December 25, 2016
Inching toward Orwell in Thailand (and ASEAN too?)
Online censorship in Thailand has become more draconian following the approval of additional legislation last week to curtail freedom of thought, Khemthong Tonsakulrungruang writes.
The junta has a dream, the ultimate dream of being able to control the minds of the Thai public. But if that dream is impossible, the authoritarian government is happy to settle with controlling the expression of those minds. Last week, the National Legislative Assembly (NLA) unanimously approved amendments to the Computer Crime Act, in a move that gives the National Council for Peace and Order (NCPO) almost absolute control over how Thais express themselves.
Under the Computer Crime Act, people can be jailed for up to five years for entering “false information into a computer system that jeopardises national security, public safety, national economic stability, or causes panic.” The Act will also see the introduction of a nine-person committee that can seek court approval to remove any content considered in breach of “public morals”.
The NLA claimed that the objective of the bill was to deal with online royal insult and dissent. The need for the harsher law becomes more urgent with the transition from King Bhumibol to King Vajiralongkorn. But the junta is also acting out of self-interest in passing this new law.
Since the coup in May 2014, the NCPO has engaged in information warfare. Activists are monitored and persecuted making a large-scale public demonstration impossible. The battle then moves online. Prayuth and his cabinet are constantly ridiculed. His grumpy expression makes a perfect meme.
But the Internet battlefield offers more than silly harassment. It is the lifeline for dissent against Prayuth. In one example, soldiers kidnapped a student activist at midnight outside a university. Within seconds, the news spread to the network of activists at the university, then on to the network of international human rights groups and news agencies. A short while later the detainee was released at the police station. The prompt online reaction probably saved that student from a forced disappearance.
Moreover, the Prayuth administration is porous. Leaks of confidential documents have led to allegations of exorbitant spending, nepotism, and cronyism in his government. Prayuth’s nephew won lucrative construction contracts from the Third Army Region where Prayuth’s brother had been the commander. Prawit Wonsuwan, the Deputy Prime Minister overseeing security, flew to Hawaii on a luxurious 20-million baht trip. The former Army Commander was also involved in the notorious Rajbhakti Park scandal. Cronyism, corruption, and conflicts of interest badly delegitimise a regime that relies primarily on moral authority. When Prayuth is unable to stop this behaviour, the alternative solution is to block the public from receiving this damaging information.
There is no doubt that the model of Internet censorship the NCPO wishes to follow is that of China or North Korea. But those two countries have the advantage of an early start. Their Internet monitoring systems were developed alongside the arrival of the Internet. Alternative platforms replace the prohibited ones. Millions of employees have been hired to monitor the virtual world. Thailand proves more difficult because Thais are already spoiled with access to the online world. Thais are among the most heavily addicted to social media. Depriving them of Internet freedom would surely create a backlash.
The boldest attempt happened a few days after the 2014 coup. Facebook was entirely blocked, causing panic and anger. The blockage was quickly lifted. Although the NCPO denied any involvement, one mobile phone company confirmed being approached by the NCPO for cooperation; a confession that upset the government, which the company subsequently apologised for.
Another bold, yet embarrassing, attempt was the Single Gateway policy. The NCPO dreamed of channelling all Internet traffic through one national gateway where the NCPO could easily monitor online traffic. Internet users struck back with Distributed Denial of Service attacks that shut down websites of the government agencies and armies for days. The attack showed how weak the security of the government’s system was and forced the government to retreat.
Unsuccessful, the NCPO resorted to the two-pronged approach. On the diplomatic side, the junta repeatedly asked major IT giants such as Facebook, Line, and YouTube for help. Its success was limited. Facebook and Line rejected requests to access personal accounts of their users. YouTube agreed to block some content, which was contrary to its universal policy. But, overall, the gestures were more theatrical, to please the NCPO’s supporters.
Other moves include online coercion in several different ways. When a dissident is detained, he is forced to surrender the passwords to his social media accounts. The government then combs through conversation threads to find harmful content, often leading to more arrests. Other tactics involve intimidating people who pressed “like” or shared content deemed to be improper by threatening them with cyber crime, lese majeste, and sedition charges. Lately, the NCPO expanded its scope of operations to those who followed dissident figures on Facebook. This created a chilling effect. Internet users have to think twice before expressing their thoughts. The army also conducted an informational operation, countering such content with its own messages through proxies.
The number of banned websites in Thailand has soared, leaving the country among the least liberal in term of freedom of expression. More people are being indicted for sedition, defamation, lese majeste and computer crime. But the online world is still relatively uncontrolled. Virtual private networks provide a backdoor to banned content. For many netizens, fake accounts can circumvent prosecution.
The latest Computer Crime Act is the junta’s answer to these problems. The law creates a Digital Economy Ministry, inside which there is a central monitoring body connected to the systems of every Internet service provider. The government’s direct access to the system means that it does not have to notify a service provider so the process takes less time. The law expands its coverage to any content that violates public order or good order, terms so vague that everything could be captured by them from drinking to swearing to satirical caricature. Distortion of fact is an offence too.
Once harmful content is detected, the agency seeks the court’s approval and blocks it. But judicial review is not rigorous. The court usually defers to the agency’s discretion. In the past, the court has approved the blocking of thousands of websites within one day. There is no appeal available. Moreover, the possession of banned content can lead to punishment alongside the provider. Thus, under the new Computer Crime Act, bans are prompt, swift, unaccountable and total.
The impact of this law is devastating in every sense. Online privacy is no longer meaningful. The law assures the government’s access even to secured networks meaning service providers have to allow access to personal accounts. The NCPO now has the haystack in which to find a needle. The chance of abuses, such as fabrication of evidence, or blackmail, is likely. Freedom is gone.
The law encourages self-censorship. If a person disagrees with the government’s opinion, his or her view may be deemed distorted, hence an offence. Furthermore, the law raises the alarm among service providers since it places a heavy burden on them to store data for inspection. Businesses, especially start-ups, are concerned with the security of their online transactions. Many are considering moving their bases abroad. The Computer Crime Act stunts any attempt to mobilise the digital economy, something Prayuth himself tries to promote.
Two major factors may contribute to the NCPO’s success this time. First, the NCPO won quite significantly in the national referendum in early August which approved the draft constitution. With the referendum over, the Thai public have no bargaining power. That victory also boosted Prayuth’s confidence. Second, although many people are alarmed about the threat to their privacy, they feel the need to protect the monarchy. As a result, they are persuaded into an awkward acquiescence.
The public can still challenge the law in the Constitutional Court. But the court is unlikely to find it unconstitutional as the judicial institution is known for its conservative stance, siding with the traditional elites who supported the coup. An elected government might not be able to amend it either because the new constitution has designed a very weak political system that would struggle to achieve any significant policy change. More importantly, a civilian politician might find the law useful to silence his critics too. Thaksin’s Emergency Decree, which was invoked to crack down on his supporters’ demonstrations, is a good example.
Thailand is often dubbed Ka-la land. Ka-la, a coconut shell, is a metaphor for ignorance blocking Thais from any lights of wisdom. With the new Computer Crime Act, Ka-la is getting thicker. Thais must act right and think right. For the junta, it’s better that Thais stop thinking at all – leave it to Big Brother instead. Thailand has inched toward an Orwellian dystopia.
Khemthong Tonsakulrungruang is a constitutional law scholar.