How we learned to stop worrying and love the ban

by Digital Rights LAC on August 27, 2023

Crime Scene

A group of bills recently introduced in the Peruvian Congress address various issues related to Internet use. However, its take on technologies and their potential is biased and pessimistic resulting in formulas which propose banning all that which can not be controlled.

By Miguel Morachimo, Hiperderecho NGO*

A bill introduced by Congressman Omar Chehade bases itself on the concern of how easy it is to get access to pornography through the Internet. It considers that it is becoming increasingly difficult for parents to monitor what their children are doing online, due to the current variety of mediums and devices that allow people to connect. He therefore proposes the creation of a state commission dedicated to identifying and ordering the blocking of all content deemed unsuitable for minors on the Internet. This filtering would be the default setting for all Internet connections in the country and would only be deactivated for users who demand it from their internet providers.

The proposal suffers from profound legal and practical problems, as we have already pointed out at Hiperderecho, because in principle, it would implement a state system of prior censorship on content that is actually legal, such as is the case with pornography. The project does not seek to regulate access to child pornography, but to pornography in general.

In addition, the requirement of explicitly having to ask your internet provider to enable the pornographic content would create a national registry of pornography consumers which nobody would want to join.

If put into practice, the project would also be very difficult to implement and receive proper maintenance. The volume of sites that would be added daily, to a state black list, would lead to errors and grey areas, together with cases where the state authorities may use this for censorship of a political nature. The intensive use of this power would lead to the blocking of services such as Tumblr and Pinterest, or of all other peer-to-peer traffic in Peru. Therefore, accepting these solutions would open the door in the near future for the implementation of similar filtering systems for infringements of copyright or defamation.

Furthermore, after a troubled first attempt to extend the range of existing computer crimes in Peru, a new bill signed by the Executive wants to incorporate a set of new offences related to computer systems. The proposal is partly based on the Budapest Convention on Cybercrime as it proposes to incorporate crimes such as illegal access, the violation of data integrity or computer systems and the misuse of devices, among others. However, in some cases it fails to mention some of the exceptions that appear within the international text articles, while in others it incorporates entirely new ones.

This applies in the cases of grooming offences, discrimination and wire tapping. In the first, as a clear example of our national tradition of following continental trends, penalization is proposed for those who “through information technology or communications” contact children under the age of fourteen to take part in any form of pornographic or sexual activities. For discrimination offences they propose to extend the current wording of the Criminal Code to include cases in which the crime is committed “through information technologies and communication.” In other words, it proposes up to three years of imprisonment for anyone who by means of an article, comment or video broadcast on the Internet, discriminates or encourages discrimination. Finally, the bill also seeks to increase penalties for the crime of wire tapping, raising it to six years, and proposes aggravating factors for classified information or that which compromises national defence and sovereignty.

Although both bills have been drafted by different teams and address different problems, it is possible to identify some commonalities. First and foremost, they share a bleak view on the meaning and uses of technology and the role of the state.

Society has embraced the development of technology as an opportunity to innovate and improve our quality of life, which obviously has its risks, but its benefits can not be ignored. In stark contrast, within these projects, our state seems to see technology as a profound threat to society which must be suppressed, and from which we will never be sufficiently protected.

For the above reasons, these projects strive to cover all possible scenarios, which in practical terms will never be verified nor will we have the appropriate means to detect them. That’s why they would much prefer for the assumptions to be as broad as possible, as opposed to being too specific. This “precautionary” approach towards the uses of technology can ultimately affect not only the users but also companies, creators and entrepreneurs who experiment with new mediums.

The other common trait to be found within both bills, is their detachment from the nation’s reality and the institutional capacity of the state. They always start with an international document, a foreign initiative which aims to be imitated or the need to take political advantage of certain situations.

Worse still, the rush to adapt the Budapest Convention is to prevent the approval of a bill that is worse than the one proposed by the Justice Committee last year, which still has not been withdrawn. However, nobody ever points out the number of criminals who have slipped away from the state because of a loophole, the success that these measures have had in other countries or the impact that the proposed measures will have on the freedom of expression, protection of personal data and the development of scientific research.

This detachment from reality leads to proposals which are as crazy as a national anti porn filter, or populist and dangerous as extending discrimination offences to areas such as the Internet. Prohibitions like these are odd because they are so ambitious that clearly they will never be effectively enforced, or only selectively against those things that the State can not keep quiet by other means. These broad and principled prohibitions are very dangerous to a free society and the technophobia of some of our politicians is leading us to take them for innocent.

*Miguel Morachimo is director of Hiperderecho NGO .
E-mail: miguel@hiperderecho.org