Freedom of expression and privacy risks across the ICT sector

The BSR report ‘Protecting Human RIghts in the digital age’ describes the evolving freedom of expression and privacy risks faced by information and communications technology (ICT) companies and how these risks can be more effectively mitigated by the industry.  It focuses on the issues for telecommunications services; cell phones and mobile devices; internet services; enterprise software, data storage and IT services, semiconductors and chips, network equipment, consumer electronics and security software.

Freedom of Speech, Support for Terrorism, and the Challenge of Global Constitutional Law

Freedom of Speech, Support for Terrorism, and the Challenge of Global Constitutional Law – Daphne Barak-Erez and David Scharia

In the recent case of Holder v. Humanitarian Law Project, the Supreme Court of the United States ruled that a criminal prohibition on advocacy carried out in coordination with, or at the direction of, a foreign terrorist organization is constitutionally permissible: it is not tantamount to an unconstitutional infringement of freedom of speech. This Article aims to understand both the decision itself and its implications in the context of the global effort to define the limits of speech that aims to support or promote terrorism. More specifically, the Article compares the European approach, which focuses on whether the content of the speech tends to support terrorism, with the U.S. approach, which focuses on criminalizing speakers who have links to terrorist organizations. Both approaches are evaluated against the background of the adoption of Resolution 1624 by the United Nations Security Council in 2005, which called on states to prohibit by law incitement to commit terrorist acts. The Article then follows the implementation of the resolution by comparing the traditional American resistance to direct prohibitions of incitement that fail to meet the standard set by the Brandenburg v. Ohio precedent and European legislation that is open to such limitations subject to balancing tests. It then evaluates the potential advantages and threats each option pose to freedom of speech by examining them from the perspective of the controversy of candor within legal decision-making. Based on this analysis, the Article also articulates the challenge of balancing international norms regarding the limits of freedom of speech with different and even conflicting domestic traditions regarding the scope of protection of freedom of speech.

Freedom of Speech, Support for Terrorism, and the Challenge of Global Constitutional Law

Freedom of Speech, Support for Terrorism, and the Challenge of Global Constitutional Law – Daphne Barak-Erez and David Scharia

In the recent case of Holder v. Humanitarian Law Project, the Supreme Court of the United States ruled that a criminal prohibition on advocacy carried out in coordination with, or at the direction of, a foreign terrorist organization is constitutionally permissible: it is not tantamount to an unconstitutional infringement of freedom of speech. This Article aims to understand both the decision itself and its implications in the context of the global effort to define the limits of speech that aims to support or promote terrorism. More specifically, the Article compares the European approach, which focuses on whether the content of the speech tends to support terrorism, with the U.S. approach, which focuses on criminalizing speakers who have links to terrorist organizations. Both approaches are evaluated against the background of the adoption of Resolution 1624 by the United Nations Security Council in 2005, which called on states to prohibit by law incitement to commit terrorist acts. The Article then follows the implementation of the resolution by comparing the traditional American resistance to direct prohibitions of incitement that fail to meet the standard set by the Brandenburg v. Ohio precedent and European legislation that is open to such limitations subject to balancing tests. It then evaluates the potential advantages and threats each option pose to freedom of speech by examining them from the perspective of the controversy of candor within legal decision-making. Based on this analysis, the Article also articulates the challenge of balancing international norms regarding the limits of freedom of speech with different and even conflicting domestic traditions regarding the scope of protection of freedom of speech.

Saudi Arabia to remove books deemed to promote terrorism

An official at the Saudi Education Ministry said last week that the kingdom plans to remove books from school libraries that are deemed to encourage terrorism or defame religion. The official said Tuesday the ministry has created a book review committee that will begin work soon. No further details were immediately available. The official spoke on condition of anonymity in line with ministry protocol.

UN report confirms gap between law and reality, torture, secret detentions and police harassment in Tunisia under Ben Ali

The United Nations just published a report on its website which describes the fact-finding mission of the United Nations Special Rapporteur on the protection of human rights while countering terrorism in January 2010. On the basis of the evidence he gathered, he observed a pattern of unacknowledged detention being used vis-à-vis terrorist suspects. During the period of secret detention, terrorism suspects are at high risk of being subjected to torture and ill-treatment. The secrecy that surrounds custody and interrogations by the unit of the “Police Judiciare”, which is in charge of interrogating terrorism suspects (commonly referred to under its previous name “Directorate for State Security”, DSS), renders investigations into abuses improbable and, consequently, leads to a lack of accountability and to impunity. The Special Rapporteur further concludes that the judiciary does not effectively act as a safeguard against these practices, and that the restrictions on access to lawyer during police custody aggravate his concerns. The report will be discussed by the United Nationas Human Rights Council around the 7th of March 2011.

