Felicia Anthonio: The Internet has been off all over the coun­try for almost a week now. You nev­er real­ized how many aspects of your dai­ly life relied on that con­nec­tion. You won­der how many times dur­ing the day your moth­er has tried to mes­sage you to make sure that you are safe. But he mes­sages nev­er come through. And with­out social media updates, there is no way to know where the mil­i­tary crack­down is inten­si­fy­ing and which streets to take to avoid run­ning into danger. 

Your gov­ern­ment claims that what it’s doing is legal. That they are fol­low­ing the let­ter of the law. Could you per­haps make an argu­ment against this claim? Could you prove that the Internet shut­down is in fact ille­gal, uncon­sti­tu­tion­al, and fun­da­men­tal­ly unde­mo­c­ra­t­ic? If you could make that case, would they real­ly let you win? 

Welcome to Kill Switch, a pod­cast series brought to you by Access Now, the KeepItOn coali­tion, co-sponsored by Internews, and pro­duced by Volume. I am your host Felicia Anthonio. 

In this six-part series, we want to high­light the trou­bling rise of a new form of anti­de­mo­c­ra­t­ic oppres­sion spread­ing across the world: government-created Internet shut­downs. We will be hear­ing from jour­nal­ists, activists, and experts who have been fight­ing to keep the Internet on, all the way from the high court of Sudan to the rur­al regions of Pakistan. 

Today, we take a look at what hap­pens when you decide to take your gov­ern­ment, or even your tele­com ser­vice provider to court, in a des­per­ate effort to get an Internet shut­down stopped. 

In December of 2018, the cit­i­zens of Sudan took to the streets in a series of protests over the ris­ing price of food. It end­ed with a mil­i­tary coup d’é­tat and a mas­sive loss of life in the cap­i­tal city of Khartoum.

We talked to Shahad Azim, whose father Abdelazim Hassan lives in Khartoum. 

Shahad Azim: Yeah, I was in South Africa at the time, my dad was in Sudan, and many of my friends were in Sudan.

Anthonio: Shahad recounts the pro­gres­sive shut­down of the Internet in 2018, start­ing with a social media blackout. 

Azim: The social media block start­ed in December 2018, when the rev­o­lu­tion start­ed. The rev­o­lu­tion first start­ed in Atbara, the city of Atbara in one of the north­ern cities of Sudan, and then spread around the cities of Sudan. There was not any kind of warn­ing, but the fact that peo­ple were orga­niz­ing, send­ing pub­lish­es about the rev­o­lu­tion or We are plan­ning to go out on and protest tomor­row at half-past one, get ready,” that means expect a social media shut­down or a total shut­down of the Internet. 

Anthonio: The author­i­tar­i­an gov­ern­ment of Omar al-Bashir, who had been in pow­er for thir­ty years, was wary of such a social media protest, the same type of protest that unseat­ed Gaddafi in Libya and Mubarak in Egypt dur­ing the Arab Spring.

Azim: If I’m speak­ing about the peri­od from December 2018 to the 26th of February 2019, that was a social media inter­rup­tion, which you are still allowed to use the Internet if you had your VPN on. But from the third of June, which is the mas­sacre of 2019, peo­ple were unable to use Internet at all. It was a total shut­down. There was not any type of access to Internet, and it con­tin­ued for a peri­od of thirty-seven days. 

Anthonio: During the social media black­out, Omar al-Bashir’s gen­er­als saw an open­ing for a pow­er grab and unseat­ed al-Bashir in a mil­i­tary coup d’é­tat. The de fac­to leader became Hamdan Daglo, also known as Hemetti. 

Azim: It was a mass protest on the 6th of April, al-Bashir was oust­ed on the 11th of April, and the sit-in con­tin­ued. So it start­ed as a mass protest, con­tin­ued as a sit-in, and this sit-in con­tin­ued for a peri­od of three months til the 3rd of June, when on the 3rd of June, the morn­ing of 3rd of June which was the last day of Ramadan, the peo­ple walked up under the sounds of guns and the mili­tias, and on that day we lost hundreds—actually 700 are injured and hun­dreds who are lost, accord­ing to Amnesty International. 

