Meredith Sullivan (J.D. Candidate, Class of 2025) is a contributor to BJIL. Her interests include human rights, tech policy, and international and comparative law. Meredith graduated from the Dual B.A. Program between Columbia University and Sciences Po with degrees in Political Science and holds an MPhil in Middle Eastern Studies from the University of Cambridge. Before law school, she worked as a paralegal at a legal aid organization, helping tenants in Massachusetts defend against eviction. Meredith speaks fluent French and proficient Arabic, Spanish, and German.
On September 13, 2022, Iran’s Guidance Patrol arrested Jina (Mahsa) Amini, a Kurdish Iranian woman visiting Tehran, for improperly wearing hijab. She died in police custody a few days later. Her death sparked widespread protests for bodily autonomy and against state violence. Over a month later, the demonstrations continue, yet, news from protestors on the ground flickers, as the government resorts to familiar tactics of limiting Internet access. Internet shutdowns like these pose a grave threat to human rights globally. How can international law tackle the threat of internet shutdowns to protect these rights?
What’s Happening in Iran?
While people all over Iran took to the streets in the days after Amini’s death, the government had already started to shut down the Internet and restrict digital communication channels. Within the first week of protests, the government had blocked the few available social media sites, Google Play, the Apple Store, and encrypted DNS. In a recent report by the Open Observatory of Network Interference (OONI), the blocking of encrypted domain name systems (DNS) was noted as particularly worrisome as it will render “censorship circumvention – in an already heavily censored environment – harder.” Instagram was restricted across all major Internet providers in Iran, one of the last social media platforms to be banned. WhatsApp has also experienced continued disruptions, in addition to Skype and LinkedIn. Mobile networks have been repeatedly interrupted with daily, curfew-like patterns to the interference. Universities where students have striked against the government have also encountered stunted Internet access. By late September, watchdog organization Netblocks observed an anomaly in connectivity on major Internet provider Telecommunication Company of Iran (TCI), tantamount to national disruption, followed by disruptions to regional telecommunications providers in various provinces. Kurdistan Province, where Amini was from, has also experienced complete Internet blackouts in major cities since the protests began. As recently as mid-October 2022, a month after Amini’s death, Netblocks confirmed persistent and severe disruption to Internet traffic and major broadband providers in Iran. As long as protests persist, it is likely that the government will continue to control the flow of information via Internet shutdowns.
Contextualizing Internet Shutdowns within International Law
According to a May 2022 report by the United Nations Human Rights Cоuncil (UNHRC), Internet shutdowns are “measures taken by a government, or on behalf of a government, to intentionally disrupt access to, and the use of, information and communications systems online.” This covers interference with Internet access broadly — from a total blackout, to throttling connections, to blocking specific platforms, websites, or services. Throttling bandwidth makes it difficult to meaningfully use the Internet, and hinders the sharing or watching of videos. In places where most users access the Internet from their phones, governments can disrupt mobile service and thereby force many offline. Importantly, the recent HRC report emphasizes that Internet shutdowns are “powerful markers of deteriorating human rights situations.” Governments tend to restrict Internet access in moments of heightened tensions, namely around elections or during large-scale protests. Further, there is a link between Internet shutdowns and periods of increased state violence. Unsurprisingly, restricted access to the Internet weakens internal organizing efforts and information sharing, and precludes the documentation of human rights violations and compliance with domestic and international law.
The right to Internet access is not (yet) enshrined in international law. However, it is deeply intertwined with other fundamental rights, such as freedom of expression. Article 19 of the International Covenant on Civil and Political Rights (ICCPR) enumerates the rights most directly impacted by shutdowns: the right to “hold opinions without interference,” to freedom of expression, and to access and disseminate information. Article 19 contains a crucial caveat; it permits that exercising these aforementioned rights can be restricted, but only when “provided by law” and necessary “for respect of the rights or reputations of others” or ”[f]or the protection of national security or of public order.” The HRC reports that Internet shutdowns often violate Article 19(3) because governments seldom state the legal foundation for a shutdown, or even formally acknowledge its occurrence. When states do refer to national security or laws, the legal underpinnings are usually too broad and vague to support the shutdown under Article 19(3). The Human Rights Committee’s General Comment No. 31 from 2004 clarifies additional limitations to restrictions of any ICCPR’s rights: “States must demonstrate their necessity and only take such measures as are proportionate to the pursuance of legitimate aims.” With the sweeping nature of Internet shutdowns, it is unlikely that they are ever proportionate to their stated aim, as they inherently infringe on protected rights and interfere with legitimate activities.
