Internet 2013 - Shaping policies to advance media freedom

Tuesday, 19 February 2013

This post is about the Internet 2013 conference I attended last week 14-15 of February organized by the Office of the OSCE Representative on Freedom of the Media.

Internet Freedom in the OSCE region – from Dublin to Vienna

To begin with I should say that I had a chance to observe both conferences on similar topic hosted by the OSCE during last half a year: Dublin Conference on Internet Freedom (18-19 June 2012) and the conference Shaping policies to advance media freedom in Vienna (15-16 February 2013). What is also interesting, in between I had certain link to the OSCE, working at the OSCE ODIHR Election Observation mission in Minsk and OSCE Secretariat in Vienna.

There is a feeling that the OSCE is willing to include the issue of Internet regulation under its agenda as many other international already did. The OSCE may become a strong regional player in shaping Internet regulation policies as deals both with the security and human rights issues within its first and third dimension. Other benefit of approaching Internet regulation problems by the OSCE is that the organization is ready to support the multi-stakeholder approach, required for analysis of the challenges brought by the Internet. Indeed, both events have been widely attended by delegations of governments, civil society actors, IT experts, information technology lawyers and journalists, experts that are able to address the challenges of Internet regulation from different angles.

These two conferences ware particularly interesting to follow as one conference (in Dublin) took place before World Conference on International Telecommunications Union (ITU), where the attempt to extend the ITU jurisdiction over Internet (as well as some other controversial proposals) were discussed, and the second (Vienna conference) after ITU event, when the risk of changing the current international framework for Internet has been eliminated and the multi-stakeholder approach seems to be alive.

Topics discussed

Topics discussed at the Vienna conference were very broad and diverse, but all within the agenda of the OSCE FoM that was the official host of the conference, and thus, in this or that context related to the freedom of expression and freedom of media. Among the issues discussed: the role and power of new media, copyright vs. freedom of expression, multi-stakeholder approach to Internet governance, anonymity vs. identification, self-regulation and liability of ISPs, hateful speech-ban.

The conferences on the topic of Internet Freedom and digital rights took place quite regularly; one may find related events taking place each two months in different locations. That is why sometimes there is a reasonable risk that some of the issues have already been discussed many times before. Some of the topics in Vienna were also already covered at recent events, in particular in Dublin; however, discussion at the conference provided new trends and perspectives on these topics.

Internet filtering – advanced technologies

In this context very interesting was the Session ‘Blocking and Filtering - practices and policies’. Prof. Yaman Akdeniz notices a ‘domino effect’ in spreading of Internet filtering when legislation in one state affects the development of legal framework in other places. Each country is trying to put forward national legal framework for Internet or upgrade the existing one, enacting different kind of filtering schemes. Russian Internet filtering law is the vivid example of this year.

Many states use more advanced filtering technology – Deep Packet Inspection (DPI) that remains very challenging issue. For those not aware, DPI is a form of filtering that examines not only the header of information packet sent/received by user, but also the packet content, searching for defined criteria, keywords, to decide whether the packet may pass or if it needs to be routed to a different destination, or, for the purpose of collecting statistical information. It allows ISPs not only to monitor the traffic, but to filter it, suppressing particular services or content. In many states such form of filtering originated from IP enforcement measures, and now applies for filtering of all kind of information and for surveillance. In particular, enactment of the Russian new Internet filtering scheme involving DPI was discussed during the conference.

New trends - surveillance and proactive engagement

According to Robert Guerra filtering/blocking is already outdated in the era of social media as it is easily circumvented, and states switched to surveillance & proactive engagement. The Internet surveillance is in fact more challenging than Internet filtering. Internet regulation laws in many jurisdictions enact the monitoring schemes, requiring Internet Service Providers (ISPs) to control the traffic, or to provide access to this traffic to law enforcement agencies.

When users know that they are being watched, they are more careful in expressing their views. On the other hand more and more known cases of prosecutions in response to critical publications make this fear more strong, and there are no hesitations that Internet surveillance will impact free speech.

Other trend is that instead of Internet filtering, that is not always truly effective, the usage of propaganda and manipulation of public opinion is increasing. Some authoritarian governments is becoming more creative and hire a small army of ‘commenters’ or bloggers who spread the ideologically correct information and trolling forums and news websites.