Anthonio: The events shocked the world, and the new mil­i­tary gov­ern­men­t’s imme­di­ate reac­tion was to flip the kill switch. 

Azim: On the 3rd of June, exact­ly at 11:00 AM, there was a total shut­down of the Internet. And the reac­tion of the peo­ple was…conflicted, because many of the peo­ple had loss­es like their either neigh­bor or someone—everyone was involved in the sit-in. I woke up with a phone call from a friend and she said they are attack­ing peo­ple at the sit-down. And I woke up around four o’clock and I was watch­ing a live video and then the live video was inter­rupt­ed. It was a Facebook Live video. And then I was­n’t able to get any type of cor­re­spon­dences from Sudan or know about any­one. My dad was there at the time. And I was­n’t able to know if they were fine or what’s happening.

Anthonio: Fortunately, Shahad’s father was safe.

Azim: So, it was a big shock to us not being able to even send SMS because the Internet block reached the extent that peo­ple out­side Sudan were unable to send SMSes to Sudan. We were all wor­ried. Well, til Mr. Rescuer came in ten days lat­er. On the 13th of June my dad insti­tut­ed his per­son­al action against Zain, which is one of the three giant tel­co providers in Sudan. 

Anthonio: Sahad’s father Abdelazim Hassan is a renowned lawyer in Sudan. 

Azim: Well, my father is a Sudanese lawyer, activist, human rights fight­er. And he has prac­tices around Sudan, Bahrain, and Dubai. My dad insti­tut­ed his action against Zain because Zain is his per­son­al provider. The tech­ni­cal­i­ty of the case is he insti­tut­ed an action on a con­trac­tu­al basis, on the fact that I’ve entered into a ser­vice con­tract with Zain where they have an oblig­a­tion to pro­vide me with Internet con­nec­tion and pro­vide me with their full ser­vices in return for the pay­ment of month­ly fees. And he claimed in his pleadings—in one of his plead­ings he men­tioned that I am a lawyer and I have a list of clients that I have to be in con­tact with. I am a pub­lish­er and a jour­nal­ist. I need to con­tin­ue my dai­ly cor­re­spon­dences. And he men­tioned the fact that Zain arbi­trar­i­ly vio­lat­ed his rights and vio­lat­ed their con­trac­tu­al oblig­a­tions by not ful­fill­ing their action. And he sim­ply asked the court for a spe­cif­ic per­for­mance in terms of the con­tract, and reserved his right to com­pen­sa­tion in terms of the days that he was uncon­nect­ed to the Internet.

Anthonio: On July 10th, more than a month after the shut­down, Internet access was restored through­out Sudan once again. A cat­a­lyst for this was the court order to the tele­com com­pa­nies, a result of Hassan’s dar­ing legal action.

Azim: As soon as my dad showed that his case is going to be grant­ed in his favor… Before the 23rd, he start­ed his class action. He spread the word to one of the news out­lets and he told them that he’s get­ting his Internet con­nec­tion back. He con­tact­ed some of his friends and rel­a­tives, say­ing I’m plan­ning on insti­tut­ing a class action against Zain and the oth­er com­pa­nies. And who­ev­er wants to join, we’ll be send­ing a list. Provide your cell phone num­ber and your full names and we are pro­ceed­ing with a class action. 

And he did. He did pro­ceed with the class action, and it did­n’t take long, til the 9th of July as I men­tioned. And he got a deci­sion again Zain to uplift the Internet shut­down. And against MTN and Sudani—or Sudatel—on the 3rd of September. 

Yeah, when he got the Internet back, he called us. He was like, Did you notice that I called you using WhatsApp, not using the usu­al, nor­mal phone call? And I was like no I did­n’t notice, then I looked at the phone and then I was like yes, he got the Internet back. And then he sent us a pic­ture of him stand­ing in front of the court. 

Anthonio: What Hassan’s sto­ry high­lights is that we often only point fin­gers at dic­ta­tors, author­i­tar­i­an or mil­i­tary gov­ern­ment, as the aggres­sors of Internet shut­downs. But what about the inter­na­tion­al and pri­vate com­pa­nies that are often com­plic­it in these kinds of oppres­sive actions? 