The report is the last official UN report to describe practices under the Ben Ali regime, and it was the first time in more than 15 years that the UN’s special procedures mechanisms visited the country for a fact finding mission.

Mission: no access to Ministry of Interior interrogation facilities
The Special Rapporteur met with the former Minister of Foreign Affairs, the Minister for Justice and Human Rights, Ministry of Interior officials, judges, parliamentarians, lawyers, academics and non-governmental organizations, in addition, he visited the Bouchoucha police detention facility and the Mornaguia Prison, where he interviewed several persons suspected of, or convicted for, terrorist crimes. More significant the Special Rapporteur was denied access to the interrogation facilities of the Sub-directorate for Criminal Affairs of the “Police Judiciaire”, also known as “Directorate of State Security”, DSS, where the overwhelming majority of the allegations of torture or ill-treatment took place.

The abuse of the definition of terrorism

In his assesment of Tunisia’s revised anti-terrorism law, the Special Rapporteur says clearly that the definition of terrorism does not fulfil the legality requirement contained in article 15 of the International Covenant on Civil and Political Rights or article 13 of the Tunisian Constitution. The Rapporteur concludes:

The current wide definition clearly carries the risk of broad application of counterterrorism legislation, which in turn means that the term “terrorism” may become diluted and lose its distinguishing stigma. This may have possibly far-reaching consequences for the rights to freedoms of expression, association and assembly.

According to the SR, the combination of the wide definition of terrorism, combined with the criminalization of preparatory acts of terrorism “allow for targeting as “terrorists” people who simply hold radical and unpalatable views without posing a real danger in terms of planning any violent acts.”

In the view of the Special Rapporteur, it appears that the scope of application of the terrorism provisions in the law has grown too wide and should be reduced. Any anti-terrorism law that is not properly confined to the countering of terrorism within the limits of human rights law is problematic, not only because an overly expansive scope of such a law weakens its own legitimacy and ultimately may prove to be counter-productive, but particularly because it may unjustifiably restrict the enjoyment of human rights pertaining to the exercise of peaceful activities, including dissent and political opposition through legitimate associations. The Special
Rapporteur identified the danger of a ”slippery slope” which not only results in persons being convicted of “terrorism” who do not deserve that stigma, but also endangers the effectiveness of the fight against terrorism by trivializing the phenomenon.

First clear indication of number of persons detained under Tunisia’s anti-terrorism law, and Tunisia’s structure of the internal security forces under the Ministry of Interior

The Special Rapporteur indicates that perhaps one person per day was arrested and/or detained on the basis of the anti-terrorism law. The official statistics that the Special Rapporteur received showed that overall 214 cases have been brought before a court in the seven years since its adoption, in which 1,123 individuals were involved. (So this number does not include people who were never tried.)

Furthermore, the Special Rapporteur received information about a number of cases, where the main “crime” seems to have been to have visited certain countries or even mosques, downloaded or watched certain programmes online, having held prayers together, or having met with others to discuss religious issues.

Regarding the structure of the security forces of the Ministry of the Interior, the Special Rapporteur was expressed concerns about the myriad of agencies that were responsible for countering terrorism.

Elements rendering the practical operation of counter-terrorism policing opaque are the use of several common names for what appears to be the same entity, namely the Subdirectorate of Criminal Affairs, formerly known as “DSS”, standing for the “Directorate of State Security” and the lack of publicly available information on its status and organization.

Back-dating of arrest dates resulting in a pattern of secret detention

Numerous testimonies collected by the SR indicated – and it was admitted by the authorities – that dates of arrest are routinely post-dated, thereby circumventing the rules about the allowed length of police detention and taking detainees out of the protection framework.

When the Special Rapporteur visited Bouchoucha, the police station in Tunis through which terrorism suspects pass before being transferred to pretrial detention, he discovered that all of the 25 detainees whose names were contained in the custody record in relation to terrorist crimes had been brought there by members of the “Police Judiciaire” in the late afternoon or evening and taken out once during the following night for an unspecified period (the officials present during the visit explained that such temporary transfers were indicated in pencil only and erased once the person returned) before finally being transferred before a judge in the morning of the next day. The recorded practice of very short official police custody in terrorism cases is in stark contradiction with reports by detainees and families about interrogations ranging from several days to a number of weeksbefore being brought before a judge. The police officers in Bouchoucha also denied
knowing where the “Police Judiciaire” holds the suspects before bringing them to Bouchoucha for registration into official detention. This pattern appears to be compatible with the many allegations received by the Special Rapporteur that people under investigation are typically in terrorism cases first held in unacknowledged police custody.

