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By MadaMasr –

For the past year, the public prosecutor’s office has been conducting a surveillance campaign of social media platforms in Egypt. The government body has monitored user content, including written posts, pictures and video, targeted and prosecuted violators, doled out instructions on proper parenting and upholding “family values” and even laid out a “code of conduct” for social media users to follow.

As part of an expanded crackdown on non-political figures with a large social media following, the Public Prosecution has created a new unit specifically to flag online activity and prosecute violators under the cybercrime law for broadly defined offenses such as “violating family values.”

The effort to closely monitor online activity was launched last year by Public Prosecutor Hamada al-Sawy soon after his appointment to the post. On September 26, 2019, Sawy published a statement on the Public Prosecution’s official Facebook page outlining new procedures for his office to deal with social media. The statement came in the wake of the September 20 protests and the ensuing arrest and detention of thousands of people.

The new mechanism includes three main steps: first, the unit browses the accounts of defendants and the pages they manage; second commission experts from the Interior Ministry’s cybercrime department to identify accounts and pages, users affiliated with them and their admins; and finally, take legal action against them under the cybercrime law.

In parallel with the new campaign to monitor online activity, Sawy also articulated his vision to interact with social media directly as a form of outreach. As part of an effort to foster an active and engaged social media presence, the Public Prosecution launched its own Instagram account and had its official Facebook page verified as it began to utilize the platform more proactively as a form of communication. The prosecution also began to branch out from simple written posts by creating audiovisual content in a bid to attract more followers.

Sawy also created a new department of “communication, guidance and social media” in his office dedicated solely to monitoring social media platforms and interacting with users. The new department is modelled after the State Security Prosecution’s funds seizing department, and its human rights department. Its role was defined in a November 12 statement by Sawy as “effectively communicating between the Public Prosecution and the citizenry via social media and various media outlets to clarify the facts for the public; refute false news, statements and rumors about the the Public Prosecution’s role; and offer social guidance on how to prevent the causes of crime and achieve security and civic peace for the good of society.”

The department is divided into three units: a media office, which prepares and disseminates statements on behalf of the Public Prosecution; a digital and social media unit to oversee, update, and protect the Public Prosecution’s verified social media accounts against hacking; and, most importantly, a monitoring and analysis unit to monitor all material related to the Public Prosecution broadcast by media outlets or published on social media platforms, and to analyze comments and opinions pertaining to the prosecution to identify which may require a statement or comment by the department.

Even though the prosecution stressed a number of times that the monitoring unit’s purview was to only follow news and commentary relating to the Public Prosecution, in actual fact the unit has branched out to monitor social media posts on a wide variety of issues. Most tellingly, it was this unit that first flagged a number of young women for posting videos on TikTok which eventually led to their arrest and sentencing to years in prison for violating “family values.”

We investigated the monitoring and analysis unit to understand its role in the workings of the Public Prosecution, particularly its renewed focus on policing so-called issues of morality and family values in Egyptian society.

The prosecution gains additional powers

“The Public Prosecution’s monitoring unit has monitored a wide range of interactions by social media users and its official Facebook account received several requests to investigate [name] for posting a video on a social media platform. The matter was presented to the public prosecutor, who then decided to open an investigation.” This paragraph has been tacked on as a preamble to most statements put out by the Public Prosecution since December to justify initiating several cases against social media users. It has most notably been used in the cases against the young women TikTok users who were swiftly referred to trial less than two months after the investigation began. Several of the women have been handed prison sentences of up to three years in addition to fines of more than LE300,000 each.

The role of the monitoring and analysis unit is “the arbitrary surveillance of social media users,” says Hassan al-Azhari, a lawyer and legal researcher at the Technology and Law Community (Masaar). The unit’s activities, Azhari says, far overstep its role as defined by the public prosecutor, including indiscriminate monitoring of social media content without any controls to safeguard citizens’ personal freedoms. This in turn has empowered the Public Prosecution to go after social media users in a more extensive and aggressive way.

