On May 19, 2002, A.M.S., a 19 year-old Egyptian student, was arrested by the Vice Squad as he stood on a Cairo street. He had allegedly arranged a face-to-face encounter with a man he had met on the Internet--a man who was either a police officer or an informer. A.M.S. was charged with homosexual conduct, tortured, and subjected to abusive medical tests; his case was railroaded through the courts. On June 8, he was sentenced to 3 years in prison for the "crime" of a cyberspace conversation. An appeal in this young man's case will be heard on June 26. A.M.S.'s case is part of a growing pattern of Internet surveillance and entrapment in Egypt. And it puts the lie to Egypt's recent public promises of leniency. Only three days after this arrest, President Mubarak sent 50 verdicts in last year's "Cairo 52" case back to prosecutors for a possible retrial. But new jailings continue--and the latest case shows that the Egyptian criminal justice system offers small hope of mercy. OutRight Action International urges IMMEDIATE letters to Egyptian, U.S., and European officials condemning the continuing arrests. Demand freedom for A.M.S, for all the "Cairo 52," and for all others imprisoned for consensual homosexual conduct in Egypt. The "Cairo 52" were first jailed thirteen months ago. A year of arrests has scarred bodies, minds, and Egypt's reputation. The persecution must stop! This Action Alert contains:
- ACTION, with addresses of Egyptian, U.S., and European officials;
- SAMPLE LETTERS to the above;
- BACKGROUND, with 4 sections:
- The facts of the case
- The criminalization of homosexual conduct in Egyptian law
- Entrapment and international human rights
- Internet privacy, Internet expression
Act NOW--BEFORE June 26--to free A.M.S. by sending URGENT protests to Egyptian as well as U.S. and European officials.
A. CONTACT EGYPTIAN OFFICIALS
Send the sample e-mail found below to:
- His Excellency, President Mohammad Hosni Mubarak
- E-mail: firstname.lastname@example.org
- His Excellency, Counsellor Farouk Seif Al Nasr, Minister of Justice
- E-mail: email@example.com
- Mr Ahmed Maher Al-Sayad, Minister of Foreign Affairs
- E-mail: ForMin@idsc.gov.eg
And write or call Egypt's Embassies abroad. If your country is not in the list below, go to http://www.mfa.gov.eg/English/Embassies/Pages/Listing.aspx to find contact information.
- AUSTRALIA Embassy of the Arab Republic of Egypt
- Tel: (62) 273-4437/8 Fax: (612)62734279
- BRAZIL Embassy of the Arab Republic of Egypt
- Tel.: (5561) 323 8800 Fax: (5561) 323 1039 E-mail: firstname.lastname@example.org
- CANADA Embassy of the Arab Republic of Egypt
- Tel: (613) 234-4931 / 35/58 Fax: (613)234-9347 E-mail: email@example.com
- FRANCE Embassy of the Arab Republic of Egypt
- Tel: (33) (1) 47 20 97 70 / 47 20 75 97 Fax: (33) (1) 47230643 TELEX 645297 E-mail: firstname.lastname@example.org
- GERMANY Embassy of the Arab Republic of Egypt
- Tel.: (4930)4771048 - 4771250 Fax: (4930)4771049 E-mail: Egembassy@hotmail.com
- INDIA Embassy of the Arab Republic of Egypt
- Tel.: (9111) 6114096- 6114097 Fax: (9111) 6885355 E-mail: email@example.com
- SOUTH AFRICA Embassy of the Arab Republic of Egypt
- Tel.: (2712)3431590/3431591 Fax: (2712)3431082
- TURKEY Embassy of the Arab Republic of Egypt
- Tel.: (90312)4684647/4261026/4266478 Fax: (90312)4270099 E-mail: firstname.lastname@example.org
- UNITED KINGDOM Embassy of the Arab Republic of Egypt
- Tel: (44) 020 7499-2401, 020 7499-3304 Fax: (44) 020 7355-3568 / 491-154 E-mail: email@example.com
- UNITED STATES OF AMERICA Embassy of the Arab Republic of Egypt
- Fax: 202 244 4319 E-mail: Egyptfirstname.lastname@example.org
Click here for a sample letter to Egyptian officials.