The International Telecommunication Union (ITU) is a UN agency focused on promoting global standards for information and communication technologies (ICT), including the Internet. Articles 34 and 35 of the ITU Constitution clarify when states are justified in stopping telecommunications. Article 34 gives Member States the right to cut off private telecommunications, in accordance with domestic law, for reasons of national security. Article 35 permits Member States to suspend international telecommunications service, in a general or targeted fashion, provided they immediately notify the ITU Secretary-General. In both the ITU Constitution and the ICCPR, national security is a salient, and opaque, justification for states abridging rights and ICTs alike.
Iran’s Recent Internet Shutdowns
This is not the first time that the Iranian government has employed Internet shutdowns during periods of unrest. The government first slowed down the Internet in the wake of a contested presidential election and the Green Movement protests in 2009. In the past few years, Tehran has disrupted Internet access simultaneously with disproportionate use of lethal force against civilians on two notable occasions. In 2021, regional Internet shutdowns attempted to mask indiscriminate violence by state security forces against protestors across cities in Sistan and Baluchestan Province. In November 2019, the Iranian government implemented a complete Internet blackout to mask egregious human rights violations. The government announced an exorbitant increase in fuel prices that sparked massive demonstrations. Security forces violently bore down on protestors as authorities ordered Internet service providers (ISPs) to disconnect the internet. This shutdown lasted between six and 10 days and allowed hundreds, if not thousands, to be killed, injured, or detained with impunity. Iran was better able to cut its citizens off from the world because it had developed a domestic and heavily-censored intranet, the National Information Network project (NIN), that allowed the government to keep vital services running, despite still incurring economic losses. These shutdowns are also embedded within a general context of heavy Internet censorship.
International Law in Practice
Despite shutting off the Internet, Iran participates in many of the aforementioned international treaties and bodies. Iran is a state party to the ICCPR and has both positive and negative legal obligations under this treaty. It is also bound by the ITU Constitution. Sometimes, international law itself provides an excuse for state actions that are in otherwise flagrant violation of human rights. For example, a report by the human rights organization ARTICLE 19 emphasizes that Tehran has previously incorrectly interpreted Article 34 of the ITU’s Constitution to confer a right on state authorities to enact shutdowns. The language of Article 34 permits interruptions when “dangerous to the security of the State,” giving wide berth to states to make justifications, but ARTICLE 19 reports that the Iranian government has failed to comply with the Constitution’s requirement of giving notice to the ITU.
The international community has long recognized the threat inherent in Internet shutdowns and now their increasing frequency and sophistication. Due to shifting composition of the HRC, and international bodies generally, it is not easy to get resolutions passed on shutdowns. Many states, including Russia, a frequent practitioner of shutdowns and censorship, have objected. In 2016, the HRC passed a non-binding resolution condemning Internet shutdowns, but the recommendations mirror those in other UN agency reports, as they are unlikely to change the behavior of a state already resorting to shutdowns. Beyond states’ obligations under international law, which they seem to flout, various recommendations emphasize the role that technology companies can play to avoid shutdowns, exercise due diligence, and inform the public. This possible corporate role is reduced in Iran, where US sanctions have stymied the presence of global companies and this potential pressure point on the government does not exist. Beyond restricting technological alternatives available to Iranians, the US sanctions have harmed Iranian people attempting to circumvent both their government’s quotidian censorship and the more serious instances of shutdowns. In light of the difficulties of getting governments to comply with international law, and the unique situation in Iran, constrained by decades of sanctions, civil society continues to shoulder the burden of tracking and documenting Internet shutdowns as they happen and demanding accountability.
Conclusion
Tehran’s behavior is consistent with global use of Internet shutdowns as a tool for political control. The ongoing Internet disruptions since Amini’s death constitute the most serious shutdown in Iran since the total blackout in November 2019. Currently, much of the work lies with civil society, individuals, and tech companies, to help Iranians to evade censorship, bypass shutdowns, and demand accountability. Interestingly, the United States recently eased its sanctions on communications technologies in Iran, expanding the types of permitted platforms and removing a requirement that communications be personal. While it may be a positive example of concrete action in response to the protests, generally unilateral action is worrisome; it lacks the checks of the international system and Iran has already suffered enough from foreign intervention. It is incumbent upon the international legal community to address contradictions between legal instruments that can be used to justify unacceptable behavior by states and to strengthen legal obligations, like establishing a right to the Internet. For now, the international community must amplify Iranian voices and keep the Iranian government under scrutiny, calling out both human rights abuses and shutdowns. This is another, grave reminder that Internet shutdowns are increasingly becoming a feature of state control and the international community must continue to work toward concrete solutions and non-interventionist enforcement mechanisms.
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