Sniffing, big brother and the courts

16 Dec 2011

Thailand’s ICT ministry has requested a budget of 400 million baht ($12.7 million) for the hardware for a large scale surveillance program to monitor the local internet. The ICT minister seems to think that this is a magic bullet to crack down on websites critical of the monarchy, but already the opposition has come out saying that such a move is unconstitutional and a blatant violation of the constitutional rights to privacy.

The project is for the ICT ministry to install packet sniffers at various ISPs to collect information so that people breaking the law can be prosecuted. However, critics point out that the ICT ministry has no legal right to carry out such surveillance.

It is one thing to get a court order to tell ISPs to hand over all information regarding a certain person, posting or IP address activity, but quite another to actively play big brother and monitor everything in the hope of catching something bad.

Not that long ago, everyone was basking in the perceived security of BlackBerry Messenger and sending private messages and expressing their political views via the medium, but today it is clear that Research In Motion is all but too happy to help play the part of Big Brother’s little helper and turn over information and messages to law enforcement agencies.

Indonesia today is one case in point, but what struck me as more profound was RIM’s part in the Tottenham riots in the UK. Granted, rioting is bad, but do rioters automatically lose any right to privacy without a proper court order? What happened to innocent until proven guilty and the rule of law? Why is it that nobody is even asking this question?

Meanwhile, much has been said of the case in Thailand where an elderly grandfather was convicted of sending SMS text messages insulting the monarchy despite barely knowing how to use the phone or send an SMS himself (so they say). Without going into detail and risk committing contempt of court, there is one story I would like to share regarding the legal system and free speech that my former editor in chief at a certain dead-tree publication once shared with me.

At the time, the newspaper had just been sued by the ministry of public health for a column on wine tasting that the ministry deemed was alcohol advertising. This was a criminal offence and they sued the editor in chief personally.

However, he was not too worried and explained the system. Thailand’s courts are essentially a one court system, not a three court system. The first court will see if the prosecution has a case by the letter of the law and rule without taking context into account. The appeals court will only check if due process has been followed at the first court, or if the evidence is sound, again without taking context into account. Only the supreme court can take context and intent into account.

Criminal offences invariably need to have a criminal intent, but intent is only taken into consideration at the final court. Hence, he fully expected to lose the first two courts and to win at the last court or at worst be let off with a slap on the wrist because it would be the only court where he could argue that as editor in chief and not the actual writer, there was no criminal intent. This is usually the case when anyone sues a newspaper and an artifact of the ancient publishing laws that force an editor to register with the police and assume all responsibility at first.

Many parallels can be drawn between the two cases and once one understands the functioning of the courts here, and perhaps understanding this will make the situation a bit clearer to the outsider observer.

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