PEN Declaration on Digital Freedom:: Case Studies
At the PEN International congress in Gyeongju, Korea, PEN members approved the
Declaration on Digital Freedom, a concise statement of PEN’s position on threats to free
expression in the digital age. The following case studies are drawn from our caselist and
real world examples, and are designed to demonstrate how the Declaration can be
implemented in the course of PEN’s work. Each brief case study provides background
information, a discussion of how the Declaration applies to the facts, and a
recommendation for resolving the threat to free expression.
Case Study: Article 1 – Targeting Individuals
Saudi Arabia
On December 24, 2012, writer Turki al-Hamad was arrested in Saudi Arabia for posting
several tweets on Twitter in which he criticized Islamists. Al-Hamad is a political analyst
and a highly respected author and novelist who was jailed in his youth for political
activism before moving to the U.S. for graduate school. He has been previously
denounced by clerics in Saudi Arabia for his novels, which are banned, and he
reportedly received several death threats in 2003. Nonetheless, he continued to live in
the capital city of Riyadh.
In June 2012, editor Raef Badawi was arrested and charged with apostasy for his online
writings after organizing a conference to mark a “day of liberalism.” The conference,
which was to have taken place in Jeddah on May 7, was banned by the authorities. On
December 17, 2012, Badawi appeared before the district court in Jeddah and charged
with “setting up a web site that undermines general security,” “ridiculing Islamic religious
figures,” and “going beyond the realm of obedience.” It is reported that during the
hearing the judge prevented Raef Badawi’s lawyer from representing him in court. Raef
Badawi is a co-founder and editor of the Liberal Saudi Network, a website and online
forum created to foster political and social debate in Saudi Arabia. Both al-Hamad and
Badawi face charges of blasphemy and apostasy, two crimes which may be punished by
the death sentence.
Discussion
Article 1 of the Declaration addresses the targeting of individuals by governments for
their writings on digital media “without fear of reprisal or persecution.” Governments
must not prosecute individuals who express themselves under 1(a) and have a duty
under 1(b) to actively protect those who express themselves in digital media. Both Turki
al-Hamad and Raef Badawi have been arrested for their online writings. Neither writer
advocated violence or hatred. The government of Saudi Arabia accordingly violated the
Declaration.
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Recommendation
The government of Saudi Arabi should release al-Hamad and Raef Badawi and drop all
charges.
Find out more about this case:
http://www.pen.org/rapid-action/2013/01/11/prominent-writer-and-editor-arrested-fearstheir-safety
Iran
Journalist, poet, and activist Asieh Amini campaigned to end the practice of stoning in
Iran and to promote equality for women in pay, child custody, divorce and inheritance. In
one case, she traveled to a rural area of Iran to prevent a stoning but arrived after it
already happened. Instead, she collected the bloody rocks and conducted a DNA test to
link the blood to the victim of the stoning, leading to a judicial investigation. Amini also
directed the website Zanan e Iran (Women of Iran) and was targeted for her online
writings. In March 2007, Amini was arrested with 33 other members of her activist
coalition. She served five days in prison before being released and acquitted for a lack of
evidence. Amini fled Iran shortly afterward and arrived in Norway, becoming an
International Cities of Refuge Network (ICORN) resident in 2012.
Discussion
Article 1 of the Declaration addresses the targeting of individuals by governments for
their writings on digital media “without fear of reprisal or persecution.” Governments
must not prosecute individuals who express themselves under 1(a) and must go further
under 1(b) and actively protect those who express themselves on digital media. Asieh
Amini was arrested in part for her online activities for running the website Zanan e Iran
and was forced to flee the country for fear of persecution.
Recommendation
The government of Iran should cease targeting individuals for their expression through
digital media, including websites advocating for women’s rights. Asieh Amini should be
permitted to return to Iran and fully exercise her right to freedom of expression and enjoy
full protection from the government.
Find out more about this case:
http://www.icorn.org/articles.php?var=338
Case Study: Article 2 - Censorship
China
In February 2012, the government of China cracked down on freedom of expression in
Tibet by cutting Internet and mobile phone service in a more than 30 mile area around
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Kardze Autonomous Prefecture in Sichuan Province, where citizens had clashed with
police and at least two Tibetans were killed. The crackdown was a result of a string of
self-immolations by Buddhist monks and nuns, as well as laypeople, who set themselves
alight in protest against conditions in their monasteries and a lack of freedom in Tibet in
general, and there were reports that eastern Tibet was under de facto martial law. A
week earlier, a crew from CNN was detained by authorities while trying to report on the
situation and was then thrown out of the region, and several other foreign journalists
were prevented from entering the prefecture. PEN also received reports that Tibetan
language print and copy shops were shuttered, and that Tibetan language blogs and
web sites were shut down.
Discussion
Article 2 of the Declaration discusses censorship, providing that “All persons have the
right to seek and receive information through digital media.” 2(a) and 2(c) state that
governments should not censor or restrict digital media, and that governments should
not block or restrict access—even during periods of unrest. In China, the government
restricted mobile phone service in a 30 mile area. Also, the government reportedly shut
down Tibetan language and print shops. These actions would all violate Article 2. China
may argue that this action falls under the exception provided under Article 2(b), which
provides that a government can limit the content of digital media in the case of
incitement to violence; however, there is no evidence that anyone advocated for violence
in this situation and the blocking of the internet in a 30 mile area would not have been
proportionate to the offense. In addition, the government reprisal against CNN, which
had its crew detained, would violate Article 1 of the Declaration.
