Encryption and Human Rights
United Arab Emirates
Tunisian policy reflects deep ambivalence toward the Internet. President Zine al-Abidine Ben Ali has extolled the importance of developing information technologies, including the Internet, and of making it widely accessible.(119) Official agencies have an active presence on the World Wide Web (see <www.ministeres.tn>), and Tunisian television and radio are broadcast live online (<www.tunisiatv.com> and <www.radiotunis.com>). The government has been improving the Internet infrastructure by widening the bandwidth, among other measures. The rates charged for Internet access and phone use have been dropping, along with customs duties on imported computer equipment, making Internet access more affordable.
Tunisian authorities say the country's Internet-specific legislation is designed to "promote" the delivery of Internet services and "prepare Tunisia for the age of the Information Society." The legislation aims to "furnish access to Internet services to all who want it, at the same quality and the same price" and to "stimulate the private sector, within a framework of loyal competition, to commercialize Internet access services and develop web-site hosting capacity." The government also "aims to connect all university and scientific research institutions to the Internet, to be followed in stages by the connection of high schools ("lycées et collèges") between now and the end of the current [five-year] plan , with the intention of connecting primary schools to this network in the subsequent stage."
While Tunisia's Internet regulations establish standards and rules for an emerging commercial sector, they also reflect the government's restrictive approach to freedom of expression and intolerance of dissent. In Tunisia, all news media promote the official line and avoid news and commentary that imply criticism of government policies. Smaller publications have only slightly more leeway. Political and human rights activists who have criticized repressive measures have been jailed, penalized at their workplaces, prevented from traveling abroad, or otherwise harassed. Pervasive police surveillance of activists, ex-prisoners, and their families reinforces a climate of fear and self-censorship.(120)
Tunisia's press code contains many articles that restrict the content of what may be said or published. Article 62 forbids the distribution, sale, display, or possession of "leaflets, publications, or books, of domestic or of foreign origin, that are of a nature that could disturb public order and good morals." The provisions most frequently used to punish critical speech are article 49, which criminalizes the dissemination of "false" information, and articles 50-53, which deal with defamation. Article 49 states:
The publication, dissemination or reproduction by any means of false news, information which has been fabricated, falsified or wrongly attributed to others, if made in bad faith and if it has either disturbed or is likely to disturb public order, may be punished by imprisonment of two months to three years and/or a fine of 100-2,000 dinars [equivalent to U.S. $93-1,860].
Article 50 states that defamation has occurred if there is "a public allegation or attribution of a fact that harms the honor or esteem (considération) of a person or state agency to whom the fact was attributed." Defamation is punishable by up to three years in prison and a fine of up to 1,200 dinars if the offending material is published "directly or by means of reproduction" (article 50). The code specifies various public entities that can be thus defamed, including "the public order, the courts, the ground, sea and air forces, public agencies and public administrations." Defamation is punishable by the same penalties if it is committed against one or more "members of the government, one or more deputies, civil servants," and other public servants "by virtue of their functions or their status." The truth of the allegation can be used as a defense, but not in all situations.
The use of these articles to prosecute journalists and others illustrates what the organization Article 19 characterized as "the state using the law to prevent public discussion of matters of great public import but which are in some way critical of the government's performance."(121) One example is the three-year prison sentence imposed on human rights activist Khemaïs Ksila for a communiqué he distributed in September 1997 denouncing government repression.
A state agency, the Agence Tunisienne d'Internet (ATI), coordinates Internet policies and services and acts as a kind of super-ISP. It leases Internet access to several private ISPs, including two that are licensed to offer Internet services to the private sector and individuals, Global Net (<www.gnet.tn>) and PlaNet. These two companies are reportedly controlled by persons close to the President. All private ISPs merely retail Internet access to customers; all communications, domestic and international, reportedly go through the ATI and the state telecommunications network. The ATI maintains control over all of the protocols and the country's only international gateway.
