Threats to cyber-freedom, domestic and foreign-A A +A
Saturday, January 26, 2013
(The opinions expressed herein are solely those of the author and do not necessarily reflect those of any other individual, company, organization or government agency, nor those of the publisher.)
EARLY in 2012, netizens worldwide protested pending United States legislation - the SOPA and PIPA bills, while here in the Philippines, the nation's attention was largely focused on the impeachment of the Chief Justice. In late January, not many noticed that the Senate, then also sitting as the impeachment court, passed its version of an Anti-Cybercrime bill. The Philippine Chapter of the Internet Society (ISOC-PH) did notice and sent a letter to Congress protesting, in particular, the "warrant-less blocking" provision. Nearly a year later, the Supreme Court is hearing oral arguments on the various petitions challenging the Anti-Cybercrime Law. One very positive development is the finding by the Office of the Solicitor General that the Section 19 "warrant-less blocking" provision is indeed unconstitutional.
Why is all this important and why should Filipinos care about Internet policy, legislation and governance? It isn't just Facebook, even if Filipinos are one of the largest cohorts on that social platform. Rather, one clear fact has emerged during the last decade - the Internet has emerged as a crucial enabler of business, education and national development. Thus, sufficient care should be exercised such that legislation, regulation and policy frameworks do not unduly restrict or impair innovative enabling technologies or infringe upon fundamental civil liberties.
Filipinos basically face two choices over the future direction of the Internet. The first choice is a free and open Internet, one that should certainly guard against criminal activity such as fraud, while allowing local innovators and entrepreneurs to flourish. The second choice would be more restrictive - giving even good people less room for legitimate speech, allowing governments to monitor Internet traffic and block content, and hampering businesses, entrepreneurs, doctors, educators and many others who legitimately utilize and often depend on new technologies.
On the local front, it was good to see the widespread multi-sectoral outcry in support of Internet freedoms. The Supreme Court's prompt decision to suspend Anti-Cybercrime's implementation paves the way for a more thorough review of the law's provisions and their implications. Of particular concern are the excessive criminal penalties for online acts, the unchecked powers conferred on some government offices, the lack of any form of safe harbors for platforms that transmit and host content or services that provide connectivity, and the unprecedented invasion of personal communications and privacy. All of which, it should be noted, have a chilling effect not only upon freedom of expression, but also on the business climate and national competitiveness.
Meanwhile, during the last quarter of 2012, the Philippines also fought an Internet battle abroad, at various meetings and conferences culminating in the International Telecommunications Union's (ITU's) World Conference on International Telecommunications (WCIT) last December. The WCIT was a conference intended to update a previous international treaty that is over 20 year old.
During this process, the National Telecommunications Commission (NTC) coordinated with many other government agencies such as the Information and Communications Technology Office of the Department of Science and Technology (DOST-ICTO), the Department of Foreign Affairs (DFA-UNIO) and the Department of Finance (DOF). Likewise included in the preparations and processes were private sector representatives from the various telecommunications companies such as Globe, PLDT and Smart, industry associations such as the ICT Association of the Philippines (ICTAP) and ISOC-PH.
While some may have concerns that - "too many cooks spoil the broth," this inclusive consultation and coordination process worked surprisingly well and provided the team with considerable depth and breadth. It should also be noted that this participatory, multi-stakeholder process mirrors the actual working model of current Internet governance, a dynamic consensual process that is driving the knowledge economy.
Why was this WCIT international treaty process important for us? Because each country that signs-on to an international treaty effectively surrenders bits of its national sovereignty, making it of crucial importance that Philippine interests are safeguarded. Consider also that while a Philippine law (such as Anti-Cybercrime) is subject to test and review by Philippine courts and revision by Philippine lawmakers, an international treaty, once acceded to and ratified by a state, takes precedence over that state's national law.
Up to the opening of the WCIT conference, ITU's boss Hamadoun Touré had repeatedly declared that the WCIT was not about extending the scope of the ITU and its regulations over the Internet. Yet as soon as the meetings started, the debates and impasses were on nothing but.
