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?
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 24⁄7 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.accessnow.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.