Carey

Shenkman

First Amendment and Human Rights Lawyer


(Ongoing) Compilation of Sedition, Anti-Journalist, Internet Access Laws

August 14, 2014Carey Shenkman0 Comments

United States

  • Espionage Act – 18 U.S.C. 793 — passed 1917, widely used first against socialist opposition to WWI, then against whistleblowers. Most notably against eight (more than all previous Presidents combined) under the Obama administration. There have been attempts (none yet successful) at prosecuting journalists under the law. The closest case is the AIPAC Rosen case from 2006 (prosecution dropped) where two lobbyists were indicted for conspiracy to commit espionage. Sections of the Act punish “unauthorized communication of national defense information” and “willful communication of classified intelligence with an unauthorized person.” The Act has no public interest defense, meaning even if the whistleblower revealed something as obviously heinous as the US gov operating gas chambers, that would not be admissible in court. Eugene Debs, Thomas Drake, John Kiriakou, Jeffrey Sterling, Daniel Ellsberg, and Chelsea Manning were famously prosecuted under the Act. Edward Snowden was charged under the Act. The law carries sentence of 10 years but under some circumstances (could carry death for giving information to the enemy during wartime).
  • Computer Fraud and Abuse Act — 18 U.S.C. 1030 — passed in 1986, which punishes “exceeding authorized access” of a “protected computer.” Computers affecting interstate commerce fall under this broad definition, which means it can pertain to almost any machine. If the access results in the commission of any crime or tort, then it becomes a felony–again broad considering the number of crimes and civil actions available. Used against Chelsea Manning, Jeremy Hammond, and the Paypal 14
  • USA PATRIOT ACT — [expand, NSLs  etc]
  • In February 2015, US Senator Patrick Leahy pressured payment companies to cut support for hosting services that encrypt, leading PayPal to cut support for Mega. This echoes similar tactics used (unsuccessfully) again Russian banks in 2014 and for years against Visa, Mastercard, Paypal and other providers in the ongoing financial blockade against Wikileaks.

United Kingdom

  • British Terrorism Act 2000 — Schedule 7 — used to detain David Miranda, partner of Glenn Greenwald, for nine hours at Heathrow airport, without right to attorney or right to remain silent. [expand]

France

  • Article 421-2-5, French Criminal Code — good coverage by Article 19 — Publicly condoning (faire publiquement l’apologie) acts of terrorism is a crime under Article 421-2-5 of the French Criminal Code. The offence is punishable with up to five years’ imprisonment, and a fine of €75,000. Harsher penalties for the offence are available when it is committed online, allowing up to seven years’ imprisonment and a fine of €100,000.

Australia

  • Part VII of the Crimes Act 1914 (Commonwealth), entitled Official Secrets and Unlawful Soundings. In late 2013, Australia passed the Public Interest Disclosure Act, which went into force January 2014. The PID Act provides a defense for whistleblowers who first exhaust administrative channels, or are able to show that those channels are inadequate. The Act only applies to disclosures if they are not made to foreign government officials, a formulation that lends itself to the problematic argument that the law would protect disclosures to the media (which are presumably followed by foreign governments). Finally, the law flatly exempts intelligence information, or anything relating to intelligence agencies.

Canada

  • Security of Information Act — the Ontario Superior Court of Justice in O’Neill v. Canada (Attorney General) struck down the “leakage” provisions of the SOIA, as they 1) restricted free expression, 2) were vague and overbroad, and 3) failed to contain an element of fault. “The recognized purpose of section 4 is to deter and protect against the “unauthorized release of government information that
    carries with it some element of harm to the national interest if released, causing it to be categorized as ‘secret official’ or ‘official.”’ Its terms provide up to 14 years’ imprisonment for any person “who receives any secret official code word, password, sketch, plan, model, article, note, document or information,” who “has in his possession any official document or secret official code word of password issued for the use of a *61 person other than himself,” who fails to return it, or who “communicates” a ““secret official” item.” Larsen & Atcherley, 5 J. Int’l Media & Ent. L. 49 (2014).
    The O’Neill case dealt with the use of the law to execute search warrants on the home of a journalist writing on Maher Arar (the Syrian-Canadian national tortured under the US rendition program and who ultimately received millions in compensation from the Canadian government and an official apology from PM Stephen Harper). Although in the case the Crown argued for a public interest defense, the court rejected it, citing to the fact that the UK didn’t have a public interest defense and that some sections of the law (but not others) contained the defense, thereby signaling legislative intent to the contrary.

Denmark

  • Section 152(1) of the Danish Criminal Code (Straffeloven), punishes with up to six months imprisonment any current or former public official “who unlawfully passes on or exploits confidential information” obtained in connection with their office or function. Section 152 also requires secrecy of confidential or otherwise protected information in order to protect security, defense, and foreign policy.
  • Denmark provides a public interest defence which can be invoked to avoid sanction if a person is convicted of disclosing state secrets.4 In doing so, a court will balance several factors, including the national security interest, actual harm, and public interest served by disclosure. In the case of Denmark v. Larsen, three journalists were acquitted after publishing news articles including state secrets related to the justification of the Iraq war. The court rejected Denmark’s arguments that the publications would strain foreign relations, and acknowledged that the stories added to the public debate on the issue. The defense in Denmark is not ironclad and has not been applied consistently; in the Frank Grevil case, involving an intelligence operative who revealed that Denmark’s PM ignored evidence that WMDs didn’t exist in Iraq, a court ruled that information concerning the political
    discussions on Denmark’s involvement in military actions in Iraq was not sufficient to meet the requirement of “an obvious public interest.” Prosecutors v. T (Frank Grevil), Eastern High Court of Denmark, no. U2006.65O – TfK2005.796/1 (2005). Grevil was sentenced to four months imprisonment.

