Below is a list of documents Bolo Bhi’s Director Farieha Aziz (appointed amicus curiae in YouTube case on April 4, 2013) has submitted to court in the BytesforAll vs Federation ‘YouTube case’. We will keep updating this list as more submissions are made.
April 12, 2013
4. Newsline June 2010 Coverstory: It’s not about Facebook, it’s about facing the world… and In the Name of the Law
5. Document on Intermediary Liability
April 26, 2013
1. Citizen Lab report – Planet Blue Coat: Mapping Global Censorship and Surveillance Tools
July 4, 2013
Submission to Justice Syed Mansoor Ali Shah
Writ Petition: 958 BytesforAll vs Federation
Director, Bolo Bhi
(Amicus Curiae in ‘YouTube Case’)
Date: July 4, 2013
In light of the discussion in court during the two hearings held on April 12, 2013 and April 26, 2013, respectively, I would like to make the following submission, summarizing the discussion and my input provided thus far, in addition to making suggestions for upcoming hearings.
– There is no way of really restricting access on the Internet; there are always ways of getting to something, so trying to block is really an exercise in futility
– The simple solution would be just not to watch the video or any such material; unless one makes an effort to go to the specific URL, the video will not just show up
– Empowering the state to make these decisions for the people at large sets a dangerous precedent; personal morality and political preferences then become the yardstick
– Self regulation vs state regulation should be the standard
– The video has only been restricted where there exist country-level domains of YouTube; for Pakistan to get a .pk domain would mean Google would have to localize
– Without intermediary liability protection as a primer, no company would be willing to have local laws apply; however, that is not reason enough for a company to localize
– Another option would be to ask Google to set-up interstitial warnings for content deemed ‘objectionable’
Murky Technology Solution
– Reports reveal surveillance and filtering softwares are in place in the country
– The technology side of this debate will remain murky till it is established what systems are currently in place in Pakistan
– Allowing such technology to be placed in the hands of state authorities will be equivalent to giving them a carte blanche for setting up roadblocks where they please, restricting access to areas and breaking into citizens’ homes
– The right to privacy, dignity, security, speech and information will be severely compromised, doled out at the state’s discretion.
– On the home front, a wider social dialogue on this subject is required before any binding decision is made
The principle argument regarding the Internet, availability of ‘objectionable’ material and restriction of access is this: the architecture of the Internet is such that there is no way of really restricting access; there are always ways of getting to something. And so trying to block is really an exercise in futility. As it is, most Pakistanis have been accessing YouTube through the use of proxies, rendering the ban in place redundant.
The simple solution would be just not to watch the video or any such material. Unless one makes an effort to go to the specific URL, the video will not just show up. The other option would be to flag the video. If enough people consider the content to be hurtful, they have the option of reporting it. Once a certain threshold is reached, a video is reviewed against community guidelines to see whether it violates them, and is taken down. Not that the take-down system itself is free of problems – it also has the potential of being misused. However, neither of these options have been attempted.
As articulated by amicus Khurram Zafar in the hearing on April 26, 2013, I too subscribe to the view that it is not for the state to determine what one should or should not access. That discretion should be exercised in the home. Just as parents use safety tools and browsers that prevent their children from accessing certain content, the same can be done for the video (and such content) in question – users can install softwares in their own machines to restrict access. The policy should be self regulation vs state regulation. Empowering the state to make these decisions for the people at large sets a dangerous precedent; personal morality and political preferences then become the yardstick.
Further, our violent reactions and reactive policy-making only strengthen initiatives of people such as the one who produced the video. Our aggressive reactions help perpetuate the view that we are a regressive state and people. Worst of all, blocking of platforms and content drives more attention to the content in question, than it would ever have received; this we have seen both in the case of the Facebook ban of 2010, and the current ban on YouTube. This is nothing short of hitting one’s own foot with a hammer.
As maintained by the honourable judge, the particular video will have to be blocked in order for YouTube to be reopened in the country. So the video is not the subject of discussion in court. The court is asking how access to it can be restricted but YouTube reopened.
In the first hearing held on April 12, 2013, the issue was broken down into two probable solutions: policy and technology. On these, there was extensive discussion on April 26, 2013.