Azim: We can always say that a prece­dent was set. Yes, we can say that. There will always be the aware­ness that came with them with the case, with the case of Abdelazim Hassan ver­sus Zain, and who’d always give the peo­ple a hope of claim­ing their rights. 

Anthonio: Access Now has been track­ing legal actions that chal­lenge shut­downs since 2015. These include peti­tions, law­suits, appeals, and oth­er court actions against tele­com com­pa­nies and gov­ern­ments. In our most recent efforts, we record­ed sev­en­teen cas­es in ten coun­tries, span­ning all the way from Russia, to India, to Cameroon. 

Natalia Krapiva: My name is Natalia Krapiva, and I’m tech legal coun­sel at Access Now. I’m cur­rent­ly based in Berlin, Germany.

Anthonio: Natalia works with Access Now’s Digital Security Helpline.

Krapiva: Which is basi­cal­ly a helpline that pro­vides 247 dig­i­tal secu­ri­ty assis­tance to civ­il soci­ety. And I also work on our legal arm, which is lead­ing our strate­gic lit­i­ga­tion work. And what I mean by that is that we don’t bring legal actions our­selves in court, typ­i­cal­ly, but we do sup­port and often inter­vene in legal actions brought by oth­ers. So we do that as either friends of the court, or experts, or in some oth­er capacity. 

Anthonio: The work Natalia does focus­es on using the legal sys­tem to chal­lenge Internet shut­downs. This is because gov­ern­ments often use the legal sys­tem as a way to legit­imize these shut­downs, both with­in their own coun­tries and to the inter­na­tion­al community.

Krapiva: Article 19 of the International Covenant on Civil and Political Rights, and the General Comment 34, they say that no restric­tions on free­dom of speech should be imposed, includ­ing Internet shut­downs, unless they’re based in law, they’re nec­es­sary and pro­por­tion­ate to the goal that the restric­tions are meant to achieve. And so in oth­er words, before decid­ing to shut down the Internet, in order to stop fake news or dis­cour­age school exam cheat­ing, the gov­ern­ment offi­cials are sup­posed to ask them­selves Are my actions based in writ­ten law? Are they tru­ly nec­es­sary? And if so, would there be a less harm­ful step that could be more effec­tive to achieve what­ev­er it is that I’m try­ing to achieve?”

But in real­i­ty gov­ern­ments [indis­tinct] imme­di­ate­ly we rush to the so-called kill switch” to just imme­di­ate­ly shut down the Internet with­out doing any of that legally-required analy­sis. And so when chal­lenged in court, they just tend to think that throw­ing in sort of these gener­ic words like nation­al secu­ri­ty” or pub­lic safe­ty” will sort of pro­vide them a blan­ket jus­ti­fi­ca­tion for their actions. But as we have seen, the courts again and again are start­ing to tell these gov­ern­ments not so fast, and hold­ing them account­able and strik­ing down these actions and laws as unlawful. 

Anthonio: Because the legal jus­ti­fi­ca­tions gov­ern­ments often give for these shut­downs are so weak, with some inter­na­tion­al coor­di­na­tion between the KeepItOn coali­tion mem­bers, orga­ni­za­tions have seen a lot of suc­cess when chal­leng­ing shut­downs in courts.

Krapiva: Since the time that we start­ed mon­i­tor­ing legal actions chal­leng­ing shut­downs since 2015, we have seen a num­ber of court vic­to­ries. So in 2016 we saw a vic­to­ry in Pakistan, where Islamabad High Court ruled shut­downs as uncon­sti­tu­tion­al. Then in 2018, we had a cou­ple of cas­es in India. They were both relat­ed to edu­ca­tion. There was a shut­down dur­ing school exams and anoth­er one in a girls’ hos­tel, and both courts ruled that the shut­downs were in fact unlawful. 

Then in 2019 we also had a cou­ple of vic­to­ries in dif­fer­ent regions in Zimbabwe and Sudan. And then this year we had two vic­to­ries as well. And Access Now has inter­vened in both of these case as friends of the court. 