In a damning paragraph, the Special Rapporteur highlights that evidence brought to the attention of the Special Rapporteur indicated that suspected terrorists are routinely held in secret in a building of the Ministry of Interior in Tunis.

Detainees allegedly sleep either on the ground floor in rudimentary conditions in a number of cells grouped around a larger room, or in smaller cells in the basement. Interrogations also take place on upper floors. No person from the outside has access to these premises, so detainees are at the mercy of their custodians, which, in itself, puts pressure on them and may constitute inhuman treatment. The authorities, however, continue to deny that the Ministry of Interior detains persons within or close to its official premises. Despite repeated requests, they did not allow the Special Rapporteur access to the interrogation facilities of the Ministry.

The Rapporteur concludes:

On the basis of the evidence gathered, he observed a pattern of unacknowledged detention, operating in the city of Tunis under the interrogation authority of the Ministry of Interior, being used to detain terrorist suspects. During this period that precedes detainees’ official registration in police custody, they are also routinely subjected to torture and ill-treatment and denied access to a lawyer.

Torture and the use of confessions obtained under torture

Numerous cases of terrorism suspects brought to the Special Rapporteur’s attention indicate that ill-treatment and/or torture is perpetrated during initial, unacknowledged police custody or interrogations by what is commonly referred to as “DSS”, in particular if the suspects refuse to confess.

The details of these accounts suggest that these practices occur under the direct control of the Ministry of Interior and possibly even within or next to the premises of the Ministry. According to consistent allegations, suspects are regularly subjected to severe beatings on different parts of the body, including genitals, with fists, cables and batons, kicking, slapping, often combined with stripping of their clothes and suspensions (including in the so-called poulet rôti (“roast chicken”) position), even in ordinary offices of the Ministry. Some reports also described electroshocks and mock-drowning taking place in one particular room in the basement, especially in cases, where suspects resisted to making confessions. Other methods used included extended periods of sleep deprivation, burning with cigarettes, threats with rape, threats to family members and anal rape. The treatment was allegedly perpetrated by plainclothes officers of DSS.

The main purpose of the torture was to extract confessions, and sometimes testimonies about third persons. It normally stopped with the signing of papers that most suspects had not been allowed to read. However, the Special Rapporteur received allegations about instances of reprisals occurring in official places of detention in terms of beatings, threats and solitary confinement, for instance, for prisoners that had made calls for prayer or submitted complaints. In several cases, detainees were transferred from prisons back to the premises of the Ministry of Interior for interrogation and ill-treatment.

The testimonies also indicated that existing safeguards are ineffective in practice. Apart from the fact that the ill-treatment normally happens prior to the registration of police arrest, access to independent medical examinations, although provided for by law upon authorization by a judge, is practically never granted, and can therefore not be considered an effective safeguard. If at all, medical examinations take place months after the illtreatment was perpetrated, and therefore fail to produce evidence that can be used in court. The resulting “lack of proof” is then used by prosecutors and judges to ignore claims about torture and ill-treatment and, on that basis to reject requests for investigations.

No real accountability for torture

While noting the importance of at least some trials and convictions, the Special Rapporteur considers that the number of prosecutions or other clear findings related to torture remains disturbingly low when compared to the frequency and severity of the allegations he received. He is concerned that there are remnants of a climate of impunity within law-enforcement structures. This is all the more troubling in light of allegations that confessions are frequently used as evidence in court. He is therefore concerned that the lack of effective investigations into allegations of torture may have led and continue to lead to unfair trials and illegitimate court judgements, on the basis of which persons may be deprived of their liberty – one of the most severe interferences with fundamental freedoms – for years, sometimes decades. He therefore calls upon the authorities to reopen.

Overall, the Special Rapporteur is concerned that the judiciary appears to fail to act as an effective remedy when it comes to allegations of torture or ill-treatment. Numerous persons indicated that raising such allegations during trial practically never leads to any action by the judges. Unfortunately, the Special Rapporteur’s meetings with judges of the Appeals Court in Tunis did not take away his concern of that protocols that mention torture allegations and other written submissions on the issue are routinely ignored by the court.

