EFF Submits an Amicus Brief in Open Net’s Constitutional Challenges to “the Internet Censorship and Surveillance Act”

The international digital rights organization Electronic Frontier Foundation (EFF) submitted an amicus brief to the Constitutional Court on March 7, regarding the constitutional complaint (2021Hun-Ma290) filed by Open Net concerning Article 22-5(2) of the Telecommunications Business Act (a.k.a. the Internet Censorship and Surveillance Act).

Article 22-5(2) of the Telecommunications Business Act, also known as the “Nth Room Prevention Act,” was introduced to prevent the recurrence of incidents similar to the Nth Room case. This law requires web hard operators and value-added telecom operators, to provide services such as SNS, communities, chat rooms, personal internet broadcasting, and search services, with annual sales of over 1 billion KRW or an average daily user base of over 100,000, to take “technical and managerial measures prescribed by Presidential Decree” to prevent the distribution of illegal content (“pre-action obligation”). Non-compliance can result in up to three years of imprisonment or fines up to 100 million KRW. Particularly, search restriction and filtering measures are defined as pre-action obligations, compelling businesses to continuously monitor, surveil, and censor user communications, thus posing a significant risk to users’ freedom of expression and communication.

The EFF submitted an amicus brief to the Constitutional Court asserting that this law poses a high risk of infringing on users’ freedom of expression and privacy rights.

The EFF pointed out that national measures to prevent harmful online content must adhere to human rights principles, ensuring a ‘balance’ with the restriction of freedom of expression and privacy rights. It was emphasized that laws imposing excessive legal responsibilities, such as the general duty of surveillance and mandatory filtering on intermediaries, like this law, lead intermediaries to actively monitor user behavior and filter or censor all controversial content to avoid legal liability. This inevitably results in the censorship of even lawful and valuable expressions. Additionally, users, knowing that their communications are being monitored, may excessively self-censor, which poses a high risk of infringing on freedom of expression. The opinion also highlighted that due to technical errors, there is a significant possibility that lawful content could be filtered out. Moreover, general monitoring measures force companies to collect vast amounts of data on user behavior, infringing on users’ privacy and compromising security technologies.

EFF_Amicus-Brief_KORENG

Korean version text