As early as a WCIT pre-meeting of the Asia-Pacific Telecommunity (APT, chaired by the Philippines) in October-November 2012, the Philippine delegation had already declared that the Internet, and specifically content, were outside the scope of the ITU's regulations. Yet many countries, such as Iran, insisted on their regulatory agenda. Now it is one thing for a country, such as Iran or Russia, to regulate and restrict the use of the Internet within its own national borders; but it is quite another thing to seek to extend this control globally to other nations.
The Philippine delegation at WCIT worked long extended hours. Pre-meetings would start as early as 7 a.m., and the meetings would sometimes continue past midnight. Some pundits have described this ITU process as "consensus through exhaustion." One Philippine delegate, a decades-long veteran of many ITU conferences was taken aback by the grueling pace, fell ill and had to fly home. The "at-home" support team fared little better, dealing with a 4 hour time difference and lack of sleep.
The work at WCIT might perhaps have been more productive. But instead, there was endless word-smithing and to-and-fro of various proposals, as those countries in favor of a more restrictive regime repeatedly pushed their proposals and were in turn resisted by those concerned with protecting free-market principles and an open Internet. "Drowning in a sea of brackets" was another tongue-in-cheek phrase used by others to describe the goings-on at WCIT.
Then during the final days of the WCIT conference, procedures to break the impasse raised doubts. A "temperature check" was suddenly converted into a vote of approval, despite opposition by many countries, including the Philippines. And, despite Touré's previous assurances that all agreements would be reached by consensus, a formal vote was forced through on the final night.
Towards the end, the Philippine delegation, with the advice and assistance of the DFA, decided not to sign the WCIT treaty. We lost nothing by not signing and instead, reserved our national options. 55 other countries such as Belarus, Australia, Japan, India, Kenya, Chile, Costa Rica and, of course, the USA and all of Europe, likewise refused to sign. Of the 89 who did sign, most lodged reservations; notably Qatar and Mexico whose reservations effectively rejected Internet control by the ITU. Whatever came-out of the ITU's WCIT conference, it could hardly be called a "consensus."
So, why didn't the Philippines sign? Aside from the fact that the Asia Pacific preparatory meetings had an understanding that the Internet and most especially "content" would not be covered by the ITU's regulations, the Philippine delegation was extremely conscious of and careful about national sovereignty. We may regulate (or not) our own telecommunications as we Filipinos see fit, but it would be unwise to allow other countries and their more restrictive regimes to impinge upon ours. Also, the Philippine delegation experienced at first-hand and in real-time the ITU's processes which raised grave concerns about how those processes would impact the global Internet, particularly the free flow of information, knowledge and commerce.
There are also very serious developmental considerations. Indications are that the Philippines is forecast to post a Gross Domestic Product (GDP) growth of 7.3% in 2012, making it the 6th fastest growing economy in the world. The Philippine outlook is extremely positive. Seeking to be a global player, the country should consider its policies and actions accordingly. Prudence dictates that we should be wary of projecting a negative or restrictive image. And, lest we inadvertently "kill the goose that lays the golden eggs," extreme caution must be exercised when considering the regulation of growth-enablers such as the Internet. This is not just the Internet of Facebook; this is also the Internet of business processes, medicine, education and culture.
Cybercrime is certainly a problem that needs to be addressed. We definitely need an Anti-Cybercrime law, but there are good and bad ways to fight cybercrime. Good ways preserve the open, inclusive and dynamic nature of the Internet, while punishing people that exploit that openness for crimes such as fraud or child abuse. Bad ways tackle the issue like a sledgehammer, granting excessive powers to governments or trans-national agencies that infringe civil liberties and stifle innovation. The issues become much clearer when we treat the Internet as we would any other part of the economy, both national and global, and focus on what the overarching, long term goals of our nation are.
The Philippines took the high road of defending Internet freedoms abroad; we can hope that we do just as well at home. This is the moment when the Philippines chooses its future. We can have laws that punish criminals whilst maintaining openness and preserving freedoms. Or we can punish criminals in a way that closes the Internet and forecloses attendant possibilities.
President, Philippine Chapter of the Internet Society