Blocking apps by ministerial decree enables illegal content takedowns in Peru

The Ministry of Transport and Communications in Peru gave itself the power to order internet service providers to block apps and services that offer illegal transportation services. The decree does not respect the national legal framework nor human rights principles of legality and proportionality, paving the way to arbitrary decisions.  

How did we get to this point?

Taxi services provided via motorcycle are illegal in Peru. Nevertheless, they function informally anyway on the streets of Lima. In September Picap, a Colombian motorcycle-hailing app, started to operate in the country and quickly got hundreds of downloads. Picap as an app does not need any formal authorization to operate, however the service that it promotes is illegal.

On November 13th, El Comercio, a Peruvian newspaper, published an in-depth report about Picap. Reporters got access to drivers’ WhatsApp chat logs and found out that drivers were sharing in a WhatsApp group the personal data of their users, mostly females, and organizing attacks against certain groups of people using guns. It was also reported that they harassed people, shared a link to pornography of “school girls” and photos of themselves consuming drugs during working hours, and even recognized that they had received summons (a court order).

The report got widespread attention, and on November 14th, the Ministry of Telecommunications and Transport (MTC) enacted decree Nº 035-2019-MTC in response. In the decree, the MTC gives itself the power to order internet service providers to block apps and web pages used to offer illegal transportation service. To refuse to comply is considered a very serious infraction and can be sanctioned with a fine up to approximately $445,000.00 USD.

On November 15th, the MTC ordered the four internet service providers (ISPs) that operate in Peru to block apps and/or web pages offering motorcycle taxi services, including Picap, and they partially complied with the order. On November 18th, the MTC announced that it had requested Google and Apple to block the apps in their online stores. To date, both stores still allow users to download Picap in Peru.

A ministry should not have the power to block apps or censor content online

Of course, Access Now condemns sexual assaults, gender violence, child abuse, and any action that puts in people in danger, and these crimes must be prevented, regardless of what platform is used to carry them out. However, it is of the utmost importance that human rights, including freedom of expression, are not undermined as a result of those efforts.

This decree from the MTC was a quick, desperate response. Let’s take a deeper look into the problems it created:

  • Eliminates the judge’s role in content takedowns

In a democratic society, the judicial power is the independent body that decides whether an action has violated the law, and whether and what sanction it merits. Therefore, it is the suitable body to evaluate whether it is lawful to restrict a right, or to block a specific content or application. Additionally, under the Inter-American system of human rights — which Peru is subject to — restrictions on free expression should comply with a strict test of legality, necessity, and proportionality that should be evaluated by an independent court. None of those requirements are met in the decisions from the MTC.

Moreover, a court process allows for the possibility of exercising the right of due process and defense, and to get an impartial decision. In contrast, the MTC decree gives absolute power to an internal office.

Additionally, Peruvian law protects the principle of Net Neutrality. Accordingly, internet service providers can’t block, interfere, discriminate, restrict, or throttle internet traffic, an app, or a webpage without a court order forcing them to do so. There are two exceptions for emergency purposes and when the Telecommunications regulator qualifies it as non-arbitrary. 

  • Sets a bad precedent 

The decree is based on an incorrect interpretation of Article 13 of the Net Neutrality regulation that allows ISPs to filter or block services and apps in response to a specific law. The national legal framework might limit the scope of any such “specific law” to emergency purposes and specific exceptions allowed in the Inter-American system. The MTC failed to do a systematic interpretation of the laws and read the Net Neutrality regulation as the sole law that addresses the internet. It also put all the attention in the technology and not in the conduct of the people. This wrong reasoning sets a bad precedent that could be used in the future to block more apps, web pages, domain names, and IP addresses, using only a ministerial decree. Sadly, the MTC and the tourism Ministry are already considering to block the IP address, URL, and apps of enterprises that do not have an authorization to operate. 

  • Affects other online services

Everything is connected on the internet. Every time we want to open a web page, our IP address gets connected to the IP address of the web page, which at the same time uses a domain name provided by a third party and may use a foreign host service to save its information. Therefore if an ISP blocks one service, it can end up blocking other related services. This happened in the case of Picap; the blocking order affected two host services: Amazon Web Services and Heroku. 

Furthermore, the language of the decree is dangerously vague and allows the blocking of communication apps like WhatsApp, Telegram, Facebook Messenger, or Line if they are used to offer the aforementioned illegal service. In this case, the MTC identified 18 companies and all of them used Facebook as the platform to offer the service.  

  • Ignores the real problem 

The MTC neglected to consider why the illegal service is so popular in the first place. The public transportation system in Peru is in chaos and the vast majority of the services are offered in an informal way. The government should strive to better understand the context for the problem before enacting laws that try to cover the sun with a finger. In the case of Picap, the MTC had other means to go after the company directly. 

A popular action to protect the rights of users

On December 11th, Hiperderecho, a Peruvian NGO, brought a writ of an “acción popular,” an action that originates in the constitution and operates in cases of infringement of the constitution by decrees and similar legislation. They argue that the MTC decree does not respect international standards of freedom of speech and the Peruvian constitutional and legal framework, as it doesn’t pass the test of proportionality. If the court rules in their favor, the decree and all the actions taken by the MTC will be declared unconstitutional. In addition to that, Hiperderecho filed lawsuits against the four internet service providers before the telecommunications regulator in order to get the right interpretation of Article 13 of the Net Neutrality regulation. You can read more about the case here.

Access Now looks forward to seeing the decree be declared unconstitutional. If you want to support the efforts of Hiperderecho, you can share this blogpost and their latest blogpost about this topic, and check their social media here, here and here for more updates.

Image: El Comercio