Possible Policy Solution
Since the outcry against the Innocence of Muslims video, in Pakistan the question being asked was: why doesn’t YouTube just block it? There was no simple answer to this. One contention by the company was that for a video to be removed by them, it had to violate community guidelines which, according to the Google Transparency Report (Annex A) released on April 25, 2013, this video didn’t. Then why was it blocked in other countries and not in Pakistan was the other question. Local versions of YouTube – i.e. country-level domains – exist in countries where the video was restricted. This was true of many Muslim countries, where even today YouTube is officially accessible. But why not in Pakistan?
The policy perspective to this query is: Google and its subsidiary YouTube have no legal presence in Pakistan. While a Mutual Legal Assistance Treaty (MLAT) was being viewed as the solution to this, it isn’t. An MLAT is a treaty signed between two countries – in this case, it would be Pakistan and the US. The treaty facilitates an exchange of information and action but on the basis of corresponding laws. And in this particular case, there are no corresponding laws to address the situation.
What is then required for a country-level domain? Google will need to be localized in Pakistan. How can that be done? While there would be multiple factors only the company can make clear, one is definitely intermediary liability.
What is intermediary liability? Under the Electronic Transactions Ordinance (ETO) 2002 of Pakistan, an intermediary is defined as “a person acting as a service provider in relation to the sending, receiving, storing or processing of the electronic communication or the provision of other services in relation to it.” Clause 40 of Chapter 9 of the Ordinance states:
40. Limitation on liability of network service providers.—In the absence of intent to facilitate, aid or abet, a network service provider shall not be subject to any civil or criminal liability solely for the reason of use of his telecommunication system in connection with a contravention of this Ordinance by a person not subject to the direction or control of the network service provider.
Just like telecom companies are not held responsible for what their users say to each other while using their services, similarly, in other parts of the world, providers of Internet services or platforms for content sharing are also not held liable for what their users post. This is the basic distinction between traditional platforms from non-traditional platforms. While publishers and broadcasters apply offline editorial policies online, and screen content before posting it, the same is not true of video-sharing platforms for example, that do not actively screen content but merely offer their services and allow the users to upload directly. And so in many parts of the world, there exist legal protections in law providing safe harbours to companies (Annex B).
In Pakistan, this protection exists for ISPs under the ETO, but not for companies. Without this, no company would take on the risk of registering in a country, and have local laws apply without any protections in place.
To extend this protection to Google as a primer to localization would require an amendment to the ETO or, enactment of new legislation.
The honourable judge said on April 26, 2013, that intermediary liability protection could be provided to Google, for the interim, by the court, if it agreed to move ahead on the issue of localization. While realizing that intermediary liability protection will not guarantee that Google will agree to localize itself in Pakistan, it definitely is the right start to this discussion. And on this issue, only a response from Google will now bring more clarity. However, what happens if a .pk version of YouTube is created? Will Pakistanis be limited to accessing content that is deemed permissible by certain authorities? Would it aid compliance with all kinds of government requests for removal and blocking of content? How will the right to information be upheld and citizens’ other rights be protected? This requires careful deliberation.
Another option would be to ask Google to set-up interstitial warnings for content deemed ‘objectionable.’ This has been applied in Bangladesh where the YouTube ban was overturned just recently, on June 5, 2013. An interstitial is basically a disclaimer that appears on the screen before a specific URL/page opens up. It is a wall of sorts between a user and content.
In this case, it would separate content hosted in one country from a user located in another. Unless the border is voluntarily crossed (i.e. the user clicks on the URL), the page will not appear and the ‘objectionable’ content will never cross over (or be downloaded to servers in Pakistan).
The decision to shut down YouTube had less to do with ensuring the content ceases to exist, but that Pakistanis do not view it. Today, Pakistan is the only country where YouTube is still blocked over the video.
Murkier Technology Solution
In the first hearing on April 12, 2013, I had raised the question as to why the platform was still blocked if links to the video had been filtered (manually) upon the orders of the PTA? To this the PTA official responded that despite blocking access to links to the video, hundred more popped up the next day and so they had to shut down the platform.