Recommendation
The government of China should stop censoring all media in the region, lift all
restrictions on digital media, and allow foreign and domestic reporters full and unfettered
access to the region and people.
Find out more about this case:
http://www.pen.org/press-release/2012/02/03/pen-abhors-free-expression-violations-tibet
Case Study: Article 3 - Surveillance
United States
In 2008, Congress amended the Foreign Intelligence Surveillance Act (FISA), which was
enacted in 1978 after revelations that the government had been spying on innocent
Americans, including leading writers and cultural figures. The FISA Amendments Act of
2008 significantly weakened the protections in the original act.
In Amnesty v Clapper, which was filed on behalf of a broad coalition of human rights,
labor, legal, and media organizations, PEN asserted at the Supreme Court that its
routine communications with writers and human rights activists overseas are vulnerable
to monitoring under the program, and called the law “an unnecessary abandonment of
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constitutional protections prohibiting ‘general warrants’ and unreasonable searches.”
PEN also insisted that the kind of dragnet surveillance the law allows not only threatens
the ability of American writers, journalists, and human rights advocates to carry out their
international work, but also undermines the right of all American citizens to engage in
private telephone and Internet conversations without fearing that the government is
listening.
Discussion
Surveillance, data mining, and government monitoring are covered by Article 3 of the
Declaration, which states that “All persons have the right to be free from government
surveillance of digital media.” The FISA Amendments Act permits the U.S. government
to spy upon civilians and does not provide for fair and transparent due process that
would meet international standards. Article 3(a) of the Declaration also specifically states
that it does not matter whether the person being watched knows or not; surveillance still
stifles free expression. Therefore, the FISA Amendments Act specifically violates Article
3(a), (b), and (c).
Recommendation
The government of the United States should rescind the FISA Amendments Act. The
U.S. Supreme Court should uphold the Constitution by ruling the Act unconstitutional.
Find out more about this case:
http://www.pen.org/press-release/2012/05/21/pen-heading-supreme-court-warrantlesssurveillance-case
Case Study: Article 4 – Business and Human Rights
Tajikistan
In 2012, the Swedish-Finnish telecom TeliaSonera, operating one of its subsidiaries,
Tcell, blocked access to websites after receiving an order from the government of
Tajikistan in the wake of violence in the Gorno-Badakshan province. Throughout the
country, YouTube, Russian news agency RIA Novosti, and the independent Asia-Plus
news agency, among others, were blocked for three weeks after the violence.
Discussion
Article 4 states that businesses must be held to the same free expression standards as
governments. Businesses cannot target individuals, censor individuals, or monitor
individuals. TeliaSonera censored information by shutting down access to websites,
violating Article 2, which states that “All persons have the right to seek and receive
information through digital media.” Notably, TeliaSonera would have a responsibility to
provide a remedy to those whose rights were violated as a result of its actions under
Article 4(e), which provides that “If their operations are found to have violated the right to
freedom of expression, technology companies should provide restitution to those whose
rights were violated, even when governments do not provide remedies.”
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Recommendation
TeliaSonera should not censor or block access to its mobile networks and should
provide restitution to victims of its censorship during the period under discussion.
Find out more about this case:
http://www.globalnetworkinitiative.org/news/ensure-free-flow-information-tajikistan
Syria
The Arab Spring revealed that many companies around the world had been supplying
technology to allow repressive regimes to monitor, track, and censor its citizens. A 2011
investigation by Bloomberg News reported that the Italian company Area SpA had been
providing technology to the regime in Syria that would allow it to monitor online
communications. Area SpA decided to leave Syria in the wake of protests after 3,000
Syrians had already died in the conflict.
Discussion
As mentioned above, Article 4 of the Declaration states that businesses must be held to
the same free expression standards as governments, meaning that Articles 1-3 also
apply. Article 4(c) goes one step further and requires companies to perform due
diligence “to determine how their products, services, and policies impact human rights in
the countries in which they intend to operate.” If the products or services will negatively
impact human rights, they should not conduct business there. Area SpA did not appear
to have conducted due diligence to learn how the Syrian regime would utilize its projects
and, if so, it only removed its products after international pressure. Area SpA accordingly
violated Article 4(c). Under Article 4(e), the Declaration also requires Area SpA to
provide restitution for those who suffered from their technology.
Recommendation
Area SpA should stop the sale of technologies to Syria and request the removal of its
technologies. Area SpA should release all information about its business deals with the
government of Syria, and provide restitution to victims who suffered as a direct result of
its technology.
Find out more about this case:
https://www.eff.org/deeplinks/2012/02/spy-tech-companies-their-authoritariancustomers-part-ii-trovicor-and-area-spa
To learn more about the Declaration on Digital Freedom, visit
http://pen-international.org/pen-declaration-on-digital-freedom/
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