Judge Adel al-Shorbagy, a former senior deputy of the Court of Cassation, disagrees with this assessment. “The Public Prosecution does not surveil social media platforms, but only monitors in response to a complaint or a report,” he says. According to Shorbagy, if the prosecution receives claims or complaints regarding a specific incident, and judges that they have merit, this grants it the power to launch an investigation by monitoring any relevant content, particularly if it pertains to public decency and morality. The prosecution, Shorbagy says, is an investigative body whose purpose is to determine the truth, and so it looks into the reports and complaints it receives and disregards malicious accusations.

However, some legal experts believe the monitoring and analysis unit was created to lend credence and judicial cover to the surveillance of online activity. 

Nasser Amin, the director of the Arab Center for Independence of the Judiciary and the Legal Profession, says the unit is “the authorities’ way of legalizing and legitimizing the surveillance of social media platforms by having it adopted and championed by the Public Prosecution rather than the Interior Ministry, thereby lending it a judicial cover.” The unit “adds some of the powers of the Interior Ministry to the Public Prosecution, namely those related to tracking crimes, gathering information and drawing conclusions.”

Amin says that as a general principle, the public prosecution has jurisdiction to refer defendants charged by the police to an investigative judge, who then assesses the accusation, weighs the evidence and determines whether the accusation is founded. In the event that the investigative judge finds that a crime may have been committed, the public prosecution determines which legal articles apply, refers the case to court and argues the case.

Yet, according to Amin, since 1954 the prosecution has rarely referred cases to an investigative judge. Instead it exercises both powers: investigating and charging. With the creation of the monitoring and analysis unit, the prosecution has granted itself a third function: the power to track crimes and gather information and evidence. This makes the prosecution both the plaintiff and the adjudicator for defendants, Amin says. In addition, the prosecution is affiliated with an executive authority, the Justice Ministry, not the Supreme Judiciary Council.

The power to defend ‘family values’

The posts monitored by the unit vary between the political, religious, and moral, yet the posts that are flagged by far the most are those that have to do with personal social issues.

Since the unit went into action in February, most of the cases it has brought against against social media users in connection with photo or video posts are on charges of creating, managing and using a social media account for the purpose of committing the crime of violating “family principles and values [embraced by] Egyptian society.” This charge has been wielded by the prosecution for a variety of actions, which broadly fall into two groups: violating of another’s privacy, such as posting a video of someone on social media without their consent; and users posting photos and videos of themselves on their own social media accounts, such as in the case of the TikTok women.

According to Azhari, poorly defined terms and offenses in legislation — such as “family values” — have led to the criminalization of a range of actions so broad that they include actions diametrically opposed to one another.

The Anti-Cyber and Information Technology Crime Law does not offer a definition of the family values that it prohibits the violation of, nor does it stipulate the elements of this crime or the harm caused by it. The context within which the “violation of family values” appears as an offense supports the interpretation that it is related to the protection of individual personal freedoms and the criminalization of infringing on another’s privacy. Namely, Article 25, which criminalizes violating “family values,” is  titled “Offenses Involving the Violation of Privacy and Illegal Digital Content.” 

In addition to the violation of family values, the article lists other offenses such as “the violation of privacy,” “excessively messaging another person without their consent,” “providing personal information to a website for the purpose of promoting a commodity or product without the consent of the owner of the information” and “publishing information, news, or photos that violate the privacy of someone without their consent, regardless of the truthfulness of said information.”

Azhari says it is clear that the intended purpose of this article is to safeguard the privacy of individuals. Yet in addition to prosecuting infringements on privacy, the prosecution has used the law to strip people of their personal freedom.

Over the past several months, the Public Prosecution has included the violation of family principles and values alongside the violation of privacy of another person in the list of charges filed against defendants in several incidents identified by the monitoring and analysis unit. Examples include:

  • A February 23 decision to detain a woman for violating the privacy of an elderly woman who had been in the defendant’s care where the defendant recorded a video of the elderly woman crying and begging to be allowed to use the bathroom then posted it on the internet without her consent.
  • A March 21 decision to detain four people who posted TikTok videos that showed them riding on two motorcycles, tripping pedestrians, knocking them to the ground and making fun of them.
  • A July 3 decision to detain two young men who filmed a Sudanese child as they bullied him by insulting him and throwing rocks at him, then posted the video without his consent.

