Thursday, November 06, 2014

[CWHK] Catch-all computer crime law threatens Hong Kong's online freedom of speech

The free flow of information and freedom of online expression have often been touted as among the cornerstones of success for Hong Kong’s ICT industry, and the reason that many global Internet service providers and data centers have chosen to base their facilities here. Yet, when we think about challenges in cyber law, we tend to focus on issues around hacking, network intrusion or data theft—but neglect the ambiguity in online freedom of speech.

A case in point is the use of the Internet and social media during the Occupy Central movement. Citizens, especially young people, are mobilized to participate in political-related activities and actions, via different platforms. Their actions have been widely reported and even celebrated by international media. However, on October 18, a 23-year-old Internet user was arrested under the charge of “access to computer with criminal or dishonest intent”, for allegedly posting messages at the HKGolden online forum telling others to join the demonstration in Mongkok and obstructing rail services. Since then as many as fourteen other were arrested under this charge, sending shockwaves to local Internet users for the fear of being targeted because of their online speech. 

What do this offence “access to computer with criminal or dishonest intent” actually means? According to Legco minutes, originally the legislative intent of the offence was to counter preparatory acts prior to committing a fraud or hacking with access to a computer. Thus, it is a narrowly drafted computer crime law added as Section 161 to the Crimes Ordinance back in 1993. Conviction can lead up to a maximum of five years’ imprisonment. But it has been increasingly and broadly used in recent years.

The government has gradually expanded the use of this offence beyond preparatory acts of fraud or hacking activities to cases involving indecent acts, making of lewd or obscene recordings, selling of unlawful electronic goods, as well as—unfortunately—targeting online speeches. 

The police routinely makes statements about “laws in the real world” also apply in the cyberworld. Why don’t the police then apply the same laws from the real world in the cyberworld, instead of using the “narrowly drafted, but broadly used” Section 161 in rather arbitrary ways? 

I must emphasize that those who are accused could very much be “guilty”, but the issue is that any accused individual should be charged with a crime that is specific for his or her alleged illegal act. A catch-all offence or an offence used in a way that has deviated from its original intent would be grossly inappropriate and indeed against the very concept of the rule of law. 

Clearly, impact of the widening applications of Section 161 has caused a chilling effect on the Internet. Local netizens are increasingly worried that the police is actively monitoring online discussions that advocates specific political views. 

This is why for the past two years I have been demanding prosecution details on the use of this offence in recent years, in order to investigate for patterns of wrongdoings. But the Security Bureau is still refusing to provide anything more than the total number of cases, claiming that the bureau “has not kept such information.” I am now demanding the Secretary of Justice to provide the information.

How hard is it to assign a clerk to look up the record of these cases and provide the answers to an official question asked by a legislator? What has the government got to hide?

I believe it is important to build more public awareness and concern about the misuse of this Section 161 offence. So, I started an online petition campaign to urge the police to stop using this offence that deviates from its legislative intent, and to demand the government to review this outdated law immediately. The campaign ended on 14 November with over 5,000 signatures. 

An open and free Internet is essential to the development of any modern economy, making it easier to launch new ideas, innovation, and even advancement in political and public affairs. We—as IT professionals, responsible citizens and users of the Internet—should protect it from being eroded. 


Published on Computerworld Hong Kong, Nov 2014


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