Roll Back Regressive Laws
(Istanbul) – Turkey, the host of a UN-sponsored Internet forum September 2-5, 2014 in Istanbul, has an abysmal record of protecting free expression online. In recent months, the Turkish government has expanded its powers to censor online content and to monitor Internet activity without independent oversight.
The Internet Government Forum (IGF), an annual meeting convened by the United Nations secretary-general, brings together governments, civil society, and others as equal partners to discuss public policy issues related to the Internet.
“Turkey’s ruling party has responded to criticism of its policies by escalating Internet censorship and prosecuting social media users,” said Cynthia Wong, senior Internet researcher at Human Rights Watch. “Delegations at the Internet Government Forum shouldn’t turn a blind eye to the Turkish government’s increasingly regressive approach to rights online.”
The Turkish government should cease blocking websites and prosecuting social media users and the Constitutional Court should overrule abusive provisions in a new surveillance law, Human Rights Watch said.
Turkish authorities have blocked tens of thousands of websites under the country’s draconian Internet Law 5651 over the last few years. The exact number remains unclear since the judicial and administrative procedures for Internet blocking are not transparent. In February, the government passed amendments to the law that expand censorship powers, enabling authorities to block access to web pages within hours, based on a mere allegation that a posting violates private life, without a prior court order.
The government has also tried to stifle social media. In the period before the March 30 municipal elections, authorities blocked access to Twitter and YouTube, which have been used to organize protests and call for reform. These actions followed a corruption scandal that erupted when multiple wiretaps of conversations among top officials were leaked via social media.
The blanket blocking drew widespread international criticism, including from the United Nations high commissioner for human rights, the European Union, and the United States government. But President Recep Tayyip Erdogan, who was then the prime minister, vowed to “eradicate Twitter” and other social media, no matter what the international community might say.
Access to Twitter and YouTube were restored in April and June respectively by order of the Constitutional Court, which called the blanket block on Twitter “illegal, arbitrary and a serious restriction on the right to obtain information.” However, YouTube and other social media sites have sometimes been blocked for prolonged periods since 2007.
The right to privacy online and offline has also been under threat. In April, Turkey passed a new law that greatly expanded the surveillance powers of the National Intelligence Agency, known by its Turkish acronym MİT (Milli İstihbarat Teşkilatı). The law gives the agency sweeping powers to amass private data, documents, and personal information in all forms without a court order.
The new law fundamentally undermines the right to privacy by permitting the agency unfettered access to personal data without judicial oversight or review, Human Rights Watch said. Nor does it have any clear limits on the scope of data retention or government access to private data. The law also punishes journalists who might expose abuses by the agency and grants MİT personnel effective immunity from prosecution.
The expanded surveillance powers may feed further abusive prosecutions and erode the rule of law, Human Rights Watch said. The Constitutional Court is examining the law in response to a challenge by the main opposition party.
The Turkish authorities have also adopted an increasingly restrictive approach to social media users’ online postings with repeated prosecutions that contravene Turkey’s obligations to uphold freedom of expression.
In February, for example, 29 people were indicted for inciting riots via Twitter during the May 2013 demonstrations over government plans for construction in the park in Taksim Square. Evidence described in the indictment included tweets that merely relayed information about the Gezi park protests or called for emergency services or other medical aid for protesters.
“The IGF embraces robust debate and participation by independent voices in Internet governance,” Wong said. “Yet, the Internet forum’s host this year seems determined to shut down criticism of government policy online.”
Turkey’s Efforts to Muzzle the Internet
Internet Law 5651 was enacted in 2007 to regulate Internet and online service providers. Under the law, foreign-hosted websites are subject to blocking if they are suspected to contain eight categories of prohibited content, including child abuse images, content that facilitates drug use, provision of substances dangerous to health, obscenity, prostitution sites, gambling sites, encouragement of suicide, and crimes committed against Mustafa Kemal Ataturk, the founder of modern Turkey.
Blocking orders can be issued by courts, public prosecutors as a precautionary injunction, or the Telecommunications Communication Presidency (“TIB”), an administrative entity in the Telecommunications Authority. The TIB is responsible for executing blocking orders and surveillance warrants and monitoring Internet content.
In the years since, the law has been used to block LGBT community forums (later unblocked without explanation), independent media websites, and news sites with a pro-Kurdish political line. Several global websites that host large volumes of user-generated content, including YouTube, Twitter, Blogspot, Wordpress, Vimeo, and Google Groups, have been occasionally blocked wholesale, even if only a fraction of the content was deemed subject to blocking.
These practices have faced repeated international criticism, including by the Organization for Security and Co-operation in Europe’s representative on media freedom, the Council of Europe’s human rights commissioner, and the UN special rapporteur on freedom of opinion and expression. In its 2012 Progress Report for Turkey’s Accession to the European Union, the European Commission stated that, “Frequent website bans are a cause for serious concern and there is a need to revise the law on the Internet.”
Individuals have filed five separate applications to the European Court of Human Rights to challenge the government’s blocking of YouTube, website creation and hosting service Google Sites, and music website Last.fm. In December 2012, the European Court of Human Rights ruled in Ahmet Yıldırım v. Turkey that the blanket blocking of Google Sites violated the right to freedom of expression. The court found that Internet Law 5651 did not adequately protect against arbitrary or abusive blocking measures.
