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Terrorism Legislation in the Social Media Age

Terrorism Legislation in the Social Media Age
3rd August 2020 Joseph Franco
Joseph Franco
In Insights

Replacing the 2007 Human Security Act

Philippine President Rodrigo Duterte signed Republic Act 11479 (RA 11479) or the 2020 Anti-Terrorism Act in the midst of the COVID-19 pandemic. Taking effect on 18 July 2020, RA 11479 replaced Republic Act 9372 or the 2007 Human Security Act (HSA), which acted as linchpin of terrorism legislation in the Philippines.

Proponents of the new Act claim that it was a necessary measure to address the shortcomings of the 2007 HSA. To date, the HSA only lead to one conviction of a terrorist suspect and the proscription of the Abu Sayyaf Group (ASG). Often cited for the low utilisation of the HSA is the heavy fine that could be levied against security forces. “Damages for Unproven Charge of Terrorism” amount to nearly half a million pesos a day, more than 1500 times the daily minimum wage in Metro Manila at the time.

Public protests met the passage of the bill, with nearly two dozen court challenges filed with the Supreme Court. The filings are mostly concerned on the constitutionality of RA 11479’s Section 25 that grants the Anti-Terrorism Council the power to designate “Terrorist Individual[s], Groups of Persons, Organizations or Associations”. Unchallenged, section 25 appears to overturn Philippine jurisprudence where probable cause is determined by courts.

Social media and the 2020 Anti-Terrorism Act

The 2007 HSA emerged before the proliferation of social media platforms. It referred to information technologies and digital communications in a generalised fashion. Reference to electronic communications in the HSA mostly prescribed steps required to lawfully intercept communications, using intercepts as evidence in court, and their final disposition after legal proceedings.

The new RA 11479 also hews closely to this generalised treatment of information technology. Section 3 of the law includes in its list of “Critical Infrastructure” the category of “information systems and technology”, which could be applied to social media.  RA 11479 also categorises “computer and network surveillance” as part of legitimate surveillance activities.

It is unclear whether the absence of social media in RA 11479 was a deliberate act of omission. Nonetheless, it has been the crux of most arguments against the Anti-Terrorism Act by both activists and ordinary citizens online. Specifically, criticism against the Anti-Terrorism Act are centred on its vague provisions specifically on the new crime of “Inciting to Commit Terrorism” under Section 9. There are concerns that this ambiguous provision covering “…speeches, proclamations, writings, emblems, banners or other representations….” could lead to arrests based solely on social media posts critical of the incumbent government.

In May 2020, public school teacher Ronnel Mas was arrested and charged with inciting to sedition, after offering a 50 million peso bounty for anyone who kills Duterte in an obvious shitpost tweet. While the warrantless arrest was eventually deemed unlawful by a court ruling, it is symptomatic of the overzealous tendency of some local law enforcers to arrest critics, regardless of the validity of threats made. Opponents of RA 11479 stress that with the law in play, law enforcement agencies would have more excuses to rationalise warrantless arrests.

Lessons in legislation

Opposition to terrorism legislation could be mitigated or avoided altogether by minimising vague language. The United Nations have pointed out how the “Act differs from and is substantially broader than the model definition which has been proposed by the mandate of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism.”

To date, there has been no explicit reassurance to assuage fears of potential arrests resulting from liking a Facebook post or re-tweeting a post under Section 9. It is also unclear whether Section 6 that makes “…collecting or making documents connected with the preparation of terrorism” an unlawful act covers academics and journalists doing primary source research on terrorist groups.

The lack of clarity is also observed in RA 11479’s proposed solutions.  Section 45 intends to build a specific “Preventing and countering violent extremism program”. However, nowhere in the law are the terms ‘radicalisation’ and ‘violent extremism’ (VE) defined in spite of being central concepts in the proposed program. Loose language that conflates VE and insurgency are a recurring feature in existing security regulations in the Philippines.

It does not help when pro-RA 11479 government officials only go as far as pointing to a generic clause in the law that promises to exclude “advocacy, protest, dissent, stoppage of work, industrial or mass action and other similar exercises of civil and political rights”. Meanwhile, other government statements would go on to denounce critics of RA 11479 as terrorist supporters. Fears over the arbitrary application of the RA 11479 appear grounded on the selectiveness of government responses to protests. A demonstration against the then Anti-Terror Bill led to arrests while a simultaneously conducted rally in support of the measure was allowed by the police.

Conclusion

Barring an unexpected ruling from the Supreme Court striking down RA 11479, it would appear the next point of contention for critics of the law are its forthcoming Implementing Guidelines, Rules and Regulations (IGRR). Done properly, RA 11479 could provide a more robust and explicitly spelled out legal basis to take down actual violent extremist content.

Philippine-based jihadist groups have sought to mimic online propaganda albeit on a smaller scale. Content takedowns have until now have been similarly small-scale. For instance, some military and law enforcement personnel would use their own personal social media accounts to report inappropriate content or to organise mass reporting. Such initiatives, however well intentioned, can be miscategorised as ‘brigading’ or a form of coordinated, inauthentic behaviour.  At worst, initiatives bereft of any legal backing can end up being used as proof of concept for politically polarising online campaigns.

Offences committed through or by social media should be explicitly and comprehensively defined to prevent misuse by law enforcers and other stakeholders. The IGRR could also be an opportunity to clarify further what constitutes violent extremism and radicalisation. The IGRR should also more clearly define what qualifies as incitement to terrorism. There are of course legal limitations over what can be done to modify the RA 11479, but it can be the start of the larger project of increasing trust between anti-terrorist stakeholders and citizens.