On September 28, Deputy Loria Raquel Dixon Brautigam proposed a “Special Cybercrime Bill” and a series of Criminal Code repeals to the Legislative Power of Nicaragua.
The signatory organizations are deeply concerned about the legislation, which, if implemented, would seriously undermine human rights; in particular, freedom of expression and access to information, already under threat in Nicaragua, would be compromised. Below, we highlight our biggest concerns:
1. The new definitions of criminal offenses open the door to an arbitrary application of the law and sanctions.
The bill proposes the creation of multiple broad, vague, and imprecise offenses — such as “espionage,” “security violations,” “manipulation of computer means,” “transfer of reserved public information,” and “propagation of fake news,” among others — that criminalize all kinds of legitimate and daily actions carried out through communication and information technologies (ICT), as well as various forms of online expression. The potential arbitrariness with which these provisions will be interpreted, without having precise definitions that limit or characterize the conduct that is considered a crime, would lead to penalties ranging from 2 to 10 years in prison for people who are not committing a crime.
For example, Article 5 of the bill states that anyone who accesses “directly or indirectly, partially or totally any program or the data stored in it, with the purpose of taking ownership of it [the program or the data]” would be sentenced to 2-4 years in prison. This means that anyone who accesses a computer, a folder, or opens a USB that is not theirs, would be criminalized. This is due to the fact that there are not sufficient criteria or elements to determine what it means to “take ownership” of a program or the data.
It is important to mention that this lack of technicality also corresponds to the fact that Nicaragua is not a signatory to the Budapest Convention, and the proposed law is not consistent with international agreements and covenants that regulate cybersecurity matters.
Further, on September 29, the government of Nicaragua published the National Cybersecurity Strategy for 2020 – 2025. Although its content is generic and the objectives it seeks are laudable, the context in which it is published is worrying, since it enables the implementation of the Special Cybercrime Bill and the normalization of a state of surveillance, censorship, and oppression.
2. The bill promotes censorship to silence dissent and avoid public scrutiny.
The State has the obligation to guarantee that there is no content excluded a priori from public debate, as this would constitute an illegitimate and unconventional limitation to freedom of expression. Article 13.3 of the American Convention states that, “The right of expression may not be restricted by indirect methods or means […] or by any other means tending to impede the communication and circulation of ideas and opinions.”
Contrary to the above, the bill proposes to sanction legitimate expressions. For example, it seeks to punish whoever “impersonates or seizes the computer identity of a natural or legal person through ICTs,” which would include punishments for memes and even for parody accounts of public figures, or for those “who [make] use of ICTs [to] ‘provoke or promote’ the commission of felonies, praise crime or exalt its author or participants,” which includes the persecution of sarcastic or humorous statements about public security.
Adopting criminal definitions that are too broad can lead to intentional manipulations of terms that limit or restrict the enjoyment of rights and freedoms. Furthermore, the text presented carries a criminal charge against journalists and the media.
First, it seeks to sanction any “improper capture of other people’s communications through information and communication technologies,” that is, “whoever records or captures the words or conversations of others.” This includes reporting.
Second, it proposes to criminally prosecute “whoever publishes or disseminates fake and / or misrepresented information, which causes alarm, fear, anxiety.” In this way, any person who transmits or replicates information that the authority qualifies as “fake,” including journalists, could be charged for that reason, without recognizing that criticizing authorities should never be the ground for criminal penalties.
In this regard, it was established in the Joint Declaration on Freedom of Expression and “Fake News,” Disinformation and Propaganda, that “[g]eneral prohibitions on the dissemination of information based on vague and ambiguous ideas, including ‘false news’ or ‘non-objective information,’ are incompatible with international standards for restrictions on freedom of expression.”
3. The bill inhibits the culture of reporting and scrutiny of possible abusive and illegal acts by the authorities and private companies.
Tackling abuses of power in the public administration, corruption and human rights violations, or serious misconduct by large corporations implies promoting and guaranteeing the culture of reporting by whistleblowers (also called informants, denouncers, or leakers). Contrary to this, the bill seeks to sanction “whoever breaches the confidentiality of the information they learned on the occasion of their participation in the process of research, collection, interception or intervention of data from a computer system or its components,” or “whoever, without authorization or in excess of that granted, transfers public information classified as reserved.”
The fact that the sanction is extended to any person, beyond public servants, and that it is raised in criminal terms, inhibits the exercise of the right to information and freedom of expression. This sanction prevents any person from seeking, receiving, and disseminating information, a right protected by the American Convention on Human Rights (Article 13) and the International Covenant on Civil and Political Rights (Article 19).
The establishment of an arbitrary information control system is typical of authoritarian regimes. Therefore, it is essential that the Legislative Power establish an Open Parliament procedure with the active, free, and meaningful participation of the different stakeholders ─ including civil society ─ in order to ensure that any legislation on cybercrime respects human rights and contributes to the security of people that use ICT in Nicaragua.
SIGNATURES
Article 19 Mexico and Central America
Access Now, Global
Abraji, Brazil
Asociación Nacional de la Prensa de Bolivia (ANP)
Asociación por los Derechos Civiles (ADC), Argentina
Asociación para una Ciudadanía Participativa, ACI Participa, Honduras
Asociación TEDIC, Paraguay
Association for Progressive Communications (APC)
Artículo 66, Nicaragua
Cainfo, Uruguay
Centro de Investigaciones de la Comunicación (CINCO), Nicaragua
Cooperativa Tierra Común, México
Datos Protegidos, Chile
Demos, Guatemala
Derechos Digitales, América Latina
Divergentes.com – Periodismo de investigación en Centroamérica
El Barracón Digital, Honduras
Espacio Público, Venezuela
Fundación Datos Protegidos, Chile
Fundamedios, Ecuador
Front Line Defenders, Ireland
Functional Cybersecurity International
Fundación Acceso, Centroamérica
Fundación Violeta Barrios de Chamorro, Nicaragua
Fundación Karisma, Colombia
Hiperderecho, Perú
IFEX-ALC, Latin America and the Caribbean
Iniciativa Mesoamericana de Mujeres Defensoras de Derechos Humanos
Instituto de Prensa y Libertad de Expresión IPLEX, Costa Rica
IPYS Perú
IPYS Venezuela
LaLibre.net Tecnologías Comunitarias, Ecuador
ONG Amaranta, Chile
Proyecto Criptomiau, México
R3D: Red en Defensa de los Derechos Digitales, México
@SeguDigital, México
Sursiendo, Comunicación y Cultura Digital, México
VE sin Filtro, Venezuela