Internet Filtering is still possible

All panelists agreed that Internet Filtering can be applicable, but only in certain specific cases. The need for such measures must be convincingly established, and they should be adopted only as measures of last resort and, when it is in compliance with international human rights standards. In particular, the laws enacting the filtering schemes shall be very precise and exclude broad interpretation. Limitations shall be proportional to the danger of the information that is limited.

The ‘blacklists’ of restricted websites and the procedure of inclusion of websites to these lists has to be transparent and open for public. Due process has to be guaranteed: in particular, clear criteria, fair procedure of inclusion in the ‘blacklist’, notification of the resource owner, and the right to appeal such decision.

However even the due process may not guarantee the freedom of expression as the laws are not always in compliance with international human rights framework. In this context it is interesting to follow the landmark ECHR case Yildirim v Turkey, when due process was observed, but blocking is disproportionate.

The copyright – is it still alive?

Very bright speakers were discussing the ‘The future of copyright online’ during Session 2. As Joe McNamee concluded "computers make copies, Internet connects computers. That is what it is." saying that sharing is in the nature of the Internet. There were no hesitations among the panelists that the copyright has to be reformed, however there are no concrete ideas proposed so far. I will not repeat what have been already written; see very interesting coverage of this discussion given by Cian Mulligan in his blog, to have insight in the discussions of future of copyright.

Multi-stakeholder approach

Although the main battle for multi-stakeholder approach to Internet governance has been currently won at ITU World Conference in Dubai, the issue is still challenged by some OSCE participating states. The panelists at Session 4 agreed that the current multi-stakeholder approach to Internet governance should remain in place.

Other interesting observation is that, seemingly, Belarusian government understood the need to be involved in discussions of Internet governance issues. In contrast, when Internet governance related events have been ignored before, this time Uladzimir Rabavolau the first deputy of the internet regulation body (OAC) was leading Belarusian delegation at the conference.

Although the discussion of ‘Belarusian issue’ was very hot with involvement of Yury Zisser representing the Belarusian business association, independent journalist Ms. Natalia Radina and academic and researcher Marina Sokolova, launch of some kind of dialogue, even in this form, between stakeholders on Internet governance is already a good sign. Let’s hope the voice of business, civil society and academics will be heard in the ‘headquarters’.

   

New registration rules of ccTLD .BY

Monday, 27 February 2012

The main novelties

The registration of .BY domain names has been significantly simplified. From February, 25, 2012 the new rules of registration of country code top level domain (ccTLD) of Republic of Belarus (.BY) enter into force. The main novelties are the following:

- The WHOIS service for .BY domains has started working. It provides information on the domain name owner and his contact details; Registrar's name; DNS-servers the domain name is delegated with; the domain name registration and expiration dates. However individuals are still allowed to hide their personal information. This rule does not concern legal persons (companies).

- The maximum term of registration of domain name is now 1 year. The prolongation shall be made in 30 days before its expiration.The 30 days free booking period, which was a heaven for cybersquatters, is cancelled now. According to the new rules the BY. domain name is registered by person who has first paid the registration fee.

- The registration procedure of ccTLD .BY in general is significantly simplified. The verification of the application by the Operational and Analytical Centre (OAC) is not required  anymore. If previously it could take up to 2 weeks, now the registration procedure will take only a few hours.

Here is English translation of BY. domain registration rules. You can check the availability of .BY domain names at cctld.by.

Five things that you should remember while registering ccTLD .BY domain name:

1) According to p. 1 Art. 20 of the Law of the Republic of Belarus On Trademarks the owner of a trademark has right to use such name in the global Internet network (including the domain name). Thus, the applicants are recommended to avoid selecting names coinciding with the names of widely known trademarks, brands or organizations.

2) Disputes arising from the registration/use of .BY domain names are settled by the courts of the Republic of Belarus, namely the Supreme Commercial Court of the Republic of Belarus, and are not subject to WIPO Uniform Domain Name Dispute Resolution Policy (UDRP) procedure by WIPO Arbitration and Mediation Center.

3) As there are some requests on this matter I emphasize again that there areno limitations for registration/operation of BY. domain names by non-residents (foreign companies/individuals).

