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In closed debate, Peru Congress approves new cybercrime law threatening online freedom of expression

8:50pm | 20 September 2013 | by Francisco Javier Vera Hott, English

On September 12th, the infamous cybercrime law project known as “Ley Beingolea” appeared at the top of the National Congress of Peru’s list of projects to debate, despite many criticisms and requests from civil society for open dialogue. What followed next was even more incredible: after some debate on the floor, at 11 a.m. all Congress members went into recess. Five hours later, a completely new text entered into discussion and was passed by the Congress, without any public review.

The new text, prepared by Congress member Juan Carlos Eguren, looks like a mix between different cybercrime law projects -- not using Ley Beingolea, but instead drawing on a new law project the Ministry of Justice prepared one month ago. Only three days before, on September 9th, Miguel Morachimo, the leader of the digital rights organization Hiperderecho, wrote about that draft saying:

[I]t looks more like a proposal motivated by external factors rather than internal ones. There is no mention about why the current regulation of cyber crimes would be inappropriate, nor is it mentioned how many cases and of what type have been known by the prosecution office or the courts since we have such provisions in our criminal code.

On the other side, Morachimo argued, “the proposals over grooming, discrimination and the aggravating factor over dissemination of public information are authentic ‘counterfeited Laws’ that should be better supported with arguments before going into debate.”

In a brief analysis, the new cybercrime law contains nine different criminal offenses: illicit access (art. 2), attempts against data integrity (art. 3), attempts against system integrity (art. 4), sexual propositions to children through technological measures (art. 5), illegal personal data traffic (art. 6), digital data interception (art. 7), computer fraud (art. 8), identity theft (art. 9), and the abuse of computer mechanisms and devices (art. 10). Besides these, the law also modifies some current criminal offenses like illegal phone tapping, child pornography, and discrimination.

Most of these criminal offenses affect fundamental rights such as access to knowledge, freedom of expression, and other criminal law principles such as the need to determine precise conducts to punish (typicity) and the proportionality of sentences. Many of the laws provisions -- such as illegal personal data traffic (art.6), identity theft (art. 9), and the abuse of computer mechanisms and devices (art. 10) -- are poorly and vaguely worded, turning legitimate and common behaviors like investigative journalism, creating a Twitter parody account, or selling network analysis devices into crimes.

The new formulation of the criminal offense of discrimination -- which, according to experts, has been rarely used in its original form -- punishes any person who discriminates against one or more person or group of people, or promotes discriminatory acts because of race, religion, sex, genetics, family status, age, disability, language, ethnic and cultural identity, garment, political opinion or opinion of any kind, or economic condition, with the aim of annulling or undermining the recognition, enjoyment, or exercise of a right. The only “digital” difference here is that when the discrimination takes place using information technologies it is considered an aggravation of the same offense, just as with violent discrimination acts. In practice, this will lead to tougher penalties for those who commit the same crime merely for their use of technology in its commission.

This law is bound to have chilling effects, and its provisions are ripe for abuse by the government. Now that the law has passed, the only hope of stopping its coming into effect is for Peruvian President Ollanta Humala to veto. A veto would enable a proper public debate of the law including participation by all those who would be affected.

But the President’s signature could come at any moment, so the time is now for the public to speak out. Peruvians on the ground tell us that the best way to reach the president is by tweeting at him using his handle @Ollanta_HumalaT and the hashtag #LeyBeingolea. You can also encourage him to veto the bill and send it back to Congress for a more open and democratic dialogue with civil society by posting on his Facebook page.