As the total communication blackout in Jammu and Kashmir neared the end of its first week last month, Anuradha Bhasin, the executive editor of The Kashmir Times, looked to the law in an attempt to restore connectivity. In a petition to India’s Supreme Court, she wrote that the shutdown was “fueling anxiety, panic, alarm, insecurity and fear among the residents of Kashmir,” and that it stifled freedom of the press and, with it, citizens’ right to information.
As government-imposed communications blackouts like this become more frequent, so have the legal challenges against them. In the first six months of 2019 alone, the international digital rights advocacy organization, Access Now, registered five new cases challenging the practice. From Sudan to Pakistan, individuals and civil society organizations have sought to contest such practices and prove that they contradict national, regional or international human rights law and standards.
The increase in strategic litigation in this area of information and communication technology (ICT) has prompted the Uganda-based Collaboration on International ICT Policy for East and Southern Africa (CIPESA), to describe such cases as “a new front line in digital rights.” However, the results have been mixed for a range of reasons.
Internet Shutdowns and International Human Rights Law
Despite the well-documented consequences of internet shutdowns on a country’s economy, health care and freedom of expression, governments are employing these tactics with increasing frequency around the world. In 2016, Access Now registered 75 shutdowns. Last year, that figure rose to 196.
The suspension of the internet and landlines that Bhasin was challenging began the day before the Indian government’s Aug. 5 revocation of Article 370, a constitutional provision that granted the state of Jammu and Kashmir significant autonomy from the central government. The shutdown has had widespread impact, including leaving pharmacies low on supplies, businesses unable to trade and families disconnected. Furthermore, “the communication blockade, restrictions and atmosphere of intimidation are making it virtually impossible for newspapers and journalists to function,” Bhasin told me.
In a less-than-clear Sept. 16 hearing and order, the Indian Supreme Court listed the petition for discussion on Sept. 30 and called, in the meantime, for the Jammu and Kashmir administration to “ensure that normal life is restored in Kashmir.” That includes, the court ruled, restoring “all forms of communication, subject to overriding consideration of national security.”
Landline connections were fully restored across the state by Sept. 13 and mobile networks have been intermittently re-connected. However, at the time of writing, the internet blackout continues to affect the region.
Central to many of the cases filed against governments is the argument that internet shutdowns contradict the basic human rights of freedom of expression and the right to information.
Freedom of expression is protected under Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which was adopted by the United Nations in 1966. It has some 172 state parties, including India, with only 18 countries having taken no action on it.
The article maintains that “everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive or impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through
any other media of his choice.” It is, however, conditional and may be restricted “for the respect of the rights and reputations of others,” as well as “the protection of national security or of public order.”
In recent years, several directives have been published that make explicit the relationship between freedom of expression and the need to maintain a free and open internet.
In 2018, a resolution adopted by the U.N. Human Rights Council (HRC) affirmed that “the same human rights that people have offline must be protected online,” in a resolution that acquired over 60 co-sponsors.
On the issue of whether an internet shutdown may be a proportionate action taken by a government in the legitimate service of protecting “national security” or “public order,” Barbora Bukovska, the Senior Director for Law and Policy at the international freedom of expression organization ARTICLE 19, said internet shutdowns “are always a disproportionate restriction on the right to freedom of expression, and have serious repercussions for the protection of other human rights.”
Echoing this, four U.N. special rapporteurs condemned the restrictions in Jammu and Kashmir, stating, “The shutdown of the internet and telecommunication networks, without justification from the Government, are inconsistent with the fundamental norms of necessity and proportionality.”
Despite the relative consensus on the issue on the international stage, however, governments continue to claim that such measures are indeed necessary and proportionate, regularly citing public safety and national security concerns as justifications.
As India’s foreign minister, Subrahmanyam Jaishankar, recently claimed: “How do I cut off communications between the terrorists and their masters on the one hand, but keep the internet open for other people? I would be delighted to know.”
The Success and Limits of Challenging Internet Shutdowns
As internet shutdowns often occur in autocratic states with little judicial independence, it is hardly surprising that many of the cases brought against them have been unsuccessful. However, there have been some notable exceptions.
In a landmark case earlier this year, the Zimbabwe High Court ruled that the government had no power to order the internet shutdown that coincided with widespread protests in January.
