28 November 2012
By Damir Gainutdinov
Instead of trying to dredge through and screen the whole Russian Internet, Roskomnadzor (Russian Federal Supervision Agency for Telecommunications, Information Technologies and Mass Communications) would be better off setting clear, understandable and fair guidelines that would gain the cooperation of the Internet community. This approach would require a much more sharply focused and professional approach by state bodies, so it is unlikely to be adopted.
The issue of censorship and shutting down websites, which has long been overshadowed by criminal cases brought for posts on Livejournal and prosecutions of web activists, has recently become a hot topic in the online community.
However, 1st November 2012, when the new “blacklist law” came into force, was not a watershed. Rather the practice of blocking sites without legal process already started creeping in several years ago soon after the passing of the federal laws 'On combating extremist activity', 'On communications' and 'On information, information technologies and data protection'.
The nebulous wording of the articles that deal with shutting down communications services and an ambiguous definition of extremism, which covers a whole page of small print, have allowed the prosecutor's office to block access to Internet resources at the level of the provider, often without going through the courts.
Noticeboards, blogs and public information websites have been blocked alongside right-wing extremist sites. It was nothing new when Nikiforov (Minister for Communications) announced the possible blocking of Youtube for showing a film called 'Innocence of Muslims'. In 2010, for example, a court in Komsomolsk-na-Amur had already ruled in favour of the prosecutor's request that Youtube should be blocked. In August of this year, a court in Perm ordered a provider to block access to a website for classified announcements on the grounds that the search term 'buy marijuana in Perm' on Yandex.ru brought up a link to this website.
As a rule, providers, who are caught in the meshes of communications service licensing, have not really put up a fight, and cases where they have refused to comply with an obviously illegal order from the prosecutor or the Communications Ministry are numbered in single figures – in Khabarovsk, Izhevsk, St Petersburg, Novosibirsk, Krasnoyarsk and Khakasiya.
According to Agora Human Rights Association, over 200 websites were blocked in Russia in 2011, none of which attracted any public attention. The law on blacklists has raised an Internet storm, however, and at present you can find over 5,100 blog entries on this issue on Yandex.ru, and that's not counting reposts and retweets.
It is all too obvious that the online community has not accepted this law and most discussion revolves around strategies for evading compliance with it. It is reminiscent of last winter when experienced activists advised novice protesters on how to act at mass demonstrations, what to do if they were arrested and how to minimize the risk of arrest.
No matter how the situation develops further, there is already one obvious result: Russian internet users have become much more proficient in using encryption tools, anonymizers and VPN connections.
By its very nature, the Internet is an anarchic environment with a strong tradition of disregarding and getting around government clamp-downs. The easiest evasion technique is to start using sites of another jurisdiction. This is exactly what people did in response to uninvestigated hacker attacks, hacked mail systems and changes to rules for registration of .ru domain names, which made it possible to stop domain delegation to websites on the basis of groundless requests from “the competent authorities” and sparked off debate about the poor security of Russian online services as a whole. One example that is often quoted by analysts is the migration of users from Russian social networking sites to Facebook. The European data centre operator DEAC also estimates that in 2012 there have been 75% more applications from Russia for server rental than in 2011.
However, we still have to live and work in Russia, and commercial online projects that are blacklisted will more than likely adopt a tactic of minimizing their losses and quickly restoring access to their resource. This can only be done once controversial content has been deleted, since the procedure for appealing decisions in the courts is completely ineffective when you consider the length of time each case takes to process. The Andrei Rylkov Foundation, which had its domain delegation stopped at the request of the Federal Service for Drug Control in February, is still involved in a legal battle to restore its right to distribute information freely.
Not one of the tens of blocked websites that were offered legal assistance by Agora has actually taken it up. However, we should be wary of confusing compliance with blatantly unjust rules of the game with actual agreement with them – these are two different things. The example of Lukomorye, which announced that it wanted to restore articles to its website that had been removed, shows that it did not consider the order to remove them justified.
