‘RSF (Reporter sans Frontière/Reporter without Borders) is a cautious organization, this is an exceptional case’, I claimed whenever I bumped into an Ethiopian bureaucrat in the past week.

That was indeed my impression, but also intended to influence, so as to preclude an official fallout like the one with the Human Rights Watch. I wish to believe similar considerations kept RSF’s name out of the official statements made last Friday on the claims of VOIP services ban.

Perhaps, I was seriously mistaken – judging by the leaked internal memo of RSF.

RSF had a primary role in the media buzz concerning Ethiopia’s alleged ban on the use of VOIP services, like Skype, G-Talk and the like.

In a press statement on June 7, RSF made these two allegations

Use of VoIP hardware and software has just been made a crime by the new Ethiopian Telecom Service legislation, which was ratified on 24 May. Anyone violating this provision could be sentenced to up 15 years in prison. The authorities say the ban was needed on national security grounds and because VoIP posed a threat to the state’s monopoly of telephone communications.

The new law also gives the ministry of communications and information technology the power to supervise and issue licences to all privately-owned companies that import equipment used for the communication of information.

A week or two passed by before people could figure out that RSF was talking about a draft legislation, named ‘Proclamation on Telecom Fraud Offences’ and is to be found in the drawer of a parliamentary committee.

But the international media took RSF’s word for it and spread the story. By June 15 the story went spiral, after Al-Jazeera’s and BBC’s posted on the issue.

A post on Danielberhane’s blog, on Sunday June 17, challenged the claim, providing the full text of the draft law and citing three complementary grounds. That is:

• the legislation is yet a draft and at the first reading stage,
• the relevant articles can not be understood as banning personal use of Skype and
• there is no report of prosecuting VOIP users, despite the existence of a 2002 legislation with stricter articles.

Indeed, this blog argued, quoting the relevant articles, that:

“the closest thing to a prohibition of Skype in this draft law is found in Article 10 sub-article (3) and (4) that state:

Article 10(3) – Whosoever provides Telephone call or fax services through the internet commits an offence and shall be punishable with rigorous imprisonment from 3 to 8 years and with fine equal to five times the revenue estimated to have been earned by him during the period of time he provided the service.

Article 10(4) – Whosoever intentionally or by negligence obtains the service stipulated under sub-article (3) of this article commits an offence and shall be punishable with imprisonment from 3 months to 3 years and with fine from Birr 2,500 to Birr 20,000.

[However,]…these two articles concern a business entity providing telephone call (to a landline or mobile phone) and fax services using the internet. And, also, individuals using that business service.”

One hopes RSF would take notice and corrections, though they may feel too big to retract publicly. At least, I thought so.

The Leaked Memo

On June 20, RSF’s Internet research team distributed an internal memo, which an insider and a social media acquaintance shared it to me suggesting that ‘I read and weep’.

It was nothing but a desperate attempt to defend the factual and analytical flaws they made and refute the arguments of this blog, as a reading of the memo indicate and the insider confirmed.

The memo insists that the draft had became a law, except that it is not published in the official Federal Negarite Gazette. It claims:

Actually, there is an official endorsed version of the draft legislation but it hasn’t been printed yet in the Negarit Paper therefore we won’t be able to send you a copy today. We will as soon as we have one but we can’t tell you one.

Here is our explanation of the law based on the last piece of legislation to be published.

The law does not mention VOIP by direct reference. Almost everything about the criminalizing of VOIP is embedded in THREE parts given in the first pages.

Mind you, by June 20, few, if any, publicly questioned the legislation was a draft. Yet, mysteriously RSF resists to admit the fact.

Then, the memo toils to prove how the draft law bans use of VOIP services, like Skype, based on legal arguments and a radio news report.

The legal argument in the memo is based on four sub-articles quoted from the draft law. It goes like this: [all formatting are original]:

FIRST: The memo begins quoting sub-article 2(1) of the draft legislation juxtaposing its comments as follows:

“Telecommunication Service” means (Here it says neither telecommunication service provider, nor re-sale, nor transfer of services for profit making purposes and absolutely no distinction between services used for personal consumption or commercial use)…Internet services, mobile services, data communication services, the transmission or reception through the agency of electricity, or electromagnetism of any SOUND, signals, signs, writing, IMAGE or intelligence of any nature by wire, radio, optical fiber, satellite or other electromagnetic systems or any other services designated as telecommunication service by the ministry.

