On Skype | RSF retracts its statement, makes more errors

RSF (Reporter sans Frontière/Reporter without Borders) publicly retracted its erroneous allegation concerning VOIP use in Ethiopia, in a press statement published yesterday.

It is to be recalled that in a press statement on June 7, RSF said:

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.

The claim was spread by major news outlets, some, like the LA Times, used the opportunity to target the tourism industry, on which millions of Ethiopian rely, with a heading “Going to Ethiopia? If you use Skype, you could be there 15 years”.

A post on Danielberhane’s blog, on Sunday June 17, challenged the claim, providing the full text (and the actual name of) the draft legislation 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.

However, on June 20, RSF’s Internet research team distributed an internal memo intended to refute the arguments of this blog. The memo claimed:

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.

[Then, it goes to flawed and insincere arguments to justify the June 7 statement, with misleading citations of a few articles and a radio news report. The memo was leaked to this blog and published with analysis. (see here)]

The Ethiopian government’s position, that Skype and similar social media activities are legal, was learnt in a comment from a senior official first obtained and published by this blog on June 21. The government reaffirmed that, even more emphatically, in a press conference on June 22, where foreign journalists posed a direct question on whether they should be wary of using VOIP services on their laptop and in internet cafes.

The news was covered only by independent Ethiopian outlets and three foreign sites, in addition to the state-owned media.

After one month, however, on July 6 (yesterday), RSF came up with a lengthy statement retracting its allegations.

Admissions

RSF’s yesterday statement not only got the name of the legislation right, but also conceded to the arguments made by this blog on June 17. It said:

“Reporters Without Borders wishes to correct a report published on its website on 7 June stating that the 2012 Proclamation on Telecom Fraud Offences had been ratified by the Ethiopian authorities. We understand that the document has not yet been approved, despite the fact that the agenda circulated to journalists covering Parliament on May 24 explicitly said: “Examine and Endorse a Proclamation on Telecom Fraud Offences”.”

It is doubtful, however, the said title of the agenda was the cause of the erroneous allegations.

Had RSF’s June 7 statement was indeed based on the reading of the agenda, it wouldn’t have referred to the draft legislation as ‘Ethiopian Telecom Service legislation’.

The statement also noted:

“Reporters Without Borders notes that an earlier order, No. 281/2002: “Proclamation to Provide for the Amendment of Telecommunications Proclamation” presents a danger to all users of Internet-based voice communication. Amendment 11 of the current 2002 law, under which no one has been convicted or sentenced yet, makes all communication by fax or voice via the Internet illegal and liable to a fine or a prison sentence of up to five years”.

It appears RSF is making an implicit admission that the decade-long precedent of not prosecuting VOIP users, despite the stricter 2002 legislation, suggests the government’s position on the matter.

Indeed, this blog concurs with RSF’s interpretation of that legislation and deems the very existence of that legislation a threat, though Minister Shimeles Kemal insisted last month that “the Ethiopian law as it stands doesn’t prohibit VOIP services and the practice attests that”.

Legit concerns

RSF’s statement also expressed some legitimate concerns regarding the draft legislation, saying:

“The ministry [of Communication and Information Technology] would have excessive powers not only over businesses and institutions but also over individuals since the bill requires anyone who uses or holds any telecommunication equipment first to obtain a permit. Cases where this is waived are an exception.”

Indeed. This point becomes even more alarming when one notes that the requirement for permission was an exception in the previous legislation. The shift to making the requirement a rule puts citizens under the mercy of an executive agency.

The statement also correctly observes that:

* “the 2012 Proclamation on Telecom Fraud Offences as it is worded currently is disproportionately vague and could be applied to severely restrict the use of VoIP…The criminal law should be precise and be interpreted, we believe, as unambiguously as possible to protect people’s right to communicate using VoIP services.”

* “article 6 of the second section of the bill specifies that anyone who uses the telecommunications network or apparatus to disseminate any “terrorizing” or “obscene” message, or uses the infrastructure for “any other illegal purpose” could be liable for a penalty of up to eight years’ imprisonment. The vagueness of this wording is a cause for concern.”

* “it is regrettable that the draft has no safeguard clause designed to protect freedom of expression and excluding the use of VoIP from the bill’s scope.”

Doubtful points

However, RSF’s statement also made a doubtful claim, saying:

“The risks for individuals cannot be underestimated. Article 5 of the second section of the bill, covering offences of illegal interception and access, provides for up to 15 years’ imprisonment and a fine for anyone who “without the authorization of the provider or lawful user, or any other competent authority … illegally obtains access to any telecommunications system”.”

It is not clear, however, how RSF deemed intercepting and accessing a telecommunication system could include legitimate activities.

More misleading claims:

The attempt to make the title of the parliamentary agenda an excuse might be something not unexpected from an organization crawling to save face.

However, RSF’s statement went to the extent of making, apparently deliberate, misleading claims.

The statement claimed:

“The current definition of telecommunications services and telecommunications equipment could cover blogging platforms and social networks, as pointed out by the OWNI website”.

However, the draft legislation clearly states in its definitions that telecommunications services and equipment “shall not include broadcasting services and intercom connections”, as previously noted in this blog.

It is not clear how RSF reached a different conclusion. The OWIN website cited in the quote-above is an article written by journalist trainee with no legal background or any other expertise on the matter. In fact, it barely made a reference to this issue.

RSF’s statement makes even more serious blunder by claiming:

Article 10, paragraph four, [of the draft legislation] can be understood to mean the provision and use of VoIP services (it does not specify whether this means paid-for as well as free of charge), whether intentionally or “by negligence”, are offences punishable by up to two years’ imprisonment.

(Paragraph 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”.
Paragraph 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 2 years and with fine”.)

But the statement deliberately left out a very important part of Art. 10(3). The last phrase of the sub-article states “….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”. Thus, the subsequent sub-article 10(4) covers individuals using that business service.This interpretation was first indicated in this blog on June 17, then confirmed by the Ministry of Foreign Affairs weekly press release on June 22.

It is one thing to have a different, however erroneous, interpretation on a legal provision, yet, it is a completely different matter to quote it in a manner that misleads readers.

Concluding remarks:

It is commendable that RSF took the courage to correct its erroneous statements, thereby setting an example for others. However, a correctional statement was a secondary matter. This blog urged on June 25, after discussing the leaked memo:

RSF [should] 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.

However, RSF’s yesterday statement repeats the sins committed by writers of the leaked memo – misleading quotes and claims. RSF could not claim unawareness of this questionabvle practice, as it was notified of the previous commentary in this blog by e-mail.

Perhaps, RSF was advised by its Ethiopian partners not to give the government a propaganda victory. However, the only and prudent way to preclude that possibility was not to make any explicit correction. Anything else does more to damage the credibility of its statements.

Still, RSF’s effort should be commended, as it is a bold major step in the right direction.

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