https://www.accessnow.org:443/laws-let-internet-shutdowns-happen/

The laws that let internet shutdowns happen

Over the past few years, governments have carried out internet shutdowns in countries ranging from India to Uganda to Iraq. These disruptions directly infringe on people’s fundamental right to receive and impart information, prevent them from contacting their loved ones during emergencies, and have an adverse impact on the economy. They are also an early warning sign of other human rights violations, such as state violence.

In the face of such harms, it’s important for those of us working in human rights to start asking questions. How likely is it that a particular country will shut down or take over an entire communications network? What are the circumstances that allow shutdowns? How are they justified? While a country’s unique internet infrastructure and commitment to international human rights safeguards are important, determining the likelihood of an internet shutdown also entails looking at the legal landscape.

As part of my Master’s thesis research at the Oxford Internet Institute, I have been investigating the laws through which governments legitimize an internet shutdown. My primary reference has been Country Legal Frameworks, prepared for the Telecommunications Industry Dialogue (TID), a group of telcos that jointly address challenges to freedom of expression and privacy. The law firm Hogan Lovells produced the resource for the TID by conducting its own research, compiling data from transparency reports, and making use of special legal annexes published by two multinational telecom companies, Vodafone and Telenor.

In brief, I found that internet shutdowns are more likely to happen when laws are outdated or overbroad; when laws are not transparent; and when international standards do not disallow them.

Shutdowns happen when there are outdated laws and overbroad definitions

Many of the laws governments use to take over communications networks or impose shutdowns are ambiguous and outdated. For example, in India, the government can use a telegraph law dating from the end of nineteenth century (1885) to justify its decision to take over a provider’s network. In other countries, governments can use telecommunications laws that were passed or updated several years — or even decades — ago, when no one could have known how the internet would develop or impact economic growth and development.

There are now at least 27 countries where the law and regulations allow the government to shut down or take over telecom networks.

In addition, there are some countries that have very broad definitions for a “national emergency,” which leaves the door open to abuse and misuse of the law. In the Democratic Republic of Congo, for instance, the Telecommunications Framework Law allows the government to ban the use of “telecommunication facilities, in full or part, for any period of time, as it deems fit, in the interests of public security or national defence, the public telecommunications service, or for any other reason.” As we have seen in January of 2015, with the internet shutdown in the DR Congo, the government can use these powers to legitimize cutting off internet connectivity.

So what is the remedy? An update to laws worldwide, and one that accords with international human rights law.

Times have changed. Yet the laws on the books often do not take into account new realities, such as the central importance in our lives of mobile communication technologies. According to International Telecommunications Union (ITU) statistics, in 2015, subscriptions for mobile phone service increased to reach 96.8%  penetration globally. Mobile broadband subscriptions grew worldwide “from 0.8 billion in 2010 to an estimated 3.5 billion in 2015.” We rely on our phones in nearly every aspect of our lives — business, family, social, cultural — and when mobile services are cut off, it has a deeper impact in societies that are dependent on mobile, rather than fixed, connections.

Throughout the world, laws that allow blocking, shutting down, or taking control of internet access, including blocking specific apps or services, should be reformed, and their scopes narrowed to account for human rights law. These laws must meet the established test for restrictions on freedom of expression. The proportionality of the restriction — and whether the potential harm necessitates the restriction — are key requirements in the test, one that the current laws that enable shutdowns generally fail.

Judicial authorities and telecommunications regulators also have a role in taking into account the constitutional protections for freedom of expression granted to citizens, as well as concordance with international human rights standards. We must protect people’s right to seek, receive, and impart information, whether in licensing agreements for telecom companies or in judicial decisions concerning internet access during emergency situations.

Shutdowns happen when local laws and processes lack transparency

In some countries, there is a troubling lack of transparency surrounding laws and processes that can lead to an internet shutdown. In the United States, for instance, the Electronic Privacy Information Center has been at the forefront of a legal battle to gain more information about the federal government’s mobile network shutdown policy. The fight for transparency became more important after authorities ordered a shutdown at a San Francisco railway station during public protests.

Similarly, in Italy, the prime minister issued a secret cybersecurity decree dated January 2013 that established a system of ad hoc agreements” between the government and the service providers. Under the terms of these ad hoc agreements — a worrying prospect that erodes internet users’ privacy — a provider could be required to hand over control of its network to an intelligence agency in the interests of national security. This kind of secret bilateral agreement between a government and a provider does not uphold the rule of law, and fails another prong of the freedom-of-expression test: that restrictions be “provided by law.” Opaque agreements like this are likely to lead to shutdowns and service disruptions without notice or accountability.

Shutdowns happen when international standards fail to disallow them

The ITU, a major intergovernmental agency responsible for setting technical telecommunications standards as well as norm-building, has provisions in its constitution (PDF) that could be interpreted to justify an internet shutdown. Article 34 on the Stoppage of Telecommunications gives license to ITU member countries to block telecommunications “which may appear dangerous to the security of the State or contrary to its laws, to public order or to decency,” while Article 35 on the Suspension of Services gives member states “the right to suspend the international telecommunication service.”

These ITU provisions should be revised, bearing in mind that communications technologies have ever-increasing importance for people, business, and safety. Last year, international human rights experts, including David Kaye, the U.N. Special Rapporteur on the Freedom of Opinion and Expression, and the Representative on Freedom of the Media for the Organization for Security and Co-operation in Europe (OSCE), declared that internet kill switches are “absolutely impermissible under international human rights law, even in times of conflict.” The upcoming ITU Plenipotentiary Conference in 2018 would be a good opportunity for countries to consider amending the ITU constitution to take this declaration into consideration.

The ITU’s constitution should be reformed in line with human rights law and norms, and any provisions that allow blocking or shutdowns should be rewritten, to accord strictly with human rights frameworks.

If global representatives were to change international regulations, it would create a good model for national governments, sparking important conversations about revising and circumscribing the power to shut down communication networks. However, regardless of such changes, at a minimum, governments should review their laws and clarify for providers and the general public what their powers are to shut down and take over networks. This would improve transparency and better communicate the risks for all stakeholders.

Along these lines, we recommend that the U.N. Human Rights Council address the pressing issue of internet shutdowns, resolving that they violate human rights, and holding the countries that order them responsible for the violations.

Shutdowns in your country? Talk to us, and join the #KeepItOn campaign

Access Now has already recorded more than 15 internet shutdowns this year. We don’t want 2016 to be the year that internet shutdowns become commonplace globally.

There are some signs that people are becoming more aware that internet shutdowns pose a threat to human rights. As we have tried to show in this post, outdated or vague laws, a lack of transparency, or international standards that do not explicitly disallow shutdowns, can be exploited like a bug in the system. And whether or not they are used, they are a vulnerability because they are what let shutdowns happen. If your country allows shutdowns, we are eager to speak with you and talk about how to begin the reform process.

If you’re interested in advocating against internet shutdowns, visit our internet shutdown campaign website, where we will be drawing attention to campaigns globally and sharing opportunities to take action.

 

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