Ola Bini, the software developer acquitted last year of cybercrime charges in a unanimous verdict in Ecuador, was back in court last week in Quito as prosecutors, using the same evidence that helped clear him, asked an appeals court to overturn the decision with bogus allegations of unauthorized access of a telecommunications system.

Armed with a grainy image of a telnet session—which the lower court already ruled was not proof of criminal activity—and testimony of an expert witness to the lower court—who never had access to the devices and systems involved in the alleged intrusion—prosecutors presented the theory that, by connecting to a router, Bini made partial unauthorized access in an attempt to break into a  system  provided by Ecuador’s national telecommunications company (CNT) to a presidency's contingency center.

If this all sounds familiar, that’s because it is. In an unfounded criminal case plagued by irregularities, delays, and due process violations, Ecuadorian prosecutors have for the last five years sought to prove Bini violated the law by allegedly accessing an information system without authorization.

Bini, who resides in Ecuador, was arrested at the Quito airport in 2019 without being told why. He first learned about the charges from a TV news report depicting him as a criminal trying to destabilize the country. He spent 70 days in jail and cannot leave Ecuador or use his bank accounts.

Bini prevailed in a trial last year before a three-judge panel. The core evidence the Prosecutor’s Office and CNT’s lawyer presented to support the accusation of unauthorized access to a computer, telematic, or telecommunications system was a printed image of a telnet session allegedly taken from Bini’s mobile phone.

The image shows the user requesting a telnet connection to an open server using their computer’s command line. The open server warns that unauthorized access is prohibited and asks for a username. No username is entered. The connection then times out and closes. Rather than demonstrating that Bini intruded into the Ecuadorean telephone network system, it shows the trail of someone who paid a visit to a publicly accessible server—and then politely obeyed the server's warnings about usage and access.

Bini’s acquittal was a major victory for him and the work of security researchers. By assessing the evidence presented, the court concluded that both the Prosecutor’s Office and CNT failed to demonstrate a crime had occurred. There was no evidence that unauthorized access had ever happened, nor anything to sustain the malicious intent that article 234 of Ecuador’s Penal Code requires to characterize the offense of unauthorized access.

The court emphasized the necessity of proper evidence to prove that an alleged computer crime occurred and found that the image of a telnet session presented in Bini’s case is not fit for this purpose. The court explained that graphical representations, which can be altered, do not constitute evidence of cybercrime since an image cannot verify whether the commands illustrated in it were actually executed. Building on technical experts' testimonies, the court said that what does not emerge, or what can't be verified from digital forensics, is not proper digital evidence.

Prosecutors appealed the verdict and are back in court using the same image that didn’t prove any crime was committed. At the March 26 hearing, prosecutors said their expert witness’s analysis of the telnet image shows there was connectivity to the router. The witness compared it to entering the yard of someone’s property to see if the gate to the property is open or closed. Entering the yard is analogous to connecting to the router, the witness said.

Actually, no. Our interpretation of the image, which was leaked to the media before Bini’s trial, is that it’s the internet equivalent of seeing an open gate, walking up to it, seeing a “NO TRESPASSING” sign, and walking away. If this image could prove anything it is that no unauthorized access happened.

Yet, no expert analysis was conducted in the systems allegedly affected. The  expert witness’s testimony was based on his analysis of a CNT report—he didn’t have access to the CNT router to verify its configuration. He didn’t digitally validate whether what was shown in the report actually happened and he was never asked to verify the existence of an IP address owned or managed by CNT.

That’s not the only problem with the appeal proceedings. Deciding the appeal is a panel of three judges, two of whom ruled to keep Bini in detention after his arrest in 2019 because there were allegedly sufficient elements to establish a suspicion against him. The detention was later considered illegal and arbitrary because of a lack of such elements. Bini filed a lawsuit against the Ecuadorian state, including the two judges, for violating his rights. Bini’s defense team has sought to remove these two judges from the appeals case, but his requests were denied.

