You all know what happened on the 31st of March. Or rather, you have an idea of what happened. A planned protest failed but became a successful stay-away/shutdown.
We are not here to discuss constitutional rights to privacy, expression, and assembly. The government stresses that the gathering, however small it was, was unlawful and is looking to crack down on organisers.
In that effort, the national police spokesperson says:
We are casting the net wide to identify these initators of criminal acts and they were also threatening people in their communities using social media.
Now, they are classifying that as cyberbullying and will be looking to add those charges to some of the protest organisers.
So far, about 107 activists were arrested, and the majority of them were tracked down through a WhatsApp group and social media activity.
We shall get back to these WhatsApp groups, but first, let’s lay out some of the charges as relayed by The Herald:
Participating in a Gathering with Intent to Promote Public Violence, Breaches of Peace, or Bigotry
- This charge falls under the Maintenance of Peace and Order Act (MOPA).
- We won’t be getting into this one.
Cyberbullying and Harassment
- Not for simply sharing protest videos, but allegedly for sending threats or coercive messages in WhatsApp groups.
- This might involve trying to force other teachers or union members to participate in the protest through intimidation.
Undermining Authority of or Insulting the President
- Not detailed clearly in the article, but may be implied from protest messages or online posts (if any referenced the President or government in a derogatory manner).
- This law has been criticized in the past for being overly broad and a tool to silence dissent.
Infiltration of WhatsApp Groups
The police say they infiltrated a WhatsApp group called ‘Nyokayemabhunu’, which the activists used to organise their protest.
The Herald makes it a point to say “the investigators infiltrated the encrypted chat.” However, do not think this means they hacked WhatsApp somehow.
Rather, it’s either some undercover cops posed as activists and were granted access, or they simply forced some people arrested on the streets to unlock their phones and proceeded to go through their WhatsApp communications.
I think we sometimes forget about this limitation of end-to-end encryption. I don’t need to hack WhatsApp to get past the encryption, I just need access to your unlocked phone to bypass it all.
The Legality of It All
For those sitting on high horses and claiming the protestors broke the law, it would be mighty rich of them to break the law themselves in trying to punish the activists.
The so-called infiltration is a bit murky. How was access to private group chats obtained? Was there a legal warrant? Improperly acquired digital evidence may not be admissible.
The Cyber and Data Protection Act sets out rules regarding the processing and storage of data, and emphasises the importance of data security.
Therefore, if digital evidence is gathered in a way that is in violation of the rules set out in this Act, I think some of us could deem it as improperly acquired.
Then, when it comes to the so-called threats that the activists used on social media, that could also be considered quite rich coming from the police.
I was not in the WhatsApp groups in question, and so maybe I just never came across the threats. However, I did see promises that the police would descend heavily on any demonstrators.
In any case, the law requires that threats be serious and credible. If the “social media threats” were just strong persuasion or peer pressure without explicit harm or doxxing, the cyberbullying charge may be challenged as overreach.
First Real Test of the Cyber Act
Listen, the Cyber and Data Protection Act is newly minted and we haven’t really seen how it will be applied in practice. This particular case could be one of the first real cases where we get to see the actual interpretation of the law.
We shall see how the courts deal with the so-called social media threat claim as well as the legality of the ‘infiltration’ of private chats.
One way or the other we will get clarification on how we should interpret the Act.
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