I- The Technical Telecommunications Agency (ATT)
Decree nº2013-4506 of November 6, 2013: The Net Police is Reborn
Since its inception less than one year ago, the Technical Telecommunications Agency (ATT) devoted to monitoring cybercriminality has embodied controversy over the interim government’s anti-terrorism tactics and legal approach. Announced by decree on November 12, 2013, the creation of the ATT within the Ministry of Information and Communication Technologies has been stigmatized by netizens as the rebirth of its infamous predecessor the Tunisian Internet Agency (ATI), associated with the Ammar 404 censorship era under President Zine Abidine Ben Ali.
Headed by former ATI member Jamel Zenkri, the ATT committee is composed of
seven nine individuals, seven of whom are appointed by the Ministry of Justice, Ministry of the Interior, Ministry of National Defense, Ministry of Information and Commuication Technologies, Ministry of Human Rights and Transitional Justice, and the Superior Committee for Human Rights and Fundamental Liberties, and the National Tribunal for the Protection of Personal Information. A Tunisie Haut Débit (THD) article published three days after the announcement reported that among the ATT’s operations1 are «to monitor the integrity of networks and to protect electronic communications against cyber-crimes» and more generally to ensure «the technical functionality and development of the national network.»
Tunisian journalists and activists—notably the same whose posts, blogs, websites, etc. were blocked during Ben Ali’s tenure—were quick to question the motives of the new ‘net police’ collective, criticizing the ambiguous language designating its formation and operation, as well as its legal flaws and constitutional discrepancies. The same day that THD published «Creation of the Technical Telecommunications Agency: the Net Police Has Been Born,» cyber-activist Slim Amamou posted on Twitter «The Tunisian Prime Minister has just created the Tunisian NSA by decree.» On November 26, Global Voices Advocacy published «Will Tunisia’s ATT Ring in a New Era of Mass Surveillance?» by journalist Afef Abrougui and soon after lawyer Kais Berrjab produced a meticulous examination of the «battery of legal irregularities related to unconstitutionality and illegality of the role that the ATT is to play.» Months later, the International Business Times published NSA Style: Tunisia Setting Up Counterterrorism Unit that will also Spy on Citizens,» and Index on Censorship reported on «Undermining Progress: Digital Surveillance and the Tunisian Constitution.»
Now, in the midst of heightened tension following the death of fifteen soldiers on Chaambi Mountain and national anti-terrorism campaign that is manifest on billboards, television commercials, and in political party discourse, the same Tunisian journalists and activists who have critiqued the ATT since its inception are reporting on a cybercrime draft law that was leaked on July 23. A press conference one day after the Chaambi Mountain attack pinpointed precisely how the loosely-defined role of the ATT can be construed. Responding to a question about a plan of action to address terrorism, Minister of the Interior Lofti Ben Jeddou “did not hide his exasperation that there is a means of communication so readily available to terrorists without the State being able to intervene. ‘We are presently working to activate the Technical Telecommunications Agency (ATT) to track cells working to recruit youth via the Internet, Skype in particular. This agency will also be charged with censuring and controlling this cyberspace.’ “
For Tunisian netizens, the Minister’s statement was a frightening invokation of Ben Ali’s Ammar 404. In «Leaked Cybercrime Law Could Undo Tunisia’s Pioneer Status on Internet Rights», Afef Abrougui highlights the discrepancy:
ATT head Jamel Zenkri said that his agency does not seek to practice Internet filtering. “Censorship of the Internet is not the prerogative of the ATT,” he added. In fact, Tunisian law does not establish any entity responsible for Internet filtering.
Illegal filtering, of course, carried out by a sophisticated, multi-layer «technical filtering infrastructure» constituting «among the most repressive machines in the realm of online censorship» of the Ben Ali administration has been well-documented by Tunisian netizens and international organizations. «In addition to filtering Web content, the government of Tunisia utilizes laws, regulations, and surveillance to achieve strict control over the Internet.» In 2009, an OpenNet Initiative Report characterized the country’s technological dichotomy: Tunisia, the report estimated, «has one of the most developed telecommunications infrastructures in North Africa» and «maintains a focused, effective system of Internet control that blends content filtering with harsh laws to censor objectionable and politically threatening information.»
