Thailand Gets ‘Net-Tough

See Also: Forcing Internet companies to put their mouth where their money is

Be careful if you’re reading this in Thailand. You might be breaking the law.

Free speech advocates are ringing alarm bells over a new cyber-crime law passed by the military-appointed National Legislative Assembly last week by a vote of 119 to 1.

Although a final draft has yet to be released, some analysts say it represents a draconian new step in the government's efforts to suppress free speech and turn Thailand into a fully-fledged nanny state. It must receive royal endorsement before it takes effect.

Lawmakers pushed the bill through Parliament to make way for a lese-majeste lawsuit against Google for refusing to remove videos insulting to King Bhumibol Adulyadej from its video-sharing website, YouTube. But just as the law was approved, the government announced that Google retreated and offered to ban any videos deemed offensive to Thailand’s esteemed monarch.

Reaching for websites across the globe

Although lese-majeste is a criminal offense and Thai courts can try violators regardless of where they insult Thailand’s king, the new cyber-crime law goes a step further. Now all websites across the globe that “damage the country directly and indirectly” can be prosecuted in Thailand, according to the Bangkok Post.

As with the new draft of the constitution, the cyber-crime law empowers judges by forcing the government to seek court approval to ban websites. In the process, the court must decide exactly what content damages the country. That is a step up from the current process, however, where the Information and Communications Technology (ICT) Ministry acts as an official censor and can unilaterally block websites it deems improper.

According to Paiboon Amonpinyokeat, a partner at the law firm Gilberte, Reed & Co who sat on a committee that vetted the draft bill, the law brings Thailand’s cyber-crime laws in line with those of developed countries and only intends to close anti-monarchy, gambling or pornographic websites. But, he said in an interview, “The wording in the cyber-crime law is very broad. Everything is up to the court’s discretion.”

Potentially more contentious is a debate over whether the law criminalizes individual users who surf onto web pages that “damage the country.” One school believes that anyone who so much as opens a pornographic website faces the prospect of jail time, while the other says the law only targets website owners who upload deviant content.

What is clear is that the law will make Internet service providers liable for any illegal content on their servers. If the newly formed cyber-police find any offensive content, the ISP must immediately close the website or face repercussions.

Moreover, ISPs are to keep records of every site a user visits for at least 90 days. Although police can only access the records through a court order, they are available as evidence to prosecute Internet users who upload illegal content.

“Any service provider knowing of the perpetrating of an offence under Section 13 [which includes libel, falsifying data, national security breaches, viewing porn or sending porn to friends] within a computer system under their control but failing to delete immediately the computer data contained therein shall be subject to the same penalty as that imposed upon a person committing an offence under Section 13,” says section 14 of an earlier draft of the cyber-crime bill. The penalty? Up to five years in prison or a fine of 100,000 baht (US$2,850) or both.

Going After Google

For example, although ICT Minister Sitthichai Pookaiyaudom demanded last week that Google turn over the Internet protocol (IP) addresses of users who uploaded the offensive king videos to charge them with lese-majeste, the Internet search giant would likely refuse because such an action would prohibit free speech in the US and other countries. If Google were a Thai company, however, the government could force it to provide the information immediately or it would be shut down.

Coincidentally, in March Google announced steps to increase the privacy of its users to guard against intrusive government requests. The company now plans to alter IP addresses so a search is linked to a cluster of 256 computers instead of just one.

Further complicating matters in Thailand is the enforcement of lese-majeste and other so-called national security laws. Anyone can petition police to launch a criminal lese-majeste case against anyone else, making it a convenient tool for politicians to attack their critics.

Since lese-majeste is considered a crime against national security, the ISPs or websites like Google cannot cite free speech as a defense in Thailand. Subsequently, ISPs in Thailand can be forced to reveal the IP addresses of any website user targeted by the authorities.

“ISPs are responsible for any illegal content that transits their servers. This will encourage ISPs to block anything they think is offensive,” said CJ Hinke, a Thammasat University academic and leading voice on free speech issues as the founder of Freedom Against Censorship Thailand.

Hinke, who is leading a signature campaign to petition the National Human Rights Commission to void the law, says the new law will “criminalize a huge portion of society” as ISPs, and by extension Internet users, are held criminally liable for any illegal websites that may pop up on their browsers. Although the government cannot compel Thailand’s 54 ISPs to remove certain sites because censorship is still illegal here, they could reduce bandwidth or revoke operating licenses if they fail to comply with government requests, he said.

Press Freedoms on the Wane

The new law comes amid an overall deterioration in Internet and press freedoms in Thailand since the military seized power last September. Between October 2006 and January of this year, the number of banned websites jumped more than 500% to 13,435 from 2,475, according to FACT.

This year, Thailand slipped to 127th out of 194 countries in Freedom House’s press freedom rankings, down from 29th place in 2000. Political discussion forums are blocked periodically, as well as all Muslim websites in the country’s restive southernmost provinces.

“Insurgent groups have more access to weapons than to political discussion on the Internet,” said Hinke.

Assault Leader

Leading the assault is the eccentric ICT Minister Sittichai. The 59-year-old professor is the son of a Chinese military officer who fled to Thailand with other members of General Chiang Kai-shek's army after they were defeated by Mao Zedong's forces n China.

Now the country’s wealthiest cabinet member, Sitthichai is an avowed atheist who owns 320 guns and fires about 100-200 rounds every morning. He smokes cigars routinely and has even prepared a special carbon dioxide spray to kill himself peacefully if he ever acquires a debilitating disease.

Sitthichai says he’s too old to get excited by the Internet, according to The Nation newspaper. He claims to visit only two websites: one for electrical engineers and pgatour.com to follow golf tournaments.

“I have an e-mail account but rarely check it; normally I use the telephone,” he was quoted as saying. “I once visited [political discussion website] pantip.com and was confused by its many rooms. I quit and never went back.”

In an effort to rebut claims the government was stifling free speech, Sitthichai set up a website called Assembly of Gossip. Users can express their opinions, but the government still reserves the right to delete offensive comments.

Of course, free speech advocates see these measures as comical. But some legal experts believe the new law will not hurt political discourse.

“The law does not restrict political speech,” said Paiboon from Gilberte, Reed, & Co. “But if content is negative to the king or against the penal code, then the ICT minister can request the court to shutdown the website.”

Paiboon also disagreed with Hinke that individual users are held liable for viewing banned websites. “Internet users still have the right to view illegal content,” he said.

“Only the website owners or service providers are liable.”

In YouTube’s case, he said, the company would not violate the law until it had “constructive knowledge” that it was hosting banned material. In other words, the ICT Ministry must first inform YouTube that its videos are illegal. Then if YouTube still refused to remove them from the site, it could be charged under the cyber-crime law.

Even so, the language of the first few draft bills has been quite vague, and nobody is 100% sure what the law will look like after the assembly puts the finishing touches on it, probably within the next few months.

“One of the key characteristics of law is its certainty,” said Nick Cheesman of the Asian Human Rights Commission. “This means that the law must be sufficiently clear as to allow people to guide their conduct and affairs knowing in advance what will be the consequences of their actions.”

Free speech advocates in Thailand believe the law is intentionally vague to scare citizens into self-censorship. Moreover, since the ICT Ministry now has a staff of about 20 to monitor the whole Internet, many fear the law can only be enforced for political ends.

“Political discussion may be legal but the law will have a chilling effect on Thai society,” said Hinke. “No one knows what is legal and what is not.”