The main piece of legislation governing the Internet is a decree issued on March 22, 1997, hereinafter "the Internet decree."(122) It followed by eight days a decree that covers telecommunications services more generally.(123)
The telecommunications decree provides the following:
The Internet decree imposes the following rules:
The Internet decree also bars encryption without prior approval from the authorities (article 11). A September 1997 decree on encryption requires that persons or service providers who wish to encrypt data must submit an application to the Ministry of Communications and provide the keys needed to decrypt the data.(124) The ministry decides on the application after consulting the Commission on Telecommunications, cited above.
The contract that institutional subscribers sign when obtaining services from the ATI imposes further government controls. Most remarkably, it requires users to sign that they will "use the Internet only for scientific, technological or commercial purposes that are strictly related to the activity of the client, in strict conformity with the rules in effect." The contract also requires that clients:
The ATI reserves the right to suspend Internet service without notice if the subscriber engages in any use that is "improper or contrary to the conditions laid out" in the contract. The agency also has the right under the contract to conduct site visits to ensure that the equipment connected to the Internet is being used "in conformity with the rules and laws as well as to ensure they are being used properly." (Embassies and international institutions are exempted from this provision.)
Responsibility of ISP for content: The imposition of legal responsibility on the ISP, and specifically on its designated "responsible person," for the web sites it hosts, poses a threat to online freedom of expression. It does so by imposing a regulatory burden on providers even though they cannot realistically police the web sites they host, many of which are revised daily by their authors. If enforced, this provision is likely to slow or reduce the flow of data online.
The government, in its letter to Human Rights Watch, states that ISPs are responsible only for the content of web sites but not for the content of e-mail messages or newsgroup postings. But responsibility for newsgroup content seems encompassed by the section of the Internet decree stipulating that the ISP must allow nothing to "remain" on its servers that harms "public order and good morals." This broad and vague wording seems intended to compel ISPs to err on the side of censoring content so as not to run afoul of the regulations.
Furnishing lists of subscribers to the government. The government explains that ISPs must submit monthly the names of its subscribers in order to facilitate maintaining a statistical base and directory of Internet users. The government states that ISPs must otherwise keep information about users and their usage confidential.
The obligation to furnish the government with subscriber lists infringes on the privacy and anonymity rights of Internet users. In the compilation of a user directory or a database we can find no interest compelling enough to warrant infringement of the rights of users who do not wish to provide this information. The mandatory delivery to the authorities of such information, which could facilitate electronic surveillance, can only inhibit Tunisians wishing to express themselves or receive information online.
ATI's Contract Restricts Users' Rights. The contract presented to institutional clients by the ATI restricts their right to seek and access information online. The requirement that they use it only for "scientific, technological or commercial purposes that are strictly related to the activity of the client" apparently bars them from using the Internet account for personal or other business, under penalty of cancellation of the contract. The contract also violates the privacy of users by requiring that they inform the ATI of all persons who have access to their accounts.
In early 1998, the number of Tunisians online was estimated between 3,000 and 5,000. This figure seemed low for a middle-income country of seven million with a relatively high rate of educational attainment and a good phone system. There were, moreover, few Internet accounts at universities, which are all public institutions, and at nongovernmental organizations. These two sectors exhibit relatively high rates of Internet connectivity in many other middle-income countries.
Beginning in 1998, the government has taken measures to accelerate the growth of Internet use. Prices for Internet accounts dropped through 1998 and the first half of 1999. Consulted on May 17, 1999, the web site of PlaNet advertised a rate for households of about U.S. $17 per month for unlimited usage during off-peak hours, a huge drop from two years earlier. In early 1999, articles in the local press forecast that, thanks to government initiatives, the number of users would reach 30,000 during 1999.
Human Rights Watch interviewed several Tunisians who concurred that the process of obtaining Internet access had grown more efficient and reliable since 1998. They said that prior to 1998, few Tunisians had access to the Internet and that applications were often delayed or simply never processed. These individuals, who are not outspoken dissidents and requested anonymity, all said they believed that police scrutiny of each application and government wariness toward allowing widespread Internet access explained these past delays in processing applications, the absence of Internet cafés until late 1998 (see below) and, more generally, the low number of users in the country.
