14 February 2013
At first glance, the strategy for the regulation of legal relations on the Internet published on 13 February [Note 1] looks much more favourable than the draft law prepared, in all probability, with the participation of the Safe Internet League a few weeks earlier [Note 2].
The new proposal contains no obvious legal "howlers", such as the use of the popular notion of a "national segment of the Internet," attempts to use federal laws to regulate issues that fall within the purview of international organisations (for example, defining the procedure for obtaining network addresses and assigning domain names), or clearly repressive regulations about "personification of liability."
Nevertheless, there are still some serious concerns surrounding this strategy, which the State Duma has started considering, and about the overall approach of the authorities to regulating the Internet. The primary criticism is the lack of detail in the document: a reform strategy at this level should of necessity contain as detailed a plan as possible about how the strategy will be implemented, including the stages, timescales and specific roles and responsibilities of the people involved in its implementation. That is how for example the Strategy for Reform of the Penal System [Note 3] or the alternative strategy for reform of the Interior Ministry, developed by a working group of human rights organisations [Note 4], looked.
In its current form the strategy document could be the abstract for an industry conference. However, given the standing of one of its authors (Robert Shlegel, a State Duma deputy and member of the Duma Information Policy Committee), and the view that he is one of the channels for the implementation of government policy on the Internet, we regard the published document as the official position of the state.
And this position should be evaluated in direct connection with the first draft of the strategy, a rejection of which would look very much like a curtsy towards civil society and the representatives of the Internet business world who reacted so negatively to attempts to adopt a policy paper of such importance for the entire Internet community behind closed doors [Note 5].
An interview given by Shlegel to Dozhd TV on the eve of the debate in the State Duma [Note 6] was nothing more than an attempt to defuse the situation by presenting to the public some fine general words about the proposals being aimed at defending rights and freedoms, and regulating technical issues. However, the attempt failed because the proposed draft bill does nothing officially to cancel out the crazy provisions of its predecessor. Moreover, it is perfectly possible to further develop this draft bill in two alternative and mutually exclusive ways.
For example, in several places the document talks about the need to take on board foreign experiences and to harmonize Russian laws with international agreements. This immediately raises the question of whose experience exactly should be taken into account and with which international agreements harmonisation is to be sought.
In the world today there are two quite distinct approaches to regulating the Internet — liberal and conservative. Clashes between the two occur at every international Internet forum. The most striking recent occasion was the World Conference on International Telecommunications, held in December 2012 in Dubai.
Here are a few examples. The Joint Declaration by the UN, OSCE and OAS on Freedom of Expression and the Internet, adopted on 1 June 2011, states that compulsory blocking of entire websites, IP addresses or social networks is an extreme measure, on a par with banning a newspaper or broadcasting service. Even in Russia, banning media output is something that only a court is entitled to do, while the law On Blacklisted Websites allows the blocking of individual webpages as well as IP addresses without recourse to the courts.
The same declaration also deals with censorship and outlaws any system of filtering Internet content which is not under the control of the end user. However, the public prosecution bodies regularly prosecute library staff for failing to install content filters on public computers.
On the flip side, Russia, as a member of the Shanghai Cooperation Organisation, is a signatory to the 2009 Agreement on Cooperation in the Field of International Information Security, which identifies as a major threat the dissemination of any information that "distorts perceptions of the political system, social fabric, domestic and foreign policy, or important political and public processes in a state, or the spiritual, moral and cultural values of its population."
The German court classifies access to the Internet on a par with basic necessities[Note 7], while VKontakte is blocking opposition groups in Belarus[Note 8], and Tajikistan has completely blocked access to Facebook [Note 9]. When Duma deputy Shlegel talks about taking on board international principles and foreign experiences, what is he referring to — Germany or Tajikistan, the OSCE declaration or the SCO agreement? And on the subject of tackling international crime, is he thinking of cooperation with the KGB in Belarus or the ratification by Russia of the Council of Europe Convention on Cybercrime, Russia’s signature of which Vladimir Putin withdrew in 2008? [Note 10]
The strategy contains proposals that are potentially capable of ensuring total control, if not on the Chinese model, then on the Belarusian model. For example, the notion of the need for regulating the setting up and functioning of Internet services available to the general public, such as social networks, will not only lead to a restriction of freedom of economic activity for Russian citizens, but in addition it is unclear how this would be applied for example to Facebook, Google and other transnational Internet services and companies.
