In the five years since the conflict between Ukraine and Russia began, several Ukrainian initiatives have been introduced to reduce the influence of Russian disinformation and cyberwarfare. In the process, however, the Ukrainian government has begun promoting a form of internet governance that resembles Russia’s approach of mass censorship, opaque legal procedures, and intrusive data-processing techniques.
As President Petro Poroshenko faces off against Volodymyr Zelenskiy in Ukraine’s upcoming April 21 presidential runoff election, it is worth tracing how one of Europe’s most open internets has suffered at the hands of mounting internal and external interference.
In 2013, Ukraine was deemed to have a “free” internet by Freedom House. Now, its ranking has dropped to “partially free,” with significant limits on content and substantial violations of user rights. The cause? In part it is the proliferation of new laws, presidential decrees, and draft legislation that have sought to minimise Russian digital interference, often at the expense of freedom of expression and the right to information. As Dominic Bellone, senior program officer at the U.S.-based international development organization, Counterpart International, told me, “In the midst of the ‘hybrid’ war with Russia, Ukraine’s “national security concerns are being prioritized over human rights considerations.”
The tension between maintaining national security while upholding human rights is far from a unique one, and it affects contemporary discussions of internet governance across the world. Further, it is undeniable that Ukraine must take measures to fight foreign-led disinformation campaigns. However, doing so in a way that mirrors the techniques of the Russian state sets a dangerous precedent.
Human Rights vs. National Security
In August 2014, Poroshenko introduced new law called “On Sanctions” in reaction to Russia’s military intervention in Crimea. The law aimed to provide a framework for implementing rapid responses to national security threats. Specifically, it allowed the National Security and Defense Council to introduce sanctions on foreign individuals, companies, and countries if they were deemed to be carrying out terrorist activity. Unsurprisingly, there was initially widespread support for the new legislation, and, for the first three years, it had a minimal impact on the digital sphere.
That changed in 2017, when President Poroshenko introduced decree #133/2017 to counter escalating Russian-based disinformation and propaganda campaigns that were destabilizing the domestic political landscape. The decree led to a ban of the two most popular social media websites in the country, Vkontakte and Odnoklassniki, as well as their Russian-based mail.ru parent company. The decree forced internet service providers (ISPs) to prevent their users from accessing these websites for a minimum of three years.
For some, the legislation appeared to be an appropriate response in the escalating information war. However, it also marked the beginning of a vague approach to internet governance that ended up censoring large swathes of the internet with little transparency.
The following year, Poroshenko introduced decree #126/2018, extending the blocks initiated the year before. Over 200 websites were included this time, the majority of which were Russian and pro-Russian Crimean websites, as well as the administrative websites of the Russian-backed Donetsk People’s Republic and Luhansk People’s Republic in war-torn eastern Ukraine.
Again, the motive behind the mass censorship may have been well-founded and understandable. However, the legality, proportionality, and transparency of the decrees has prompted severe criticism.
Legality, Transparency, and Effectiveness
The two decrees were contested by the civil society group Digital Security Lab Ukraine, a grantee of Counterpart that conducts measurements to assess the impact of these sanctions. The lab argued that the initial “On Sanctions” law did not provide grounds for the National Security and Defense Council to introduce sanctions on private actors, such as ISPs. As Vita Volodovska, senior legal counsel of Digital Security Lab Ukraine, told me: “The blocking of web resources under the law on sanctions does not have sufficient legal grounds,” and there is “no clear criteria on how the decision to impose sanctions are made.”
Following this, FreeNet Ukraine Coalition – a coalition of civil society groups – initiated two strategic litigation cases to provoke public debate and bring transparency to the government’s approach. However, no decision has been made by the court yet meaning that it remains unclear how the government decides which websites to block. This lack of transparency is a dominant theme in both Russian and Ukrainian internet governance models and has been instrumental in paving the way for legislative overreach.
Not only are there significant questions concerning the legality of the decrees, however, there are also concerns about the effectiveness of the bans. With the rise of proxy and virtual private networks, many users have been able to easily bypass the bans. As Counterpart International’s Bellone said, “Over the past year-and-a-half, the ban has had a negligible effect on users, with many people, particularly youth, using VPNs to access popular websites.”
The Russian Model
Despite the decrees’ dubious legality and questionable effectiveness, Ukraine’s parliament appears resolute in pursuing an internet governance model that ignores calls from human rights organizations, and lawmakers cite national security concerns. In fact, since the last presidential decree came into effect in 2018, there have been several draft laws that, according to Volodovska, “took Russian legislation as the role model.”
Among these draft bills, one suggested the introduction of a black list of websites to be blocked, similar to that found in Russia. Another draft bill, which was debated in parliament extensively, would provide the executive branch the authorization to block online content without review by an independent body, and thus entrench the current model.
A central part of all the recent draft laws is demands for ISPs to install specific Deep Packet Inspection features that would provide the security services with the ability to track and monitor individuals’ internet activity. This intrusive data-processing technique is similar to that found in the SORM system in Russia, which is famous for its ability to track users’ internet activity. Like the Kremlin, the Ukrainian government has also been targeting “fake news” as part of its efforts to clamp down on the internet.
In March 2019, Ukrainian Member of Parliament Ihor Lapin registered a draft law that sought to criminalize the spread of disinformation. The aptly titled, “On Amendments to Certain Legislative Acts of Ukraine on Preventing the Distribution of False Information in the Mass Media,” calls for the criminalization of media outlets and websites that are found to be publishing mis/disinformation, regardless of whether this occurs deliberately or unintentionally. The draft legislation emerged at the same time — and closely resembles — Russia’s own “Fake News” bill, which introduces fines for anyone found to be spreading “fake news” online.
Conclusion
In a war with Russian interference and influence, the Ukrainian government has counterintuitively adopted a Russian-style model of internet governance. This has significant repercussions, not only as a precedent setter, but also for Ukraine’s relationship with the EU, a key ally in the war against Russia. As Bellone said, “By continuing to block websites with no public or judicial oversight, the government could be, ironically, heading down a path of exactly the type of internet governance model it must avoid if it wants to join the European Union.”
Of course, Ukraine’s ad-hoc approach to censorship and internet regulation does not entirely reflect Russia’s well-regimented and fiercely implemented censorship model. Nevertheless, the dynamic does prove a useful case study, in reverse, for how a country can combat illiberal disinformation campaigns without diminishing its own democratic credentials.