B. CONTACT U.S. OFFICIALS:
Call the President of the United States: Please CALL the White House switchboard at +1 202-456-1414. Ask President Bush to criticize this case of entrapment, and the continuing persecution of suspected homosexuals in Egypt. Make the points found in the sample letter below. A call is the most effective way to get your point across to the White House: operators use them to gauge public opinion. However, you can also send a fax (modelled on the sample letter below) to
- President Bush
- at +1 202-456-2461; or (least effectively) send an e-mail to email@example.com.
Write the Secretary of State: Please also send an e-mail to Secretary of State Colin Powell at firstname.lastname@example.org. A sample letter is below.
C. CONTACT EUROPEAN OFFICIALS:
Write to the following officials of the European Union and its member states. Send the sample e-mail found below.
- Mr. Romano Prodi President of the European Commission
- E-mail: email@example.com
- Mr. Christopher Patten Member of the European Commission, External Relations
- E-mail: firstname.lastname@example.org
- Herr Elmar Brok, Chairman, European Parliament Committee on Foreign Affairs, Human Rights, Common Security, and Defense Policy (Germany)
- E-mail: email@example.com
- Mr Geoffrey Van Orden, Vice-Chairman, European Parliament Committee on Foreign Affairs, Human Rights, Common Security, and Defense Policy (United Kingdom)
- E-mail: firstname.lastname@example.org
- M. Jacques Chirac, President of the French Republic
- Go to http://www.elysee.fr/ecrire/mail.htm and paste your message into the box
- M. Jean-Pierre Raffarin, Prime Minister
- Go to http://www.premier-ministre.gouv.fr/PM/MAIL.HTM and paste your message into the box
- Herr Gerhard Schroeder, Chancellor of the Federal Republic of Germany
- E-mail: email@example.com, firstname.lastname@example.org
- Herr Joschka Fischer, Minister of Foreign Affairs
- E-mail: email@example.com
- Rt. Hon. Jack Straw, Secretary of State for Foreign and Commonwealth Affairs
- E-mail: firstname.lastname@example.org Or go to http://www.fco.gov.uk/feedback.asp and paste your message into the box
Click here for a sample letter to U.S. and European officials.
SAMPLE LETTERS TO EGYPTIAN OFFICIALS:
Your Excellency: I am deeply shocked by news that a 19-year-old man, A.M.S., was arrested for his alleged homosexuality in Qasr-al-Nil, Cairo, on May 19, 2002. A.M.S. wasaccused of arranging a meeting with a man he allegedly had chatted with over the Internet--a man who was either an undercover policeman or an informer. On June 8, in the Abdeen Court of Misdemeanors, A.M.S. was sentenced to 3 years in prison under Law 10/1961. His appeal will be heard on June 26. His case is proof that the persecution of suspected homosexuals in Egypt continues. I urge you to use your power to see that he is freed. I am equally shocked by your government's decision to cancel the verdicts against 50 of the 52 defendants who were arrested on or around the "Queen Boat" discotheque in May, 2001. I am shocked because the decision leaves open the possibility that prosecutors may subject all 50--those found innocent as well as those found guilty--to new trials. Such trials would only redouble the injustices already inflicted on these men. I am further shocked that this decision confirmed the verdicts against two of the defendants who were found guilty of "contempt of religion." The use of this law in Egypt against people exercising basic freedoms of assembly and expression, as well as the fundamental liberty of conscience and belief, has been condemned by the world community. I call on you urgently to ensure that A.M.S. is freed at his June 26 appeal. Ensure that all persons now imprisoned or facing trial under Article 9(c) of Law 10/1961 are immediately released, and that this repressive law is repealed. End the persecution of people for the exercise of their freedom of conscience and belief. Stop the persecution of people for consensual homosexual conduct--of which the disturbing arrest of A.M.S. is only the most recent example. Only by these means can you remove a serious blot on Egypt's human rights record. Sincerely,
SAMPLE LETTERS TO TO U.S. AND EUROPEAN OFFICIALS:
Dear I urge you to demand that the Egyptian government end its pattern of abuses against suspected homosexuals. Arrests in Egypt still continue. On May 19, 2002, a 19 year-old student, A.M.S., was arrested by the Vice Squad in Cairo. His crime? He had allegedly arranged a meeting with a man he chatted with over the Internet--a man who was either an undercover policeman or an informer. On June 8, A.M.S. was sentenced to 3 years in prison; his appeal will be heard on June 26. He is only one of many men entrapped by a government increasing its repressive surveillance. In a recent interview, the head of Egypt's Vice Squad cited at least 19 suspected homosexuals entrapped over the Internet, and added, "It was great arresting them." Three days after A.M.S. was arrested, President Hosni Mubarak cancelled the verdicts