'Turkey's new Internet law is the first step toward surveillance society,' says cyberlaw expert

ISTANBUL

‘The Internet law will have a chilling effect on political discourse. The media has already been forced to self-censorship, and now it will start with the people,’ says Yaman Akdeniz. HÜRRİYET photo, Levent KULU

Turkey’s new Internet legislation gives too much discretionary power to the telecommunications authority and differs from similar EU regulations as it lacks legal safeguards, according to a prominent expert on Internet law.

“It is not just about censorship or control of content, but they are introducing certain mechanisms that I call an Orwellian nightmare,” said Yaman Akdeniz, professor of law at Istanbul’s Bilgi University.

What’s the Internet’s journey in terms of legal regulations?

A: Until around 2001 there wasn’t much Internet regulation in Turkey because Internet access was new. The government had a hands-off approach to the Internet until around 2007. The problems started when allegedly defamatory videos of Atatürk [the founder of the Turkish Republic] stared to appear on YouTube. 

A number of court orders were issued to block access to YouTube in Turkey. At first, YouTube assisted the Turkish authorities, but at some stage they decided not to remove it. It became a difficult process for them too.

At that time in May 2007, just before the general elections, the Turkish government, with the support of the opposition parties, passed Law 5651 at Parliament, after only 59 minutes of discussion. That law started some of the problems we are currently facing. Today, a total 40,000 websites are inaccessible in Turkey. Exact numbers are not provided by the authorities; they are kept secret by the Telecommunications Directorate [TİB]. I even have a case against this, under Turkish freedom of information laws. I wanted access just the numbers, but the TİB denied it. They just gave the numbers. So I went to the Council of State and the case is still ongoing.

What is you view of that initial law?

That was phase one: The authorities deciding to block access to websites. The main justification was to protect children from harmful content. Originally it was about child pornography websites, or ones encouraging gambling and suicide, etc. But in reality it was not just about children. The provisions were used to block access to political content as well, and thousands of websites were made inaccessible as a result.

Then we faced phase two: The filtering policy. The Technologies and Communications Board [BTK] decided to introduce a family filtering policy, and there were protests against this in 2011 and 2012.

Concerns started to be voiced in civil society...

There were concerns because there were important side effects as a result of this blocking mechanism, as in the case of YouTube. It wasn’t just a single video that was blocked, but the whole of YouTube was blocked for 18 months.

In phase two, the main idea was again to protect children and families. I’m not against families and parents using filtering. But the policy and system of a database maintained by government authorities is problematic. We don’t know what triggers or motivates government authorities to put different kinds of websites within these filters. There is an ongoing case, again at the Council of State, to annul this process.

In the last two years we have started to witness the third phase. This involves the authorities starting to go after people. Criminal investigations and prosecutions have started to appear. The Fazıl Say case is just one example, there are several others. People are being pursued because of their postings on social media platforms like Facebook and Twitter.

And then we come to the current stage.

With the Gezi protests in the background, the Dec. 17 corruption investigations triggered what I call a kneejerk reaction in the government. It rushed this Internet legislation amendment without thinking much about it. It’s clear that it wants to introduce a government control mechanism. It’s evident from the amendments that the authorities are trying to control the political damage coming from videos or audio files being leaked online, or certain WikiLeaks-type documents, in the corruption investigations. They want to be able to control the leak of documentation that could be damaging to the government.
So the law is no longer about children, it is beyond that. And it’s not just about censorship or control of content, but it introduces certain mechanisms that I would call an Orwellian nightmare.

In fact, it was panic-led legislation, which is more problematic and dangerous in societies. You don’t think much about the details and you are prone to mistakes; there wasn’t much discussion in Parliament. Fundamentally, we have a flawed piece of legislation.

Tell us why you call it an Orwellian nightmare?
 