The appeals court panel is expected to issue a final ruling in the coming days.  

Despite an Ecuadorian court’s unanimous acquittal of security expert Ola Bini in January this year due to complete lack of evidence, Ecuador’s attorney general's office has moved to appeal the decision, perpetuating several years of unjust attacks on Bini’s rights. 

In the context of the Internet Governance Forum 2023 (IGF) held in Japan, the Observation Mission on the Bini case, which includes EFF and various digital and human rights groups, analyzed how advocates can utilize key elements of the judgment that found Bini not guilty. The Mission released a new statement pointing out these elements. The statement also urges Ecuadorian authorities to clarify Bini's procedural status as the attorney general's office has been posing difficulties for Bini's compliance with the precautionary measures still pending against him, particularly the requirement of periodic appearances to the AG's office.  

The full statement in Spanish is available here. 

Below we’ve summarized these key elements, which are critical for the protection of digital rights.

Irrelevant Evidence. The court characterized all evidence presented by the attorney general's office as irrelevant or unfit: "None of these elements led to a procedural truth for the purpose of proving any crime." With this decision, the court refused to convict Bini based on stereotyped views of security experts.  It has refused to apply criminal law based on a person's identity, connections, or activity, instead of actual conduct, or to apply criminal law based on a "political and arbitrary interpretation of what constitutes the security of the State and who could threaten it." Politically motivated prosecutions like Bini’s receive extensive media coverage, but what is often presented as "suspicious" is neither technically nor legally consistent. Civil society has worked to raise awareness among journalists about what is at stake in such cases, and to prevent judicial authorities from being pressured by publicized political accusations. 

The Importance of Proper Digital Evidence. The court emphasized the necessity of proper evidence to prove that an alleged computer crime occurred and that the image of a telnet session presented in Bini’s case is not fit for this purpose. The court explained that graphical representations, which can be altered, does not constitute evidence of a cybercrime since an image cannot verify whether the commands illustrated in it were actually executed. Building on technical experts' testimonies, the court said that what does not emerge or can be verified from digital forensics is not proper digital evidence. The Observation Mission's statement notes this is a key precedent that clarifies the type of evidence that is considered technically valid for proving alleged computer crimes. 

Unauthorized Access. The court clarified the meaning of unauthorized access, even though no access was proven in Bini's case. According to the court, access without authorization of a computer system requires the breach of some security system, which the ruling understands as overcoming technical barriers or using access credentials without authorization. In addition, and following Ecuador's penal code, the criminal offense of unauthorized access also requires proving an illegitimate purpose or malicious intent. While prosecutors failed to prove that any access has taken place (much less an unauthorized access), this interpretation aids in setting a precedent for defining unauthorized access in digital rights cases. It's particularly crucial as it ensures that individuals who test systems for vulnerabilities and report them do not face undue criminalization.

In light of these key elements, the Observation Mission's statement stresses that it is essential for Ecuadorian appellate authorities to affirm the lower court’s acquittal of Bini. It's also imperative that authorities clarify his procedural status and the requirement for periodic appearances, as any violation of his fundamental rights raises concerns about the legitimacy of the proceedings.

The Case's Legacy and Global Implications

This verdict has significant implications for digital rights beyond Bini's case. It underscores the importance of incorporating malicious intent into the configuration of computer crimes in legal and public policy discussions, as well as the importance of guarding against politically motivated prosecutions that rely on suspicion and public fear. 

Bini's case serves as a beacon for the defense of digital rights. It establishes critical precedents for the treatment of evidence, the importance of digital forensics, and relevant elements for assessing the offense of unauthorized access. It's a testament to the global fight for digital rights and an opportunity to safeguard the work of those who enhance our privacy, security, and human rights in the digital era.