4) Foreign applicants usually face the problem of unreasonably high registration price varying, for example, from 118 USD per year offered by http://www.onlydomains.com to 185 USD per year offered by http://www.instra.com. It should be understood that standard price for .BY domain is 12 USD per year. That is the price offered by Belarusian Authorized Registrars. However there is no English interface available at their sites and all registration forms and instructions are available only in Russian. If you would like to cut your costs I can assist your registration through Belarusian Registrars, and you'll have to pay only 12 USD per year.

5) If the desired domain name is occupied, but you still would like to host your website their, or especially in case you are a trademark owner, there is still a chance to negotiate a domain name transfer. In some cases under threat of lega sanctions the current holder of domain name agree to transfer domain for free or for relatively small monetary compensation. The .BY domain transfer procedure is also prescribed by the pre-mentioned rules. If you need any assistance in negotiations with domain holders or legal support in domain name transfer procedure, please do not hesitate to contact me.

Please be free to ask me questions if anything is still unclear regarding domain name registration procedure in Belarus.

   

Shedding Light on Internet Regulation in Belarus

Wednesday, 04 January 2012

Introduction

In the first days of January 2012 a new Belarusian Internet regulation has been in the center of attention of various online media resources. However, it appears that the rules of the previously enacted President Edict N 60 have been interpreted in a wrong way and that caused serious confusion in the world media. The sensation from Belarus named as “Belarus Bans Browsing of All Foreign Websites” is being widely discussed and has been republished by various online media resources (BBC, Washington Post, Forbes, La Stampa, ZDNet, The Next Web, Mashable, TorrentFreak, etc.) The initial source of incorrect assumptions surprisingly seems to be the reputable resource of the US Library of Congress, which published the article “Belarus: Browsing Foreign Websites a Misdemeanor” referring to Belarusian “yellow pages” Interfax news agency as source. The speed with which the misleading story filled the mainstream media was truly remarkable and in a few days more than 50 resources from different states have republished the fake information without being properly checked.

The occurred confusion can be explained by the lack of objective and qualified information on Belarusian Internet regulation, on the one hand, and the ambiguity of the provisions of law regulating the Internet, on the other hand. In this article a short overview of the effective Internet regulation in the Republic of Belarus will be given in order to stop dissemination of incorrect information and shed light on mysterious Internet regulation in Belarus.

Legal framework

It is important to understand that the Presidential Edict No 60 on Measures to Improve the Use of the National Segment of the Internet Network (hereinafter mentioned as the Edict) has fully entered into force on 1 July, 2010, and its provisions are in force for the past year and a half. Since entering into force the Edict, being supported by subordinate legislation, has not brought any radical changes to Belarusian online market or heavy limitations of human rights and freedoms. Contrary to media reports neither visiting foreign websites is considered as a violation of the law nor has any of foreign websites been blocked, as both these measures are not prescribed by the Edict.

Meanwhile the Edict was left without reasonable attention of the foreign media, the enforcement of sanctions for violation of provisions of the Edict has become the subject of hot discussions in the first days of January 2012. The Law Amending the Administrative Offences Code (hereinafter mentioned as the Law) which entered into force on 6 January, 2012, enacted the sanctions for violation of the provisions of the Edict in the form of a fine (approx EUR 32 to EUR 96) as the only possible legal sanctions applicable for violation of rules prescribed by the Edict. Any kind of other sanctions in the form of blockage of access to foreign websites or other measures are prescribed neither by the Edict nor by the Law.

The Law penalizes violation of rules enacted by the Edict in the following fields: regulation of online business, Internet users’ identification and data retention, limitation of access to harmful information which will be analyzed below.

Online Business Regulation

The Edict in fact contains certain limitations for operation of websites in Belarus; however, they are not as harsh as recently discussed in the media.