Now, the Telecommunication service definition part makes absolutely no difference between private use exclusive of third party benefit for profit or publicly use ( Skype, Gtalk, and Messenger, etc). The service, as defined above, includes voice based communication through the internet.

Actually, the sub-article, quoted above, doesn’t end at the word ‘Ministry’. It adds: ‘and shall not include broadcasting services and intercom connections’. This is an important phrase that could be interpreted as excluding blogging and similar online media activities.

Plus, it is not surprising the “Telecommunication Service” definition didn’t make the exceptions mentioned in the bracketed comment, in the quote above. As, the legislation concerns acts like tampering with public phone or duplicating SIM cards, which are to be penalized be it for personal or commercial use.

SECOND: The memo then quotes sub-article 2(2) as follows:

”Telecommunication Equipment” means any apparatus used or intended to be used for telecommunication services and includes its accessories and SOFTWARE.

Skype and Gtalk and Viper are all software produced by foreign entities and do not pay any royalty to the state owned Telecom monopoly. And they are hereby classified as equipment

What an explanation? Skype, Gtalk and Viper could be considered Telecommunication equipment if and only if they satisfy the definition above, not because they are foreign owned or failed to pay royalty. What’s the relevance of market liberalization to the issue at hand?

THIRD: The memo quotes sub-article 2(3) as follows:

”Call Back Service” means the use of dial tone a foreign telecommunication operator for international connections WITHOUT THE KNOWLEDGE OF THE DOMESTIC TELECOMMUNICATION OPERATOR OR FRAUDULENTLY MAKING INTERNATIONAL CALLS INTO APPARENT DOMESTIC CALLS AND SHALL INCLUDE SERVICES THAT ARE IDENTIFIED AS CALL BACK BY THE INTERNATIONAL TELECOMMUNICATION UNION.

Here the memo makes no comments. In fact, I doubt that RSF takes an official position in support of callbacks which most countries try to prevent through legal and/or technological means.

THE FOURTH and last evidence of the memo’s legal argument is sub-article 3 (1) of the draft legislation. The memo quotes:

OFFENCES RELATED TO TELECOMMUNICATION EQUIPMENT
3(1). Whoever manufactures, assembles, imports, or offers for sale any telecommunication ”equipment” without obtaining prior permit from the ministry commits an offence and shall be punishable with rigorous imprisonment from 10 to 15 years and with fine from birr 100,000 to birr 150,000.

This is yet another misleading quote. In truth, Article 3(1) begins, saying: ‘Without prejudice to sub-article (3) of this Article, whosoever manufactures….’ What does the cited sub-articled (Art. 3(3)) say? We will see that in a moment.

Concluding its legal argument of the memo claims:

The above four parts shall clearly show where free and cheap internet based voice protocols fall under this law and why we are concerned that the classification of these software as equipment and the subsequent use of these equipment is made illegal and punishable by a hefty prison term. Skype and other services work without the knowledge of or shared revenue system with Ethio-Telecom and using them to make calls to other countries or even locally is labelled fraudulent and illegal.

Really? Let’s assume the four quotes from the memo proves a ban on Skype and the like. But where is the punishment for users? As we saw above, the first three quotes are definitions and the fourth quote, Art.3(1), concerns only a person who ‘manufactures, assembles, imports, or offers for sale [a] telecommunication equipment ’.

[Mind you, RSF’s June 7 statement claimed that the legislation imposed permit requirements for telecommunication equipment on privately-owned companies. Now, suddenly, the meaning is expanded to include even users.]

The writers of the memo might argue the user of these equipment would be punished by extension (i.e., importing is illegal, so using them is illegal), though no sane lawyer would argue that way. Even so, what will be the punishment for users? At best, the judge could only use some catch-all article from the code of petty offences, which would entail lenient penalties.

No need for such untenable interpretations, however. Article 3 has another sub-article dealing with users, which the memo left out for obvious reasons. Art. 3(2) reads:

3(2). Without prejudice to sub-article (3) of this Article, whosoever uses or holds any telecommunication equipment without obtaining prior permit from the Ministry commits an offence and shall, unless it entails a more severe penalty under any other law, be punishable with rigorous imprisonment from I to 4 years and with fine from Birr 10,000 to Birr 40,000.

This sub-article would have been a useful addition to the legal argument in the memo, except, alas, it would contradict RSF’s initial claim that users ‘could be sentenced to up 15 years in prison’. No wonder they chose to leave it out of the memo.

