Turkey Enlists Intermediaries to Censor and Surveil Internet Users

Despite fierce opposition from civil society and industry, the Turkish parliament recently amended Law no. 5651, entitled “Regulation of Publications on the Internet and Suppression of Crimes Committed by means of Such Publications”. The amendment was included in two omnibus bills (available here and here) submitted to the Parliament and has been called a controversial, restrictive law to control web users that pushes Internet censorship forward. People within and outside Turkey criticized the law for enlisting intermediaries as censors for the government. The new Turkish regulation seems run against ECHR decisions, as well as EU and international human rights principles.

Law No. 5651 was Turkey’s first Internet-specific regulation. Before then, courts used the Turkish Criminal Code, Civil Code and Code of Intellectual and Artistic Works as the legal basis to issue blocking orders related to political and computer crimes, violation of privacy and reputation and intellectual property infringement.

Parliament approved Law No. 5651 in a rush just before the 2007 general elections. The provision set up the Presidency of Telecommunications and Communication (TIB), an administrative body that has the power to issue blocking orders. Law No. 5651 never received public support before or after its enactment. To the contrary, citizens criticized it for censoring thousands of websites, including a two-year ban on YouTube. The European Court of Human Rights has ruled against the law for its inconsistency with freedom of expression twice, in 2012 and 2011. Yaman Akdeniz and Kerem Altiparmak, Turkish legal scholars and human rights activists, wrote a book tracing the legal history of Law 5651 in a “Critical Assessment of Internet Content Regulation and Censorship in Turkey”.

The newly approved amendments will now make Law No. 5651 worse for Internet users by tightening control on intermediaries, increasing surveillance, and expanding website blocking and Internet filtering. First, the amendments will establish a state-controlled “association” for access providers within 3 months of their enactment. Intermediaries will be punished if they do not act expeditiously enough to establish the association within the 3-month deadline. All ISPs must participate into the association in order to be allowed to provide Internet services within Turkey. Additionally, all costs connected to the establishment of the association must be covered by the intermediaries.

Second, the amendments require hosting providers to store data about users' online activity for two years. Government officials from TIB will have access to these records without seeking prior court's permission. In other words, the government can track people’s Internet access, but the cost of this surveillance will be passed on to Internet users through their network providers.

Third, TIB will have greater content blocking powers. TIB can force service providers to block access to content that violates a person's "private life," upon a claim of a natural or legal person. The “violation of private life” is a newly introduced criminal category, which has no clear definition. The Internet intermediary must comply with blocking orders within 4 hours. The law does not provide for any prior judicial review of the determination that the content at issue breaches the “private life” of the claimant.

The recent amendments to Turkish Internet regulations are an additional leap in this government’s ability to censor and control Internet activities. The law accomplishes this by placing enhanced monitoring, filtering and surveillance powers in governmental, rather than judicial, bodies. Italy recently embraced a very similar arrangement a few weeks ago, as we have reported here. Meanwhile, the laws expand intermediaries’ liabilities with the precise goal of enlisting them as Internet watchdogs under governmental control. The dream of the Internet as a venue for free and unrestrained democratic discourse seems to be increasingly fading away. 

The author wishes to thank Avniye Tansug for the background information included in this blog post. Ms. Tansug is a Turkish Internet activist and blogger and she can be reached at avniye at tansug dot com. 

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