II- July 23 – Leaked Draft Law Relative to Cybercriminality
#A2T donne un acces direct au Ministere de l'interieur pour qu'il espionne les citoyens. Aucun juge requis. Art. 31 loi internet
— Slim Amamou (@slim404) July 25, 2014
.@heger_ c'est une ~fuite~ de projet de loi. C'est pas officiel. J'espère qu'ils ne vont pas oser le passer
— Slim Amamou (@slim404) July 25, 2014
It’s a leaked draft law. It’s not official. I hope they don’t dare to pass it.
Slim Amamou, twitter
What is certain is that the ATT, in spite of and, it would seem, owing to, its ambiguous nature, will operate at the heart of an emergency plan of action developed by the Ministry of the Interior and the Ministry of National Defense. According to THD, the former has called upon the Ministry of Information and Communication Technologies to «find a solution for pages inciting hatred and condoning terrorism,» to which end, presumably, the draft law concerning cybercriminality was hastened into production. The present draft cites neither author nor source but has been attributed to the former Minister of Information and Communication Technologies Mongi Marzoug. In order to be adopted it must first be reviewed by the Council of Ministries (CM) and subsequently passed on as a bill to the National Constituent Assembly (ANC) for entactment.
Antiterrorism Measures Dredge Up Memories of Censorship and Hypocrisy
Present critiques of the fundamentally flawed legal approach and procedures of Tunisia’s legislative functions echo previous complaints that the initial decision to form the ATT bypassed Parliament entirely. Among those who have reinvigorated this frustration, Riadh Guerfali evokes the idea of «technological under-development» that is the legacy of Ben Ali’s autocratic administration of the media. A Global Voices Advocacy article written by Sami Ben Gharbia in 2008 describes how the government implemented illegal censorship as a means to maintain an idealized image of the State:
And while the Tunisian government worked hard to ensure that the polished image of a “secular, modern and democratic” state would not be marred by any “negative” information disseminated by opponents on the web, Tunisian video activists and bloggers kept the spotlight on the Redeyef revolt exposing harsh repression and flooding both banned video-sharing websites Youtube and Dailymotion with footage of demonstrators, protesting against unemployment and nepotism, clashing with the police. Sami Ben Gharbia, Silencing Online Speech in Tunisia
Through filtering, hacking, and intimidation tactics (which in many cases accomplished the intended effect of self-censorship), Ammar 404 effectively pitted citizens as outlaws, whereas the wielding of censorship as a weapon inherently rendered the government itself an outlaw. Thusly censorship, a human right and safeguard against physical and verbal harm, was manipulated and employed to control, oppress, and perpetrate the very abuses against which it is intended to protect.
It is the transgression from the notion of censorship as a right and protection against physical violence and slander that Tunisia’s legal system must now recalibrate in order to advance in this period designated as democratic transition. That Tunisian law adheres to international standards is not merely insufficient, but ill-fitted, unconstructive, and myopic if compliance with international conventions translates into the copy-paste importation of text, and a lack of contextualization and comparative analysis.
Where Tunisian Legislation is Deficient
Case law Legal principles enunciated and embodied in judicial decisions that are derived from the application of particular areas of law to the facts of individual cases.
…a dynamic and constantly developing body of law. Each case contains a portion wherein the facts of the controversy are set forth as well as the holding and the dicta—an explanation of how the judge arrived at a particular conclusion.
West’s Encyclopedia of American Law, edition 2.
Source: The Free Dictionary
…in any draft law that concerns fundamental liberties, to legislate without taking into account comparative case law experiences is to risk lagging behind, by half a century at least, in terms of democratic protections. It must be emphasized, and very often, that the emulated texts—not least of which the Universal Declaration of Human Rights—date back as much.