There is yet another sub-article of Art. 3, which the memo conveniently ignored. Sub-article 10(3) states:

3(3). The Ministry shall, in consultation with concerned bodies, prescribe types of telecommunication equipment the manufacturing, assembling, importation, sale and the use of which shall not require permits, and set technical standards.

Of course, Article 3 as a whole is concerning, as noted in a previous post, and it is preferable that the legislation lists some broad exceptions.

However, it should be noted that sub-article 3(3) prescribes that the Ministry ‘shall’ (not ‘may’) provide a list of exempted ‘types of telecommunication equipment’. In other words, the prohibition on ‘using telecommunication equipment without prior permit’ could be enforced after the Ministry issued the list of exempted genre of equipment.

Thus, it is premature, if not misleading, to claim what will and will not be on that list, except as a speculation.

In deed, this is the very reason that the memo chose to omit any reference to sub-article 3(3).

At this point, it is obvious that the memo completely contradicts, rather than support, the original claims made in RSF’s June 7 statement.

One could think of two possible explanations. Either RSF issued the June 7 statement without reading the draft legislation and relying on info from local politicians or RSF’s
June 20 memo is simply being defensive. Perhaps, both are true, as the final part of the memo indicates.

The memo presents its final piece of evidence – a radio news report – as follows:

There was a news report in Amharic by Radio Fana regarding the law where one MP from the ruling party said, ”Softwares such as Skype, Viber, … etc use telecommunication networks for free to provide free services for their clients. Therefore, they should be banned here using legislation and technology”. Please find bellow the link to the audio file:
http://fanabc.com/wmedia/AmharicNewsMagazineThursdayEveningMay242012.wma

As I said above, either somebody is misleading them or the memo is engaged in a dishonorable ruse.

The news report, in the link, was aired on the Addis Ababa based Radio Fana on May 24 at 8 pm – the date when RSF claims the draft legislation became a law.

First, the news report clearly shows the parliament referred (not approve) the draft bill to a parliamentary committee on that date.

Second, a better and complete translation of the MP’s remark, who spoke at that session and quoted in the memo, would be:

" [VOIP] softwares provide cheap/free service because they use government’s infrastructure for free. So, EthioTelecom should deny them access using law and technology. But the issue of stopping them after they managed to reach users needs fullest consideration."

Most Amharic language speakers would understand the last sentence as saying "this is sticky". (By the way, the MP made no direct reference to any brand of VOIP software.]

At any rate, the mere fact that the memo left out the last part of the MP’s remark casts doubt on any objective person.

This is what goes for a research!

Concluding thoughts

You may be asking the merit of writing such a detailed commentary to refute RSF’s memo – which is not publicly distributed anyways. Indeed, that question recurred to my mind while writing this piece. But, there were more than one reasons.

To begin with, the June 7 statement, by itself, made a grave error that deserves public criticism. Mind you, there was time for fact-checking and for making a first-hand reading of the draft legislation, as this was not a kind of case where urgent press release could make a difference – esp. as RSF believed the legislation was already approved. Well, one may say this is a busy organization which could only assign interns for Ethiopian issues, so give it a break. Plus, one may think RSF took note of the mistake yet felt too big to issue a retraction on an Ethiopian case.

However, circulating another memo, on June 20, making contrived arguments to justify its erroneous claims shows a serious problem in the organization. Add to this, the misleading and incomplete quotes as well as mistranslations in the memo. This casts a serious doubt on the qualification, professional integrity and motive of the individuals who contributed, edited and approved the memo. Thereby justifying a public ridicule.

Moreover, the readers of the memo (whose number and composition is unknown to me) could not be reached via private message.

The bottom line is the very purpose of this commentary is to help RSF look into its working methods and informants and analysts, thereby to enhance the quality and integrity of its service.

Failing that would be a disservice to its stated mission and well-wishers.

***************

P.s. – The actual date of the memo could be June 19, given the time zone differences.

Previous posts (on this issue):
Ethiopia | Update: Internet telephony is legal, perhaps in internet cafes too (Sat. June 23)
Official: ‘Skype and similar activities are not banned in Ethiopia’ (Thur. June 21)
Skype me? Indeed! | Text of Ethiopia’s draft Telecom Law (Sun, June 17)

* To download the draft Proclamation on Telecom Fraud Offences click here [PDF | Size: 653 kb]

Check the Human rights archive or the Ethio Telecom archive for related posts.