According to the government, "access for individuals, organizations and companies to Internet services is made available simply by applying to the ISP of their choice." The applicant is not required to notify or obtain permission from any governmental entity. However, almost all of those we interviewed said they knew of persons who had applied for Internet services in past years and who had waited months for a response, or who received no response at all. They also said they had heard of persons whose accounts were terminated without explanation. A university professor told Human Rights Watch in October 1998 how his application was ignored: "Two years ago, I received mail, inviting me to apply for an Internet account. It contained a copy of a contract, which said I would be responsible for how the account was used, and said I would have to pledge to use it only for professional purposes, and so on. I filled it out and sent it in, but never received any response."
A professor at the law school in Sousse told Human Rights Watch in August 1998 that few professors in Tunisia have Internet accounts; he said that his law faculty had no Internet account. A professor who teaches at the University of Tunis told Human Rights Watch that some academic departments were given a single Internet account, with a warning to the senior faculty member that he or she was responsible for all use of the account. A similar warning was delivered to the executive director of one of the few nongovernmental organizations to enjoy Internet access.
Without exception, the Tunisians we interviewed said they believed the government monitored e-mail correspondence. None of them could cite concrete evidence for this, but said they made this assumption because of the level of police surveillance of telephone conversations and other aspects of Tunisian life,(125) and incidents where e-mails were lost or delayed by one day or longer while en route.
Tunisia's blocking of web sites is another manifestation of its vigilance over the flow of information online. The government, in its letter to Human Rights Watch, avoids any allusion to blocking web sites on the basis of political content and suggests that any blocking is motivated by moral and privacy concerns:
Tunisia is committed to the principle of preserving moral values and the protection of personal privacy. Web sites, electronic communications, and other online forums that do not comply with these principles (pedophilia, pornography, etc.) are in violation of the law. Tunisia is following with interest the debates over this question on an international scale, in order to find appropriate solutions.
In fact, authorities also block some web sites containing information critical of Tunisia's human rights record. Internet users in Tunisia reported that they could not access the web sites of Amnesty International (<www.amnesty.org>) and the Committee To Protect Journalists (<www.cpj.org>), a New York-based group that in 1998 and 1999 cited President Ben Ali on a list of press freedom's ten greatest "enemies." One user said he believed that authorities had also blocked <www.mygale.org>, a web site that offered free web-page hosting and sometimes carried material on Tunisia (there were, for example, links to many human rights reports critical of Tunisia at <www.mygale.org/~maghreb>). Another user reported in late 1998 that the site <www.i-france.com/EFAI>, which contains the texts of Amnesty International reports in French, was also blocked. The web site of Reporters sans Frontières (<www.rsf.fr>) was also blocked, according to the small independent Tunisian magazine al-Mawqif.(126)
Absent a government confirmation, it is not always possible to confirm that a site is inaccessible due to blocking rather than to technical problems. However, in the case of the Amnesty International web site, at least, the evidence clearly points to intentional blocking.
A private firm with friendly ties to the Tunisian government mounted a web site with a URL that appeared likely to fool persons trying to access Amnesty International information. The site, <www.amnesty-tunisia.org>, closely tracked the government's own rhetoric on human rights while avoiding any mention of Amnesty International. Tunisian authorities denied any role in the web site.(127) The domain name is registered to the Paris-based Euromed Group (<www.euromed.com>). Euromed chairman Raghid el-Chammah, who conducts business in Tunisia, insisted in a press interview that the web site was his own project and that he chose the word "amnesty" because it was appropriate for a human rights site and not because it was the name of a prominent organization critical of Tunisia's record on rights.(128) In a counter-offensive, Amnesty International launched a web site, <www.amnesty.org/tunisia>, that juxtaposed the pro-Tunisian positions found at <www.amnesty-tunisia.org> with its own assessment of the human rights situation.(129) The contents of <www.amnesty-tunisia.org> was subsequently withdrawn and replaced by a statement condemning Amnesty International's tactics as an effort "to show its new prowess in cyberpropaganda." The original contents were moved to a new site, <www.rights-tunisia.org>.