One of the hallmarks of a state governed by the rule of law is the legitimacy of the actions and decisions of its state bodies, whereby citizens' willing agree with them and accept them as just. The legitimacy of actions and decisions undertaken by the authorities with the aim of regulating web content depends wholly on their acceptability to users.
It is true that Roskomnadzor and the Russian Internet are in different weight categories, but if Roskomnadzor persists in its aggressive policy of intimidation towards an online community that has grown accustomed to self-regulation, it will not end well for the authorities. Meanwhile, the very real problems that do exist on the web are unlikely to be resolved.
After the law on blacklists came into force, the updates on ever more and more sites that had been added to the blacklist began to resemble news flashes from Sovinformbureau about the movements of Nazi troops. Roskomnadzor reported that they had checked a thousand messages, then three thousand, then five thousand, then eight thousand, and on and on. Their Twitter feed announced that they had closed Lukomorye, blocked Librusek and forced Rutracker to agree to content being deleted.
What makes it worse is that no-one understands clearly what can lead to websites being blacklisted, since the procedures and criteria for evaluating information are, like the blacklist itself, de facto secret. Interestingly, after the new law had already been in force for two weeks and two hundred websites had already been blocked, Roskomnadzor announced that it would begin training experts in assessing Internet materials in cooperation with Moscow State University. It would appear that there are just not enough experts for checking all these thousands of messages. Moreover, the fact that the agency's monitoring of child pornography is done by four employees of the League for Internet Safety casts serious doubt on the quality of checks undertaken by it and the validity of decisions made to block sites.
What Roskomnadzor needs to do is implement clear, understandable and fair standards that the Internet community would voluntarily agree to follow on the conviction that they are needed. There is no need to check through thousands of websites in a state of red alert: it is simply enough to investigate a small number of cases thoroughly and transparently. Owners of websites are willing to delete content that truly infringes the law, and, as the Russian Association of Electronic Communication has found, provide contact information for fast communication. The only issue is that this approach would require much more sharply focused and professional work by state bodies, so it is unlikely to be adopted.
The authorities have the resources available to institute a user-friendly and responsible policy towards the Internet. But instead, they have decided to screen the entire Russian web in a matter of weeks with complete disregard for freedom of speech or the quality work. It is just like the time Nurgaliev ordered corruption to be rooted out of the police service within a month – and with exactly the same result.
The reluctance of web administrators to appeal when their websites are blacklisted, while giving them some small tactical advantages, will have far-reaching detrimental consequences, both in a strategic and legal sense, since a legal precedent cannot be set when there is no claimant. Website owners should take their responsibilities more seriously and understand that appeals in court against blatantly illegal decisions to limit freedom of information are important not only for them, but for the whole online community. Appeals will be launched sooner or later, perhaps in small numbers, and it will be these that will set the tone for the future development of the Russian Internet.
Until then, this cat-and-mouse game, where a lame and half-blind cat is chasing hundreds of little mice around a locked room, will continue.
Roskomnadzor will continue to block access to websites – from time to time, these will include the likes of Wikipedia, YouTube and Twitter. Users, meanwhile, will just switch to foreign jurisdictions, actively start to anonymize their activities and adopt tools for evading content filters.
This, in its turn, will stimulate yet another crazy new law, something like imposing administrative responsibility for use of Tor and PGP. It will be a response by the authorities in the style of “I'm switching you off!” In this battle between regulation and technology, the latter will inevitably win for the simple reason that rules are inherently conservative, and all the more so in an authoritarian state, and cannot keep pace with thinking that races ahead.
This is a good thing for the evolution of our civilization. The Russian authorities will stick to their view that the Web is an arena for criminality, drug-dealing and child pornography, and they will promote that viewpoint to the public. Thankfully, the rapid expansion of the Internet in Russia will allow each of us to judge for ourselves whether this premise is true or not.
Damir Gainutdinov is a legal expert at the Agora Human Rights Association