against 50 of the 52 men who were tried for consensual homosexual behavior in 2001, in the famous "Cairo 52" case. But abuses have not stopped. The case of A.M.S. shows that this "clemency" is only cosmetic. Indeed, as a result of the President's decision, prosecutors may decide to inflict new trials not only on those found guilty--but on those acquitted. This is a travesty of justice. I urge you to call on President Mubarak to ensure that all arrests and trials for consensual homosexual behavior in Egypt cease. All the "Cairo 52" defendants should be set free. Those defendants who were also charged with "contempt of religion" should be released as well: Egypt must affirm its commitment to respect freedom of conscience and belief. A.M.S. must be freed at his June 26 appeal. And all others who are imprisoned or facing trial for suspected homosexual conduct should be freed, or see their charges dropped. Democracies discredit themselves by turning a blind eye to violence and abuse--anywhere in the region, as anywhere in the world. Please see that your support for so-called allies worldwide, whoever they may be, is firmly tied to an examination of their human rights records. Sincerely,
BACKGROUND: THE FACTS OF THE CASE
A.M.S. is 19 years old and a university student in Cairo. He missed his exams in May and June of this year: he was in prison. In mid-May 2002, A.M.S. allegedly entered a private chat with someone through in a chatroom on www.gay.com. The contact allegedly suggested a meeting at a location on a street on May 19. There, A.M.S. was apparently arrested by a police officer from the Department for Eradicating Crimes Against Public Morality (the "Vice Squad") at the Interior Ministry. A.M.S.'s case is not unique: it rather represents a spreading crackdown on the Internet by Egyptian authorities. A web designer who posted a poem critical of the government on his site, and a student who spread rumors about a murderer by e-mail, have recently been arrested and tried. However, suspected homosexuals have been special targets (see, for instance, OutRight Action International's January 3, 2002 Action Alert, "Act Now Against Internet Entrapment And Renewed Persecution". Internet surveillance in Egypt is reportedly decentralized, with each division of the police given its own equipment and its own latitude to seek offenders. The Vice Squad has made particular use of the technology. In May 2002, General Abdel-Wahab el-Adly, head of the Vice Squad, told the Associated Press that police have made at least 19 arrests of suspected homosexuals through Internet entrapment, placing ads or entering chatrooms on gay sites. "It was great arresting them," he added. (Nadia Abou El-Magd, " Cyberspace-Scouring Cops Accused of Suppressing Online Expression," Associated Press, May 16). After his arrest, A.M.S. was immediately taken to the Vice Squad headquarters in the Tahrir Administrative Compound. There, he signed a confession to having been a passive partner in anal sex with several men over a three-year period. Reportedly, when he initially refused to sign the confession he was beaten harshly on the back of his neck and shaken severely by one of the guards; afterwards, he agreed to sign. On the next morning, May 20, he was transferred to the Qasr El-Nil Prosecution Office for further interrogation. His lawyer attended the interrogation; A.M.S. attempted to retract his confession of the previous night, saying he signed the statement because he was "terrified and under pressure." The prosecutor ordered a forensic examination and committed the defendant to detention pending further investigation. The following day, May 21, A.M.S. was sent to the Forensic Medical Authority. Tests were performed on his anus. OutRight Action International and other human rights organizations have condemned such examinations as intrusive and abusive punishment); no evidence of anal sex was found. However, a sentence at the end of the medical report stated that "it is possible for an adult to be anally penetrated without leaving marks, if there was consent and if extreme caution and lubricants were used." In a number of recent cases--including several of the "Cairo 52" defendants--forensic doctors have appended this formula to their reports to provide grounds for indicting people for homosexual conduct, even if the tests (which are medically virtually valueless) provide no evidence. A.M.S. was interrogated by prosecutors again on May 29. In the end, he was charged with two offences:
- the "habitual practice of debauchery" under Article 9c of Law 10/1961 for the Combatting of Prostitution, carrying a prison sentence of up to three years;
- "enticing passers-by to commit indecency" under Article 269 of the Penal Code, which criminalizes such activity if performed "with signs or deeds" by "anyone found on a public road or in a travelled place," and stipulates up to 1 month's imprisonment for the first offence. This charge apparently referred to A.M.S.'s waiting for his contact in a public location.