It is regrettable that all too often the Tunisian legislator is not pro-active in codifying eloquent case law solutions justly implemented in other countries, in order to compensate for the democratic shortcomings within the legislative body… these same shortcomings that we reproduce, sometimes haphazardly, without even taking caution against their pernicious factors.
Riadh Guerfali, Regarding the Term «Stupidity» Qualifying the Tunisian Draft Law Relative to the Repression of Violations on Computer Networks
Where statutory law has no mandate, case law is often indespensible. In the Western democracies from which Tunisia has historically drawn to craft its own statutory law, the tradition of case law is well-established (in France where it has been extensively codified since c.1875, the United States where it has not, since c.1800, and Great Britain since the sixteenth century2). Although, to a minimal degree since independence in 1956, case law has been applied in civil and commercial affairs, its application in Tunisia’s political realm has been negligible. What Guerfali’s criticisms amount to is the argument that the government’s maladroit approach to legislation must be reformed to establish a tradition of case law…not only as a manner of a integrated, diversified legal methodology, but also and especially if the legislative body continues to look towards international law as its primary source of inspiration. Taking into consideration case-specific factors of time, place, social/political context, it is no wonder that the leaked draft law has been picked apart and a number of its articles3 deemed ambiguous enough that they might “allow for the violation of user rights to privacy and free speech,” as Abrougui has written.
Guerfali discusses at length the legislative holes, deficiencies, and imprecisions of the draft law in question of which Article 17 (concerning the punishment of «any person who deliberately produces, sells, imports, distributes, makes available, exposes» a program, password, access code, or «any similar computer data» to the end of committing one among the violations specified under this law» is a shining example. A reader commentary on Facebook pointing out that the draft is based on the Budapest Convention on Cybercriminality, was the fortuitous prompt for Guerfali’s tedious examination of Article 17 and synthesization of three points that illustrate Tunisia’s «questionable legal approach…so common that it is not unique to the draft law in question»:
The alarming insertion of the word «detention» into and «amputation» of protections from the ‘imported’ text of the Budapest Convention produce an article that «literally confuses the possession of technological tools with the commission of offenses. In sum, it is as if Article 17 were confusing the possession of knives or cars with the crimes of which they are the potential instruments in order to ban them.»
II- The Absence of Case Law…
“The true democratic standards […] are those that have been elaborated over a number of decades by supreme courts, constitutional courts, courts of appeal, state councils, and, above all, the European Court of Human Rights. It is within these case law experiences that the true democratic standards can be found today.”
III- …Means the Inability to Address Deficiencies
It is owing to this established tradition of case law that Western democracies are well-equipped to address legal shortfalls, and by the same token, the absence of case law in the Tunisian legal system that renders it more susceptible to and incapable of remedying legal deficiencies, gaps, and contradictions: “It is an approach that is inspired by the legislation of democratic countries, a total abstraction of jurisprudence safeguards that back this legislation. Nonexistent as these case law safeguards are in Tunisia, the smallest legal ambiguity can have dramatic consequences upon liberties and democracy.”
Anti-terrorism Measures Need Not, Must Not Infringe upon Right to Privacy, Freedom of Expression
The crux of the current discussion around the interim government’s anti-terrorism tactics and associated provisions against cybercriminality are fundamental liberties, particularly freedom of expression and the right to privacy. The most effective safeguards of these liberties are an accountable legislative body that adheres to international standards and accordingly incorporates within its methodology case law, accounting for time, place, and context-specific factors that apply to the case in question. The formation of the ATT and the new draft law are vital topics of debate because they epitomize legislative negligeance and the imperative for legislative reforms, diversification, and a more comprehensive legal framework and processes. Such reforms are necessary to promote a legal system that is accountable to the concerted operation of state institutions as well as to the citizenry.
1- See S. Bougacha’s pertinent comments below
2- Riadh Guerfali. Interview, 30 July 2014.
3- See Afef Abrougui’s Leaked Cybercrime Law Could Undo Tunisia’s Pioneer Status on Internet Rights regarding Articles 25, 30, 31, and Riadh Guerfali’s Regarding the Term “Stupidity” regarding Articles 15, 17, 18, 24, 30