The notion that rights and freedoms on the Internet are the same as rights and freedoms ‘offline’ does not take into account the unique nature of the Internet as a free information space, to which approaches developed for other communication systems cannot be applied. The crude transfer of rules and regulations adopted offline to the Internet simply will not work. They need to be adapted and refined to conform with the specifics of the Web. This is in addition to the existence of a whole host of rights that apply only to Internet users, such as the "right to be forgotten" or the "right to anonymous access."
The proposal to define the territorial jurisdiction of Russia on the Internet, which is a continuation of a series of attempts to establish "Internet sovereignty," is also inconsistent with the nature of the Internet, not to mention common sense.
The proposal that establishing new "legal instruments" for the prevention of crimes on the Internet will automatically lead to a reduction in the number of cybercrimes appears naive, if not disingenuous. Despite the existence of legal and technical capabilities, investigations into, for example, denial-of-service attacks on independent websites publishing social and political comment are consistently sabotaged by Russian law enforcement agencies. Under these circumstances it is not the law that needs changing but law enforcement practice, in the first instance by forcing the Investigative Committee, the FSB and the Interior Ministry to at least instigate criminal proceedings where there is clear evidence of crimes having been committed on the Internet.
The strategy makes no mention of which regulatory acts, it is proposed, should undergo amendment. It is not even clear whether there will be one consolidated law on the Internet, or a series of amendments to existing legislation. The strategy's author was unable to answer this question, even though the draft bill is due to be presented at RIF-KIB 2013 [the Russian Internet Forum] in April and submitted to the State Duma in the autumn. Also puzzling is the fact that during the drafting of the strategy the Presidential Council on Human Rights was not asked for its input. Given the most recent experience in pushing through bills at breakneck speed, there is a real danger that the draft of one of Russia's most important laws will be pushed through by the presidential administration, and passed without any discussion within a matter of a few days in three readings by a majority of 441 votes, with 3 abstentions and 6 brave-hearted absentees. And without us knowing whether we are to wake up once again in China or in Belarus.
In this situation there are two encouraging factors. Firstly, the strategy's authors were forced to include a provision on the need to draw into the discussion representatives of civil society, in addition to the authorities and the business community. Secondly, there is the clearly and unambiguously stated position of the Russian Association for Electronic Communications (RAEC) that the passing of such a law is not possible without widespread discussion that involves all interested parties, and that the Foundation for Information Democracy and the Safe Internet League, who helped draw up the original version of the strategy, cannot be regarded as representing the interests of the Internet industry or the public [Note 11].
We fully support the view of the RAEC about the impossibility of adopting a separate law that relates solely to regulating the Internet. The Internet is so multi-faceted and so deeply ingrained in all areas of life, that that kind of regulation is only possible through specialised regulatory acts. Otherwise, legal conflicts will inevitably arise in large numbers. An example of this kind of local change are the amendments to the law on the mass media, which, though not without their flaws, strengthened the legal statutes of online media.
In this regard it is imperative that a Strategy for Developing the Internet is adopted which is coordinated with representatives of industry and civil society, and which would guarantee the inviolability of the fundamental rights and freedoms of individuals, taking into account the technical and structural peculiarities of the Internet. Such a strategy document would need to highlight individual sectors that require special regulation, for instance the protection of personal data, state information systems, investigation of crimes on the Internet and guaranteed access. The state should only be entitled to interfere in those areas which absolutely cannot be left without government regulation; everything else is a matter for the Internet community alone.
The strategy should also firmly enshrine the presumption that the Internet is a self-regulating system founded on the freedom to obtain and distribute information, except in areas for which legislation makes direct provision, and the good faith of parties engaged in relationships mediated by the Internet is assumed until such a time that a court decision proving otherwise comes into force.
We would like to point out that the Agora Human Rights Association is ready to be fully involved in developing the strategy and the bill itself, and is planning to prepare and present to the public its own proposals on this issue in the near future.
Damir GAINUTDINOV, PhD in Law,
Legal analyst for the Agora Human Rights Association
Pavel CHIKOV, PhD in Law,
Chair of the Agora Association