The case was filed by the Zimbabwe Lawyers for Human Rights and the Zimbabwe chapter of the Media Institute of Southern Africa, arguing that the government had exceeded its authority in shutting down the internet. In the ruling, Judge Owen Tagu called for full internet access to be restored, stating that “it has become very clear that the minister had no authority to make that directive.”
Juliet Nanfuka of CIPESA told me, however, that this is far from the norm across Africa. “At a national level, cases are often slow moving and often postponed,” she said.
In another case from this year, lawyer Abdel-Adheem Hassan won a lawsuit against Zain Sudan, the country’s largest telecommunications operator, to force it to lift government-ordered restrictions on connectivity. However, as the case was filed in a personal capacity, the ruling only affected him, meaning he was the only civilian in the country able to access the internet. Full internet connectivity was finally restored the following month, following further legal battles with the three major telecom providers.
The rise of successful cases brought against governments has left Peter Micek, Access Now’s General Counsel and Adjunct Professor at Columbia University, hopeful of the future. He told me that as jurisprudence and an awareness of the impact of internet shutdowns grows, “the judiciary will seize its role in ensuring open, secure, and resilient access expands universally.”
Governments’ Evasive Tactics
As more people are starting to challenge governments who intentionally restrict access to the internet, governments are developing more sophisticated ways of evading accountability.
“States in Southern Africa are aware that an internet shutdown would infringe on constitutional rights, and they have accordingly been hesitant to admit that they tried to limit internet access, citing technical reasons [for access limitations] instead,” Anneke Meerkotter, the Litigation Director of the Southern Africa Litigation Centre, told me.
Further, an increasing number of governments are forcing internet service providers (ISPs) to throttle bandwidth at moments of sociopolitical upheaval and increased sensitivity. Bandwidth throttling slows a connection to such an extent that the internet becomes effectively unusable but doesn’t disable connections altogether, providing plausible deniability. As a report from Access Now noted, “It is often common to confuse throttling with an unstable and congested network,” making deliberate maneuvers harder to detect.
Although the outcome of litigation is rarely straightforward and often intentionally drawn out, such cases remain a significant means of gaining traction for digital rights campaigners. As the Association for Progressive Communications has written: “Whereas litigation may not always lead to a successful ruling, it serves as an opportunity to set precedent and feed jurisprudence not only at country level but sometimes also at the sub-regional or regional level.”
Gaps in Precedent and Expertise
Clearly, however, more needs to be done to support these efforts.
Hija Kamran, program manager at the Pakistan-based nonprofit Media Matters for Democracy, told me her country’s judiciary needs greater knowledge of technology and digital rights to generate “informed decisions that favor the fundamental rights of citizens.”
Peter Micek argued that States must begin by listening to “the groundswell of voices” directly affected by the practice, as “judges will respond to such a public sentiment, acknowledging that the internet is as essential to life and society as food, water and shelter.”
Confusion also arises on the question of who is ultimately responsible for internet shutdowns, due to the opaque nature of the practice and the number of actors involved. Telecom “companies should take all necessary and lawful measures to ensure that they do not cause, contribute or become complicit in human rights abuses, by facilitating Internet shutdowns,” Bukovska said. However, even where telecom operators are not state-owned, they may be threatened, both economically and physically, by regimes looking to limit connectivity.
Citizens are becoming increasingly adept at circumventing internet shutdowns by using mesh networks during total blackouts and Virtual Private Network (VPN) apps during partial restrictions. Mesh networks, which have recently been used in Hong Kong, allow citizens to stay in contact without internet access by utilizing Bluetooth connections across multiple devices. VPNs, on the other hand, allow users to access servers based in different countries and encrypt internet traffic, thereby bypassing any national- or local-level content blockages.
However, given the general lack of technical understanding in governments and among the public, as well as weak judicial independence in many of the countries where restrictions are used and the ambiguity surrounding the application of necessity and proportionality principles, it is unlikely that government-imposed network disruptions are going to end soon.
Legal challenges against governments will be used increasingly as a recourse. In addition to holding out potential relief in specific circumstances, these cases also will help build jurisprudence and, with it, accountability for governments demonstrating such a blatant disregard for international human rights standards or their own constitutional guarantees.