Costa Rica, a country whose Constitutional Court declared access to the Internet a fundamental right, recently approved a series of reforms to the Criminal Code, creating new criminal offenses—Law 9048—severely restricting internet freedom and causing alarm among netizens and journalists. The law was signed by President Laura Chinchilla on July 10, 2012.
Andres Guadamuz (@tecnnollama), a well-known Internet scholar and Creative Commons Project Lead in Costa Rica, analyzes the law in his article “Is this the first anti-Wikileaks law?” and describes the changes it introduces:
The most controversial part of the law is that it modifies the existing type of espionage to include a digital element.
The old Criminal Code defined Espionage in Art. 288 as follows:
“Espionage. [A person] Shall be punished with imprisonment of one to six years, if they improperly procure or obtain secret political information, or security policies concerning the means of defense or foreign relations of the State.”
The new law has modified the article to read:
“Espionage. [A person] Shall be punished with imprisonment of one to six years, if they improperly procure or obtain secret political information, security policies concerning the means of defense or foreign relations of the State, or affects the fight against drug trafficking or organized crime.
The sentence is five to ten years’ imprisonment where the conduct takes place through computer manipulation, malicious software or use of information and communication technology.”
This has rightly created a bit of a stink with the local press and blogosphere, as they see it as a possible affront to freedom of the press and freedom of speech. However, 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. The law in its present form was discussed and approved in a legislative commission in 2010, at the time that Wikileaks was front page news across the world. The inclusion of this reform makes no other sense whatsoever, as it enhances existing penalties for espionage just by adding the digital element. There is no other justification that I can think of to make incarceration for leaking political information through electronic means almost twice as harsh as “analogue” leaking.
The outrage and strong opinions against the law have come from different sectors of Costan Rica society, demanding a dialogue involving different sectors and the amendment of the restrictive provisions. The Knight Center for Journalism in The Americas also expressed their concerns over the law for criminalizing the revelation of political secrets. Different media sectors are now engaged in a dialogue with the government to try to eliminate any threat to the right of freedom of expression and opinion in the digital environment.
The Costa Rican blogosphere is discussing in an open forum [es] whether the revelation of secrets should be criminalized and whether the approved provisions are a new gag law [es] harming freedom of expression in the country.
Activist Carolina Flores in the post “Cybercrime Law: More Questions than answers” [es] also expressed different concerns and pointed out a relevant aspect contained in the law regarding electronic impersonation:
Art. 230 reads:
“Impersonation. [A person] Shall be punished with imprisonment of three to six years if they impersonate a person in any social network, website, electronic or information technology medium. The same penalty shall be imposed upon persons who, using a false or nonexistent identity, cause damages to a third party.”
This provision will eliminate the possibility of using any form of impersonation online, such as avatars, pseudonyms and even pictures.
Another provision troubling activist is the criminalization of “spreading false news”, a provision which resembles legislation in Guatemala which justified the incarceration of a Twitter user for spreading rumors about a bank.
Groups of journalists and experts are trying to engage in a dialogue with the authorities to modify the already approved legislation, which entry into force depends on its publication in the National Gazette. If the law is published as it is now written, any newspaper or journalist publishing classified information (as Costa Rican newspaper La Nacion did with WikiLeaks) will be prosecuted and normal online activities such as the use of nicknames will be forbidden.