New cyberlaw 'illegal' say experts
Too much power to define "emergency" or "urgent" to mean whatever govt officials & police want & seize or gain access to computer systems, phone, etc, in new law.
Too much power to define "emergency" or "urgent" to mean whatever govt officials & police want & seize or gain access to computer systems, phone, etc, in new law.
SURVEILLANCE
New cyberlaw 'illegal'
Legal experts baulk at draft of cyber bill
30/05/2017
Suchit Leesa-nguansuk
The cyber - security law will give too much authority to the government to gain access to the computer systems of both private organisations and individual citizens, legal experts say.
The new law would provide too much authority too access computer systems without a court order in cases that were deemed or claimed to be an emergency or urgent.
ACM Kanit Suwannate has been the guiding light on bills to control the media and the internet, and has shown no sign of flinching. (Bangkok Post file photo)
NEW SECTION 44: OFFICIALS GAIN SPECIAL EMERGENCY POWERS
There is a provision under Section 44 of the current cyber- security draft bill that grants authority to officials in cases of emergency that would create "significant damage" without immediate action.
In such cases, the officials have the authority to gain access to information in communications, either by:
1. Computer
2. Telephone
3. Post (mail),
4. Fax, and...
5. Any tool or instrument for electronic media communication or telecommunications,
...or take any measures for the maintenance of cybersecurity with the approval of the National Cybersecurity Committee (NCSC), and then report the action to the courts.
A group called the Free Internet Society of Thailand gathers at Chamchuri Square in Bangkok to protest about the amended Computer Crime Act.
DEFINITION TOO BROAD, SO POLICY WILL CHANGE WITH EACH GOVT
"The definition of 'significant damages' in the draft is too broad and subject to interpretation," said Dhiraphol Suwanprateep, a partner in the intellectual property (IP) practice at the law firm Baker McKenzie.
Since the NCSC will have to be changed when its term ends, the standard for significant damages may be inconsistent, depending on the policy of the parties who form the government at the time, he said.
SHOULD BE JUDICIAL REVIEW IN EACH CASE TO IMPOSE STANDARDS
This is markedly different from the court systems, Mr Dhiraphol said, where there is a consistent standard that the court has to follow, even when judges change.
Therefore, there should judicial review in every case, even cases that could create "significant damages".
Excluding courts from the legal process could decrease confidence and trust of the private sector or the opposition.
COURTS CAN GRANT IMMEDIATE ORDERS IN EMERGENCIES
In emergencies, courts are also capable of granting immediate orders.
Mr Dhiraphol said Section 44 also prescribes a penalty for private sector actors who do not comply with official orders.
In case of non-compliance, officials should present the possible infractions for the NCSC to bring to the attention of the appropriate regulators to determine the punishment to the party concerned in accordance with existing laws, notifications or regulations.
"We view that linking of penalty to other regulations is unfair since the companies involved have already complied with relevant regulations," Mr Dhiraphol said.
RETROACTIVE PENALTIES FOR NOT FOLLOWING THE LAW BEFORE IT EXISTED
When such businesses were established they complied with all the existing regulations in force at that time, including obtaining the relevant licences, which is already a complex and time consuming process.
The government wants to introduce penalties which could result in the revocation of licences obtained following due procedures in the past.
Mr Dhiraphol also said the priority of the NCSC to do is to lay down a defence policy for all government agencies as they are vulnerable to cyberattacks.
WHISTLEBLOWER PROTECTIONS NEEDED
Moreover, he said this bill should include protective measures for whistleblowers.
People who provide information to the NCSC (for example, notifying them of any suspected cyberattacks) should be protected from repercussions under this bill, such as being fired from the company where illegal conduct is found.
Paiboon Amonpinyokeat, the founder and legal counsellor of P&P Law Firm, said the UK and the US, where there are cybersecurity bills, require court orders before accessing systems.
DEFINE 'EMERGENCY' MORE CLEARLY
Cybersecurity drafts should clarify "emergency cases" more clearly, with the inclusion of cyber- terrorism, for instance, rather than rely on state judgment without court orders.
Most importantly, Mr Paiboon, who is also a legal expert, said NCSC should be accountable under the balance of powers.
The draft bill proposed by the National Reforming Steering Assembly (NRSA) is an amendment to the original version drafted by the Ministry of Digital Economy and Society (DE) and endorsed last year by the cabinet.
http://www.bangkokpost.com/business/news/1258958/legal-experts-baulk-at-draft-of-cyber-bill
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