First of all it should be mentioned that there are no legal obstacles for any Belarusian resident to operate a website under international top-level domain names (.com, .net, etc.) or national domain names of other states (.ru, .ch, it. etc.), as well as non-residents are free to operate the website registered in the national domain zone “.by”. 
The main reason for confusion is Clause 2 of the Edict, obliging websites to host its content on servers in Belarus, as the wording of the Clause 2 is very ambiguous:

“Activity on selling goods, performing works or rendering services on the territory of the Republic of Belarus with use of information networks, systems and resources connected to Internet shall be conducted by legal entities, their branches and representative offices, established in accordance with the legislation of the Republic of Belarus, located in the Republic of Belarus … with use of information networks, systems and resources located (hosted) in the Republic of Belarus and duly registered”. 
In other words it enacts the requirement for legal entities and entrepreneurs to host websites, which conduct activity on selling of goods, rendering of services, performing works, within the territory of the Republic of Belarus. 
In the situation of absence of any official clarification or court precedent, different variants of interpretation of Clause 2 have appeared. However, basing on the comments of the regulator and opinion of Belarusian leading law firms, the common interpretation has been worked out: the hosting requirement is applicable only to Belarusian legal entities and individual entrepreneurs. This interpretation is indirectly proved by the wording of the Article 22.16 of the recently enacted Law Amending the Administrative Offences Code. It should be noted that sanctions for violation of the Edict will apply only to legal entities and entrepreneurs, but not to Internet users trying to access websites violating the Edict.

Enactment of these restrictions may be explained by the protectionist measures of the government and general intention to establish control over the activity of Belarusian legal entities and entrepreneurs conducting business online.  Obviously, the obligation for Belarusian residents to host websites in Belarus is regressive, limits the freedom of online business, and, which is more important, it hardly damages investment and business climate. However it obviously does not in any way limit the activity of international Internet service providers like Google and Amazon and others.

Internet users’ identification and data retention

According to Clause 6 of the Edict ISPs are required to identify users and technical devices providing connection and retain personal information and logs for one year. It should be noted that this requirement does not differ from usual worldwide practice of data retention, for example, the EU Directive 2006/24/EC on Data Retention prescribes the EU member states the storage of Internet traffic and transaction data for certain amount of time from 6 months to 2 years.

More unusual and disputable is the requirement to identify and to register users in the places of public access to the global network (Internet cafes, hot spots) prescribed by the Edict, which caused negative reaction in Belarusian society. According to the Clause 6 all visitors of Internet cafes and other public places of Internet access have been obliged to provide passports or other documents identifying person in order to use the Internet. Organizations, providing public Internet access, are responsible for retaining personal data of users and logs and in case of ignoring passport registration requirement may be fined according to the new Law. However, users can not be fined for having access without identification.

As additional human and financial resources and time is needed to exercise compulsory registration of users and retention of data, number of hotspots and facilities with public Internet access has decreased. 
The Edict provides the closed list of subjects which have access to personal information of users, in particular, organs pursuing criminal investigation, courts, taxation and control organs, however, it does not require court order or warrant to access personal information, which is needed, for example, in Germany, according to national laws implementing the Directive . That means that listed above organs have unlimited access to personal data which causes reasonable concerns. 
Unreliable procedure of data retention and lack of guarantees of privacy are subjects of current concern in Belarus. On the one hand, there is a real threat of monitoring of opposition and opponents to political regime for the purpose of subsequent repressions; on the other hand, there is no adequate Personal Data Protection Law in Belarus, except the Law on Information, Informatization and Protection of Information which provides only general framework for personal data protection. Privacy guarantees are not well developed and further elaboration of data protection legislation is urgently needed in order to safeguard privacy at the Internet.

Limitation of access to harmful information

One of the most disputable fields of regulation of the Edict is limitation of access to harmful information. Obviously any type of Internet censorship is very ambiguous and sensitive issue. 
Clause 8 of the Edict provides the list of harmful information, which includes information aimed at:

·     carrying out extremist activity;

·     illicit circulation of weapons, ammunition, detonators, explosives, radioactive,

·     contaminating, aggressive, poisonous, and toxic substances, drugs, psychotropic substances, and their precursors;

·     assisting illegal migration and human trafficking;

·     spreading p0rnography;

·     promulgating violence, brutality and other acts prohibited by law.

