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< | Criminalization of Encryption | >
> | A Handy Pretext for Autocracy: The Bylock Case of Turkey | | | | |
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< | -- By NevfelAkkasoglu - 16 Apr 2021 | >
> | -- By NevfelAkkasoglu - 4 May 2021 | | |
Introduction | |
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< | It was a sunny September day in Istanbul, right after the failed coup in 2016, when a dozen policemen showed up at the door of 66-year-old Judge Aydin Akay, a prominent defense lawyer and a United Nations war crimes tribunal judge, to arrest him. The warrant indicated that Judge Akay was under terrorism charges for using a smartphone-messaging application called Bylock. He was only one of the 75,000 people who would eventually be imprisoned for the same reason: downloading the encrypted messenger app. As part of an ever-intensifying crackdown by the regime of Turkish President Recep Tayyip Erdogan, it was a horrifying time: regardless of the content of mobile phones’ encrypted messages, the mere fact of a connection to the Bylock server was deemed sufficient to incriminate anyone. | >
> | It was a sunny September day in Istanbul, right after the failed coup in 2016, when a dozen policemen showed up at the door of 66-year-old Judge Aydin Akay, a prominent defense lawyer and a United Nations war crimes tribunal judge, to arrest him. The warrant indicated that Judge Akay was under terrorism charges for using a smartphone-messaging application called Bylock, putting him among the 75,000 people who would eventually be imprisoned for the same reason: downloading the encrypted messenger app. It was a horrifying time for Turkish users of the Bylock, which had been downloaded more than 600,000 times worldwide. | | | | |
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< | Using the above-mentioned Bylock case in Turkey as an example, this essay analyzes how, by means of secure communication tools, state actors can systematically and effectively curtail fundamental freedoms on a large scale in order to target political opponents and activists. The criminalization of encryption is an increasingly widespread tactic in authoritarian regimes; however, no government has used it as widely and publicly as Turkey. | >
> | Using the above-mentioned Bylock case in Turkey as an example, this essay focuses on how, by attacking the means of secure communication tools, a state actor can systematically and effectively curtail fundamental freedoms on a large scale to target political opponents and activists. The criminalization of encryption and abuse of metadata are among the increasingly widespread tactics used by authoritarian regimes for this purpose; however, no government has employed them as widely and publicly as Turkey. | | |
Background | |
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< | Following the 2016 coup attempt in Turkey, the Erdogan Government launched a massive crackdown against many individuals and groups labeled as dissidents against its authority. Seeking justifications to maintain authoritarian practices that had already been concentrated by then, the Erdogan regime employed an unprecedentedly useful pretext, the coup, to consolidate its power. While many opposition leaders, including Kurdish politicians, leftist groups, and various religious communities, were targeted, the most significant clampdown was against the Gulen Movement, a social and religious movement which Erdogan accused of plotting the military coup. The Movement vehemently denies this. The Government associated the Bylock app with the Movement, and 112,000 people who were in some way linked with the app were prosecuted on terrorism charges; 75,000 of these were imprisoned. Not only users of Bylock, but also users of other secure chatting apps like KakaoTalk? and Tango, were under the radar of the regime. Despite the lack of incriminating messaging content, in most cases, the sole indication of an IP address matching with ByLock? servers obtained from ISPs was considered sufficient evidence for a conviction. Turkey's use of ByLock? in mass prosecutions quickly evolved from being a means to (allegedly) find Gulenists to being used as an exclusive proof of conspiracy. | >
> | Following the 2016 coup attempt in Turkey, the Erdogan Government launched a massive crackdown against many individuals and groups labeled as dissidents against its authority. Seeking justifications to maintain authoritarian practices that were already in place by then, the Erdogan regime employed an unprecedentedly useful pretext, the coup attempt, to consolidate its power. While many opposition leaders, including Kurdish politicians, leftist groups, and various religious communities, were targeted, the most significant clampdown was against the Gulen Movement, a social and religious movement which Erdogan accused of plotting the military coup. The Movement vehemently denies this. The Government associated the Bylock app with the Movement, and 112,000 people who were in some way linked with the app were prosecuted on terrorism charges; 75,000 of these were imprisoned. Not only users of Bylock, but also users of other secure chatting apps like KakaoTalk? and Tango were under the radar of the regime. At the end of the day, Turkey's use of ByLock? in mass prosecutions quickly evolved from being a means to (allegedly) find Gulenists to being used as an exclusive proof of conspiracy. | | | | |