So in June we saw an Indonesian court that ruled that Internet shut­downs in Papua and West Papua regions there were ille­gal and basi­cal­ly not based in law. And sim­i­lar­ly in July, the ECOWAS Court, or the Economic Community of West African States Court, it also ruled that shut­downs in that case dur­ing anti-government protests in Togo were also unlawful. 

Anthonio: But despite suc­cess­ful legal action to rein­state Internet con­nec­tion, some­times the let­ter of the law does­n’t hold up to the pow­er of a will­ful government.

Krapiva: Bringing cas­es is chal­leng­ing in coun­tries I think where the judi­cia­ry sys­tems are not suf­fi­cient­ly inde­pen­dent, or sort of tend to defer and not chal­lenge the deci­sions issued by the exec­u­tive pow­er. And so for exam­ple in Russia last year—Russia which is noto­ri­ous for its judi­cial sys­tem being quite def­er­en­tial to the exec­u­tive pow­er, espe­cial­ly in cas­es deal­ing with nation­al secu­ri­ty. So in that case the Ingushetia court declined to accept shut­downs of mobile Internet dur­ing protests as unlawful.

Similarly in Kashmir, we also kind of see this ongo­ing bat­tle, with some small vic­to­ries and some loss­es. And the courts there seem to be also sort of defer­ring to the gov­ern­ment inter­est with­out suf­fi­cient scrutiny.

Anthonio: But a suc­cess in one coun­try often helps set an inter­na­tion­al legal prece­dent. With each vic­to­ry, it becomes more and more dif­fi­cult to legal­ly jus­ti­fy Internet shutdowns. 

Krapiva: One of the cas­es that par­tic­u­lar­ly stands out for me is the Togo deci­sion by the ECOWAS court. And so in that case, the Internet shut­downs were imple­ment­ed dur­ing protests, anti-government demon­stra­tions, in September 2017. And there was exces­sive use of force by the gov­ern­ment, there were a num­ber of peo­ple injured and killed, unfor­tu­nate­ly. And so the gov­ern­ment also imple­ment­ed shut­downs as this was hap­pen­ing. A num­ber of non­prof­it orga­ni­za­tions led by Amnesty International Togo and Media Defense, they filed a law­suit with ECOWAS Court chal­leng­ing the shut­down. Access Now also par­tic­i­pat­ed. We led a coali­tion of eight orga­ni­za­tions to also sub­mit a brief and explain to the court the inter­na­tion­al legal stan­dards applic­a­ble to this case. 

And yeah, so the court ruled that the nation­al secu­ri­ty jus­ti­fi­ca­tions for the shut­downs that the gov­ern­ment of Togo gave were just inad­e­quate, that the shut­down was not based in law, and that Togo should in fact take steps in the future to ensure that the right to Internet access and the free­dom of expres­sion are pro­tect­ed. And the deci­sion also sort of reaf­firms the inter­na­tion­al stan­dards relat­ed to shut­down, is that the Internet is a right and it’s an enabler of oth­er human rights, and it deserves pro­tec­tion under the law.

Anthonio: When we win a shut­down case in one cor­ner of the world, lawyers and judges can look to that as an exam­ple of how to pro­ceed legal­ly in a case spe­cif­ic to their country.

Krapiva: The Togo deci­sion by the ECOWAS court is sig­nif­i­cant both because it was the most recent case that we’ve had, and also because it becomes a prece­dent not only for the gov­ern­ment of Togo but also for the oth­er forty mem­bers of the Economic Community of West African States. 

Anthonio: We should also remem­ber that the law can be wield­ed against dig­i­tal rights. In Indonesia, leg­is­la­tion used to crack down on online defama­tion, pornog­ra­phy, and cyber crimes by President Joko Widodo’s gov­ern­ment has giv­en a lot of pow­er to the gov­ern­ment to pros­e­cute jour­nal­ists and crit­ics as well. 

Damar Juniarto: My name is num­ber Damar Juniarto. I am the exec­u­tive direc­tor of Southeast Asia Freeedom of Expression Network. Right now I’m based in Jakarta. Our office is based in Bali. A lot of mem­bers of SAFEnet are based in more than twen­ty cities in the Indonesian region.