In late 1998, the first Internet cafés opened in Tunisia, long after they had
proliferated in Morocco, Egypt, Jordan, and elsewhere. According to a European
journalist who visited two of them in greater Tunis in February 1999, the
"PubliNet" cafés had certain local characteristics. First, in both locations, the
monitors were all positioned so that their screens were visible to the administrator
of the café, thus diminishing user privacy. Second, in one of the cafés, clients were
asked to present identity documents, and in the other location they were asked their
names and addresses. This requirement deprives users of their right to use the
Internet anonymously and is apparently intended to ensure some oversight of
Internet use at these new public points of access.
120. For general information about the state of free expression, see Article 19,
Surveillance and Repression: Freedom of Expression in Tunisia (London: Article 19, May
1998), Human Rights Watch, Human Rights Watch World Report 1999 (New York: Human
Rights Watch, December 1998); and the U.S. Department of State's Country Reports on
Human Rights Practices for 1998.
121. Article 19, Surveillance and Repression: Freedom of Expression in Tunisia
(London: Article 19, May 1998), p. 71.
122. Arrêté du ministre des communications du 22 mars 1997, portant approbation du
cahier des charges fixant les clauses particulières à la mise en œuvre et l'exploitation des
services à valeur ajoutée des télécommunications de type INTERNET.
123. Décret no. 97-501 du 14 mars 1997 relatif aux services à valeur ajoutée des
124. Arrêté du ministre des communications du 9 septembre 1997 fixant les conditions
d'utilisation du cryptage dans l'exploitation des services à valeur ajoutée des
125. The U.S. State Department's Country Reports on Human Rights Practices for 1998
reported, "There were numerous reports of government interception of facsimile and
126. Tayeb Ma'li, "Fukku al-Riqaba 'an al-Internet!" ("End Censorship of the Internet!")
al-Mawqif, January 1999.
127. "Web: l'affirmation d'Amnesty est 'ridicule', selon l'ambassade de Tunisie,"
Agence France-Presse, November 27, 1998.
128. Pamela Mendels, "Rights Group Fights a Foe with Frames," New York Times
Cybertimes (online), February 16, 1999, <www.nytimes.com/library/tech/99/02/cyber/
articles/16amnesty.html>. See also Roula Khalaf, "Amnesty Defends Itself," Financial
Times, February 13, 1999.
129. Amnesty International press release, February 1, 1999, ACT 83/01/99.
120. For general information about the state of free expression, see Article 19, Surveillance and Repression: Freedom of Expression in Tunisia (London: Article 19, May 1998), Human Rights Watch, Human Rights Watch World Report 1999 (New York: Human Rights Watch, December 1998); and the U.S. Department of State's Country Reports on Human Rights Practices for 1998.
121. Article 19, Surveillance and Repression: Freedom of Expression in Tunisia (London: Article 19, May 1998), p. 71.
122. Arrêté du ministre des communications du 22 mars 1997, portant approbation du cahier des charges fixant les clauses particulières à la mise en œuvre et l'exploitation des services à valeur ajoutée des télécommunications de type INTERNET.
123. Décret no. 97-501 du 14 mars 1997 relatif aux services à valeur ajoutée des télécommunications.
124. Arrêté du ministre des communications du 9 septembre 1997 fixant les conditions d'utilisation du cryptage dans l'exploitation des services à valeur ajoutée des télécommunications.
125. The U.S. State Department's Country Reports on Human Rights Practices for 1998 reported, "There were numerous reports of government interception of facsimile and computer-transmitted communications."
126. Tayeb Ma'li, "Fukku al-Riqaba 'an al-Internet!" ("End Censorship of the Internet!") al-Mawqif, January 1999.
127. "Web: l'affirmation d'Amnesty est 'ridicule', selon l'ambassade de Tunisie," Agence France-Presse, November 27, 1998.
128. Pamela Mendels, "Rights Group Fights a Foe with Frames," New York Times Cybertimes (online), February 16, 1999, <www.nytimes.com/library/tech/99/02/cyber/ articles/16amnesty.html>. See also Roula Khalaf, "Amnesty Defends Itself," Financial Times, February 13, 1999.
129. Amnesty International press release, February 1, 1999, ACT 83/01/99.
© June 1999
Human Rights Watch