocent until proven guilty, and provided with the opportunity to defend themselves.
#Ley510: Panama’s Proyecto 510-2012 established the Copyright Directorate General (DGDA), which has the power to levy fines with no judicial oversight. Copyright infringers have 15 days to prove their innocence to the DGDA and could face additional criminal or civil litigation. This arrangement violates the principle of “innocent until proven guilty” that is so essential to due process. The proceeds from the fines, which can run as high as $100,000 (or $200,000 for repeat offenders), do not go to the copyright holders, but instead to the DGDA itself, to be used for “improving its operational infrastructure” and employee bonuses.
5) Don’t rush. Internet legislation is complex, and lawmakers, civil society, and technical experts all need sufficient time to read drafts and provide feedback. There must also be enough time to revise the bills to ensure that legitimate concerns are addressed. Moreover, the provisions of the law itself must give internet users a reasonable opportunity to respond to alleged violations before they are censored or punished.
Credit: Centre for Independent Journalism
#Stop114A: Under Malaysia’s Section 114A Amendment to the Evidence Act of 1950, bloggers, webmasters, moderators, hosting providers, internet service providers, and even owners of unsecured WiFi networks are presumed guilty of publishing supposedly defamatory content that is traced to them, even if they didn’t create it. The amendment was rushed through the legislature and did not incorporate feedback from civil society. The public only learned of Section 114A when it was tabled on April 18; it was passed three weeks later on May 9, and became law on July 31.
The responsibility for adhering to these guidelines does not end with lawmakers. Civil society must hold governments accountable and draw attention to bad laws. Every law described above was met with some form of backlash: an internet “blackout” in Russia, in-person and online protests in Jordan, memes and Supreme Court petitions in the Philippines, a protest by artists and musicians in Panama, and a public-awareness campaign in Malaysia. In short, civil society and other actors found new and creative ways to speak out against poorly constructed laws. Clearly, supporters of internet freedom are more than ready for the challenge of combating any dangerous legislation that 2013 may have in store. But if governments continue to ignore the principles described above, this will be a busy year for internet activists the world over.
Analyses and recommendations offered by the authors do not necessarily reflect those of Freedom House.
As internet access spreads around the world and more countries consider ways to regulate users’ online activities, the United States has a responsibility to set an example by enacting legislation that combats online security threats while protecting individual privacy. Unfortunately, the Cyber Intelligence Sharing and Protection Act (CISPA), which is scheduled to undergo markup this week by the House Intelligence Committee, fails to strike this balance, and threatens to set a negative example for other countries looking to adopt similar laws.
Almost a year ago, Swedish foreign minister Carl Bildt declared before the UN Human Rights Council that the “same rights that people have offline … must also be protected online.” This was the underlying theme of a groundbreaking May 2011 report by UN Special Rapporteur on Freedom of Expression Frank La Rue. The report, which was endorsed by 41 governments, detailed how established human rights principles apply to the internet and made recommendations for putting these principles into practice. After a year of inaction, the time has come for a concerted, collective effort by democratic countries to carry out the recommendations of the La Rue report.