It gives broad discretionary powers to the TİB. Internet service providers are already required to retain what is called traffic data for up to two years. Now, hosting companies are required to retain traffic data, which is different from content data: It does not retain the message you send me, but rather the time when you phone or send me a message. That’s called traffic data and it’s a very useful piece of information for law enforcement agencies, because you can map all the activities of a person. 

Secrecy of communications is a fundamental right. I’m not saying we need to keep all communication confidential, but there should be strict rules about who can access that data and in what scenarios? Am I being investigated with regard to serious crime? Is there a court order, or is this a fishing expedition by law enforcement agencies or secret service agencies? What do they do with that data? There should be preventive measures in terms of who can access it and what happens after they access it. 

The government made a simplified version of the EU’s data retention directive. The transport minister referred to other countries, saying they had similar laws. Yes, they have similar laws, but we need to have similar legal safeguards. The amended version of the law simply says the TİB can request and access data without any need for a court order, and without any destruction measures [after a certain time limit]. The service provider keeps it for two years, but once the TİB obtains this data it can keep it forever. The more they hold onto that data, the more potential abuse scenarios come into play.

These are the first steps toward the creation of surveillance society in Turkey. If there aren’t any safeguards then the TİB could use the data for whatever purpose it wants. Even if I’m not charged with a crime, it can ask for my data and retain it. It can check on opposition party members, basically anyone. This is not what is required with the EU directive. The development of the data retention directive was a response to the 9/11 attacks, and the Madrid and Istanbul bombings. They wanted to retain traffic data under certain conditions, with strong safeguards with regard to serious crime such as terrorism. 

What are the other problem areas in the amendments?

In the name of protecting privacy, they have introduced a new measure in which access to content can be blocked with only the order of the president of the TİB. That means giving power to the executive without the need for a court order. The man who runs the TİB was recently appointed from the National Intelligence Agency [MİT]. I call this a political control measure. It [the government] will order the blocking of access to this or that audio file or video, and without the need for a court order it will be able to do so.

So you suggest that because the TİB president is directly appointed by the government, he will be open to pressure from the government. Do you exclude a scenario in which the prime minister calls and instructs him to block access to a particular website?

I don’t exclude it. When you give an administration such authority, phone calls will start. If [the appointee] does not deliver, he or she may lose their job.

A last minute amendment was made to this provision...

Yes. [According to the amendment], the order from the TİB president will be subject to a court review within 24 hours. But that’s just the carrot on the stick. Why have you got this right in the first place? It doesn’t make the law any better.

In addition, they have now set up a new association of Internet service providers. All service providers are forced to become members of this association. The law explicitly states that if the service provider doesn’t become a member then it will not be able to offer its business in Turkey.

What is the aim of this?

The aim is to speed up the blocking of access to videos or audio files within hours. They want to get rid of certain content quickly. They want to serve the blocking order to the association and the association will be required to order all of its members to block content within hours, otherwise there will be repercussions. This is a carefully thought out mechanism, you can see that they are trying to protect their own interests.

Will all these work?

That remains to be seen. I compare it to Aladdin’s lamp. Once the genie is out of the lamp, the Internet is impossible to put it back in. Once a file in digital format is on the Internet, I could spend the rest of my life trying to get rid of it. This would be a futile exercise. The implementation will be problematic, but the authorities will try it. There are some blocking activities in other countries, but the blocked content is rather about child pornography, as well as some known websites with pirated movies and music files. But when you look for political content being blocked, you can’t see it.

If the new regulations are futile, what makes you so pessimistic?

I was a little optimistic when the European Court of Human Rights delivered its judgment on the application of a PhD student, Ahmet Yıldırım, with regard to access being blocked to Google sites. It ruled in December 2012 that Law 5651 was incompatible with the European Convention on Human Rights. I was then expecting some positive amendments, but the government disregarded the ruling. 

On the one hand, I know that some of these measures will be overcome, but at the same time I am concerned that it will have a chilling effect on political discourse. The media has already been forced to self-censorship, and now it will start with the people. People will know these measures exist, so they’ll be much more careful.