This raises serious concerns in terms of the independence of the judiciary, guaranteed by article 65 of the Constitution and the Law No. 29 of 1967, exacerbated by indications thatthe Executive Branch, through the Supreme Council of the Judiciary (which is composed of the President, who is the Chairman, and the Minister of Justice as Vice-chairman, plus a majority of members either representing or appointed by the Executive Branch) controls many aspects of the judiciary, including appointments, promotions, transfers and disciplinary measures.

Clarification of rendition case of Laid Saidi

Concerning Tunisia’s participation in illegal forms of cooperation in counterterrorism, the Special Rapporteur has received allegations that Tunisian authorities were involved in holding a detainee sent to Tunisia by the United States’ Central Intelligence Agency, who was then transferred to other countries. Laid Saidi was reportedly seized in the United Republic of Tanzania, transferred to Malawi, then rendered to Afghanistan and further to Tunisia, where he was held for 75 days before being returned to his home country Algeria (see A/HRC/13/42, para. 133). According to the Government however Laid Saidi had arrived with a “special flight” on the 9 June 2004, where he was presented by four foreign security officials to Tunisian authorities at the airport of Tunis Carthage under the name of Ramzi Ben Fredj. The Tunisian security services conducted an audit and concluded that the person had usurped the identity of the real Ramzi Ben Fredj.

The person then acknowledged that he was actually Laid Saidi. The next day, on the 10 June 2004, Said was sent back with the same special flight to a “foreign country”; he was then still accompanied by the same foreign agents. Similarly, it has been alleged that Tunisian intelligence officials participated in interrogations of terrorist suspects in Afghanistan (see interview with Bisher Al-Rawi, A/HRC/13/42, annex II, case 4). The
Special Rapporteur regrets that, according to his information, the Government of Tunisia has not started any investigation into these allegations.

Harassment of defence lawyers

The Special Rapporteur received a number of allegations regarding obstruction of the work of defence lawyers, e.g. concerning restrictions on access to their clients and their clients’ files, but also about harassment in more general terms, in particular vis-à-vis those who defend terrorism suspects. This can take the form of interference with their correspondence, non-issuance of passports for international travel, but also go further to not allowing them to enter certain places, pressuring family members, etc.

Cables describe suspicions of Syrian government involvement in 2006 anti-Western cartoon protests

Cable 06DAMASCUS404 from the fifth of February 2006 describes how the Syrian regime seemed to have benefited from the rioting with enhanced legitimacy in several ways.
Civil society contacts noted that SMS text messages were sent to cellphones two days before, announcing a demonstration on February 4, in front of the Danish Embassy. These contacts also insisted, and an imam confirmed to Poloff, that the SARG (probably through its security services) had issued a “suggested” sermon for all imams to use in the mosques for the Friday prayers that preceded the Saturday rioting. Some contacts reported buses being sighted bringing in demonstrators from some of the rougher areas of Damascus, including the Palestinian camps at Yarmouk, although this could not be confirmed. One opposition contact said it was ludicrous to think that the SARG could not have prevented this rioting — at least earlier on — if it chose to, noting that when Riyad Seif and several other recently released Damascus Spring detainees attempted late last week to hold a press conference, the government deployed “three hundred security officers” to prevent it. Islamist-oriented human rights activist Haithem Maleh insisted that it was SARG provocateurs affiliated with the security services, rather than Islamists, who had stormed the embassies and egged on the crowds. 

¶13. (C) COMMENT: We concur with contacts that the SARG allowed these demonstrations to occur and almost certainly helped to facilitate them at the beginning. Somewhere along the way, the SARG, true to form, seems to have miscalculated and lost control. The end result left a deeply embarassed SARG to pick up the pieces and trying to explain its incredible security lapses to the disbelieving Europeans and Chileans. Despite any miscalculation, loss of control, or embarrassment, the minority Alawite regime seems to have benefited from the rioting, enhancing its legitimacy in several ways. It offered its religious Sunni population an opportunity to vent on an issue of visceral populist concern and it put itself in the vanguard regionally, demonstrating to the Arab street that Syria can be counted on to defend Islamic dignity. The rioting also helped the SARG in its recurring attempts to convey to the international community  that “we are the only thing standing between you and the Islamist hordes.” Some argue that the riots also serve as useful distraction from recent price hikes and general hard times.

