Kyrgyz ISPs dispute legality of Fergana website ban
On 1 Mar. 2013, the inter-district court in Bishkek resumed hearings into the case of blocking access to the website of the Fergana information agency. Judge Bermet Karagulova chaired the session.
Per the judge’s ruling on 15 Feb. 2013, the country’s ISPs are invited to today’s hearing. The lawyers of Ekstralayn, AsiaInfo, AkNet, SapatCom, Saima-Telecom, Megaline, FastNet, KyrgyzTelecom, Totel, and WinLine Internet service providers were present.
The claimant and the defendant were asked to brief the ISPs on the matter.
Nurbek Toktakunov, Fergana lawyer: It is very simple. Following the June 2010 events, the Zhogorku Kenesh [the Kyrgyz parliament] issued a statute, whose Point 30 suggests “taking action to block the Fergana website throughout the republic’s information space.” The government implemented the recommendations therein, and then-Prime Minister Omurbek Babanov wrote a letter, in part reading, “We ask you to consider the implementation of Point 30.” Then the State Communications Agency (SCA) sends a letter to all ISPs wherein it “asks to take action to block the information resource [in question] and inform the SCA on the execution [of Point 30].” Many Internet providers have then blocked [access] to the resource in question. The Fergana information agency believes this is a violation of its right to disseminate information. My individual right to use that information was violated as well. Indeed, the Zhogorku Kenesh has the right to issue any recommendation. For instance, they recommended holding [ex-President Kurmanbek] Bakiyev’s accomplices accountable. But police did not throw them behind bars immediately, and they are utilizing judicial means [to hold them accountable]. That is the procedure that must have been implemented in the website ban case as well. If the Prosecutor General’s office sees extremism traces [in Fergana’s articles], then they had to act as outlined above. However, [access] to Fergana was blocked wihout a judicial ruling to do so.
Rustam Zhunusaliyev, SCA representative: The Zhogorku Kenesh statute in question is a normative and legal document, whose implementation is obligatory. As far as the SCA letter is concerned, it only informed of the parliamentary statute and we asked to take action to block [access]. In other words, the letter is of recommendatory nature. If the SCA’s actions are illegal, then so are the parliament’s actions. We talked about taking action, and nobody was forcing anybody.
One of the ISPs: Is the SCA authorized to write such recommendatory letters? Does the law on the SCA provide for issuance of such recommendatory letters?
Zhunusaliyev: Yes, we have the right to write such letters.
One of the ISPs: Does the SCA have the right to recommend blocking or unblocking [access] to a website? An actual blocking cannot stem from a recommendation.
Zhunusaliyev: We were implementing the Zhogorku Kenesh-issued statute.
One of the ISPs: [You said earlier] “We ask” – is this a direct order or not?
Zhunusaliyev: In accordance with the law, the SCA adopts decision in the form of decrees and orders. There was neither order nor decree issued in this case.
Toktakunov: You must first decide for yourself whether the Zhogorku Kenesh statute is obligatory or not. If it is, then why did send a recommendatory letter?
Zhunusaliyev: The statute is legally binding and obligatory.
Svetlana Boldzhurova, a parliamentary representative: The statute’s implementation is obligatory. But Point 30 is a recommendation.
The Judge and Nurbek Toktakunov reminded the representative that she told at the previous hearing that the Zhogorku Kenesh-issued statutes are legally binding. Ms. Boldzhurova’s effaced herself and attempted to explain herself.
Boldzhurova: The statute itself is obligatory, but those points reading “to recommend” are recommendatory.
The Judge: The statute itself is obligatory, but Point 30 is recommendatory?
One of the ISPs: So now the SCA has nothing to do with [with the actual blocking of access], but the ISPs are guilty. In other words, the SCA will shift responsibility on the ISPs and we will be held responsible.
Toktakunov: When you received the letter, what did you make of it?
Saima-Telecom: Our licensor, who oversees our activities, contacted us. Second, we discussed this issue with members of the Association of Communications Providers. We decided that we were asked to block [access to Fergana] and report on it. This is a directive. A letter of this kind, coming from the licensing state agency, is a directive that must be implemented; moreover, they asked to report on its implementation.
The Judge: Did you report?
The Provider: Yes.
The Judge: Megaline, according to the SCA, you are the only ISP, who has not blocked [access] to Fergana?
Megaline representative: It was initially blocked; I do not know the current status.
Winline: The letter clearly states “take action to block.” In other words, we are clearly directed to block and report on action taken. But the laws on extremist activities provide for a judicial consideration [of the matter].
The Judge: Could you not block [access to] the website based on the law [you are referring to]?
Winline: We could.
Saima-Telecom: On 24 Feb. 2012, the Association of Communications Providers circulated a press release expressing its concern that the blocking was implemented without a court verdict to do so. But we could not avoid implementing the licensor’s directives. But we could state that it was illegal and that the SCA has no grounds for such action, and we did state this fact. I also have a question to the defendant side: Are the government and the SCA designated as the statute’s implementers?
Zhunusaliyev: They are not. But we were given clear assignment.
KyrgyzTelecom: I believe the Zhogorku Kenesh’s statute is obligatory. We blocked [access] but we also said it was still accessible via proxy services. In other words, the access to the website was not completely blocked.
Ekstralayn: Any blocking access can be bypassed. But we are not talking about who implemented the order and who did not. We are discussing the legality of the SCA’s letter and whether the SCA was able to refrain from implementing the Babanov government’s directives. The SCA could follow the legal path: send the request to the Prosecutor General’s office so the matter is discussed in court. Otherwise such letters will be issued in multitude in future. The SCA was supposed to raise the red flag and address the court or the Prosecutor General. We weighed the risks, but still implemented. But a precedent must be established so such illegal letters are not written anymore.
The Judge: Yes, but you could have established that very precedent by not implementing [the SCA directive].
Ekstralayn: The decision was collectively adopted.
The Judge: What do you need to unblock [access] to the website?
Ekstralayn: We need another letter from the SCA reading that the previous letter is no longer valid; or another letter explaining that the previous request was recommendatory and not legally binding. It will then be each ISP’s discretion to unblock or not.
Winline, addressing Zhunusaliyev: If ISPs unblock access, will the SCA claim it is a violation and then implement sanctions against us?
(The question was raised with Zhunusaliyev several times, including by the judge, but the SCA representative kept saying he was unable to respond and that “SCA will discuss the issue and decide.”)
Toktakunov: The SCA’s response is that “We do not know what action will be undertaken.” ISPs, are you prepared to fight with the SCA by not implementing their recommendation?
AsiaInfo: This is business and any business owner will weight costs and benefits.
The ISPs and Toktakunov turned in a motion asking the SCA chairman appears in court and responds to the question of what sanctions would be introduced against ISPS, should they unblock access to the Fergana website. However, the Judge overruled the motion and stated Zhunusaliyev and Chernogubova were designated as the SCA’s representatives and held a power of attorney.
The Judge then asked the ISPs to provide the court with letters wherein they report on the implementation of the SCA directives. Several ISPs were able to provide those letters immediately.
The next hearing is scheduled for 13 Mar. 2013.