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Kyrgyzstan’s not so “wonderful” anti-disinformation law

New legislation on online disinformation comes at a time when Kyrgyzstan’s public conversation about elite corruption is reaching fever pitch.

Christopher Schwartz
29 June 2020
REACTION protest in Bishkek, 29 June
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Source: Kloop

Late on the night of Thursday, 26 June, Kyrgyzstan’s parliament passed a controversial anti-disinformation law. This occurred despite enormous grassroots online protests against the bill, including upwards of 1,200 critical comments from Facebook users against its main sponsor Gulshat Asylbayeva, a member of the ruling coalition’s Önügüü-Progress Party.

The unusual hour of the law’s passing, which invites suspicion as to its supporters’ intentions, is nowhere near the most troubling of its features. Of 120 parliamentarians, 89 voted in a possibly illegitimate “expedited” procedure, in which the second and third of a three-readings process were combined. Ten parliamentarians were opposed, while 79 were in favor. When news broke late into the night, doubts were immediately raised as to whether Kyrgyz parliamentary rules permit such a procedure, much less whether a genuine quorum was present for the vote.

The bill (“On Manipulating Information”) is now awaiting ratification from Kyrgyz president Sooronbai Jeenbekov. Once signed, it will come into force, although since last Friday, Kyrgyzstan’s journalism and civil society communities have been calling upon Jeenbekov to veto the bill. A protest against the law organised by REАКЦИЯ, an anti-corruption movement led by Bishkek’s intelligentsia and business class, took place today despite a ban on large meetings as part of Kyrgyzstan’s ongoing Covid-19-related “situation of emergency”.

While Asylbayeva has ecstatically described the legislation as “wonderful”, in reality this law - evidently plagiarised from similar Russian legislation with some adaptation to the Kyrgyz context - is extremely ambiguous. This has made the Committee to Protect Journalists and many in Kyrgyzstan’s journalism and civil society communities, as well as everyday internet users in the country, fearful that it is really a tool of censorship, despite Asylbayeva’s claim to the contrary.

What does the law say?

For a law that has the potential to dramatically curtail internet activity in Kyrgyzstan - a society once dubbed Central Asia’s “island of democracy” - there remains much uncertainty as to what exactly it enacts. The law grants the Kyrygz government six months to “develop draft regulatory legal acts necessary for the implementation of this law”. A working group involving government officials and civil society representatives will be established to hammer out these details.

In the meantime, what is known for certain is that the law will prohibit the distribution of “false or uncredible information”, though it does not define these terms, leaving that task to unidentified “authorised state bodies”. Crucially, the law will oblige the “owners” of websites and accounts on online platforms - including, it appears, individual citizens operating their own accounts - “to immediately restrict or prohibit access” to such information, as well as to moderate how other internet users engage the content. This stipulation extends to sharing or re-posting information from websites or other users that they themselves did not author.

Given the fact that Kyrgyzstan lacks the technical and human resources to pull this off, even with assistance from Russia or China, there are only two ways this law can be enforced: by turning everyday users against each other, and through selective application

To ensure compliance, the law will also require every website or account owner to make their surname and initials public, as well as an email address available for receiving “legally significant messages”. Equally, it compels internet service providers (ISPs) to store user textual and audiovisual data, including voice messages, for up to six months, as well as to share this data with government agencies upon request. It is unclear if this rule will start before the relevant regulatory frameworks are in place, and whether and how the data will be secured and deleted.

If dubious information is detected, authorities will be empowered to “make a decision on [its] pre-trial restriction”. The law implies that they should notify the website or account owner to take down the content; failure to comply will result in the involvement of law enforcement. The law also infers that the website or account owner’s access to the internet can be taken away, returnable only upon compliance or a court order. Whether and how access to the internet would be removed - much less by whom and who would monitor these restrictions - is left unexplained.

Remarkably, the law does not specify which of Kyrgyzstan’s existing governmental departments will be tasked with implementation, or whether an entirely new one needs to be established. The going assumption is that the Ministry of Culture, Information and Tourism will be given the responsibility. Considering that the ministry does not even have a website, it is unsurprising that its representative to the Kyrgyz parliament, Nurjigit Kadyrbekov, remarked that the State Committee for Information Technologies and Communications - which is tasked with electronic governance - “is much better equipped technically” for the job.

Witch hunts and selective enforcement

With respect to the identity of an account owner, Facebook’s terms of service actually have a similar, if looser, rule to ensure that the nominal identity of an account aligns with the real identity of the user. However, this rule aroused intense controversy two years ago, and for the moment appears to be inconsistently enforced. For all the fear surrounding fake accounts, there can be valid reasons for people to hide their online identities, such as if they are a minority facing persecution.

