Bandwidth throttling was justified by an emergency decree: it can also be applied before elections

CENGIZ ANIL BOLUKBAS- Immediately after the bombing on Istiklal Street in Taksim that killed six people, Communications Director Fahrettin Altun imposed a broadcast ban at the request of the Ministry of Culture and Tourism. The Information and Communications Technologies Authority (BTK) then imposed bandwidth throttling.

Lawyer Faruk Cayir, chairman of the Alternative Information Technology Association, asked the BTK through the Presidential Communications Center (CIMER) for the rationale behind the bandwidth throttling on social media. Cayir asked the following questions to be answered:

1- Is there any decision made by the Bureau of the Information and Communications Technologies and Communications Authority or the president of the Authority regarding the bandwidth throttling carried out on 13/11/2022? If there is a decision on this issue, please provide us with a copy of the decision.

2- At the request of which institution, with what justification and on what constitutional and legal basis was the decision on bandwidth throttling made?

3- Was the decision on bandwidth throttling implemented through the access providers or directly by the authority?

4- Were information and documentation regarding any accounts requested from social network providers in connection with the bandwidth throttling?

5- Have investigations been conducted and reports made, or are planned to be made, on whether misleading information has increased due to the images posted by logging in through VPN as a result of the prevention of sharing material on social networks that began with the application of bandwidth throttling?"

JUSTIFICATION ON THE BASIS OF THE EMERGENCY DECREE

Cayir's questions were answered in one sentence. The response stated, "Your request for information to the Presidential Communications Center (CIMER) was forwarded to our institution based on its interest, and the information received from the specialized unit(s) of our institution regarding your request reads as follows: 'The necessary measures have been taken under the tenth paragraph of Article 60 of the Electronic Communications Law No. 5809 and these measures have been approved by the judge'."

Paragraph 10 of Article 60 of the regarding law was regulated by Legislative Decree No. 671 of August 15, following the declaration of a state of emergency in 2016.

THE IMPLEMENTATION HAS TURNED INTO A COMPLETE BLOCKING OF THE INTERNET'

According to lawyer Faruk Cayir, who evaluated the response he received and the request for bandwidth throttling to Arti Gercek, the decree was introduced under undemocratic conditions and does not include provisions for bandwidth throttling. Cayir pointed out that the practice has turned into a situation where the Internet is completely blocked and stressed that the phrase "taking the necessary measures" does not mean that bandwidth throttling can be applied. Cayir also recalled the decisions of the Constitutional Court (AYM):

"There are direct decisions of the Constitutional Court on social media platforms. These decisions state that such practices are unconstitutional and prevent the right to freedom of expression and the right to receive news. This practice of BTK to throttle bandwidth with an administrative decision shows that they are doing this without a court decision. They probably made the decision out of court and sent it directly to the Association of Access Providers."

"IT IS USED WHEREVER THE GOVERNMENT IS CRITICIZED"

One of the issues Cayir pointed out is the state of the judiciary. Cayir noted that the courts have become a licensing authority, underlining that the courts cannot take such a decision by evaluating the provision of the law. Cayir commented that the Criminal Judgeships of Peace have become partisan civil servants just like the BTK President, and that the decisions are aimed at suppressing opposition and criticism:

"There have been bandwidth throttling practices in Turkey before. This practice is often turned into a method that is used against the opposition. It was used in the Soma mine disaster and the Corlu train disaster. Wherever the government is criticized, wherever it is pointed out that it is not doing its duty, they use it there."

“THEY MAY USE THIS PRACTICE IN ELECTIONS”

One of the concerns of citizens in connection with bandwidth throttling is whether it could be implemented on election day. According to Cayir, this is possible.

Cayir pointed out that the same practice could be implemented at the request of the President of the Supreme Electoral Council or the President of the Republic, and stated that this is a very likely possibility:

"They can also apply this practice during the elections. The head of the YSK can request throttling on the grounds that there is a rumor circulating about them and that this endangers public safety. In this case, won't the head of the BTK make the decision? Or the president can say that as the chairman of the AKP there are threats or false information against him and ask for throttling on the day of the elections. Will they not comply with the president's request? Is it possible that the person he appointed will not make that decision?"

Lawyer Faruk Cayir, Chairman of the Alternative Informatics Association, described the response he received as "strange" and the logic was as if to say "we made the decision and have it approved there." Cayir went on to say, "And even the request for information on this topic is perceived as interference in their business. Instead, they should publish it on their website. This way, they also eliminate transparency. When you ask for information, they say, 'This is what we consider appropriate, don't question it too much.'"