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< | Criminalization | >
> | Criminalization of Encryption | | | | |
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< | It is not a new phenomenon that repressive regimes suppress opposition by keeping communication channels under control. However, events taking place in Turkey, a country with a relatively healthier democratic culture in the region, differ from the practices of purely repressive regimes. Turkey, as a country still negotiating a stalled accession to the European Union, cannot openly admit to being against fundamental freedoms. The crucial point is that semi-democratic regimes like Turkey amplify and dramatize illusive facts to distract people from thinking about the long-term effects of their actions. Countries at this level, for example, do not claim that they are against freedom of expression itself. They never assert that freedom of the press or assembly is evil. Rather, they carefully engineer "political crimes" into laws or have the courts "freely" interpret the pertinent rules to that end. Once an article criticizing the regime is published, its author finds themself behind bars, not because they exercised their freedom of speech but because they violated anti-terror laws or for national-security reasons. When the masses see what happens to nonconformists, the regime no longer needs to openly declare its discontentment with freedom. The Turkish regime could not explicitly target freedoms, since it did not want to break its ties with the democratic world entirely; and because there was a certain degree of consciousness, albeit weak, regarding individual rights in Turkish society. Although the goal of the Erdogan regime was to restrict freedoms eventually, it managed to sell its long-term democracy-weakening scheme to its citizens in a different format, taking advantage of citizens’ ignorance regarding privacy rights and encryption. | >
> | The Turkish regime could not explicitly attack freedoms, since as a country still negotiating a stalled accession to the European Union, it did not want to break its ties with the democratic world entirely; and because there was a certain degree of consciousness, albeit weak, regarding individual rights in Turkish society. Although the goal of the Erdogan regime was to restrict freedoms eventually, [Fn1] it managed to sell its long-term democracy-weakening scheme to its citizens in a different format, taking advantage of citizens' unawareness regarding their right to privacy. To that end, the Erdogan regime demonized and criminalized the use of secure communication channels. While Internet technologies are not unfamiliar to the public, the same cannot be said for encryption. In an effort to manipulate this situation, the Government carried out a series of propaganda operations against so-called Bylock users through government-controlled media, police raids, and arrests. Most people heard of encryption for the first time in a context associated with criminals, national security, and terrorism, which resulted in a public perception that it was related only to illegal activities. This all happened at a time when the concept of encryption was just beginning to sprout and become known to the general public. Eventually, the Government's tactics worked. By distorting the potential of a healthy understanding of encryption via Bylock investigations, a chilling precedent was established against the very existence of encryption. While aiming for encryption might not seem to have been the focus of the Turkish regime's repression, frightening a country of 80 million people away from encrypted communication channels and ultimately leaving them indifferent to privacy and anonymity was a critical step in strengthening the regime's autocracy. | | | | |
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< | In this sense, instead of subjecting the Internet to the power of mass state surveillance in order to control possible resistance, the Erdogan regime demonized and criminalized the use of secure communication channels. While Internet technologies are not unfamiliar to the public, the same cannot be said for privacy and encryption. Most people could not distinguish basic concepts such as IP address, encryption, or the value of privacy. In an effort to manipulate this situation, the Government carried out a series of propaganda operations against so-called Bylock users through government-controlled media, police raids, and arrests. As a result, it created a public perception that encryption was related only to criminal activities. Most people had heard of encryption for the first time in a context associated with criminals, national security, and terrorism. Even ordinary people who were not politically affiliated with any group and allegedly had Bylock on their phones were demonized and ostracized from society as if they posed a national-security threat. Eventually, the Government's tactics worked. With Bylock, a chilling precedent was created which, by distorting a healthy understanding of encryption and anonymity, would pave the way for the suppression of any potential opposition to the government. This was followed by social media legislation that gave the Government broad policing powers over the social media content. | | | | |