The federation lawyer maintained this was as per the decision of the Inter-Ministerial Committee (IMCEW) whose September 2012 meeting led to the IP-level blocking of YouTube. Reservations were voiced in court regarding the IMCEW. There is no public face of the committee. All we know is that there are members from various ministries and agencies. The decision-making process lacks any kind of transparency and accountability. Non-state actors and stakeholders are merely required to submit to its decisions, and are never able to contest or challenge the reasoning that goes into them. In fact, detailed reasoning as to how and why the decision was arrived upon is not even made public knowledge.
Mention was made of the procurement of filtering systems – which, as cautioned by myself and others in court on the hearing held on April 12, 2013, is a dangerous road to go down. Among the many negatives, it slows down Internet speed and breaches user privacy as it has the ability to monitor content and is effectively also a surveillance tool. Regarding this, I had submitted Citizen Lab’s Report ‘Planet Blue Coats’ that shed lights on the human rights perspective of Internet filtration and surveillance.
Citizen Lab’s report ‘Planet Blue Coat’ which extensively discusses the types of filtering softwares in place in various countries, and the problems with them, has already placed in court’s records. I am placing more material on record regarding filtering in this submission. The first of these is a report from February of last year, when the National ICT R&D Fund, announced through newspapers and its website, a Request for Proposals (RFP) for a national level URL filtering and blocking system (Annex C). This effort was blocked by a vociferous campaign by local and international civil society organizations, and reportedly the plan was shelved after a commitment was made by the ministry to a member of the National Assembly, who had taken up the issue (Annex D). The dangers to free speech and user privacy were clearly highlighted during the campaign (Annex E and F). Furthermore, senior members of Pakistan’s ISP association also expressed their concerns about the dangers of such a filtration system (Annex G).
A more recent development on this front is The Citizen Lab’s report: ‘For Their Eyes Only’ (Annex H) which points towards the existence of FinFisher command and control servers on PTCL servers. FinFisher is no ordinary software but one used for targeted espionage. Essentially, “FinFisher or FinSpy is a piece of computer spyware designed to allow someone to spy on a computer or mobile phone. Most commonly, someone tricks you into clicking on a file. The file is FinSpy, but it is hidden inside another kind of file. Like a picture or a Word Document. You will see the document you expected, but clicking is enough to infect [a device] silently” (Annex I).
FinFisher, developed by a UK-based company Gamma International, has been used to target activists in Bahrain (Annex J). Privacy International is currently engaged in a lawsuit over the export of FinFisher, and has also filed a complaint with the Organisations for Economic Cooperation & Development (OECD). Gamma International (on its website and public portfolio) claims FinFisher software is only sold to law-enforcement and intelligence agencies. Just because a FinFisher Command and Control server is found in a country does not mean that the particular country is using FinFisher. Another country’s government could be using a server in that country to hide its true identity. Therefore it is even more important to investigate this further. Are FinFisher control and command servers present? Is it the Pakistan government or a Pakistani agency using it? Or is it another country’s government or agency?
It is worth mentioning another crucial aspect of the public campaign last year (2012), which was focused towards companies that produce and sell filtering and surveillance equipment to countries (Annex K). Civil society groups along with Business Human Rights Resource Centre wrote to international surveillance companies expressing their fear that surveillance technology was being abused, and urged international surveillance companies not to violate the United Nations Guiding Principles on Business & Human Rights by selling equipment to countries where this would happen. Six out of nine companies acknowledged the possibility of abuse and committed. Netsweeper was one of the companies that chose not to reply.
On June 20, 2013, another report by The Citizen’s Lab revealed that Canada-based company, Netsweeper’s filtering software has been installed in Pakistan (Annex L). In the hearing held on April 26, 2013, according to the PTA official, a system has been acquired by PTCL (Pakistan Telecommunications Company Limited) – one of the gatekeepers with landing rights to the Internet – but is glitchy. However, he assured it would be up and running in the next two to three months, and should be functional for the next two to three years. What exactly is the capability of this system and how will it be used is unclear.
The technology side of this debate will remain murky till it is established what systems are currently in place in Pakistan. How these systems were installed despite a public awareness campaign that involved academics, national and international experts, entrepreneurs, business associations and national and international human rights organizations is baffling. It is all the more pertinent for the Ministry, PTA and PTCL to respond on the subject of the software they have acquired and are fixing, as well as the presence of FinFisher servers. Disclosure and accountability regarding this is necessary.
