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Cybercrime law threatens online expression at site of ITU meeting

11:29am | 19 December 2012 | by Access Policy Team,

By Rebekah Larsen 

At a meeting of the world’s governments in Dubai over the past two weeks, the rights of users to express themselves online were directly under threat by some governments. The International Telecommunication Union (ITU), a UN agency, convened the World Conference on International Telecommunications (WCIT) to update a 1988 treaty on the technical aspects of telecommunications provision and interoperability (more info here). The spectre of increased online censorship and government surveillance of digital communications was front and center for many delegates, as certain countries sought changes to this international treaty to legitimize their existing repressive practices. Indeed, the conference’s host country took steps to cut off its own citizens’ free expression rights just days before the meeting commenced.

Earlier in November, United Arab Emirates (UAE) President Sheikh Khalifa bin Zayed al-Nahayan issued a Federal Law by Decree with undeniable potential to chill protected speech and political participation. The measures criminalize those who use technology for cartoons lampooning state security, deriding the flag, and more, and give UAE rulers the ability to jail and fine those exercising their rights even when such behavior is protected under international law.

The official report for Federal Law by Decree No. 5 from 2012 was issued on WAM (the state news agency for the UAE) on November 12, 2012, and includes amendments to the UAE’s Decree No. 2 from 2006 on cybercrime. In addition to the troubling implications for free expression online, the law adds penalties onto “all crimes in the Penal Code and other UAE laws” if the law is broken online or through electronic means. Its content is wide-ranging, covering issues of forgery, prostitution, adultery, privacy, unauthorized trade, terrorism, and, of course, acts potentially damaging to “national unity or social peace or…public order and public decency”.

Unfortunately, this hasty, redundant, and harmful approach is all too common. Governments in Peru, Russia, the Philippines, Iraq and elsewhere have considered laws criminalizing many uses of computers and the Internet, narrowly defining lawful activity online. Simply adding penalties to existing crimes -- from prostitution to terrorism -- solely because they occur via computer is redundant and illogical, and does not help actual victims or prepare society to deal with emerging problems. Rife with unintended consequences, these vague laws stifle innovation, chill expression, and give authorities discretion to enforce the rules capriciously.

The UAE’s new law exhibits many of the same failings, going beyond the free expression restrictions allowable under Article 19 of the ICCPR (International Covenant on Civil and Political Rights). It criminalizes those who promote “indecent acts” online, specifically prohibiting activities “by any person who creates or runs any electronic site to send, transmit, publish or promote online any pornographic material, gambling activities and any other indecent acts” and activities “which would promote disorder, hate, racism or sectarianism and damage national unity or social peace or damage public order and public decency”. The word decency, in particular, is one that should be applied in legal contexts with much caution. It is too prone to ambiguity, and in the context of free expression online, its chilling effects on rights, the economy, and innovation are especially disconcerting.

The vague articles of Decree No. 5, proscribing for example “any criticism of authorities,” create crimes with broad reach. Yet they carry specific, severe punishments for content providers and producers alike, and aim “to close the door on any criticism of authorities”[5]. The law applies penalties to the use of information technology, defined as “websites, any information network or information technology means,” in any context of “derision or damage” against the president, the vice president, any of the rulers of the seven emirates that make up the UAE, crown princes, deputy rulers, the national flag, the national anthem, the emblem of the state or any of its symbols.

The UAE has not signed the ICCPR, a foundational part of the International Bill of Human Rights, which recognizes the right to freedom and expression (Art. 19). However, the UAE is a party to the Arab Charter on Human Rights, which “ensures the right to information, freedom of opinion and freedom of expression” (Art. 32), as well as the rights to freedom of political activity, to form and join associations, and to freedom of assembly and association (Art. 24). The Arab Charter on Human Rights also affirms the provisions contained in the ICCPR, which have been interpreted as protecting criticism of those in power. The Human Rights Committee, the sole body charged with interpreting the ICCPR, in General Comment 34 expressed concern “regarding laws on such matters as, lese majeste, desacato, disrespect for authority, disrespect for flags and symbols, defamation of the head of state and the protection of the honour of public officials, and laws should not provide for more severe penalties solely on the basis of the identity of the person that may have been impugned. States parties should not prohibit criticism of institutions, such as the army or the administration.”

The measures listed below, translated and annotated by Human Rights Watch, violate the above guidance and regulate what the UAE sees as online opposition, notably both within and without the country:

- Article 26 provides for a maximum of five years in prison and a fine of 1 million dirhams (US $272,000) for anyone using information technology in any of the activities associated with an “unlawful” group. This includes the “intent to facilitate contact between its leaders or members, attract members, promote or applaud its ideas, fund its activities, or provide active aid to it.”

- Article 28 provides for imprisonment and a fine of up to 1 million dirhams (US $272,000) for anyone who uses information technology “with the intent of inciting to actions, or publishing or disseminating any information, news, caricatures, or other images liable to endanger state security and its higher interests or infringe on the public order.”

- Article 29 provides the same penalties for anyone using information technology “with the intent of deriding or harming the reputation, stature, or status of the state, any of its institutions, its president or vice president, the rulers of the emirates, their crown princes or their deputies, the state flag, national safety, its motto, its national anthem, or its symbols.”

- Article 32 authorizes imprisonment or a fine of 500,000 dirhams (US $136,000) for anyone using information technology to “plan, organize, promote, or advocate demonstrations, marches, and the like without a permit from the competent authorities.”

- Article 38 will prohibit Emiratis from providing information to independent journalists and human rights organizations. Article 38 provides prison terms for anyone using information technology “who provides to any organizations, institutions, agencies, or any other entities incorrect, inaccurate, or misleading information liable to harm state interests or damage its reputation, stature, or status.”

These articles potentially threaten imprisonment and exorbitant fines for actions such as organizing demonstrations without a permit, criticizing a leader, or providing information to outsiders concerning human rights abuses. The ninth article of the cybercrime degree tacks on additional sanctions (prison term and/or fine) if individuals commit any of these “crimes” while using a proxy or false address. Many users employ proxies to protect their privacy, for business security needs, and to circumvent firewalls or other barriers to the open internet so they can seek, receive, and impart information freely.

This past October, the European Parliament adopted a resolution on the UAE, expressing great concern for the human rights climate in this country that has traditionally been seen “as a bulwark against militant Islamist groups” and particularly moderate in comparison to its neighboring countries. This new over-encompassing cybercrime bill and the European resolution have brought the UAE’s record even more into focus just after the country won a three-year term on the UN Human Rights Council.

Debate raged at the WCIT in Dubai concerning the rights of governments to regulate traffic and content. Proposals aimed to normalize censorship of online activities that “undermin[e] the sovereignty, national security, territorial integrity and public safety of other States, or to divulge information of a sensitive nature.” Thanks in part to efforts by the Chair of the WCIT, Mohamed Al-Ghanim, to find a reasonable compromise, many of the proposals that were most threatening to digital rights didn't make it into the treaty. Now it's time for him to continue that leadership at home. The UAE should heed the call by international human rights groups to sign and ratify the ICCPR, and rewrite the law in line with that Covenant, prioritizing free expression and finding ways to protect it online.