Anthonio: The Southeast Asia Freeedom of Expression Network, known as SAFEnet, is a dig­i­tal rights orga­ni­za­tion that start­ed in 2013. They oper­ate through­out Southeast Asia, focus­ing espe­cial­ly on Internet laws and how they impact the dig­i­tal rights of peo­ple in the region. 

Juniarto: Indonesia already have Internet laws since 2008, and we have a prob­lem­at­ic Internet law since the Internet laws are curb­ing the free­dom of expres­sion and also free­dom from fear. In the first year when we began in 2013, we already saw the trend that Internet laws are being mis­used by pub­lic offi­cials. They used to send jour­nal­ists, activists, and also peo­ple who crit­i­cize the gov­ern­ment to jail. 

Anthonio: This is the result of what Damar calls rub­ber arti­cles” in the law, vague­ly writ­ten laws that can be inter­pret­ed by the gov­ern­ment in any way that it sees fit at a giv­en moment in time. Laws like these become pow­er­ful tools for the gov­ern­ment to jus­ti­fy per­se­cut­ing any­one who dis­agrees with them.

Juniarto: Seven years after 2013, the num­ber of the peo­ple being sent to jail because they’re express­ing them­selves through the medi­um of Internet is grow­ing very high.

Anthonio: According to Damar and SAFEnet, there are now more than 7,000 peo­ple being inves­ti­gat­ed by the police sim­ply for state­ments they’ve made online. Damar has been fight­ing for dig­i­tal rights in Indonesia for over sev­en years as direc­tor of SAFEnet. It’s been an ongo­ing bat­tle to get the laws revised to ensure that they become more just and fair.

Juniarto: Whenever the judi­cial appeal is not enough we have to do some oth­er things like chal­leng­ing the law to the admin­is­tra­tive court. That’s what we were fac­ing in 2019 when­ev­er we had Internet shutdowns. 

Anthonio: That year, there were three Internet shut­downs in Indonesia as the gov­ern­ment start­ed uti­liz­ing the kill switch. The first case was in May 2019. This was after the gen­er­al elec­tions, when protests erupt­ed after there were accu­sa­tions of vote rigging. 

Juniarto: At that time they were doing band­width throt­tling, so we could­n’t send pic­tures and also videos through instant mes­sag­ing and also social media. 

And then the sec­ond Internet shut­down that hap­pened in 2019 was in Papua and West Papua. It was two times, and the rea­son why the gov­ern­ment want­ed to shut down the Internet there is because there was a big peace­ful demon­stra­tion protest­ing the the racial dis­crim­i­na­tion of the Papuan peo­ple in Surabaya and Malawi. The big demon­stra­tion is han­dled with secu­ri­ty approach­es, deploy­ing many sol­diers to West Papua. And also they are turn­ing off the Internet.

Anthonio: Despite see­ing how the gov­ern­ment can bend the law to its will, in 2020 SAFEnet and the Alliance of Independent Journalists took the Indonesian gov­ern­ment to court over the 2019 Internet shutdowns. 

Juniarto: The legal basis that the gov­ern­ment used is Article 40.A and .B inside the Internet law. So, once again we’re fac­ing the Internet law. We tried to chal­lenge the gov­ern­ment recent­ly that they have the abil­i­ty to turn off the Internet when­ev­er they want, because they said that they have the full access to do that.

Anthonio: SAFEnet and the Alliance of Independent Journalists argued that the Internet shut­down was flawed in author­i­ty, sub­stance, and procedure.

Juniarto: What hap­pened from November till June 2020 is we’d go to the admin­is­tra­tive court and the jury from the admin­is­tra­tive court agreed with us. So we’d go to the admin­is­tra­tive court and then we are ask­ing it to say that this gov­ern­ment, they are abus­ing Article 40 inside the Internet Law. And the judges agreed and then sen­tenced the defen­dant one and defen­dant two. Defendant one is the Ministry of Information and Communication, and then defen­dant two, the President of Indonesia, is guilty because of pilot­ing their own laws.