The government has largely ignored the court’s ruling. According to Engelliweb, a nongovernmental website that tracks websites reportedly blocked in Turkey, as of August 2014 over 50,000 websites have been blocked, over twice the number it listed as reportedly blocked in 2012.
The February 2014, amendments to the internet law expand the TIB’s powers by allowing the agency to issue administrative blocking orders if any individual or legal entity alleges a privacy violation or if the content is considered “discriminatory or insulting to certain members of society.” Internet service providers have to block access to specific URLs within four hours of receiving an order. Although such blocking orders must be reviewed by a court within 48 hours, the grounds for blocking are so broadly and vaguely defined that they allow discretion for abusive application and interpretation.
In addition, although blocking a URL is more targeted than blocking an entire social media site, such blocking may prompt increased use of “deep packet inspection” – that is, to examine the content of Internet traffic transmitted over an Internet network. Such capabilities, which are necessary for URL blocking, also raise serious privacy concerns because they enable mass monitoring and possible tampering with Internet traffic. Media reports have suggested that deep packet inspection is already in use in Turkey.
Finally, requests from Turkish authorities to Google and Twitter to take down content deemed objectionable by the government have surged in recent years. According to Twitter’s publicly reported numbers, Twitter received 186 such requests, specifying 304 accounts, to remove content in the first half of 2014, up from seven requests specifying 30 accounts from the same period in 2013. Twitter complied with 30 percent of these requests, in part or in whole.
In March, Twitter filed court petitions in Turkey to challenge several of these orders and was successful in overturning two, including one that instructed Twitter to take down an account with tweets that accused a former government official of corruption.
Turkish officials have also demanded that Twitter open an office inside the country to make it easier to compel the firm to censor content or hand over information about users, as well as for tax collection purposes. Twitter has stated that it has no current plans to open an office in Turkey.
Surveillance, Privacy, and Public Accountability
On April 17, parliament passed a new law that greatly increases the powers of Turkey’s National Intelligence Agency, while decreasing government accountability, media freedom, and the right to privacy. The Law Amending the Law on State Intelligence Services and the National Intelligence Agency (Devlet İstihbarat Hizmetleri ve Milli İstihbarat Teşkilatı Kanununda Değişiklik Yapılmasına Dair Kanunu, no. 6532), which entered into force on April 26, amends a 1983 law (no. 2937) defining the activities of MİT.
The new law gives the intelligence agency far-reaching powers to collect private data, documents, and information about individuals in all forms from public bodies, banks, archives, companies, and other legal entities, as well as from organizations without legal status. No court order is needed to compel disclosure of personal data or documents. The law makes provision of all such information to MİT obligatory and overrides provisions in any other laws or bylaws limiting the provision of such data. Failure to comply with data requests from the agency could be punishable with a prison sentence.
Furthermore, the new law permits the agency to “collect data relating to external intelligence, national defense, terrorism, international crimes, and cyber security passing via telecommunication channels” without specifying the need for a court order. This provision could enable mass interception of Internet traffic or mobile text messages. The law also grants the agency head the authority to intercept calls overseas, and calls by foreigners and on pay phones, and to analyze and store the data.
At the same time, the amendments criminalize exposure of abusive surveillance and intelligence-gathering activities, as well as undermine accountability of other agencies that may access data or communications derived from surveillance. The law increases maximum sentences for whistleblowers convicted of leaking information about intelligence activities and MİT personnel. For the first time, it also sets prison sentences – of three to nine years – for journalists and editors who publish or broadcast leaked information or documents “by radio, television, Internet, social media, newspapers, publications, books or all other media and by means of all forms of written, visual, audio and electronic mass communication tools.”
The law also makes it more difficult for judicial authorities to hold officials accountable for misusing the law. If a complaint is filed that involves intelligence personnel, the prosecutor would have to notify the head of the intelligence agency. If the intelligence agency “states or documents” that the allegations of wrongdoing were “connected to [MİT] duties and activities,” the investigation would be blocked and the agency employees involved would have immunity. The public prosecutor thus has no authority to initiate direct criminal investigations or subject the agency’s activities to judicial scrutiny in the event of allegations of wrongdoing. Another provision largely prevents agency personnel from testifying on matters related to MİT duties and activities.
Combined, these provisions effectively place the intelligence agency above the law and thwart accountability if MİT personnel violate human rights. The agency itself decides when its activities should be investigated or prosecuted, and journalists and whistleblowers are penalized if they publish information about intelligence activities that may be of legitimate public interest.
Amendments to Internet law 5651 also raise privacy concerns by imposing a new data retention mandate on hosting providers. Under the revised law, hosting providers must store communications traffic data related to their hosting activities and make it available to the TIB upon request. The amendments do not require a court order or legal process for such requests. Blanket data retention mandates interfere with the right to privacy of all affected individuals, the vast majority of whom will not be suspected of any crime or wrongdoing.
The Constitutional Court indicated in July that it would examine the substance of the new National Intelligence Agency law. The court should overrule the law’s abusive surveillance and data collection powers, as well as other provisions granting immunity from prosecution to intelligence personnel and providing for steep prison sentences for journalists publishing leaked intelligence.