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> | Abuse of Metadata | | | | |
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< | Conclusion
All in all, in an age when many fundamental freedoms are related in some way to people’s online presence, the Turkish Government has established its hegemony over practically all freedoms in the long run by targeting encrypted communications. Encryption provides an online privacy space for individuals like Judge Akay to exercise their freedom of expression without any type of arbitrary and unlawful interference, especially from state actors. Therefore, advocating and promoting secure communication methods, especially federated platforms developed with encryption, has become equated with, and necessary for, the defense of fundamental freedoms against the whims of government in the digital age. This is why, as Edward Snowden said, “Encryption works.” | >
> | Another aspect of the Bylock case portrays how metadata can turn into a weapon in the hands of autocratic passions. In most Bylock-related judicial proceedings, despite the lack of incriminating messaging content, the sole indication of an IP address matching with Bylock servers obtained from ISPs was considered sufficient evidence for a conviction. While the Government's acquiring so-called incriminating evidence (IP logs) from ISPs without a court order and seizure of the Bylock server (for content) were blatantly illegal under Turkish laws, simply accepting a TCP/IP connection as incriminating evidence was shockingly incompatible with any international criminal adjudication standards. The Clegg and Baker report demonstrates that the alleged use of Bylock does not satisfy the provision of ECHR Article 5/1(c), which stipulates a person's right to liberty and security, thereby rendering the detention of individuals on the basis of their connection to the Bylock server via an IP address is arbitrary; and fails the test of reasonable suspicion. The capacity of a dedicated despotic government to incarcerate tens of thousands of people with only one type of metadata (IP address) requires a serious reconsideration of the traditional distinction between content and non-content information. In this sense, separating metadata from content information and subjecting it to lighter judicial scrutiny is an oxymoronic delusion, given the ability of governments to access a plethora of information stored by data collectors—often data-mined and ready to use. [Fn2] | | | | |
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> | Conclusion | | | | |
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> | In an age when many fundamental freedoms are related in some way to individuals' online presence, the Bylock case provides a striking example of this. Encryption offers an online privacy space for individuals like Judge Akay to exercise their freedom of expression without any type of arbitrary and unlawful interference, especially from state actors. Therefore, advocating and promoting secure communication methods, especially federated platforms in which the users control their metadata, has become equated with, and necessary for, the defense of fundamental freedoms against the whims of government in the digital age. | | | | |
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This draft is less an essay about the criminalization of encryption than it is about Turkish autocracy. The best route to improvement is to determine which subject should be retained. | | | | |
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< | If the subject is the criminalization of encryption, then Turkey is one country, pursuing not the criminalization of encryption in strict terms, but rather the use of communications services themselves employing encryption, which is operationally different, but well within the various forms of such legislation you might be considering. It would be relevant to point out that PGP was originally developed by Philip Zimmerman to obviate the possibility of another form of encryption criminalization introduced in the US Congress by the Chairman of the Senate Judiciary Committee, Orrin Hatch, in 1989. | | | | |
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< | If the subject is Turkish despotism, I think attention would focus on the idea that a single IP connection could be sufficient evidence for conviction of any crime of any kind. That's incompatible with any international standard of criminal adjudication, or with our fundamental notions of due process here. No one supposes that a judiciary capable of affirming such convictions is not acting to secure the independent rule of law. Does encryption really matter in any way here, once the fact of making a TCP/IP connection is held to be evidence of anything? | | | | |
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> | Fn1: See Turkey’s social media legislation of 2020. | | | | |
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> | Fn2: See this, and this (the section by Rita Raley.) | | | |
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