This is Part II  of a series examining the proposed UN Cybercrime Treaty in the context of LGBTQ+ communities. Part I looks at the draft Convention’s potential implications for LGBTQ+ rights. Part II provides a closer look at how cybercrime laws might specifically impact the LGBTQ+ community and activists in the Middle East and North Africa (MENA) region.

In the digital age, the rights of the LGBTQ+ community in the Middle East and North Africa (MENA) are gravely threatened by expansive cybercrime and surveillance legislation. This reality leads to systemic suppression of LGBTQ+ identities, compelling individuals to censor themselves for fear of severe reprisal. This looming threat becomes even more pronounced in countries like Iran, where same-sex conduct is punishable by death, and Egypt, where merely raising a rainbow flag can lead to being arrested and tortured.

Enter the proposed UN Cybercrime Convention. If ratified in its present state, the convention might not only bolster certain countries' domestic surveillance powers to probe actions that some nations mislabel as crimes, but it could also strengthen and validate international collaboration grounded in these powers. Such a UN endorsement could establish a perilous precedent, authorizing surveillance measures for acts that are in stark contradiction with international human rights law. Even more concerning, it might tempt certain countries to formulate or increase their restrictive criminal laws, eager to tap into the broader pool of cross-border surveillance cooperation that the proposed convention offers. 

The draft convention, in Article 35, permits each country to define its own crimes under domestic laws when requesting assistance from other nations in cross-border policing and evidence collection. In certain countries, many of these criminal laws might be based on subjective moral judgments that suppress what is considered free expression in other nations, rather than adhering to universally accepted standards.

Indeed, international cooperation is permissible for crimes that carry a penalty of four years of imprisonment or more; there's a concerning move afoot to suggest reducing this threshold to merely three years. This is applicable whether the alleged offense is cyber or not. Such provisions could result in heightened cross-border monitoring and potential repercussions for individuals, leading to torture or even the death penalty in some jurisdictions. 

While some countries may believe they can sidestep these pitfalls by not collaborating with countries that have controversial laws, this confidence may be misplaced. The draft treaty allows countries to refuse a request if the activity in question is not a crime in its domestic regime (the principle of "dual criminality"). However, given the current strain on the MLAT system, there's an increasing likelihood that requests, even from countries with contentious laws, could slip through the checks. This opens the door for nations to inadvertently assist in operations that might contradict global human rights norms. And where countries do share the same subjective values and problematically criminalize the same conduct, this draft treaty seemingly provides a justification for their cooperation.

One of the more recently introduced pieces of legislation that exemplifies these issues is the Cybercrime Law of 2023 in Jordan. Introduced as part of King Abdullah II’s modernization reforms to increase political participation across Jordan, this law was issued hastily and without sufficient examination of its legal aspects, social implications, and impact on human rights. In addition to this new law, the pre-existing cybercrime law in Jordan has already been used against LGBTQ+ people, and this new law expands its capacity to do so. This law, with its overly broad and vaguely defined terms, will severely restrict individual human rights across that country and will become a tool for prosecuting innocent individuals for their online speech. 

Article 13 of the Jordan law expansively criminalizes a wide set of actions tied to online content branded as “pornographic,” from its creation to distribution. The ambiguity in defining what is pornographic could inadvertently suppress content that merely expresses various sexualities, mistakenly deeming them as inappropriate. This goes beyond regulating explicit material; it can suppress genuine expressions of identity. The penalty for such actions entails a period of no less than six months of imprisonment. 

Meanwhile, the nebulous wording in Article 14 of Jordan's laws—terms like “expose public morals,” “debauchery,” and “seduction”—is equally concerning. Such vague language is ripe for misuse, potentially curbing LGBTQ+ content by erroneously associating diverse sexual orientation with immorality. Both articles, in their current form, cast shadows on free expression and are stark reminders that such provisions can lead to over-policing online content that is not harmful at all. During debates on the bill in the Jordanian Parliament, some MPs claimed that the new cybercrime law could be used to criminalize LGBTQ+ individuals and content online. Deputy Leader of the Opposition, Saleh al Armouti, went further and claimed that “Jordan will become a big jail.” 

