UPDATE: October 14, 2020: After a rough week of unproductive consultation with other governments, the European Parliament proposed the suspension of the Agreement of Association with Nicaragua, and lawmakers added initiatives on cybercrime to this week’s agenda in the National Assembly, where the legislation is expected to be discussed and approved without proper public debate.
On Monday September 28, deputies from the Sandinista caucus introduced to the National Assembly the Special Cybercrime Bill aimed at preventing, investigating, prosecuting, and punishing crimes committed through the use of information and communication technologies (ICTs). The ambiguity in its terms and the crimes it creates — such as spreading “fake news” — represent a new attempt by the Nicaraguan government to control and prosecute dissidents.
Since taking power in 2007, the government of Daniel Ortega has been repeatedly accused of committing human rights violations and taking authoritarian actions, including reforming the Constitution so he can be re-elected indefinitely and persecuting human rights activists and civil society organizations. In March of 2018, Ortega’s wife and vice president, Rosario Murillo, stated in a public intervention that she had held conversations with the president of the National Assembly to “review” the use of social networks in this country.
After the 2018 uprising, the systematic repression of human rights organizations, social movements, and the private sector has intensified. This includes authorities conducting searches and seizure, the targeting and killing of local and indigenous leaders, and the closure and persecution of independent media. Adding to these attempts to silence critical voices is a fierce campaign of hatred, defamation, and attacks against journalists, activists, and those running media websites, among others.
A recent report presented at the United Nations Human Rights Council, covering the period from August 19, 2018 to July 31, 2019, documents continuous violation of the rights to freedom of peaceful assembly (preventing protests and making excessive use of security forces); freedom of expression and association (attacking, criminalizing, harassing, seizing work equipment, and threatening journalists, activists, local community members, LGBTQI+ people, among others); personal freedom (through arbitrary and illegal detentions and imprisonment); the right not to be subjected to torture and inhumane conditions during detention (prisoners, both men and women, have been subjected to torture and ill-treatment during their imprisonment or arbitrary detention); the right to a fair trial (a former Supreme Court magistrate declared that the charges against the protesters in 2018 were politically motivated); the victims’ right to appeal and obtain reparations; and the enjoyment of economic, social, and cultural rights.
A new tool of oppression
The Special Cybercrime Bill is presented in this context as a new tool to persecute and silence dissenting voices. The bill — which improperly joins different areas of regulation to online activities — aims to punish a wide variety of acts, including improper access to computer systems, computer espionage, manipulation of records, identity theft, misuse of personal data, threats through ICTs, the propagation of “fake news,” and even crimes related to personal freedom and sexual integrity.
Since it was announced, independent media and press organizations have condemned this bill as yet another weapon to criminalize freedom of expression and persecute the opposition.
Human rights at risk
Despite the fact that Article 3 of the draft contains a list of definitions, the crimes it incorporates are ambiguous and imprecise, criminalizing daily uses of ICTs and other legitimate activities. This affects the principle of legality — which implies a narrow and precise description of criminal conduct — and the right of defense. For example, Articles 4 and 14 punish those who access a computer system “without authorization,” an activity that is carried out by digital security researchers whose purpose is to identify and communicate these vulnerabilities to the owners of the systems so that they can adopt the necessary security measures.
The bill also criminalizes “making accusations against the honor, or prestige…” (Article 28) and “impersonation and appropriation of someone’s digital identity” (Article 22). As we have repeatedly pointed out in analysis of similar legal initiatives in other countries in the region, this poses a threat to legitimate forms of free expression such as criticism, satire, and parody.
Article 30 of the bill sanctions the “spread of false and/or misrepresented news,” a disputed term and difficult to conceptualize, which in other countries has proven to be used arbitrarily to persecute opponents and independent media.
There are also other problematic terms, as the bill would also punish the sole possession or commercialization of computer equipment or software (Article 11), revealing or reporting irregularities, acts of corruption, or human rights abuses (Article 21), using a storage device that is not your property, regardless of the purpose (Article 5), and manipulation of data content by the administrators of platforms (Article 16), among other things.
Besides the vagueness of the terms and definitions, there are two other important issues with this bill. First, the use of criminal law to punish actions that do not merit it. The prison sentence, which can be from 2 to 10 years, is a disproportionate and unnecessary punishment for the vast majority of the offenses it contains. This is directly opposed to international norms and human rights standards, that establish criminal law as a last resort — ultima ratio — to punish conduct.
Second, the bill establishes an extraterritorial application. It punishes those who are both inside and outside Nicaragua. Given the globalized nature of ICT’s, any person or institution anywhere in the world that, for example, issues an opinion regarding the situation in Nicaragua or that accesses a system in that territory, could be prosecuted, under this law.
More tools of oppression
This bill is not the only tool that the Nicaraguan government will use to persecute its opponents. On September 22, lawmakers introduced the Regulation of Foreign Agents bill, seeking to “create a legal framework for individuals or legal entities that respond to foreign interests and financing, and use that financing to carry out activities that result in the interference of governments or foreign organizations in the internal affairs of Nicaragua.”
This project establishes the obligation for local and foreign individuals and organizations that reside in the country and that receive funds from foreign sources, to register as “foreign agents” with the Ministry of Home Affairs, including journalists, civil society organizations, and government agencies. With this bill, the Ortega regime aims to make it difficult for numerous media outlets and organizations based in the country to obtain financing from foreign sources, which, given the context, is necessary to carry out their work freely and independently.
On September 29, the government established by decree the National Cybersecurity Strategy for 2020-2025. Although its content is generic and the objectives it seeks are laudable, what the government conceptualizes as “cybersecurity” is worrying, given the project we are analyzing.
The strategy establishes five lines of work, among which is the strengthening of the legal framework, through which the cybercrime bill could be applied. Together, the strategy and the two bills now introduced, are a cause for concern about its potential use against dissident voices in the already deteriorating state of human rights in Nicaragua.
The struggle continues
The future of human rights in Nicaragua is undoubtedly unfavorable. However, a number of organizations, activists, and members of the press continue to work to reverse this situation. It is essential that international organizations continue to report on the situation in the country and demand that the fundamental rights of Nicaraguan citizens be guaranteed, online and off.
With ARTICLE 19 and other organizations in the region, we express our concern about the content of the bill, which, if implemented, would represent a serious injury to human rights. We urge the Nicaraguan government to reject the Special Cybersecurity Bill, eliminate all ways of persecuting or obstructing the work of journalists, civil society organizations, and activists, and to respect human rights standards.