A.M.S.'s case moved with speed. His first hearing, on June 1 at the Abdeen Court of Misdemeanors, was postponed till June 8. However, the court pronounced both verdict and sentence on June 8; A.M.S. was found guilty and sentenced to 3 years' imprisonment, a fine of 300 Egyptian pounds (approximately 70 USD) and 3 additional years of probation, or close police supervision. A High Court appeal in the case will be heard on June 26, 2002.
BACKGROUND: THE CRIMINALIZATION OF HOMOSEXUAL CONDUCT IN EGYPTIAN LAW
In a November 6, 2001 letter responding to 37 US Congressman who wrote to President Mubarak about the "Cairo 52" trial, Egypt's Ambassador to the U.S , Nabil Fahmy, declared:
The 52 accused are not facing charges concerning their sexual orientation. The Egyptian penal code has no provisions against homosexuality per se . . . All 52 of the accused are charged under article 9c of law number 10/1961, which prohibits public lewdness regardless of sexual preference.
Fahmy's point has become a standard response by the Egyptian government to recent charges of persecution. Indeed, the idea that "homosexual conduct is not expressly criminalized in Egyptian law" has been promoted in the past by a number of human rights organizations--OutRight Action International among them. The idea is inaccurate. And the Egyptian response exploits terminological distinctions at the expense of legal validity or truth. Few if any legal provisions around the world criminalize "homosexuality" or "homosexual" conduct by employing the term itself. Few could: the word "homosexual" is itself a recent coinage, dating only to 1869, and a neologism of medical rather than legal origin. Yet there are few areas where law has found it more difficult to devise its own distinctive vocabulary than in its attempts to govern sexual life. Legal traditions insistently but inconsistently accomodate themselves to exogenous influences, to popular, priestly, or scientific discourses, when addressing sexuality: the categorization of sex in law is often a confused archaeology of the shifting constructions, both homely and hieratic, through which culture has comprehended sexual experience. In particular, in States where consensual homosexual conduct is prohibited, it is through a terminology ranging from the narrow to the sweeping, but generally religious or folkloric. In predominantly Christian countries or jurisdictions (as well as countries colonized by Europe) these laws often refer to "sodomy"--a term understood to include men having sex with men and sometimes women having sex with women, but which has also been interpreted to include heterosexual anal and sometimes oral intercourse, as well as "bestiality" and other offenses. Some penal codes simply penalize "unnatural acts," which can be interpreted with similar breadth. The English common law long criminalized "buggery," a word referring to bestiality as well as anal intercourse between men; as the former meaning fell into disuse, the common-law offense was was supplemented in the 19th century with a law against "gross indecency," understood more or less to mean oral sex or mutual masturbation between men. The intent of all these penal provisions is clear: to criminalize certain sexual behaviors,"homosexual" conduct among them. All these laws showed a growing tendency to focus on sexual relations between men (or, in some cases, between women); all continued, in some degree, to camouflage that tendency under an older terminology, inserting those relations in broader categories of the "unnatural" or "sodomitical." The interpretation of "al-fujur" or "debauchery" in Egyptian law-- particularly in Law 10/1961, the legislation under which recent arrests have taken place--needs to be seen in this light. Al-fujur, much like "sodomy" in English, refers to a range of stigmatized sexual behaviors, of which homosexual conduct is a central one. Like "sodomy" in English, its legal use has moved toward concentrating on that meaning to the exclusion of others. As with "sodomy," the tenacity of the term can mask the true tendency beneath. Law 10/1961 is a version, re-promulgated by the regime of Gamal Abd-el Nasr, of legislation first passed in 1951, at the beginning of Egypt's full independence from British military occupation. The law was presented to Egyptian legislators as a move against prostitution, and titled accordingly. In