Network Shutdowns in the DRC: ICT Companies Need Clear Rules

Recent events in the Democratic Republic of the Congo (DRC) involving the government choosing to shut down Internet and SMS services nation wide in response to political unrest and violence are but another example of situations in which ICT companies face hard choices and need clear guidance in order to respect human rights.

The government shutdown order came last month, during mass protests in the capital Kinshasa and other major cities over proposed changes to an electoral law opposition parties claimed would enable President Joseph Kabila to effectively extend his stay in power beyond the current length of two Presidential terms. According to Human Rights Watch, 36 people lost their lives during the first few days of the protests in Kinshasa, 21 of whom were shot by police.

On or around January 19th, when the protests began, all mobile operators and Internet service providers (ISPs) received a government order to shutdown Internet services and SMS throughout the country. It is unclear if voice services were also impacted. In statements to the press, the largest DRC telecommunications companies Vodacom (a Vodafone subsidiary) and Tigo (a Millicom subsidiary) confirmed receiving government orders, and indicated that telcos had complied but at the time did not know how long the shutdown would last.

According to reports, government authorities initially denied giving the order, but later acknowledged responsibility following public statements by the companies involved. A DRC government spokesperson said, “We did it for security reasons because we have a constitutional duty to protect the country.”

Over a week later, reports indicate Internet services were restored for banks and government agencies, but not the wider public. Twenty days after the initial shutdown, most Internet services and SMS were reportedly restored, but social network access was still restricted.

This is not the first time the DRC’s government has restricted communications for its own ends. During the disputed 2011 election, SMS services were shutdown two days before the election, which severely hampered election-monitoring efforts.

The former UN Special Rapporteur on freedom of expression, Frank La Rue, expressed concern in his 2011 thematic report to the Human Rights Council over so-called ‘just in time’ blocking, where communications services are blocked at key political moments, such as “elections, times of social unrest, or anniversaries of politically or historically significant events.” La Rue also expressed concern that specific conditions, which under law may justify blocking, are overly broad and vague, risking actions that are arbitrary and excessive. As more and more people become connected and rely on digital communications in day-to-day life, state decisions to block access become increasingly dangerous. Clearer rules and standards are needed, both in legal provisions and for companies.

Many countries have legal provisions in place for network shutdowns, to be used in the event of a disaster or a network overload, as London did briefly during 2005 bombings – although the shutdown was criticised by the Metropolitan Chief of Police.  The DRC shutdown coincided with the release of Vodafone’s updated legal annexe to accompany their Law Enforcement Disclosure Report, which includes information on laws that justify network shutdowns in the territories they operate, including the DRC.  From the annexe, we know the DRC telecommunication law on this subject is vague and as the 2011 and most recent example demonstrate, it has been used twice in the past 5 years to stifle political protests against the President.

The UN Guiding Principles on Business and Human Rights state that companies should, “comply with all applicable laws and respect internationally recognised human rights, wherever they operate”. But what should companies do when national laws conflict with international human rights standards? A UN publication of ‘Frequently Asked Questions’ about the Guiding Principles states,

“…the company is expected to seek ways to honour the principles of internationally recognised human rights and continually demonstrate its efforts to do so. This could mean for example, protesting against government demands, seeking to enter into a dialogue with the government on human rights issues, or seeking exemptions from legal provisions that could result in adverse human rights impact”.

When former President of Egypt, Hosni Mubarak, ordered telecommunications companies to shut down mobile and Internet services during the 2011 Arab Spring, his action did not disperse the protests against his regime, nor keep him in power. The shutdown attracted global criticism, directed at the government for violating freedom of expression and assembly rights, and also directed towards telecommunication companies for complying with the order. Many felt no other world leader would repeat this mistake by ordering a full communications shutdown in times of protest.

Digital communications are an essential tool for the realisation of a range of human rights and as such, any restrictions must be clearly justified in law, demonstrated to be necessary and proportionate, and afforded the opportunity to be discussed and scrutinised publicly. Companies should not simply say that they were complying with the law or following orders, if the effect of such compliance is severe and affects human rights adversely.

Government-ordered shutdowns put companies in a very difficult position, often with little leverage. Pushing back by refusing to comply is possible, but it puts the company in a precarious position and possibly put staff in danger. It also requires a united front, as seen in Uganda in 2011 when ISPs were instructed to block access to Facebook and Twitter ahead of protests against rising food and fuel prices.  According to Reporters Without Borders, the order was not implemented by all the ISPs, “Some requested clarification. Some said they got the letter too late. And some simply refused to comply.” There does not appear to have been further consequences for the companies who refused to comply. However, pushing back does not have to be an outright refusal.  To their credit, since the events in Egypt, some telecommunications companies have begun engaging governments in dialogue around the sensitive issue of shutdowns, speaking publicly about the challenges they face and advocating for clearer legal frameworks.

In 2013, Vodafone Egypt was involved in discussions to amend Article 67 of The Egyptian Telecommunication Regulation Law which proposed, among other measures, to prohibit network disconnection entirely, except on a written decision by the President, following approval by the Cabinet. Following any disconnection, a written report would be presented to the wider People’s Assembly to explain the decision. The amendments were not adopted before Egypt’s second revolution in 2013 and it is unclear whether they will be presented for adoption again.

In 2011, Swedish telco Tele2 was ordered to shutdown communications in Zhanaozen, Kazakhstan, after a peaceful strike by oil workers turned violent when police intervened, resulting in multiple deaths and injuries. The network was unavailable for five days. Tele2 reportedly engaged the government in discussions and the telecommunications law was recently amended to include limiting measures such as restricting shutdowns to three hours.

Telenor Pakistan is currently engaged with IHRB and our partners, Islamabad based NGO Bytes 4 All and the Centre for Internet and Human Rights in Berlin, in a study examining the process of government-ordered mobile and Internet disconnection requests to companies when intelligence indicates a threat to national security. The study will also explore the social and economic impact of shutdowns on citizens of Pakistan.

In the DRC, Vodacom and Millicom spoke publicly about the shutdown, clarifying the extent of its reach, the services impacted, and confirming that the shutdown was government ordered. Telecommunication companies facing these dilemmas should continue dialogue with stakeholders, including government and civil society, to clarify and limit the circumstances where shutdowns are ordered. There is clearly a long way to go before some governments consider the practice of shutting off digital communications a ‘no go area’. But with increased dialogue and transparency, there is potential for change.