Saturday, July 10, 2004

another from the ronin

Hey, Infidel-- how lawyerly are you feeling? Ronin's got some info that might interest you (and other lawyer-types... hint-hint). Here's a slightly edited reprint of by47ronin's most recent email to me. One of the more interesting points is how long-standing and pervasive the South Korean government's cyber-censorship has been. Ronin writes:

This is what we call a SITREP in the army (situation report). I guess we're all babes in the woods on this matter.

After looking into this a little bit more, actually rather surprised at the findings. In sum, Korean governmental Internet regulation, and blocking, is far more pervasive than we suspected. The main reason for this seems to be that Western media keep giving Korea a free ride. Whereas the PRC government seems to operate under a microscope and every single utterance is debated, criticized and exposed by the media and talking heads on the Internet, the Korean government has managed to get away with transgressions that easily rival the communists in terms of scope and severity... for lack of critical condemnation and international scrutiny.

Past Korean Internet blocks have included, but were not limited to, blocking all GeoCities domains because one webpage contained an article on North Korea; a campaign against homosexual websites, and shutting down political activists' websites.

The organ charged with policing the Internet in Korea is the Information and Communications Ethics Committee (ICEC), a quasi-governmental organ that operates at the behest of the Ministry of Information and Communication. To put it rather indelicately... basically the ICEC (picture a dozen middle-aged Korean men outdoing each other at playing Confucius) bans whatever it deems offensive to 'public morals' whenever it pleases. For the curious, the ICEC guidelines are (were) spelled out by Article 53 of the Telecommunications Business Act. Article 53-2 authorizes the ICEC.

Article 53 (Regulation of Subversive Communications)

(1) The person in use of telecommunication shall not make communications with contents of harming the public safety and order or public morals.

(2) The communication subjects, etc., considered harmful to the public safety and order or public morals pursuant to paragraph (1) shall be determined by the Presidential Decree.

(3) The Minister of Information and Communication may issue an order to deny, suspend or restrict against the communications of the above paragraph (2) to the telecommunication business operator.

Article 53-2 (Telecommunication Ethics Commission)

(1) For the purpose of suppressing subversive communications under Article 53 and securing healthy information culture, the Telecommunication Ethics Commission (hereinafter referred to as the "Commission") shall be established.

(2) The Commission shall be composed of commission members with no less than eleven, but no more than fifteen in its number, including the chairman.

(3) The commission members shall be commissioned by the Minister of Information and Communication among those engaged in the academic world, legal circles, user organization and business area related to telecommunication service.

(4) The Commission shall execute the following tasks, for the purpose of eradicating subversive communications and promoting active and healthy informations:

1.Presentation of general principles on telecommunication ethics;

2.Deliberation of and request for correction of information prescribed by the Presidential Decree, among those circulated for the purpose of disclosure to the public through telecommunication line;

3.Recommendations to make appropriate measures for healthy information circulated through telecommunication line;

4.Operation of reporting centers against unhealthy telecommunication activities;

5.Activities necessary for promotion of a healthy information environment; and

6.Other matters, delegated by the Minister of Information and Communication, related to regulation of subversive communications circulated through telecommunication.

(5) The matters necessary for organization and operation of the Commission shall be determined by the Presidential Decree.

(6) The Government may give financial aid to the expenses necessary for operation of the Commission within the limit of its budget.

[This Article Newly Inserted by Act No. 4903, Jan. 5, 1995]


Article 16 (Threatening Telecommunications)

According to Clause 2 of Art. 53 of the Telecommunications Business Act, telecommunications that disturb the peace and social order and established social morals and customs are like below.

1. Telecommunications that aim to commit a crime, or abet the commission of a crime.

2. Telecommunications that aim to encourage an anti-government act.

3. Telecommunications that are injurious to public morals or social order.

HERE's where it gets good...

In response to past ICEC actions, Koreans have taken action. In one such case, Internet websites were shut down without warning, or explanation. A group of Koreans filed a petition to the Korean Constitutional Court (sound familiar?), arguing Article 53 guidelines were excessively broad and vague. The Korean Constitutional Court ruled in favor of the petitioners and declared Article 53 of the TBA unconstitutional on June 27, 2002.

In response, the ICEC drafted a new series of guidelines, the Strict Deliberation Standards (SDS). At the moment attempting to get a copy of the SDS. My suspicion is that the SDS is nothing more than a recasting and rewording of Article 53.

All it takes for the ICEC to shut down a website, or, as we now know, a domain that hosts millions of websites, is one complaint. Or, as we say in the colloquial vernacular... a snitch. And apparently, this snitching is rampant in Korea (I'd go so far as saying, "out of control"). The MIC has a hotline and invites people to snitch on each other. And snitching is rampant. To give you an idea, in 2002, the ICEC received 25,210 'complaints' of 'alleged' offensive content on websites. In 21,502 cases (the overwhelming majority), the ICEC ordered the websites to delete images or text, alter content, attach a warning, suspend service or cancel the user agreement. Korean ISPs fear the MIC and readily comply with ICEC requests. Basically, the Korean Internet exists under an authoritarian model where an uninvestigated complaint by an anonymous snitch will result in the suspension of a web page, or domain, without any legal review whatsoever. The ICEC only has to wink at an ISP and they get the picture. This will explain the discrepancy you report from your media source. Complete deniability. The ICEC isn't really "ordering" anything... but it doesn't have to.

In view of this, I would urge going forward with a petition to the Constitutional Court. There is a direct precedent for going forward, the precedent bodes well for any petitioners, provided the petition itself addresses specific legal issues. The court has already reviewed a very similar case in the past and ruled the government was wrong. Since one element of Internet banning was argued, challenged, and declared unconstitutional, this complaint should challenge the authority of the ICEC itself, by challenging that the ICEC itself is an unconstitutional entity that operates beyond the bounds of oversight, that its methods are excessive, arbitrary and broad and violate the free exercise of expression and threaten the fostering of an environment for the free and unimpeded exchange of ideas.

To reiterate: non-citizens are NOT barred from filing petitions. Any resident of the Republic of Korea who believes his/her rights are being violated by the Korean government may file a petition.

In addition, Kevin, you have a more interesting case. Since you are advertising a commercial product on your web page (your book), I would investigate the possibilities of suing your ISP for damages... serious damages (restricting your right to pursue commerce etc.). In other words, pursue any and all avenues to start applying pressure on these people. Time to smoke them out of their hole.

For MUCH more information on the Internet and Korean authoritarianism, I highly recommend this group:

One last word on this. I have read that Joel's online petition has received only 80 signatures. I am getting the distinct impression that the will for pursuing the Constitutional Court petition route is completely lacking, and that no one is stepping forward to lead the way on this.

I am frankly disgusted with the Internet blogger crowd. I gave 3 1/2 years of my life in the army allegedly in the defense of freedom. I know an overwhelming majority of bloggers haven't sacrificed one second in defense of anything. Now they are experiencing the long pervasive reach of government encroachment, fewer than a handful are stepping forward to take any kind of action. They're not being asked to pointlessly ride around Baghdad in an unarmored Humvee to be shot at until they get seriously fucked up. They're not being recalled to active duty after 3, or 6, or 14, or 20 years of service already, to go ahead and abandon their jobs, their colleges, their families, to put it all on the line one more time for some vague abstract government policy that they may or may not agree with. They're simply being asked to contribute whatever they can in fighting Korean Internet authoritarianism, the effects of which they are directly experiencing. Sign a petition, send emails to friends, the media, link pages, spread the word. MINIMAL things... and people can't do that.


As to you, Kev... keep fighting the good fight. I'm doing what I can.


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