Because disinformation campaigns targeting a country through fake accounts are often based abroad, the law also provides for the prosecution of foreign individuals. The text explicitly refers to a “person” rather than a “citizen”, stating that the former can violate the law even if s/he is outside the territory of Kyrgyzstan. Of course, this begs the question of how the controllers of a disinformation campaign can be identified to begin with.

Technically, the level of surveillance that the law aspires to would require not only installing equipment capable of monitoring and harvesting user data at a truly massive level, but essentially severing Kyrgyzstan’s internet from the rest of the world. This would be tantamount to establishing a “sovereign Internet” as Russia, China and Iran have been attempting to do - but with vastly more resources than Kyrgyzstan and no certainty of success.

Given the fact that Kyrgyzstan lacks the technical and human resources to pull this off, even with assistance from Russia or China, there are only two ways this law can be enforced: by turning everyday users against each other, and through selective application.

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A high-profile corruption investigation has divided public opinion along familiar regional lines.

By tasking account owners to prevent access to disinformation, the law in effect compels individual citizens to act as censors on behalf of their government. Also, by treating all online publications as true/false propositions, it compels individual citizens to act as arbiters of truth.

Given historical precedence, it is easy to see how this could lead to a witch hunt between everyday internet users. In 2018, for instance, someone appears to have tipped-off Kyrgyz national security to a post by a university lecturer, Temirbek Bolotbek, in which he lambasted Soviet-era architecture as “boring, poor and slave-like shit”. Bolotbek was subsequently investigated for instigating “inter-ethnic discord and conflict” between Russians and Kyrgyz.

Were this incident to happen under the new law, Bolotbek’s opinion could instead be treated as a truth proposition, i.e., that Soviet-era architecture is by definition ugly. A passionate lover of Soviet-era architecture could vehemently disagree, but rather than debate Bolotbek, s/he might flag the post to authorities as being potentially false. In this way, the law invites people to clamp down on debate and see potential enemies of truth - subjective truth - behind every post.

Meanwhile, the law mentions online publications whose target audience are “an undefined number of people”, implying news agencies, civil society organisations, journalists and activists - namely, those whose occupation involves addressing a general audience. If implementation must be manual due to technical handicaps, this phrasing establishes these professionals as the most cost-effective target of surveillance.

Why this law?

All this raises the question: if the ultimate goal is surveillance and censorship, why this law? Surely there must be more effective tools? In fact, the new law is a quite effective tool.

In recent decades, attempts to legalise censorship in democratic contexts have relied upon either national security rationales or libel. Kyrgyzstan has already tried both, especially libel, specifically against news agencies, even bankrupting one. Such attempts eventually backfire in public opinion, as the general public inevitably reassesses the balance between their safety and their freedom, while libel laws inevitably and blatantly favour wealthy elites.

Disinformation, however, poses a more abstract rationale that is difficult to contend with. The evidential requirements to accuse someone of propagating “fake news” are lower than accusing someone of slander, much less of instigating inter-ethnic conflict.

Gulshat Asylbayeva, the law’s sponsor, claims that the legislation was inspired by the spread of Covid-19-related disinformation, including conspiracy theories about the origins of the novel coronavirus and dangerous pseudo-medical treatments. However, there is deep concern among Kyrgyzstan’s journalism and civil society communities that this is an attempt by politicians and the illicit patronage networks which back them to manipulate the upcoming October 2020 parliamentary election by chilling free speech.

The law’s passage comes on the back of a controversial parliamentary ruling that exonerated the Kyrgyz government of involvement in a massive corruption scandal. In November 2019, an international journalistic investigation accused Raimbek Matraimov, former deputy chairman of the Kyrgyz state customs agency, of being a key figure in embezzling US$932 million worth of customs revenue and goods out of Kyrgyzstan. The embezzlement was alleged to have been facilitated by businessman Aierken Saimaiti, who turned whistleblower only to be assassinated in Istanbul shortly before the news report was published. Matraimov and his family have denied any connection to Saimaiti or being involved in corruption, and have since filed a libel suit against the news agencies who conducted the investigation. (Note: the journalistic investigation is still ongoing and released new information today.)

If ratified by the president, the law will make it dangerous to raise concerns in digital spaces about corruption and behind-the-scenes influence upon the political process. Of all the wonders of this “wonderful” law, it does not matter whether a statement is actually false. What matters is that it might be false, which is sufficient to trigger an investigation and a take down order. In the hands of Kyrgyzstan’s unscrupulous politicians, this is a powerful weapon indeed.

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