Anthonio: The work that SAFEnet and sim­i­lar orga­ni­za­tions do is impor­tant not just from a legal point of view. It is also about advo­ca­cy, empow­er­ment, and edu­cat­ing the public. 

Juniarto: This is the one thing that we try to com­mu­ni­cate to the pub­lic. If we are only protest­ing with­out chal­leng­ing the law, say­ing that this law is not based on good gov­er­nance and also pilot­ing human rights, peo­ple will not under­stand. We need a case and also explain­ing this, giv­ing the pub­lic under­stand­ing that they have the right of the Internet, they have the right to access their infor­ma­tion. Especially they have the right also to chal­lenge when­ev­er the Internet laws are being abused to take out their dig­i­tal rights. 

Anthonio: We often think of law­suits as a civ­il, respect­ed, and safe recourse to action. Images of judges in full court dress, black robe, col­lar, and white wig come to mind. But bring­ing a law­suit against a gov­ern­ment that is already blur­ring the lines between demo­c­ra­t­ic rule and author­i­tar­i­an­ism can be dan­ger­ous. Here is Natalia from Access Now again.

Krapiva: So unfor­tu­nate­ly, we do know of cas­es, a lot of times in sort of [] coun­tries that are quite dif­fi­cult in terms of polit­i­cal and social free­doms. So we know of cas­es where plain­tiffs or their lawyers have faced intim­i­da­tion and ret­ri­bu­tion for chal­leng­ing the gov­ern­ment in court. So we’ve seen plain­tiffs or lawyers being sub­ject to legal or phys­i­cal intim­i­da­tion and cyber attacks.

Anthonio: In some sit­u­a­tions, chal­leng­ing a gov­ern­men­t’s shut­down order opens new risk for the per­son­al safe­ty of the lawyer or activist. 

Krapiva: Judge Emmanuel from Cameroon I think is the one exam­ple, where he cham­pi­oned mul­ti­ple cas­es in Cameroon at the Supreme Court and con­sti­tu­tion­al coun­cil chal­leng­ing the two Internet shut­downs in Anglophone regions of Cameroon. 

Anthonio: These shut­downs last­ed over 200 days.

Krapiva: And some cas­es were dis­missed kind of ear­ly on, and some are still ongo­ing. And he did man­age to bring some good results, and also he made one of the tel­co com­pa­nies basi­cal­ly reveal an affi­davit to the court that the gov­ern­ment was the one in fact that ordered the shut­down. But he did face retal­i­a­tion for his legal actions, and he was sum­moned for exam­ple by the gov­ern­ment and was sub­ject to ques­tion­ing and inter­ro­ga­tions about the true motives behind his legal actions. The gov­ern­ment sort of ques­tioned what was his pur­pose and who’s behind him and who’s fund­ing him. So it was quite a, from what I under­stand, scary expe­ri­ence. So I think it’s a good example…well an unfor­tu­nate exam­ple of how chal­leng­ing it can be some­times to bring these case oppos­ing shut­downs and stand­ing up to the gov­ern­ment in court. 

Anthonio: It is impor­tant to remem­ber that Internet shut­downs are always just one part of a sto­ry. As we see in Myanmar, the ero­sion of dig­i­tal rights can lead to the ero­sion of oth­er human rights. In Sudan, it was about hold­ing pri­vate com­pa­nies who col­lab­o­rate with a repres­sive regime account­able for their actions. When we strength­en our dig­i­tal rights and fight for them through judi­cial sys­tems, we set prece­dents for pro­tect­ing oth­er rights, both in our own coun­tries and across the world. 

Join us in the next episode of Kill Switch, in which we’ll hear about how Internet shut­downs impact the every­day lives of peo­ple around the world. 

For more infor­ma­tion about how to sup­port the KeepItOn coali­tion and our work, vis­it our web site, www​.access​now​.org. This pod­cast was pro­duced by Access Now and Volume, with fund­ing sup­port from Internews. Our music is by Oman Morí. Subscribe wher­ev­er you get your pod­casts, and share as wide­ly as pos­si­ble to help the fight against Internet shut­downs. I am your host Felicia Anthonio, and you have been lis­ten­ing to Kill Switch. Goodbye, and remem­ber to Keep It On.

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