Australia Awards Scholar pursuing a master's degree in human rights law at the Melbourne Law School
In the wake of hoax news items and hate speeches circulating online, the government has reinstated and accelerated a plan to establish a cyberagency. Coordinating Political, Legal and Security Affairs Minister Wiranto has affirmed that this agency, to be named the National Cyber Agency (BSN), will coordinate with existing entities dealing with cyberactivities in different government bodies such as the police’s cyberunit and the communication ministry’s cyber task force.
Wiranto brushed aside fears about violations of freedoms and private rights of citizens by the new agency. The BSN, rather, will focus on the protection of people’s cyberactivities, he said.
Wiranto’s statements appear to distance the BSN’s establishment from human rights discussions that oftentimes shroud government policies. With BSN inception imminent, the government needs to fully inform the public of the agency’s scope of activities and how it will implement its mandate. It is vital for the government to inform the public about these two issues since there is a valid concern that such an agency might unjustifiably interfere with the public’s life as has happened even in the United States, a champion of democracy.
The government’s public statements on the BSN are contradictory. Notwithstanding Wiranto’s remarks, Communications and Information Minister Rudiantara later asserted that the BSN would only oversee the chatter without spying, which sparked confusion.
How can the BSN oversee people’s online activities without tampering with their privacy? What are the thresholds in selecting which activities to monitor?
It is just a fallacy if the government attempts to distance the BSN from the human rights perspective.
Every government’s policy for better or worse will have impacts on human rights, albeit small perhaps.
As such, such questions should be responded to with human rights as a leading factor to be taken into account.
Although the right to privacy and freedom of expression are not unlimited, any restrictions on these rights must be “provided by law and are necessary” to respect other people’s rights or reputation as well as to protect national security, public order, health or morals.
These conditions are stipulated in Article 70 of Law No. 39/1999 on Human Rights and Article 19(3) of the International Covenant on Civil and Political Rights, which Indonesia is a party to.
Let us now deconstruct those conditions in order to have a clearer picture on the extent of the government’s authority to restrict people’s privacy and freedom of expression.
First, a government’s restriction must be provided by law. This condition essentially means that a restriction on a human right must be expressly stipulated in a law. Such a restriction is ideally in the form of legislation, in which a detailed and circumscribed set of provisions are outlined.
Legislation is preferred since it allows a deliberation with and supervision by the House of Representatives. It is unknown till now whether the BSN will be established through a law.
Nevertheless, considering Wiranto’s commitment to officiating the agency later this month, it appears the BSN will be one of President Joko “Jokowi” Widodo’s executive orders established under his own authority through a presidential decree.
As such, there is a huge gap needed to be clarified by the government before the BSN is operational. The government is obliged to publicly present a sufficiently detailed regulation covering the scope of the BSN’s works and the thresholds for any censorship or blocking.
Such a regulation should serve as a temporary framework while the government should endeavor to adopt legislation as a proper legal framework for this purpose.
More importantly, there should also be a means of redress if later on it is found that a restriction is unlawful.
Second, a restriction on rights must be necessary. This means that a restriction should be proportionate when it infringes on one’s privacy or freedom of expression. A recent judgment on this matter in Europe can assist as an example.
Late last year, the European Court of Justice ruled that the United Kingdom was breaching the right to privacy with its mass surveillance on people’s cyber activities in the UK.
The court held that generalized and indiscriminate surveillance or data retention was a breach of the right to privacy. If the government were to restrict people’s privacy and freedom, it should do so proportionately. A blanketed rule to do otherwise is thus at odds with human rights values.
Since the BSN is still in the making and will play a very important role in the nation’s future, the government should not avoid discussions on human rights related to this matter.
Instead, it should embrace such discussions to ensure a balanced response to hoax news items and hate speeches. In turn, a balanced response will help shape both the government and the country’s image as a true democracy.
Last year, Freedom House categorized Indonesia as “partly free” for freedom of expression and opinion. Let us hope that with the presence of the BSN, Indonesia does not fall into the “not free” category, where countries like Sudan, Ethiopia, Pakistan and Iran are.
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