China

  • China strongly weighs requiring providers to allow government “golden keys” or backdoors to software

Japan

  • Specially Designated Secrets Act. Passed December 2013, punishes unauthorized disclosure of specially designated secrets with 10 years imprisonment. “The government’s handling of the 2011 Fukushima nuclear reactor disaster—including arrests, home searches and interrogations of reporters who covered the story—was but the most recent, egregious instance. Reporters Without Borders dropped Japan to 53rd out of 180 countries in its press freedom index for 2012, and down another six points in 2014, because of continuing Fukushima secrecy, the new secrecy law, and exclusion of freelance journalists from many press briefings.”
  • Great compilation of materials and analysis by Right2Info here

Ethiopia

  • 2009 Anti-Terrorism Proclamation / “Planning, Preparation, Conspiracy, Incitement and Attempt of Terrorist Act” (Article 4). In summer 2014 10 journalists and bloggers were charged under terrorism law for attending secure communications trainings by NGOs. Security in a Box is a popular digital security guide for journalists and human rights defenders, put together by Tactical Tech and DigiDefenders. “In a manner calculated to conceal the groups’ lines of communication from government agents the accused have assisted, organized and took part in a training of communication encryption tools called “Security in Box”. By doing so the accused intentionally embraced the strategies and sought support of the terrorist organization.” The provision under which the #FreeZone9Bloggers were charged and arrested punishes “Whosoever plans, prepares, conspires, incites or attempts to commit any of the terrorist acts stipulated under sub-articles (1) to (6) of Article 3 of this Proclamation is punishable in accordance with thepenalty provided for under the same Article” Two copies of the Security in a Box book were admitted as criminal exhibits. Documents seized from the journalists as evidence include:
    • “Training manual for defenders of civil liberties”
    • “Training manual about internet security”
    • “Hand written security procedures of covering a rally – 61 pages”
    • “Manual of security procedures located in flash drive”
    • “Training manual organized by civil rights defenders on how to circumvent censorship”
    • “Encryption tools and changing passwords – 129 pages”
    • “Invitation letters send to him to attend digital security training”
    • “Digital security manual for human rights defenders – 18 pages”
  • Further, Article 5 of the Proclamation punishes (with 10-15 years imprisonment) rendering material support, which can include “provid[ing] a skill, expertise or moral support or [giving] advice” and “provid[ing] any training or instruction or directive”

South Africa

  • Protection of State Information Bill — yet to be signed into law. Punishes publication of state secrets with up to 25 years imprisonment. No public interest defense.

Afghanistan

  • “independent outlets and publications have been denounced or fined for content that “opposes Islam and national values,” and in April 2013 Karzai supported a request by conservative clerics to ban television programs that are considered “counter to social morality.” Freedom House Report 2014

Bahrain

Iran

  • Anonymity tool TOR is blocked regularly in what is described as a game of cat-and-mouse.

Pakistan

  • Protection of Pakistan Ordinance (July 3, 2014) — broadly increasing police powers akin to Patriot Act in the US. For instance ‘insurgent’ and ‘cyber crimes’ not identified at all. Human Rights Commission Chairperson I.A. Rehman writes: “the final version does not meet our concerns regarding the possibility of abuse by targeting political dissidents, the retrospective application of the law to legitimise illegal detentions (especially in Balochistan), and legitimisation of safe house.”

India

  • Official Secrets Act of 1923 — Section 5 prohibits the “[w]rongful communication … of information.” It criminalizes any person who “voluntarily receives any secret official code or pass word or any sketch, plan, model, article, note, document or information knowing or having reasonable ground to believe” it was communicated in violation of the OSA, who fails to return information, or who “willfully communicates” this information. A case against financial journalist Santanu Saikia for publishing contents of a note from the Cabinet of India regarding divestment policy was dismissed by a criminal court judge in 2009, on two grounds. First, there was no harm to the state, and second, the court did not interpret the OSA to apply to “secret” documents rather than “secret official code or password.”

Malaysia

  • Sedition Act of 1948 — There were widespread calls in September 2014 to recall the country’s colonial-era sedition act, which is disproportionately used against non-Malays and non-Muslims. In February 2015 the law was used against the Secretary General of the socialist party for criticizing a sodomy ruling as part of a crackdown on bloggers.
  • Government threatened to ban Facebook in August 2014, for misuse (though mainly for criticisms of government). The move is likely impractical given the country’s 15 million users.

Thailand

South Korea

  • National Security Act — United Nations special rapporteur for human rights defenders, Margaret Sekaggya called it “seriously problematic for the exercise of freedom of expression.”  “Article 7 of the law long criticised as an unjust limit to freedom of expression, prescribes legal punishment for “any person who praises, incites or propagates the activities of an anti-government organisation.” In 2013 103 people were imprisoned under the law.

Vietnam

  • Filing of mass abuse reports in social media like Facebook by “opinion shapers” (du luan vien) to suspend accounts of human rights activists and organizations. 100 accounts suspended as of June 2014.
  • Article 258 of Penal Code– “abusing democratic freedoms” carries 2-7 years in prison. The law is used against bloggers and dissidents. The law punishes “bad content and incorrect information that reduces prestige and trust in state agencies.” Perhaps unsurprisingly, Vietnam made RSF’s “Enemies of the Internet” list.
  • Decree 174 (January 2014), penalizes dissemination on social media of content that includes “anti-State propaganda,”  or “reactionary ideologies”
  • Decree 72 prohibits the use of social media to share information reported in the press.
  • “Passwords are frequently hacked, and connection speeds are often slowed on days when dissidents are arrested or put on trial.” -RSF

Russia

  • Anonymous wi-fi ban. Public wi-fi networks require passport-validated phone numbers to connect. Passports are required to purchase SIM cards in Russia.

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