“Overseas content providers’ standing to challenge domestic censorship” – 2017.12.19 IGF Geneva WS187 Internet Shutdown

The courts in Brazil ordered Whatsapp to be shut down when Facebook, its operator, did not deliver on their warrant for certain user data.  This raises an important privacy issue as well as a free speech issue.

As to a privacy issue, we should remember a doctrine that warrant is an authorization to law enforcement, not an affirmative order for private parties to do anything.  It is for that reason that the US DOJ could not force, even with a warrant, Apple to write new software that would have allowed them to unlock the iPhone of a known terrorist.  When the Brazilian judiciary shut down Whatsapp as punishment for failing to deliver certain data, it was tantamount to treating the warrant as an affirmative order.  If warrant had been treated properly as a permission to the prosecutors, the target of the warrant cannot be punished for not complying with it:  only the prosecutors are allowed to taken whatever necessary measures to obtain the information, such as seizing whatever server facilities they could get hands on.  Of course, as Facebook clarified, there was no information on a Facebook server anywhere that could be made available to prosecutors because all of it was end-to-end encrypted!  If the proper course had been followed, the unfortunate shutdown of the chatting app would not have happened. As the federal prosecutors on the panel today mentioned, they would have more quickly come to recognize the immovable fact of the unavailability of the data, instead of trying to force Facebook to cough up the data on the penalty of shut-down.

As to a free speech issue, administrative censorship in Asia is a big problem for shutting down apps and webs.  In 2014, Turkey’s ICTA shut down Twitter and Youtube within the country but was promptly struck down in its constitutional court and other courts for violating people’s right of access.

Now the significance of this is that people living under authoritarian regimes find shelter for their freedom of speech in overseas services free from their domestic governments’ censorship.  The government’s only available response is to block people’s access to those overseas-residing contents only within the country.  It was important then for digital rights activists to establish in-country people’s standing to challenge in court administrative orders blocking overseas contents.

Legally, when certain content is censored, for instance, an obscene book, it has been the originators of the content (book publishers) who had standing to challenge censorship, not people intending to read that book.   So, it was not clear when Asian authorities, without touching the originators, just blocked their own domestic constituents from accessing the content.

In Korea, Korean Communication Standards Commission routinely issues shut-down orders on web sites and web pages without judicial process.  One such victim was northkoreatech.org, an online journalism site dedicated to reporting on north Korean people’s use of information technology including the internet and mobile phones.  The site was blocked for violating National Security Act, which was a law punishing people for condoning or praising the positions of the enemy of the state, in this case, North Korea.  Open Net Korea challenged the order in court and won this year.  Together with Turkey’s Twitter ruling, this northkoreatech.org decision firmly established people’s legal standing to challenge administrative blocking of overseas contents.

Watch the session here.