LEGAL AND NORMATIVE ENVIRONMENT
In general, the tendency in all CIS countries has been toward greater government regulation of the Internet to bring it in line with existing regulations that control the mass media (in Russia, Uzbekistan, and Belarus, for example). To date government moves to enforce more restrictive Internet environments have rarely been challenged—perhaps a reflection overall of the weakness of “opposition” parties in most countries, as well as poorly defined or tested laws governing the role of independent media. Nonetheless, some exceptions exist. For example, in Tajikistan and Azerbaijan concerted (if quiet) action by “civic” actors led to the reversal of policies aimed at removing politically sensitive content from cyberspace. In Tajikistan political Web sites that were banned during the December 2006 election were restored. And in Azerbaijan a banned Web site that was critical of the government’s policy of raising prices was restored and its author released from police detention. Both cases are significant because the initial order to “ban” the Web sites was opaque from a legal perspective.
The constitutions of (nearly) all CIS countries enshrine principles of freedom of expression and prohibit censorship. Nevertheless, often these provisions are interpreted “flexibly” when it comes to implementation. In Kazakhstan authorities often resort to various quasi-legal or “administrative” mechanisms to suppress “inappropriate” information or shut down oppositional domain names. In Uzbekistan the law on mass media holds journalists and editors responsible for the “veracity” of published materials, which has caused independent media and bloggers to practice self-censorship. The “objectivity” test is applied also in Belarus, where independent journalists, editors, and opposition leaders are frequently subject to prosecutions and arrests.
In legislation and regulation Russia remains a leader in the region, and increasingly has been proactive in seeking influence and extending assistance to other CIS states. Since late 2000 Russia’s “Doctrine of Information Security” has been adapted (in various forms and guises) as the basic precept defining the national strategic value of the Internet and the “national informational space” in most CIS countries.8Likewise, Russia’s legal approach to Internet surveillance for law enforcement (that is, the System for Operational-Investigative Activities or SORM-II, which allows security services unfettered physical access to ISP networks) has influenced the way in which other CIS countries have approached the problem (see the next section). Some, including Kazakhstan, have adopted the Russian system, while others have mirrored its approach. In Russia, Belarus, Moldova, and Ukraine, specialized units under the Ministry of Internal Affairs (Department “K”) have been established to combat “computer crime” with specialized technical units also established in other security services.
Obtaining a telecommunications license in Russia and other CIS states requires close cooperation with state security agencies. Since the mid-1990s a key requirement has been for providers to allow law enforcement and other security agencies with full monitoring access to the communications systems. In Russia the enabling acts and system used to monitor telecommunications, including the Internet, comes under the rubric of SORM-II, which came into effect in 2000.9
At the regulatory and technical level, SORM-II requires ISPs to provide the Federal Security Service (FSB) with statistics about all Internet traffic that goes through the ISP servers (including the time of an online session, the IP address of the user, and the data that were transmitted).10 ISPs themselves are responsible for the cost and maintenance of the hardware and connections. ISP objections to SORM-II, which raised concerns about individual privacy, resulted in the providers being stripped of their licenses.11
In many respects, SORM is not unlike a combination of the Unites States’ Communications Assistance to Law Enforcement Act (CALEA)12 and the recent “warrantless” provisions for wiretapping, including the PATRIOT Act13 passed after the attacks of 9/11. Russian legislation formally protects individual privacy, prohibiting wiretapping of any kind without a court order.14 As a consequence, SORM requires government personnel to obtain a court order to intercept telephone conversations, electronic communications, or postal correspondence.15 In reality, however, the FSB will not bother to seek a warrant. Recently a senior FSB official sought to apply similar registration requirements for all mobile phones with Internet capabilities. However, despite this formidable surveillance potential, there is doubt about the actual capacity of the FSB to analyze the data collected.16
At present, several CIS countries have followed Russia’s lead in implementing Internet surveillance. These include:
As former British Prime Minister Winston Churchill once said when asked about the Soviet Union, “It is a riddle, wrapped in a mystery, inside an enigma; but perhaps there is a key. That key is … national interest." Transparency with regard to filtering practices varies across the region, but in all cases it is defined by the interest of the state (or the group that holds the reins of power). Protection of state interests (usually cast in terms of national security or the protection of public or cultural values) generally trump the written rules for regulation of Internet content, although often the laws themselves are ambiguous and open to interpretation. In addition, the restrictive practices of states are often fairly subtle. As an example, Uzbekistan—which was until recently the most egregious Internet censor in the region—denied that it was engaged in censorship practices. The plausibility of this claim was increased because filtering was neither uniform nor universal across all ISPs, which left open the possible, although highly improbable, chance that observed filtering practices were self-imposed by ISPs rather than proscribed by higher ups. Such subtle approaches allow the state “plausible deniability” of any wrong doing and require a great deal of contextual research to uncover the sources of the practice.
Overall a general lack of transparency affects most political/legal issues in the CIS, not only the issue of Internet filtering. Often official laws are breeched in subtle but effective ways. For example, in Azerbaijan the author of a Web site critical of the government was detained without formal arrest; this was never followed up by any formal legal sanctions. In other cases, such as the pervasive filtering policies of Internet cafés throughout the region, the decision to limit content is formally controlled by the café owners, so it is difficult to argue whether their filtering results from a fear of sanction for allowing politically sensitive material to be accessed, or from personal choice. Certainly for most Internet café owners, the objective is to make a living, not to run for office. So if certain content stands in the way of business, then it is not a difficult choice to decide what measures to take. In Tajikistan, for example, research suggests that filtering is really based on economic choices rather than any overt fear of political sanction from the security forces.