If the NSA/PRISM leaks (Annex M) are anything to go by, it illustrates how laws and oversight can go wrong. Due process then becomes a mechanism for the state authorities to justify rights violations rather than act as a protection for citizens, and legal cover is extended for such actions. In certain instances, the worst kinds of excesses are performed on the pretext of national security. As is illustrative of examples from around the world, filtering and surveillance tools in the hands of state authorities only aid state control and repression of citizens. It is not really used for the good of citizens (Annex N).
In Pakistan too, on the face of it, these systems are supposedly acquired to block anti-Islamic and pornographic content but, their many uses involve curbing political dissent or removal of material against influentials. There are several examples that illustrate this (Annex 0).
Allowing such technology to be placed in the hands of state authorities will be equivalent to giving them a carte blanche for setting up roadblocks where they please, restricting access to areas and breaking into citizens’ homes. The right to privacy, dignity, security, speech and information will be severely compromised, doled out at the state’s discretion.
The larger debate on way forward and who decides
Over a period of time, my organization, in collaboration with other civil society groups, technology professionals, academia and three industry associations (Technology companies, Internet Service Providers and Telecom Industry) has looked for answers on the Internet censorship debate in Pakistan. Our objective was to document the chain of events, the breakdown of process as well as challenges witnessed by many stakeholders in this debate.
While our view has always been very clear (Open Access for all is the only effective, efficient and just end state when it comes to the Internet), we wanted to be challenged and pushed, so that our views and belief systems could be tested by a broader, more inclusive mindset. Our hope, at best, was to find a permanent solution to this challenge by consensus.
In the last 60 days we have debated a great deal on how to summarize our findings. Here is a list of questions that we started with and the answers we found after engaging over one hundred and fifty leading thinkers, policy makers, academics, stakeholders and leaders in Karachi, Lahore & Islamabad. A full report is being prepared and will be shared soon.
1. Can information on the internet be censored and restricted? The short answer is no. It can and has been tried around the world but it’s not really effective. By now a large majority of broadband users know how to circumvent filtering, bans and restrictions.
2. Should it be tried, then? It depends on how much money we have to burn. A national level filtering platform falls anywhere between a few million dollars to twenty million dollars in total acquisition cost. The running costs add another 30% a year, every year. The last national level budget allocated for a similar platform put aside 50 million dollars to fund research and development which is a shade under 5 billion rupees. A bit more than our entire national primary education budget and a bit less than our national secondary education budget in the same fiscal year. 5 billion rupees for an effort, a tool, a platform which is proven (demonstrated) to be ineffective and futile or doubling our national education spend? You decide.
3. The rights challenge? For a second if we assume that the powers that be decide to allocate and spend the money, what does that do to the society at large? We effectively cleaver civil society in two groups. A group that is educated and informed enough to sidestep and circumvent restrictions on information access and a group that is not. If you are fortunate enough to belong to the first group all doors to all information are open for you in Pakistan. If you are not, you are limited to viewing the internet in black and white, not in full colour.
4. The competence debate? First do no harm. Would you allow a quack to perform open heart surgery on you? How about a first year resident and a kidney transplant? Impacted wisdom tooth extraction by your friendly neighborhood welder? If these are not reasonable choices then how is it reasonable to allow an entity or individual with no background in content filtration, Internet access or national backbones to restrict access on the national backbone? The Hippocratic oath in principle applies to professions everywhere, it should also apply to Internet policy and the enforcers of central censorship and access denial.
While we must certainly take heed from examples around us, this in no way means we should replicate another country’s example or follow its lead. On the home front, a wider social dialogue on this subject is required before any binding decision is made. So far, whims and fancies of authorities have prevailed. There has been an abuse of power and overstepping of constitutional mandate of state authorities. At this point in time, we are at a crossroads. Our direction as a country and people is undefined. Pakistan is not known in the world for very many good things. We have the chance of setting a better example, even better than some of the larger, supposedly more rights-friendly countries in the world. This can be our chance.
M: NSA/PRISM Leaks
N: Rights violations around the world
O: Blocking in Pakistan