Editorial/Opinion

‘Digital curfews’ need clear policy and regulations

Online/Offline Column by Nalaka Gunawardene

“In our context, even bad Facebook is better than no Facebook!”
I made that remark in one of several interviews done with various international news media outlets in the days following the Easter Sunday terrorist attacks across Sri Lanka.

Of course, I was being provocative – as a counter to the dominant narrative of Facebook bashing that characterises many global and local discussions on the pros and cons of social media.

Now that I have your attention, let me share what I hastened to add: “Yes, there is growing volumes of hate speech, disinformation, body shaming, misogynist content, cyber bullying, and other negatives flowing through social media – and some of this can cause real harm. But blanket social media blocking is not a solution to any of these problems.”

Sri Lanka’s second social media blocking – which lasted nine days from 21 to 30 April 2019 – was introduced within hours of the suicide bomb attacks. The Telecommunications Regulatory Commission (TRCSL) that now comes under the Ministry of Defence, asked all internet service providers to block access to Facebook, Instagram, Messenger, Snapchat, Viber, WhatsApp, and YouTube. The reason: To contain the spread of misinformation.

This is the second time the Government has ordered such a blocking. In March 2018, unable to quell anti-Muslim violence in the Eastern and Central Provinces, the Government blocked four services (Facebook, Instagram, WhatsApp, and Viber) for eight days. The official reason on that occasion was that some users had spread hate speech or incitement to violence in a misuse of these platforms.

On both occasions, the specific body of evidence used for threat assessment and decision making was not made public (It is believed that the President’s office acted under advice from the intelligence services). As such, we are unable to determine based on what is in the public domain, whether the decisions to block were reactionary or precautionary.

Open debate needed

If both blockings were initially warranted for ensuring law and order, they outlived their justification within 48 to 72 hours. Sustaining them for several days longer was a political decision – apparently to contain criticism of the President and the Government.

One thing is clear: We urgently need an open debate on how these kind of emergency situations are to be handled in terms of cyberspace. Yes, what happens online has offline implications, but under what specific circumstances are restrictions warranted – and for how long?

On 26 April, Minister of Digital Infrastructure and Information Technology Ajith P. Perera co-wrote an op-ed with business analyst Chanuka Wattegama that tried to explain and justify the blocking.
“Not all political decisions can be popular, but what needs to be done, should be done at the right moment,” they argued. They acknowledged at the same time that the block infringed on the rights of opinion and expression and also barred the much needed communication in the immediate aftermath of a disaster. There were financial losses too.

Then they added: “The negative outcome that could have been of not enforcing a block could easily trounce all such positives. In retrospect, it is easier to argue for rather than against the above reasons. Those were what we actually saw. We never know what would have happened had there been no temporary block. It is only a counterfactual speculation. We can only assume that it prevented a grave situation that otherwise would have happened.”

Perera and Wattegama present a good case, but justifying policy or regulatory decisions using “what if” scenarios isn’t a sound basis for public review of executive action.

Weaponised

Where the duo goes astray is when they cite American commentators who applauded the Lankan Government’s social media blocking.

One of them is Kara Swisher, a technology journalist and opinion writer in The New York Times who, one year ago, called social media giants “digital arms dealers of the modern age”, who had, by sloppy design, weaponised pretty much everything that could be weaponised.

Writing on 22 April, she hailed the Lankan Government’s latest action. In her reasoning, she noted: “While social media had once been credited with helping foster democracy in places like Sri Lanka, it is now blamed for an increase in religious hatred.” (Full text: https://nyti.ms/2IB1tM3)

She also argued: “Social media has blown the lids off controls that have kept society in check. These platforms give voice to everyone, but some of those voices are false or, worse, malevolent, and the companies continue to struggle with how to deal with them.”

If we agree on that diagnosis for a moment, is gagging or anesthetising the “patient” the right treatment? Are there less drastic and more nuanced ways of dealing with this formidable challenge?

American commentators obsessed with Facebook’s growing global power are clearly too biased to offer us measured opinions, still less advice. They certainly shouldn’t be judging complex socio-political situations in countries like Sri Lanka. And Lankan policymakers need to be wary of citing them in policy discussions.

Just for argument’s sake, imagine if anyone from outside the US advocated a temporary blocking of key social media in the aftermath of a tragic school shooting or other civic disturbance in the US? What do we know about information flows and law enforcement in that society to take such positions?

Local context matters

In an interview with Al Jazeera TV last week, I said that social media for us in Sri Lanka is the last available space where citizens can express freely, demand government accountability and resist when the head of state serially violates the Constitution. This is vital in the context of most of our mainstream media having been politically captured or otherwise compromised.

Data scientist and writer Yudhanjaya Wijeratne echoed a similar view. Writing a cogent opinion essay in Slate.com, he said: “In a country with such tight government controls on traditional media, social media is more of a boon than Western commentators would assume.”

He added: “People also fail to understand that blocks can be quite easily circumvented with virtual private networks. Innocent people – who may be unaware of the security risks – search Google for “VPN” and download the first thing they see, opening their devices and network traffic up for all kinds of nefarious third parties. The block also sends the actual racists and hate speech-mongers underground.

Whereas once we could see some tip to the iceberg, now it stays underwater, propagating across networks that are far more difficult to examine — WhatsApp and SMS, for instance. If more people start using Signal or Telegram, we might as well forget the whole thing altogether.” (Read his full essay: http://bit.ly/2IWEpaO)

So blanket blocking can do more harm than good, and the Government needs to find better ways of dealing with hate speech, misinformation, and other abuses of cyberspace.

Clarity needed

A good place to start is by enforcing our existing laws without fear or favour. How many people arrested during the Digana and Kandy violence in March 2018 were charged under the ICCPR Act No. 56 of 2007 that has clear provisions against hate speech? We don’t know the number, if any, but in April this year, that law was wrongly invoked to arrest a fiction writer accused of “defaming Buddhism” through a short story!

To be clear, freedom of expression is not an absolute right, and international human rights law recognises some specific limitations. The International Covenant on Civil and Political Rights (ICCPR), an international treaty that came into effect in 1976, has narrowly defined the allowable restrictions that must pass a three-part test of legality, legitimacy, and proportionality.

In the case of Sri Lanka’s two social media blockings so far, there is no law enabling such executive action (making it arbitrary); its legitimacy is debatable; and prolonged blocking is clearly disproportionate to the deemed threat.

Internet restrictions are a blunt regulatory measure which is not to be cheered or justified. Instead, Sri Lanka should evolve a policy and legal framework as well as clear implementation procedures to be applied in highly exceptional situations where a very temporary restriction may be justified.

Social media blocking is analogous to a countrywide “digital curfew” – where the cyber mobility and other online activity of citizens is restricted by the Government for a specific period of time, in the interests of law and order or public security.

Just as we have clear procedures for declaring, maintaining, and ending physical curfews under the law (Public Security Ordinance), it is useful to evolve legally mandated procedures for digital curfews for threat assessment, decision making, and implementing very limited scope internet restrictions. Having these in place could also reduce executive overreach.

(Science writer Nalaka Gunawardene has been chronicling and critiquing information society for over 25 years. He tweets from @NalakaG)