Computer crime laws belie Thai claim to modern society

At online discussion sites all over the world, comments are posted on the Web as soon as they are written. People argue, inform, express anger, and voice fears. Some say things in the heat of the moment that they might go on to regret. Others are elliptical and obscure. The enabling of such conversations is an important modern method of discovering and re-telling the news, and encourages previously uninvolved readers of the news to help gather and disseminate it–especially in times when traditional media is censored or afraid.

This is why Prachatai, a nonprofit online magazine founded by Thai journalists, academics, non-governmental organizations and two Thai senators, founded their discussion forum. And during Thailand’s 2008 state of emergency–a period of great uncertainty, as anti-government protesters clashed violently with counter-demonstrators, airports were occupied, and coup rumors spread–the site was used by thousands of people, who posted tens of thousands of comments.

Prachatai‘s manager, Chiranuch “Jiew” Premchaiporn, and her team worked to moderate these comments–to keep the rumors or insults from growing too wild. She depended, as moderators do, on the community to report any violations of their code. That, apparently, is enough to make her a criminal under Thailand’s Computer Crimes Act.

In Thailand, criticizing the institution (and the person) of the king is a crime. The king is a much-loved figure, seen as above the fray of politics, and almost all of society opposes insults to the royal family. It is always politically popular to show that you are ruthlessly hard on those who commit “lèse majesté,” or an indignity against the monarchy.

Ten posts out of the many, many thousands posted on the site that Jiew managed were reported to the police as violating lèse majesté. Jiew’s team of moderators had already removed all of those that they knew about. None remained on the site after 20 days.

Thailand’s Computer Crimes Act is written so that those who run the computers that “import [unlawful] computer data” are as guilty as those who created that content. In other words, just having a computer carry disloyal content is as great a crime as saying it yourself. Even deleting the messages does not eliminate the guilt. The moment the words are posted via your computer, you are guilty.

Chiranuch, a dedicated woman who has reported for years on issues such as labor and AIDS, spent the past three years in and out of the courtroom, at imminent risk of a punishment that matches that of original lèse majesté: 50 years in prison. On Wednesday (after some final delays that hinted that Thailand’s establishment was aware of the global spotlight upon it), Jiew’s verdict was read out in court.

She was not innocent: Because one comment took 20 days to delete instead of less than 10, she was found guilty of “importing” it. The sentence was eight months, suspended.

Sitting in the dark in California, I breathed a sigh of relief. Then, ridiculously, I kicked a chair across the room. My friend Jiew was free to leave the court, but every other webmaster, host, and company in Thailand was left on tenterhooks. Do they need to find and delete every suspicious comment in 10 days? If the police fail to inform them of the comment (as they had Chiranuch), are they still responsible? If the judge said, as he did, that it was “unfair” that the law made them guilty the moment the comment went online, does that mean it is not really a crime? Will others have to spend three years in court, as Chiranuch did, or 50 years in jail, as she might have done? And how many times must Prachatai, a politically vulnerable news site, go through this?

Any time the carriers of data are responsible for the crimes of that data, the law leaves everyone who runs the Internet confused and afraid. In the pursuit of what justice he could extract from a vague and unconstrained law, the judge was compelled to invent an arbitrary 10-day rule.

Laws similar to Thailand’s have been suggested elsewhere as a way of dealing with illicit content online. Make ISPs and Web hosts like Google and Facebook responsible for their users’ content, the argument goes, and you cure the problem of chasing down the original offenders. ISPs aren’t anonymous. Big Internet companies have a lot of money to pay fines, and could aggressively avoid dangerous commenters or content.

As such, the Prachatai case inspired groups previously uninvolved in press freedom to realize the importance of defending it. The case helped inspire the Thai Netizen Network, a group of lawyers, Net users, and media campaigners to work together within Thailand to combat online restrictions. Large Internet companies took notice too: If Jiew was guilty, effectively dozens of other “intermediaries” were guilty in the same case, and all kinds of Thai digital businesses, from telecommunications companies to local competitors to Silicon Valley giants, would be vulnerable to criminal prosecution. Google, Yahoo, and Microsoft all stood in support of her.

Bangkok is a vibrant, diverse, high-tech city, with Internet startups, microelectronics manufacturing, and multinational outposts, hooked together with a sophisticated, modern broadband infrastructure. Public officials tweet, and even protesters hitch up huge projectors in city squares to hear Skype broadcasts from politicians. It cannot continue to have a law on its books which quickly criminalizes every element of this machinery of a modern free press.

Jiew’s case shows that computer crime law needs to be fundamentally reformed. And for Thailand to show itself to be a free society, her innocence needs to be made a matter of record.