One day later cable 06DAMASCUS427 reports that an “influential Sunni sheikh” provided  details February 6 that seem to confirm the Syrian government’s (SARG) involvement in  escalating the situation that led to the violent rioting in  Damascus two days earlier, including communications between  the PM’s office and the Grand Mufti. He also noted that SARG  authorities now seem intent on identifying a few scapegoats  to be blamed for the incidents.

Two months later an interesting cable puts the actions of the Syrian government in perspective.

Overall, despite some contradictions, it seems evident that the regime is reaching out once again to the Sunni Islamic community with various initiatives and adopting some elements of an Islamic populism to shore up support. According to gadfly economist and former deputy minister of planning Riad Abrash, the regime has calculated now that Arab nationalist interests “are identical” with the Islamic population’s desire, both in Syria and the region, to oppose the U.S. In his view, the regime “is getting closer to the view of people on the street” in order to retain its popularity. The regime recognizes the powerful hold that Islam has on the masses, said Abrash. He acknowledged that the regime “is playing with fire,” but noted “they want to survive. They feel threatened, so it makes sense to take dangerous steps.

While alarmist scenarios about the future rising tide of Islamism may be true, the SARG seems for the time being to be successfully manipulating this Islam issue, occasionally blending in some populist aspects. The regime is well-positioned politically because of its championing of Islamic political causes such as those of Hamas, Hizballah, and Iran, and has adopted a sufficiently nuanced policy on Iraq to immunize it against criticism that it is helping suppress an Islamic insurgency. Nevertheless, some Sunni leaders tell us that the regime’s attempts to manipulate the Islam issue are not credible and that people are not taken in by it. Where the SARG has been effective is in keeping Islamic leaders in Syria under its wing, supported and politically muzzled. The more populist touches seem designed to drown out the unwelcome noise coming from the Brammertz investigation and — in tandem with appeals to Syrian nationalism — to persuade Syrians that it is not the regime (and Asad family) under attack but the country and the Islamic nation.

A cable from September 2006  reveals that the US wanted to influence the decision from “Jyllands-Posten” on how to commemorate the cartoons’ first anniversary September 30 2006. The paper was contemplating to re-publish the original cartoons or running new ones on the subject.

The Ambassador called Prime Minister Rasmussen’s national security advisor, Bo Lidegaard, to ask if this was true and to find out how the government was going to handle the issue. Lidegaard indicated that the government did not want to get directly involved in the matter. So sensitive was the issue, Lidegaard told the Ambassador confidentially, that the prime minister’s office had made a conscious decision not to alert the foreign ministry or the intelligence services. Furthermore, Lidegaard explicitly warned against any attempt by us to openly influence the paper’s decision, which, if made public, the prime minister would have to condemn, he said. Lidegaard agreed, however, that no harm would come from a straightforward query from us to “Jyllands-Posten” about their plans.

With that, the Ambassador telephoned “Jyllands-Posten” editor-in-chief Carsten Juste, and asked straight out about his paper’s intentions for commemorating the anniversary. Juste told the Ambassador that he and his team had been considering re-publication, but concluded that such a move would be unwise, especially so soon after the controversy caused by the Pope’s Regensburg remarks. The Ambassador welcomed this news, noting that none of us wanted a repeat of the crisis earlier this year. Lidegaard was demonstrably relieved when the Ambassador reported this exchange a short time later.

China Sentences Uighur to Life for Reporting Riots

(AP) — A Uighur journalist who worked for an official Chinese radio service was sentenced to life imprisonment for transmitting information about the 2009 ethnic riots in western China — one of dozens jailed since the violence, an overseas Uighur advocacy group said.

Memetjan Abdulla, a 33-year-old journalist with the Uighur language service of China National Radio, was sentenced during a closed-door trial in April in Urumqui, Xinjiang’s capital, said Dilxat Raxit, spokesman for the Germany-based World Uyghur Congress.Abdulla translated a call issued by the World Uyghur Congress for Uighurs in exile to protest the beating deaths in their host countries. The call had appeared on a Chinese website, and Abdulla translated it and reposted it on a Uighur-language website that he managed, according to Radio Free Asia and Raxit.

Abdulla was charged with helping incite riots in July 2009 between Han Chinese and ethnic minority Uighurs in which nearly 200 people died, according to Radio Free Asia. The riots had followed Uighur protests over the beating deaths of factory workers in another part of China.

Information about the sentencing has only recently emerged from local Uighurs, Raxit told the AP in an e-mail late Thursday. (