Criminalization of Encryption

-- By NevfelAkkasoglu - 16 Apr 2021

Introduction

It was a sunny September day in Istanbul, right after the failed coup in 2016, when a dozen policemen showed up at the door of 66-year-old Judge Aydin Akay, a prominent defense lawyer and a United Nations war crimes tribunal judge, to arrest him. The warrant indicated that Judge Akay was under terrorism charges for using a smartphone-messaging application called Bylock. He was only one of the 75,000 people who would eventually be imprisoned for the same reason: downloading the encrypted messenger app. As part of an ever-intensifying crackdown by the regime of Turkish President Recep Tayyip Erdogan, it was a horrifying time: regardless of the content of mobile phones’ encrypted messages, the mere fact of a connection to the Bylock server was deemed sufficient to incriminate anyone.

Using the above-mentioned Bylock case in Turkey as an example, this essay analyzes how, by means of secure communication tools, state actors can systematically and effectively curtail fundamental freedoms on a large scale in order to target political opponents and activists. The criminalization of encryption is an increasingly widespread tactic in authoritarian regimes; however, no government has used it as widely and publicly as Turkey.

Background

Following the 2016 coup attempt in Turkey, the Erdogan Government launched a massive crackdown against many individuals and groups labeled as dissidents against its authority. Seeking justifications to maintain authoritarian practices that had already been concentrated by then, the Erdogan regime employed an unprecedentedly useful pretext, the coup, to consolidate its power. While many opposition leaders, including Kurdish politicians, leftist groups, and various religious communities, were targeted, the most significant clampdown was against the Gulen Movement, a social and religious movement which Erdogan accused of plotting the military coup. The Movement vehemently denies this. The Government associated the Bylock app with the Movement, and 112,000 people who were in some way linked with the app were prosecuted on terrorism charges; 75,000 of these were imprisoned. Not only users of Bylock, but also users of other secure chatting apps like KakaoTalk? and Tango, were under the radar of the regime. Despite the lack of incriminating messaging content, in most cases, the sole indication of an IP address matching with ByLock? servers obtained from ISPs was considered sufficient evidence for a conviction. Turkey's use of ByLock? in mass prosecutions quickly evolved from being a means to (allegedly) find Gulenists to being used as an exclusive proof of conspiracy.

Criminalization

It is not a new phenomenon that repressive regimes suppress opposition by keeping communication channels under control. However, events taking place in Turkey, a country with a relatively healthier democratic culture in the region, differ from the practices of purely repressive regimes. Turkey, as a country still negotiating a stalled accession to the European Union, cannot openly admit to being against fundamental freedoms. The crucial point is that semi-democratic regimes like Turkey amplify and dramatize illusive facts to distract people from thinking about the long-term effects of their actions. Countries at this level, for example, do not claim that they are against freedom of expression itself. They never assert that freedom of the press or assembly is evil. Rather, they carefully engineer "political crimes" into laws or have the courts "freely" interpret the pertinent rules to that end. Once an article criticizing the regime is published, its author finds themself behind bars, not because they exercised their freedom of speech but because they violated anti-terror laws or for national-security reasons. When the masses see what happens to nonconformists, the regime no longer needs to openly declare its discontentment with freedom. The Turkish regime could not explicitly target freedoms, since it did not want to break its ties with the democratic world entirely; and because there was a certain degree of consciousness, albeit weak, regarding individual rights in Turkish society. Although the goal of the Erdogan regime was to restrict freedoms eventually, it managed to sell its long-term democracy-weakening scheme to its citizens in a different format, taking advantage of citizens’ ignorance regarding privacy rights and encryption.

In this sense, instead of subjecting the Internet to the power of mass state surveillance in order to control possible resistance, the Erdogan regime demonized and criminalized the use of secure communication channels. While Internet technologies are not unfamiliar to the public, the same cannot be said for privacy and encryption. Most people could not distinguish basic concepts such as IP address, encryption, or the value of privacy. In an effort to manipulate this situation, the Government carried out a series of propaganda operations against so-called Bylock users through government-controlled media, police raids, and arrests. As a result, it created a public perception that encryption was related only to criminal activities. Most people had heard of encryption for the first time in a context associated with criminals, national security, and terrorism. Even ordinary people who were not politically affiliated with any group and allegedly had Bylock on their phones were demonized and ostracized from society as if they posed a national-security threat. Eventually, the Government's tactics worked. With Bylock, a chilling precedent was created which, by distorting a healthy understanding of encryption and anonymity, would pave the way for the suppression of any potential opposition to the government. This was followed by social media legislation that gave the Government broad policing powers over the social media content.

Conclusion

All in all, in an age when many fundamental freedoms are related in some way to people’s online presence, the Turkish Government has established its hegemony over practically all freedoms in the long run by targeting encrypted communications. Encryption provides an online privacy space for individuals like Judge Akay to exercise their freedom of expression without any type of arbitrary and unlawful interference, especially from state actors. Therefore, advocating and promoting secure communication methods, especially federated platforms developed with encryption, has become equated with, and necessary for, the defense of fundamental freedoms against the whims of government in the digital age. This is why, as Edward Snowden said, “Encryption works.”

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