order to placate conservative elements in Senate and society, however, the 1951 law extended far more broadly than prostitution in its ordinary sense, as commercial sex. Experts on Egyptian law note that in early debates around the law, prostitution was defined as as "the practice of vice with people with no discrimination." The law (and subsequent decisions of Egypt's Cassation Court interpreting its provisions) redefined "prostitution" so as to eliminate the commercial element and make it effectively coterminous with "promiscuity": in effect the law extended criminalization to any consensual sexual behavior which the State chose to define as "vice" and as indiscriminate. It was for this reason, indeed, that the law which in its original version only referred to di'ara ("prostitution" in Arabic) was broadened to include punishment for al-fujur or "debauchery," a much more wide-ranging category. That is: while the law's title refers to "prostitution" [di'ara], its text prohibits, under the rubric of fujur or debauchery, a broad range of non-commercial sexual acts. This range was not specified in 1951. Much like 19th-century legislators contemplating "sodomy," Egyptian lawmakers apparently saw in al-fujur a combination of the unspeakable and the self-evident. Yet it is apparent that homosexual acts were a key component of what the law considered "debauchery." Precedents emanating from the Court of Cassation in the 1960s and 1970s confirmed that al-fujur should be understood as including consensual homosexual sex---even when it took place in the privacy of a home. (The fact that homosexual conduct behind closed doors can lead to a charge of al-fujur--attested by numerous recent cases--refutes Ambassador Fahmy's wilful mistranslation of the term as "public lewdness.") Thus consensual homosexual conduct has been understood to be criminalized by Law 10/1961 for decades. (The one shift that has taken place, it appears, is that now both "active" and "passive" partners are comprehended as implicated, whereas earlier only the passive partner was singled out by the law. This much is apparent from the "Cairo 52" and other recent cases, in which both alleged "active" and alleged "passive" partners have been sentenced.) Its penalization indeed grew out of the penalization of prostitution--and comparative legal studies suggest that this is not an uncommon genesis for laws against many forms of consensual sexual behavior: prostitution laws present a template and a Procrustean bed against which other legal regulations of sexuality can be measured, for both scope and success. For instance, commenting on the origins of Romania's long-standing "sodomy law" in the 1930s, OutRight Action International and Human Rights Watch have noted: "'Sexual inversion' and its constituent behaviors were analogized to prostitution, conceived of as less relation than transaction, and stigmatized as a mode of togetherness impermissible in the public sphere." (OutRight Action International and Human Rights Watch, Public Scandals: Sexual Orientation and Criminal Law in Romania, 1998.) It is clear, though, that in all recent Egyptian cases, men were arrested for alleged homosexual conduct--not charged with commercial sex. It is clear, too, that the forensic examinations inflicted on the men (which go to great lengths to determine whether they have been "used"--that is, whether they have been partners in anal intercourse) are designed to demonstrate homosexual conduct as the core component of "debauchery." The application of Article 9c of Law 10/1961 and its attendant provisions (including Article 14 on the "promotion of debauchery," originally invoked in A.M.S.'s case) is thus comparable to that of other "sodomy laws," diverse in apparent scope but increasingly single-minded in the "perversions" they punish. The Article targets consensual homosexual conduct. It thus falls under the strictures of the International Covenant on Civil and Political Rights (ICCPR), which Egypt ratified in 1982. The UN Human Rights Committee, in its 1994 decision in Toonen v Australia, found that laws criminalizing consensual homosexual conduct violate the right to privacy in the ICCPR's Article 17, as well as protections against discrimination in the ICCPR's Articles 2 and 26. In sum: Article 9c of Law 10/1961 criminalizes men having sex with men. The ICCPR binds Egypt to repeal it.
