It has been an uncomfortable several months for internet users the Kingdom over, as the government released the drafts of its eight new digital-related bills. The bills immediately became the source of much controversy, as many critics and pundits criticised the new regulations and laws included in the drafts to be a step back into the days before the 1997 media reforms, giving government agencies absolute control over the surveillance, management and oversight of digital data.
Arthit Suriyawongkul, committee secretary of the Foundation for Internet and Civic Culture, previously known as the Thai Netizen Network, sat down with Life to discuss the most serious ramifications of the eight new cyber-related bills, which can be divided into three categories, namely infrastructure, resource management and criminal prosecution and surveillance.
"Generally speaking, these types of laws and regulations are necessary, as the old laws set in place in the 2007 Computer Crimes act don't directly deal with issues such as privacy or data theft," said Arthit.
"The question now is in what form should those regulations exist. There are definitely pros and cons to these new bills, but there are also plenty of areas where the bill can be vastly revised."
Infrastructure
Acting on the Department Improvement Act -- recently passed by the National Legislative Assembly (NLA) -- the government will soon be replacing the Ministry of Information and Communications Technology (MICT) with the newly established Digital Economy and Society Ministry (DESM) in September.
The ministry will be granted administrative powers to plan, promote, develop and enact various activities for the goal of promoting the country's digital economy and society. These plans will be drafted by the government-appointed Committee of Digital Economy and Society (CDES), which will act as the governing body behind the ministry.
"The development of the digital economy in our country has been sporadic and inconsistent in the past, due to constant political uncertainty," said Arthit.
"Having a centralised organisation to oversee the long-term development of the country's digital economy is a good thing, similar to the National Economic and Social Development Board (NESDB). When the board lays down a 10-year plan, for example, the current government must enact policies that will adhere to that plan."
Furthermore, the draft also mentions the establishment of the Personal Information Protection Committee (PIPC), which will be responsible for auditing and reviewing the actions of the CDES as well as any other digital-related agencies to see whether they are infringing on the people's right to privacy. Like many other parts of the bill, however, there is a catch.
"Perplexingly, the PIPC will operate as a sub-office within the Digital Economy and Society Ministry -- the same office as the CDES -- and will share logistical resources with the DESM. Now, if the PIPC wants to launch a probe into the operations of the CDES, what's to guarantee that they will receive the aid they need? Also, since the PIPC is considered a sub-office of the DESM, if it does its job too well, could the DESM or CDES members potentially fire problematic members of the PIPC?
"Under this organisational structure, the PIPC can't possibly have the autonomy to do what it is they are meant to do. The government has entirely removed any counterbalancing measures from their infrastructure."
Resource Management
Aside from their authority in setting plans for the nation's digital economy, the CDES will also be playing a role in the management of the country's communications resources, in this case the various broadcasting wavelengths and the Broadcasting and Telecommunications Research and Development Fund for the Public Interest (BTFP), both of which were formerly under the independently-operated National Broadcasting and Telecommunications Commission (NBTC's) jurisdiction.
"The NBTC -- from a law-drafter's point of view -- has always had too much independence. They can write and revise new laws, develop and manage their own initiatives and also self-monitor conflicts within their own organisation. The government most likely wanted to be able to influence the NBTC."
Previously, the nation's broadcasting wavelengths, which were declared to belong to the people by the 1997 Media Reform Bill, were overseen by the NBTC, and were licensed out to any interested organisations based on an auction system.
"The auction system was fair, in the sense that it was reliant on the market, which is a reflection of the people's wants. More successful businesses had more money to auction with."
The new draft, according to Arthit, has now given the CDES the authority to license out these broadcasting frequencies to organisations based on a subjective "beauty contest" system, in which applicants submit their plans for the channel or frequency, while the CDES has final say on who gets what, before giving the leftovers to the NBTC for auction.
"Frequencies -- which should belong to the people -- will now be handed out based on the CDES's discretion, as there really is no objective way to say that one TV channel's schedule is better than the other. It's a complete reversion to the days before the 1997 reforms.
"Not only do the people have very little say in the whole matter, this new favours system also opens the possibility of corruption, as the CDES members could just give wavelengths to people they like."
Moreover, according to the National Council for Peace and Order's Announcement 80/2557 (2014), the Ministry of Finance will now be able to "loan" money from the BTFP -- formerly reserved exclusively for use in the development of telecommunications resources, such as telephone poles in remote areas -- and use that money for matters unrelated to telecommunications or digital-related matters at all.
"Some people may ask why this is a problem, as the fund is already saved for use in government projects. While that's an entirely valid perspective, this could also mean that there is no longer any guarantee that the money will be used for development of telecommunications."
Cyber Crime Prevention and Prosecution
Perhaps the most closely scrutinised aspect of the new drafts, the subject of preventing and/or prosecuting cyber crimes, has been among the most worrisome of the new drafts as government agents seem to be given absolute control over the digital space.
According to the drafted Cyber Security Bill's Section 35, government agents have the authority to access "any kind of communicative media, from mail, telegrams [seriously?], phones, faxes, computers and any kind of electronic communications device for the benefit of Thailand's digital stability", all without a court order, as long as they believe that the subject "may be relevant to the upholding of national and military stability". The law, however, fails to mention what exactly qualifies a civilian to be "relevant" in the context of the law.
"The drafters came out to explain their reasoning behind this law after much public uproar and criticism. They said that they were in a hurry, and did not have the time to include all the guidelines and regulations into the released draft. They promised to clarify the law and make it more specific, but it's been a while now and we've yet to see any development on that front."
Aside from the infamous Section 35, the amendment to Section 20(4) of the Computer Crimes Act has also alarmed critics of the law, with many seeing it as an equivalent to imposing perpetual martial law on the digital space.
According to Arthit, the law will give the National Council of Cyber Security -- a new, prime minister-led council formed under the Cyber Stability Bill -- the ability to shut down the operations of any website, whether the information on their site is legal or illegal, as long as the council deems it a threat to the good values of the Thai people.
"Martial law is necessary in times of crises, as it allows the government to bypass due process in favour of immediate action. As such, the government has the authority to conduct searches and arrests, or even block the broadcasting of certain information, all without a court warrant. This is very similar to this bill, except for the fact that martial law has its own list of conditions that must be met before it is used. This law, however, will be in effect all the time.
"Before, as unjust or immoral as we felt certain laws were, at the very least we were aware of what they covered. But these laws are based almost entirely on the discretion of a government appointed council, and as such can be interpreted and enforced differently from member to member. What if a certain news website reports on a disturbing story, and a member of the Council of Cyber Security decides it's best to just block the website completely?"
