An Internet Law in Thailand:

Connected Thoughts

Trying to make comments on the draft Internet Law is like trying to nail Jello to the wall. Each time a new draft is produced and you think you have the main idea, another draft appears bearing scant resemblance to what has gone before: the last (5b) less than 24 hours before a public meeting to discuss the law. But no matter how you handle it -- how you cut it, how you shape it, how you mould it -- like Jello, it is still transparent and the colour remains the same.

The first drafts of this unnecessary law were heavy in censorship clauses. To suggest, as has been done, that this was to provoke comment is misleading. Such a statement was made too late in the proceedings and did not match with other, less public comments. As the genesis continued, so the overt censorship was removed, leaving support and promotion. And control.

Growth in this new medium has been remarkable, especially since the advent of the World Wide Web (WWW), and since the CAT relaxed some of the early restrictions. So far--as in most of the free world--Internet development has continued with relatively few restrictions, or problems. It is, however, a medium that is not understood: neither by those who use it, nor by those who would control it.

The Internet is at the beginning of its development and no one knows what directions it might take in two years time, let alone ten. Paul Saffo of the Institute for the Future (in Menlo Park, California) comments of the Internet, that lawyers do a "worse job when they try to create a legal regime that anticipates something not quite here yet than when they try to codify after the fact." He goes on to say that "We will figure out the proper legal regimes as the environment continues to evolve."

It may be a hard thing for the advocates of control to accept but the Internet as it now exists (and particularly the WWW) was created by users and not by the technologists or corporations. The Internet has empowered the individual and this worries governments. Some, like China, Vietnam and Singapore, have reacted strongly. Such empowerment also terrifies the technologists with their limited visions of what computers and networks are.

The most remarkable thing about this law's development is the way that within days a new draft appears with totally new articles: each new little gem perfectly shaped yet fatally flawed because the real intent of the law cannot be concealed. One must remember that its original title included not the word, "Promotion" but "Control."

Now is not the time to place restrictions on the Internet; especially when, coupled with these proposed regulations, there are committees to be created, levies to be made and government budgets to be drawn.

In a recent trip to the south of Thailand I found that most ordinary Thais I spoke to had a new English word in their vocabulary--Economy. Recent events have touched everyone. Business is affected most visibly at present, with one telecomms company laying off over 200 personnel last month. It is rumoured that a number of ISPs are in dire straits.

Of all countries in the region, Thailand has the best chance for growth in the area of Information Technology, especially in the way that the Internet has been allowed to develop here. Registration requirements at this juncture will lead quickly to stagnation and perhaps negative growth. There is no honour being first with an Internet Law if it is a bad law. This was clearly demonstrated in the United States when the Computer Decency Act was struck down by the Courts as being unconstitutional.

It should be noted that the judges charged with examining that law took time to learn about the Internet before rushing into a decision.

We commented some three years ago that with the www, the location of the website was immaterial. This fact was seized upon by several local and international companies when faced with the steep fees imposed by CAT (the ISPs had no choice in this matter).

If one now adds to those fees the need to register any site that provides content, where some benefit is accrued (the wording is vague enough to include the www), then there is no incentive for any company to create a website in Thailand, right at the time when the ISPs need all the income they can get.

This section applies also to those (Thai or non-Thai) who provide Internet content on sites in other countries, who are based in Thailand or who do business in Thailand. They too will have to register. Those in foreign countries with sites in Thailand will also need such registration.

The same part of the law requires registration by any site providing an Internet connection. This, of course, will include (by the draft law's definitions) not only the commercial ISPs but those universities which charge their students for connections.

Steve Case, co-founder of America Online (AOL) -- an organisation that polices itself -- has a warning against regulators: "There is a tendency to have knee-jerk reactions to issues without fully understanding the dynamics," which is, he says, "particularly dangerous" in the case of new technologies.

There are bright spots to this draft, apart from items such as encryption and use of credit cards mentioned in a previous analysis. Article 25 requires the basic telecommunications operators to provide service to ISPs, content providers and users without refusal. The fine for a refusal is up to 10,000 baht.

Interception of private information, if this, or its revelation causes injury to any person is also made an offence under this law. In addition, certified information from the Internet (and computers) may be used in legal proceedings under certain circumstances: this has both positive and negative connotations.

The core of the law, however, is still its bureaucratic Committee and sub-committees (whose members may receive benefits according to the discretion of the Minister). There are three sub-committees: to prevent trespass; to register domain names; and, vaguely, for any other purpose that the Committee assigns. The Internet Foundation too, now cited as a juristic entity, is still to be created, although there is no mention in this draft of who is to man it.

Instead of regulation and control, it is deregulation that is most urgently needed: of the telephone companies and of the ISPs. As we have suggested before, some will fall by the wayside: those who adapt quickest to the needs of the customer will profit. Indeed, only those ISPs who recognise that the Internet is no longer the preserve of an elite group of engineers and technocrats will survive. It is no longer technology but business that will drive the Internet.

Here is the central fault with the drafts of the Internet Promotion Law. It has been assembled with a limited understanding of what the Internet has become; or what it will become. While it may once have been a series of networks, the Internet now has a life of its own. The user base has shifted from its academic and technological origins to a wider grouping more reflective of society in general.

Should any legislation be necessary it ought to reflect such realities.

Draft One
Draft Two

Graham K. Rogers
Bangkok January