BACKGROUND: ENTRAPMENT AND INTERNATIONAL HUMAN RIGHTS
The right to a fair trial, protected in Article 14 of the ICCPR, entails the presumption of innocence. Paragraph 2 of that Article states that "Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law." International precedents make clear that this does not merely restrict the conduct of prosecution and judiciary: it also imposes limitations on the powers of police to prejudge the presence of a disposition to commit crime, even before a formal charge is pressed. A substantial body of case law before the European Court and Commission of Human Rights applies to the exactly similar protections for a fair trial in Article 6 of the European Convention. The definitions it posits are telling. European precedents establish that a "criminal charge" can be defined as "official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence" (Eckle v Germany, 1982). More expansively, the European Court has found that a "criminal charge" should be taken to include "other measures which carry the implication of such an allegation and which likewise substantially affect the situation of the suspect" (Foti and others v Italy, 1982). If even those facing the implication of an allegation have the right to the presumption of innocence, police are clearly limited in their power to incite suspects--to create the conditions and generate the motivation for a person to violate the law. The European Court of Human Rights drew this conclusion expresslyin its decision in Texeira de Castro v Portugal (1998), involving the use of undercover police against a suspected drug dealer. The Court found that "The use of undercover agents must be restricted and safeguards put in place . . . The public interest cannot justify the use of evidence obtained as a result of police incitement" [emphasis added]. No precisely similar case has been heard by the UN Human Rights Committee. However, there can be no doubt that the ICCPR's provisions bar the practice of police entrapment, as do those of the European Convention. Notably, in its General Comment on the right to a fair trial (General Comment 13, 1984), the UN Human Rights Committee emphasized that "The presumption of innocence implies a right to be treated in accordance with this principle. It is, therefore, a duty for all public authorities to refrain from prejudging the outcome of a trial" [emphasis added] This certainly applies to the frenetic promotion of guilt engaged in by public officials and State-controlled media in earlier trials in Egypt. It clearly also forbids the presumption of culpability indulged by police officers trawling, and intervening in, Internet chatrooms in search of victims. Internet entrapment, whatever the "crime" it seeks out, violates guarantees of fair judicial practice under international law.
BACKGROUND: INTERNET PRIVACY, INTERNET EXPRESSION
As of March 2001 (according to the website http://www.nua.ie/surveys/how_many_online) an estimated 560,000 people used the Internet in Egypt. The U.S. State Department more recently put the figure at one million (see http://www.state.gov/g/drl/rls/hrrpt/2001/nea/8248.htm). Neither figure is enormous for a population of 65 million--but they represent over one-tenth of the known users in the Arab world, and a fifteen- or twenty-fold increase over a four-year period. Such burgeoning cyber-activity is a major challenge to repressive States. Articles banned in the print media can find new homes and readers on the web. Human rights organizations can spread information and establish connections with allies at home and abroad. And new social identities and solidarities, as well as spaces for political dissent, spring up in Internet chatrooms. Many States, including formal democracies, have hence felt the hunger for censorship with renewed rapacity. Only a few recent examples show the trend:
- Provisions in a recently passed law in Turkey (partially approved by that country's Constitutional Court) would extend censorship of broadcasting to the Internet. Establishing a website would require permits from local authorities; hard copies of web content would have to be submitted to State officials for prior approval; and exorbitant fines could be imposed for criticizing the military, defending ethnic minorities, or offending traditional values.
- Tunisia already has some of the world's most restrictive legislation on the Internet; a 1997 decree imposed licensing and content restrictions on Internet Service Providers (ISPs), requiring them to turn over information on subscribers to the government. On June 4, 2002, Tunisian police arrested the journalist Zouhair Yahyaoui, alleged editor of the dissident website TUNeZINE, at a cybercafe in Tunis. Authorities closed the website; Yahyaoui faces a prison sentence of up to five years.
- States ranging from Israel to Saudi Arabia restrict access to encryption technology, which can protect the privacy of Internet communications.
