Who benefits from the silence? Freedom of expression and women human rights defenders in Costa Rica, Honduras and Guatemala

In this article, Daysi Flores, a JASS Mesoamérica representative and GenderIT.org contributor, looks at a number of new cybercrime laws in Costa Rica, Honduras and Guatemala that pose a threat to online security, the right to privacy, and freedom of expression and association for the countries’ citizens in general, but for women human rights defenders in particular.

“Little girls are prettier when they keep quiet,” our grandmothers used to say when girls made “cheeky” remarks. Women know all about mandates and the price that is paid for not obeying them. For years they have tried to get state institutions to respond to their demands, to acknowledge them, or at least realise that they exist. While they sometimes succeeded in gaining a response, these are almost always incomplete, unfulfilled, and sometimes even ridiculous in light of the realities women face. As a result, women have become experts in resistance: they have resisted since the days when people were made of corn and the passage of time was measured in suns and nahuales. They continue to resist in times when sovereignties are given away, imperial forces move in, borders are “opened” for the movement of goods, and technological advances are manipulated to ensure continued accumulation and exploitation.

Resistance struggles are born in many places, painted with many different brushes, and programmed in different codes. This makes them ever more effective on the one hand, and ever less accessible on the other. Formal and de facto powers know this, which is why they wage increasingly more repressive attacks on resistance with the weapons at their disposal: they want to silence and halt any advances. They do it with weapons that tear apart existences, snatch lives, block messages and persecute on a daily basis. Today, they not only want silence, they want to ensure that their control is absolute. This is why they want to control what women say, and when, how and why they say it. This is why their weapons have been extended to the official sphere. Many justifications have been used to open the way for the various legislative and judicial "contract killers” that strip women – and most significantly, women human rights defenders – of the basic right to the freedom of expression.

The laws that categorise cyber crimes in the Mesoamerican region, such as Law 4055 in Guatemala, Law 9048 in Costa Rica and the law for the interception of private telecommunications contained in Decree 243-2011 in Honduras (enforced in 2012), are clear examples of the efforts carried out to silence women human rights defenders.

All of these laws use the justification of the protection of the interests of the public, but never state which or whose interests they are protecting. All of them warn of the potential danger posed by new information and communications technologies. And all of them – now that women are just beginning to adopt these tools – justify the violation of basic rights in pursuit of the common good. The text of Law 4055 in Guatemala states: “There is a need for the effective creation and application of special norms to address computer-related crimes, given that, due to the nature of acts of cyber crime and the fact that they are transborder crimes, the application of the current norms of the Penal Code is complicated, which translates into legal loopholes that permit criminals to perpetrate illicit acts through new information technologies.” Or the wiretapping legislation in Honduras, which reads: “It must be specified that, despite the protection provided for the right to the secrecy of communications, this is not an absolute right, and thus for the purposes of the public interest, security and the investigation of criminal acts, it is unavoidable that the State may restrict it…”

Information and communications technologies have been used by activists, human rights defenders and citizens to counteract hegemonic discourse, and in many cases, they have constituted the only sources of such information. For example, the case of women defenders of the right to decide, or women defenders of sexual diversity, whose voices are silenced and who are attacked in the traditional media to undermine their integrity. This also applies to the case of WikiLeaks, which has exposed "internal” affairs that involve people in every country in the world. These include memos on the coup d’état in Honduras; and the notorious “memo of fear” in Costa Rica, which revealed the underhanded strategy of the Oscar Arias administration for the manipulation of information to generate a climate of fear over the alleged consequences of a “no” vote against the U.S.-Central America Free Trade Agreement, a strategy that proved to be effective.

It would appear that whistle-blowing actions like these have created an urgent need for governments to restrict the freedom of expression of their citizens, and especially of women human rights defenders, who are using all the tools in reach to expose the truth.

While this article does not propose to provide an in-depth analysis of each of the above-mentioned laws, it will offer a quick overview of some of the points considered particularly salient in the context of the countries chosen, in that they represent a threat to the right to privacy and to freedom of expression and association, and their implications for the integrity of women human rights defenders.

Guatemala: Cyber crimes against the nation and cyber terrorism

It is particularly striking, especially given the military nature of the current government, that Law 4055 establishes some of the harshest sentences in the region for cyber crimes against the nation and cyber terrorism: 20 years in prison or a fine of 1,000 to 10,000 minimum salaries, without clearly specifying who can be charged with this crime, or under what circumstances. In addition, the designation of the Ministry of Defence for the application of this law is chilling since it is members of the military who have been accused of genocide and human rights violations, including the mass-scale rape of women (as denounced by participants in the Festival For Memory in 2011, aimed at reclaiming historical memory from the perspective and experience of women and breaking the silence around the sexual violence they faced).

Another particularly alarming aspect is that while this law purports to respect the right to privacy of individuals, it also contains a provision for the retention of data, establishing that it must be stored for a period of 90 days and guaranteeing the confidentiality of investigation: “Those who collaborate or participate in the process of investigation, in terms of the gathering, retention, interception or intervention of data from a system that uses information technologies or their components, or any other action, including service providers, will maintain the confidentiality of the actions of the competent authority.” In other words, private service providers must store all activity generated through any information and communications technology for at least 90 days.