Regulation N 4/11 of the OAC and the Ministry of Information of 29 June, 2010 sets forth the scheme of the limitation of access to harmful information in the Internet. The filtration is carried out by ISPs on the ground of public open blacklists which are managed by the specialized body – the State inspection on electronic communications (BelGie). Organs of criminal investigation, prosecution, courts and the OAC are entitled with the right to supplement blacklists with new web resources containing harmful information in the meaning of Clause 8. Chief executives of these organs should submit to BelGie request with information indicating web resource (IP address, URL, domain name) and reason for censorship specifying the law which qualifies its information as illegal. Internet users, companies and organizations can initiate inclusion in the blacklist of the websites which they consider harmful. If BelGie finds that request does not corresponds the requirements or reasons for filtration are not clear enough, it has the right to deny the request. Moreover, the blockage of web resource can be appealed in court. 
The Edict enacts two schemes of the Internet filtration:

·     compulsory limitation of access to government authorities and organs, educational and cultural establishments;

·     voluntary limitation of access on user's personal request.

Thus, in the first case (scheme 1) ISPs are obliged to carry out filtration for mentioned above subjects, in other cases (scheme 2) the voluntary limitation of access can be applied only on the ground of request of Internet user. Therefore, filtration is not obligatory in Belarus, except mentioned above establishments in scheme 2, and, what is important, the list is open to the public. Most of the users are free to choose if they want the Internet filtration be applicable to them or not.

Nevertheless, any kind of filtration affects the reputation of the state in a negative way. The Reporters Without Borders included Belarus in the “watch list”, which means that the freedom of speech might be under threat. The OpenNet Initiative classified Internet filtering in Belarus as selective in the political, social, conflict/security, and Internet tools areas in November 2010. Taking into account the facts of pressure on independent media, which happened in the past, the attention to Belarusian new filtration scheme is reasonable.

In the political sense the government does not need legalized filtration. On the one hand, most users who post online media practice a degree of self-censorship, being identified and monitored, prompted by fears of regulatory prosecution. On the other hand, new instruments of censorship are in active use. In particular, Distributed Denial of Service (DDoS) attacks have been practiced againt a number of pro-democratic news sites on the dates of anti-government protests and elections days.

Conclusion

Undoubtedly, the Internet in Belarus which has always been an independent medium is now more than ever at risk of becoming the most controlled source of communication. This is especially dangerous in the situation when most of the traditional media, except several newspapers, are under control of government, and the Internet is the last chance to express opinion independently.

However, the situation of full cut off of the Internet is not likely to happen in Belarus, as well as blockage of foreign websites selling goods, rendering services to Belarusian territory. Even a repressive government, which opens its doors partially to the Internet, couldn’t stop the flood of information, which then has a very strong democratic effect on the country. The Internet is like snowball, which is rolling and getting bigger and bigger and which cannot be stopped. Thus, Belarusians together with other nations of the world will be lucky to enjoy the benefits of the free and at the same time controlled Internet.

 


 

P.S. Luckily my efforts to push the correct interpretation of the Belarusian Internet regulation have become successful. The next day after publishing this article a number of media resources have either corrected the original articles with incorrect information or published refutation. This article has been cited and reference to my blog has been given by Deutsche Welle "Contrary to reports, Belarus plans no Internet censorship", Electronic Frontier Foundation,  Eastbook.eu (Portal on Eastern Partnership) "Belarus: Increased Control of the Internet", ZDNet "Belarus bans citizens from visiting foreign sites", German IP Law blog IP Notiz and other reputable resources. I'm glad that the confusion regarding Internet blockage in Belarus has been resolved!

The culmination of the story was a letter I received from the author of the article at the Library of Congress website, Peter Roudik, the director of the Global Research Center at Library of Congress, who apologized for confusion and claimed that he did not mean “the imposition of a total ban of Internet”, but just quoted the Interfax agency report.

   

Sanctions for violation of Belarusian Internet regulation

Tuesday, 25 October 2011

A draft Law amending the Administrative Offences Code was adopted at the first reading in the House of Representatives of the Belarusian Parliament in May 2011. If the draft passes further adoption procedure it is expected to enter into force early in 2012. New clause 22.16 of the Administrative Offences Code penalises violation of the rules set by Edict of the President of the Republic of Belarus dated 1 February 2010 No. 60 On Measures to Improve Use of the National Segment of the Internet (Edict No. 60), including:

- failure to locate (host) the web resource on the territory of the Republic of Belarus and duly register if the legal entity or individual entrepreneur conducts activity in the shape of selling goods, performing works or supplying services on the territory of the Republic of Belarus through use of information networks, systems and resources connected to the Internet (violation of clause 2 of Edict No. 60);

- failure to identify or perform due retention of users’ personal data by a provider of Internet access services (violation of clause 6 of Edict No. 60);

- failure to limit access to restricted information under clause 8 of Edict No. 60.