Moral and political motives combine ominously in the rush toward censorship. In the US and other countries, fears of Internet pornography have contributed to severely restrictive legislation. In the US, such laws have often been overturned by the courts--including a draconian 1996 "Communications Decency Act" and a recent bill requiring libraries to install Internet filtering software. However, the "war on terror" provides new ammunition to advocates of both censorship and surveillance. US Attorney General John Ashcroft (who as a Member of Congress opposed restrictions on encryption technology) has urged radically expanded government powers to intercept e-mail communications. Similarly, the Israeli Ministry of Defense has declared that " It is Israel's view that all countries should do their utmost to prevent the acquisition of strong encryption technology and products by terrorist and criminal entities." The lack of any definition of "terrorists," as well as their conflation with other "criminal" categories, means that dissident movements and social nonconformity are likely to be convenient, because readily identifiable, substitute targets--if indeed they are not the primary victims whom the rhetoric of "terrorism" was calibrated to conceal. International law unequivocally prohibits such moves. Article 19.2 of the ICCPR holds that "Everyone shall have the right to freedom of expression: this right shall include freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, or through any other media of his choice." Article 17.1 of the ICCPR states that "No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation." These provisions are clear, and their application to the Internet should be indisputable. It is true that the ICCPR recognizes certain limited circumstances in which States may restrict the freedom of expression, but these must be "provided by law" and necessary . . . for the protection of national security or of public order (ordre public), or of public health or morals." Such restrictions must therefore by embodied in a legal instrument, not simply in administrative whim. They must be necessary: that is, essential to the protection desired, and proportionate to the aim. The "Johannesburg Principles on National Security, Freedom of Expression and Access to Information" (agreed upon in 1995 by a group of legal and security experts) observe that (in the case of national security restrictions) the burden of proof is on governments to demonstrate that:
"(a) the expression or information at issue poses a serious threat to a legitimate national security interest; "(b) the restriction imposed is the least restrictive means possible for protecting that interest; and "(c) the restriction is compatible with democratic principles."
No less stringent test is imposed on States regulating freedom of expression in the name of "public morals." Indeed, in its 1994 decision in the case of Toonen v Australia, the Human Rights Committee stated that it "cannot accept . . . [that] moral issues are exclusively a matter of domestic concern." Similarly, in its decision in Norris v Ireland (1988) the European Court of Human Rights maintained that measures allegedly safeguarding public morals should meet an objective standard of whether they "answered a pressing social need and complied with the principle of proportionality." On all these grounds--legality, proportionality and minimum restrictiveness, and urgency of the social need adduced--Egypt's harassment of Internet expression is extralegal and excessive. It fails the test. The question of privacy at first may seem more complex. The relative ease of access to the Internet, and its use for a multiplicity of social purposes, may make it resemble less a harbor of safety than a huge public sphere, in which privacy claims are both tenuous and tendentious. The appearance is deceptive. It depends on a misunderstanding of "privacy" as deployed in both common usage and international law. Article 17 of the ICCPR protects " privacy, family, home [and] correspondence." These are not randomly assorted concepts with no collective significance; neither, clearly, are they synonymous or interchangeable. In particular, they do not spell out a contentless realm of unknowability opposed to visible social life. Rather, they add up to something less immediately articulable yet far more crucial. Together, they delineate a sphere essential to civil human existence: a sphere in which personal autonomy can be grounded and fully experienced, and in which intimacy can be enjoyed and expressed. This sphere is not simple or spatial. There is no wall around "privacy" that separates it authoritatively from the public sphere: if there were, the term could simply be reduced to private property, an identification which all human rights precedents reject. The experience of personal autonomy, the enjoyment of intimacy, are qualities of acts rather than zones. Actions which affirm those values carry their own penumbra of privacy with them, regardless of the juridical character of the space where they are performed. All the terms employed in the Article similarly demand to be understood not as abstractions but as instrumentalities, tools toward the living of a fulfilled, individuated, and affiliated life, representations of the human values they shelter and protect. Thus the Human Rights Committee, in its General Comment 17 on the right to privacy, notes that "The term 'home' in English, 'manzel' in Arabic, 'zhuzhai' i
Published on June 18, 2002 | OutRight Action International an LGBT human rights organization