The most prominent of the cases brought by the Public Prosecution between April 21 and mid-June was against several young women who came to be known as the “TikTok girls.” 

The monitoring and analysis unit had received complaints from citizens to investigate the women for posting videos and photos on their social media accounts. In some of the cases — such as Mowada al-Adham, who has over a million followers on Instagram — the sole charge was the violation of family values. In others, the violation of family values was one charge among many. For example, Haneen Hossam, an archaeology student and a popular TikTok personality, who was charged with violating family values as well as “human trafficking.” Sama al-Masry faced additional charges of “assault on public decency” and “inciting prostitution.” That same combination was also lodged against TikTok personalities Sherifa Refaat (who uses the screen name Sherry Hanem) and her daughter Nora Hesham (who uses the screen name Zumurruda).

The Public Prosecution was hyperfocused on these high-profile cases, releasing some 15 related statements. The cases were also referred to trial less than two months after the investigations began. A number of the defendants were swiftly convicted, handed two-year sentences and fined LE300,000 each.

“When reviewing the TikTok girls case, the Economic Court was unable to define the violation of family values as an offense or identify the action committed by the girls which constitutes a violation of said values,” Azhari says. On the Hossam and Adham verdicts, the court ruled that “determining whether or not an offender’s action constitutes a violation of family principles and values is left to the trial judge’s discretion, and they shall make a judgement in light of the values and principles of the Egyptian family as espoused and customarily accepted by the general public.”

In its reasoning for the conviction of Masry, the court found that “the defendant infiltrated Egyptian society through cyberspace, using videos and photos that show her depravity and wicked deviation from the moral code and constitutional law, thus corrupting [society’s] values and robbing its innocence, virtuousness and purity, effectively making a hole in the ship that forms the principles and values held by Egyptian society as it sails through a raging sea of sinful desires.” Azhari says these rulings indicate that whether or not a defendant is found to have violated family values depends solely on the trial judge’s personal perspective and their own conception of family values.

The use of the cybercrime to prosecute these cases is significant because it lowers the bar of proof. Azhari says that the context in which the offense of violating family values appears in this law should not apply to the TikTok girls since they published videos of themselves and did not violate anyone else’s privacy. The other charges which have to do with assaulting public decency or incitement to prostitution are already punishable under other laws, such as the 1960 anti-prostitution law, as well as the Penal Code, which includes several provisions tackling incitement offenses in general. However, the Public Prosecution, and later an economic court, prosecuted and tried the women solely under the cybercrime law since the other laws require physical evidence and proof that a crime was committed.

The cybercrime law, enacted in August 2018, leaves the technical specifications required for evidence of a cybercrime up to the law’s executive regulations. Although the law requires the prime minister to issue the executive regulations for a law within three months of its passing, the executive regulations are yet to be issued more than two years on.

The Public Prosecution has also decided to outline a “code of conduct” for citizens to follow on social media platforms, including moralizing advice for parents and guardians. A majority of the prosecution’s statements, especially those issued in connection with incidents identified by the monitoring and analysis unit, are imbued with cautionary language that warns of the dangers of social media and describe the platforms as “an ostensible blessing deceptively fraught with suffering” and “a fourth type of national border in addition to the land, air and maritime borders.”

The social media guidelines, which the prosecution has instructed everyone to adhere to, instructs citizens to stop sharing the updates and posts of others; stop circulating news of [objectionable] incidents on social media without verification, and instead lodge official complaints with either the prosecution or the Interior Ministry; and assist the prosecution and Interior Ministry by reporting any suspicious content on any of these platforms.

Azhari says the authorities are no longer focused on just arresting political activists but have expanded their crackdown to non-political figures who have a large following on social media. They achieve this by introducing new concepts, such as protecting “family principles and values.” As long as this expanded crackdown continues, the monitoring and analysis unit will remain in full operation, Azhari says.

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