The third point worth highlighting is that the Guatemalan government stipulates that “it may formally establish with other states, in accordance with international practice, the provision of reciprocal judicial assistance in investigations, trials and legal proceedings related to the crimes specified in this law.” This implies the possibility of prosecuting Guatemalan men and women in other countries for exercising their freedom of expression. This represents a particular threat to defenders of the right to their lands and territories who are attacked through their families, since it would mean that the option of emigrating to other countries would not be a means to ensure their own safety or the safety of their families.

Costa Rica and cyber espionage

The recently adopted Law 9048 adds new crimes through the amendment of numerous articles of the Criminal Code and the addition of a new Section VIII entitled “Cyber crimes and related norms”. These modifications have sparked widespread debate, primarily among journalists and human rights defenders, who point to the dangers posed by the new restrictions.

As an article published on the subject by the Association for Progressive Communications notes, “Beyond the fight against online crime, Law 9048 introduces new criminal offences into Costa Rican law.” Andrés Guadamuz (@tecnnollama), a highly respected internet scholar and the Creative Commons Project Lead in Costa Rica, goes further, posing the question of whether this is not perhaps the world’s first anti-WikiLeaks law.

According to Guadamuz, the most controversial part of the law is that it modifies the existing offence of espionage to include a digital element. This has been interpreted by the local press and blogosphere as an attack on the right to protection of sources, or rather, an attack on freedom of the press and freedom of speech. “However,” he says, “I think that journalists miss the real point behind the law. This is evidently an attempt to criminalise leaking information to whistle-blowing sites like WikiLeaks.”

For her part, Costa Rican President Laura Chinchilla, in her role as “patron” of the International Telecommunication Union (ITU) Child Online Protection initiative, defends the law by arguing that Costa Rica is “genuinely strengthening its framework of protection” by incorporating legal offences that “simply did not exist before because the dangers entailed by the use of this type of technologies did not exist.” (1) Thus the excuse of “protection” is once again being used to restrict freedom of expression. Costa Rica is one of the countries with the highest rates of internet access in the region, and women’s involvement in this field is significant. Many women human rights defenders are digital media columnists and opinion makers; this law seeks to silence them, along with anyone else who dares to contradict the hegemonic agenda.

Honduras and the interception of communications

The new legislation adopted for the interception of communications openly violates freedom of expression, as stressed by the Centre for Justice and International Law and the Committee of Relatives of the Detained-Disappeared in Honduras before the Inter-American Commission on Human Rights (IACHR).

Under the legislation, the interception of communications is justified as a special investigative technique, allowing the authorities to listen to, capture, record, save, tape or observe communications without the consent of the parties to the communications. (2)

The law authorises and describes the interception of all types of communications: email messages, mobile phone text messages, written correspondence, voice messages, encrypted messages, public service receipts and credit card records, among others.

These categories make human rights defenders potential targets, given that, in addition, the legislation establishes the legal concept of “persons under investigation”, whose communications may be intercepted without the need for a court order. In the words of Hedme Sierra, member of the Technical Unit of Human Rights Defenders, “The concept of person under investigation implies that any person could fall under this category without there necessarily being a rational indication of the commission of a crime.” Even worse, the law establishes in article 7 a paragraph on the interception of communications between persons physically present: “The interception of oral communications, or those realised between persons who are present, may also be authorised.”

In accordance with article 16 of the law, a request for interception of communications must be immediately dealt with by a judge within a maximum period of four hours in order to be rendered admissible, potentially leading to sentences of between four and seven years of prison.

It is noteworthy that all of these laws share in common a clear element of ambiguity that would allow for the communication and information activities of women human rights defenders through the media at their disposal to be classified as crimes.

For women human rights defenders, all of these laws represent exhaustive control of the technologies they use. Technologies which, incidentally, they have only recently begun to appropriate, due to the significant gender divide in the region. These controls serve to inhibit them from continuing to explore the potential of information and communications technologies for their work, and discourage the use of ICTs as mechanisms for response and the strengthening of their struggles.

It should come as no surprise that the countries with the highest rates of violence due to militarised governments (whether resulting from elections or a coup d’état, as in the case of Guatemala and Honduras) should create institutions such as the Committee for Response to Cyber Incidents attached to the Ministry of National Defence and the Unit for Interception of Communications, respectively, to enforce laws that repress freedom of expression and the defence of human rights through information and communications technologies.

It is these governments who benefit from the silence imposed by these laws, and who will do anything within their power to stifle the voices of those who stand up for women’s rights. These laws are aimed at ensuring that only their own voices are heard. But they censor free speech without realising that the seeds of freedom of expression have been sown and are germinating within every woman who uses all of the means within her reach, ever more frequently and strategically, to fight back against injustice. Despite the laws that criminalise them, they will continue to appropriate the tools that allow them to protect themselves and their communities. Because words will always find the cracks needed to break through the barriers of silence.

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The edition is a part of APC's Connect your rights: Internet rights are human rights campaign financed by the Swedish International Development Cooperation Agency (Sida)

Image published with permission of JASS Mesoamérica