According to proposed clause 22.16, legal entities and individual entrepreneurs may be fined from 10 to 30 basic units (approx EUR 49 to EUR 146) for violationg rules under Edict No. 60.

   

Designation of independent regulator for the ICT field in Belarus

Wednesday, 21 September 2011

 

The Operational and Analytical Centre (the OAC) has been designated under Edict No. 515 as the independent regulator for ICT in Belarus and is authorised with new competences partly transferred from the competence of the Ministry of Communications. The OAC is entitled to:

  • determine ICT development strategy, propose legislation enhancement initiatives in the field;
  • approve in the prescribed order draft laws and regulations of the Government in the ICT field including all technical laws and regulations;
  • approve investment projects of state owned companies in the ICT field exceeding USD 1 million (approx EUR 722 thousand) financed or guaranteed partly or fully from the state budget;
  • consider matters of licensing of voice and data transmission over Internet Protocol and unfair competition in this field;
  • regulate operation of the ERSPD, specify formation of prices for connection to the ERSPD and data transmission within the network, to settle disputes arising in connection thereto; and
  • take decisions obligatory for TOs and other players in the telecommunications market including providers of voice and data transmission over Internet Protocol services.

 

Thus the process of forming an independent regulator in the ICT field has been finalised. Now the OAC possesses a regulatory, executive and to some extent judicial function in the ICT field and the Internet. The transfer of functions of ICT industry regulation to the OAC is expected to ensure impartial regulation and further liberalise the telecommunications market.

This material has been prepared in co-authorship with Alexey Anischenko, Partner at SORAINEN Law Firm, and published in SORAINEN Information Technology & Telecommunications Legal Update.

   

New rules of telecommunications market operation in Belarus

Friday, 19 August 2011

New Regulation of the telecommunications market has been introduced by Presidential Edict No. 515 on Measures of Development of the Data Transmission Network in the Republic of Belarus (the Edict) enacted on 30 September 2010. The new order in the telecommunications market will start operating to its full extent from 1 January 2012. Legal acts to interpret and develop the provisions of Edict 515 are expected in the near future. However some conclusions can already be drawn.

As declared, the Edict aims to liberalise the telecommunications market in accordance with previously announced government plans to demonopolise the state-owned telecommunications operator (TO) Beltelecom, which held the exclusive right for interconnection with TOs outside Belarus and the sole right of interconnection of TOs with each other within Belarus.

The Edict established the Single Republican Data Transmission Network (ERSPD). The Edict obligates all state and local government authorities, as well as state owned legal entities, to connect their data transmission networks to the ERSPD so that all Beltelecom data transmission networks will become a part of the ERSPD. Other legal entities and individual entrepreneurs may connect their existing data transmission networks to ERSPD on a voluntarily with the exception that all newly constructed data transmission networks or those reconstructed by TOs (excluding technological data transmission networks) must be connected to the ERSPD. Thus, the Edict restricts construction and establishment of independent data transmission networks outside the ERSPD.

The National Traffic Exchange Centre (NCOT) established under the Edict will ensure interconnection of TOs within the ERSPD and with foreign TOs outside Belarus, provide technical maintenance, calculation of payments for TO services, guarantee information security and equal access rights of all data transmission networks in the ERSPD.

In fact, in order for Belarusian TOs to be connected to other TOs and to TOs outside Belarus, they have to connect their data transmission networks either to the ERSPD or to Beltelecom, whose data transmission networks will form a significant part of the ERSPD.

While some experts are evaluating the risk of establishing another state monopoly in the telecommunications market by NCOT, the positive effect of the Edict should not be underestimated. All market players (including Beltelecom) are acquiring an equal position. Data transmission networks could be used in the most economically efficient manner, thus inducing decrease of overall prices of telecommunications services for end users. The new regulation of the market is expected to increase the competitiveness of the telecommunications industry in Belarus and will probably attract new players to the market.

This material has been prepared in co-authorship with Alexey Anischenko, Partner of SORAINEN Law Firm, and published in SORAINEN Information Technology & Telecommunications Legal Update.