Annenberg-Oxford 2014 alum Yusuf Salman discusses changes to Turkey’s Internet Code brought about by a recent omnibus legislation that passed on September 8.
Turkey underwent a series of significant changes in internet legislation with an omnibus bill that was passed in the Parliament on February 6, 2014 and signed by the very eager former President Abdullah Gül. Among the changes proposed by the bill, the Turkish Communications Authority (TİB) gained the power to block access to websites via internet service providers (ISPs) within four hours of an order from the director of the TİB, or after complaints from persons without the need for a court order. Additionally, user traffic data was required to be collected and stored by ISPs for 6 to 24 months, and the data must be communicated to a legal authority if requested. An even more important change to the legislation, however, sits in a new omnibus bill that was approved in the Parliament in the late hours of September 8th and later signed by the new President, and former Prime Minister, Recep Tayyip Erdoğan .
In general, it is getting more difficult day by day to follow up on the changes in laws, regulations, and directives in Turkey today, as they are many altered or added appendices by omnibus bills. One needs to follow up on parliamentary discussions and votes for approval every day to fully understand what is going on. In a sense, that might be the idea behind the aggressive changes in the Internet Code in Turkey. In fact, most people protesting against, or at least criticizing, the new provisions are generally not aware of the entire content of the changes themselves, making it even more difficult to protest against or comprehend the changes. The changes in the Internet Code in February 2014 gave the director of the TİB the power to issue a “blocking order” without even a complaint by an alleged victim, required the owner/publisher of the website to apply to a designated court in 24 hours if he/she wished to refute the block, and courts subsequently had to come up with a decision on whether or not to uphold the block in 48 hours. This is not changing with the newly signed omnibus bill, and it poses a serious threat to the freedom of expression (and information) on the internet, because, on the internet, having content blocked for even two or three days is a long time, especially on social networking sites.
Implication of February 2014 Code Changes
In the previous Internet Code, the TİB’s scope of authority included blocking and banning web pages that: encouraged suicide, showed child abuse, provided illegal drugs or made them accessible, featured obscenities (for which no further explanation is made, and seems to encompass anything considered obscene), and facilitated prostitution and gambling. These authorities were approved and appended into the February legislation, along with the addition of new powers such as the authority to protect the private life of a person or a group of people. According to critics, it is no coincidence that this new provision was added to the legislation two months before local elections, and right after allegations towards some government officials and their relatives concerning corruption and conspiracy, among other things. In late 2013 and early 2014, different recordings (which revolved around political corruption, illegal acquisition, and transfer of money and other assets and allegedly featured –the then Prime Minister Recep Tayyip Erdoğan and his son, some ministers, and business people) started to appear on the internet, especially YouTube and certain Twitter accounts (that are now withheld in Turkey).
With the February legislation changes, most of the recordings and documents were either taken down from websites, or access to such information was blocked by the TİB. At this time, however, the authority and the duties of the director of the TİB or the TİB as a governmental organization did not include anything regarding national security and related issues. Following the legislation changes, in March 2014 first Twitter and then YouTube were blocked in Turkey, right before the elections. Days and weeks later, the Constitutional Court of Turkey declared “motion for stay” for the restrictions on Twitter and YouTube in separate decisions. The Constitutional Court is the highest legal authority in the country, and its decisions and judgments – which set precedents for other legal offices and authorities – have to be recognized and put into action immediately. Despite this “rule,” it took TİB about a week to realize a solution.
The New Omnibus Bill and the Future of Turkish Internet Legislation
The newly approved and signed omnibus bill goes even further and expands the authority of the TİB. One proposed change to the Internet Code refers to the storage of users’ traffic data. The change requires TİB to take over from ISPs and store the data itself. The law holds ISPs liable for the usage of the stored data; ISPs however are not governmental institutions that are in control of the consequences of any administrative or legal investigations regarding the data they have collected, and ISPs’ usage of the data is subject to many rules. With the new change, the TİB, which is a governmental institution, will be able to collect and store traffic data, which includes information such as who visited which website when, and for how long. Another change, as mentioned, is the scope of the TİB’s authority. The “right” of the TİB to restrict web content without a court order now extends to three other major issues not covered in the February legislative changes: national security, establishment and protection of public order, and prevention of crime. With these additions, more content can legally be blocked or removed by the TİB. For example, the controversial audio recording of –allegedly- a Foreign Ministry meeting about the situation in Syria could not be taken down from YouTube earlier this year, however the new bill would allow for its removal as it could be classed as an issue of national security.
In summary, the Turkish authorities did not have enough man power to deal with the internet directly, and the TİB is now taking the place of the courts to carry out the first stage of the regulatory work. Before the February Internet Code changes, it took a court about a month to receive traffic data from the ISPs, as they were given a due date for submitting the data. It sometimes took weeks to block access to websites as the procedure included investigations by prosecutors or the police which took a while. In short, the government decided to shorten the process and declare anyone “guilty” by the word of the TİB’s director, requiring the publishers of the blocked content to apply for an appeal afterwards if they wanted to demonstrate that they did not cross any lines. Additionally, ISPs are still required by law to store users’ traffic data for more than six months. With the new legislation changes, the data collected from the ISPs will be stored in the servers of the TİB, the “governmental” authority on communications in the country, without the need of a court order.
After the approval of the new omnibus bill, the internet as it is known in Turkey will change. In light of the TIB’s past actions, it is fair to assume that heavy surveillance will occur and that TIB will act on its own accord, without court orders, while declaring anything as “suspicious activity.” The government’s authority to control access on the internet and its means to store nation-wide data will struggle to align with internet user rights. There is high potential for the TİB, and by extension the government, to abuse their power and control of the internet. Personally, as an “experienced” Turkish citizen, I might say that we can always expect the worse if there is something uncertain.
There are not many control mechanisms left to prevent changes and new laws that push Turkey’s internet legislation into a more government regulated direction. The ruling political party has “almost absolute” majority in the Parliament and there has been no way of opposing any proposal, bill, or idea submitted by them, especially after the referendum in 2010. The Constitutional Court still stands against some issues that are not in line with the Constitution of Turkey, but it is impossible to predict what will happen to the Internet Code in the following years. For now, there is nothing else to do but wait and see the consequences of the recently approved legislation changes.
The Grand National Assembly of Turkey
Telekomünikasyon İletişim Başkanlığı
The Law on Regulating Broadcasting in the Internet and Fighting against Crimes Committed through Internet Broadcasting (Law No. 26530, 2007)
Officially: February 6, 2014
This issue gives the director the personal authority to give an order to block websites without a complaint by an alleged victim, or a court order. The claimed reason behind this change is the “prevention of the continuation of the publication of potentially harmful content.”
YouTube was later blocked in Turkey regarding the provisions of the Law Concerning Crimes Committed against Atatürk (Law No. 5816,1951) which is another “long story” about democracy and freedom of speech in Turkey
Yusuf Salman is currently a part of Koç University’s research team for the project COSMIC funded from the European Commission’s Seventh Framework Programme on security research. He obtained his bachelor’s degree in economics from Koç University in 2011. Formerly he worked for several organizations, most of which are media companies, as a journalist, PR specialist, advisor and manager, as well as a free-lance translator of academic and legal documents for translation and interpreting agencies. His current work as a research assistant/researcher covers contribution of social media in crisis management and communication, international law, human rights law, and censorship in media. He is interested in media policy, media law and international politics