Additionally, the law imposes restrictions on encryption and anonymity in digital communications, preventing individuals from safeguarding their rights to freedom of expression and privacy. Article 12 of the Cybercrime Law prohibits the use of Virtual Private Networks (VPNs) and other proxies, with at least six months imprisonment or a fine for violations. 

This will force people in Jordan to choose between engaging in free online expression or keeping their personal identity private. More specifically, this will negatively impact LGBTQ+ people and human rights defenders in Jordan who particularly rely on VPNs and anonymity to protect themselves online. The impact of Article 12 is exacerbated by the fact that there is no comprehensive data privacy legislation in Jordan to protect people’s rights during cyber attacks and data breaches.  

This is not the first time Jordan has limited access to information and content online. In December 2022, Jordanian authorities blocked TikTok to prevent the dissemination of live updates and information during the workers’ protests in the country's south, and authorities there previously had blocked Clubhouse as well. 

This crackdown on free speech has particularly impacted journalists, such as the recent arrest of Jordanian journalist Heba Abu Taha for criticizing Jordan’s King over his connections with Israel. Given that online platforms like TikTok and Twitter are essential for activists, organizers, journalists, and everyday people around the world to speak truth to power and fight for social justice, the restrictions placed on free speech by Jordan’s new Cybercrime Law will have a detrimental impact on political activism and community building across Jordan.

People across Jordan have protested the law and the European Union has  expressed concern about how the law could limit freedom of expression online and offline. In August, EFF and 18 other civil society organizations wrote to the King of Jordan, calling for the rejection of the country’s draft cybercrime legislation. With the law now in effect, we urge Jordan to repeal the Cybercrime Law 2023.

Jordan’s Cybercrime Law has been said to be a “true copy” of the United Arab Emirates (UAE) Federal Decree Law No. 34 of 2021 on Combatting Rumors and Cybercrimes. This law replaced its predecessor, which had been used to stifle expression critical of the government or its policies—and was used to sentence human rights defender Ahmed Mansoor to 10 years in prison. 

The UAE’s new cybercrime law further restricts the already heavily-monitored online space and makes it harder for ordinary citizens, as well as journalists and activists, to share information online. More specifically, Article 22 mandates prison sentences of between three and 15 years for those who use the internet to share “information not authorized for publishing or circulating liable to harm state interests or damage its reputation, stature, or status.” 

In September 2022, Tunisia passed its new cybercrime law in Decree-Law No. 54 on “combating offenses relating to information and communication systems.” The wide-ranging decree has been used to stifle opposition free speech, and mandates a five-year prison sentence and a fine for the dissemination of “false news” or information that harms “public security.” In the year since Decree-Law 54 was enacted, authorities in Tunisia have prosecuted media outlets and individuals for their opposition to government policies or officials. 

The first criminal investigation under Decree-Law 54 saw the arrest of student Ahmed Hamada in October 2022 for operating a Facebook page that reported on clashes between law enforcement and residents of a neighborhood in Tunisia. 

Similar tactics are being used in Egypt, where the 2018 cybercrime law, Law No. 175/2018, contains broad and vague provisions to silence dissent, restrict privacy rights, and target LGBTQ+ individuals. More specifically, Articles 25 and 26 have been used by the authorities to crackdown on content that allegedly violates “family values.” 

Since its enactment, these provisions have also been used to target LGBTQ+ individuals across Egypt, particularly regarding the publication or sending of pornography under Article 8, as well as illegal access to an information network under Article 3. For example, in March 2022 a court in Egypt charged singers Omar Kamal and Hamo Beeka with “violating family values” for dancing and singing in a video uploaded to YouTube. In another example, police have used cybercrime laws to prosecute LGBTQ+ individuals for using dating apps such as Grindr.

And in Saudi Arabia, national authorities have used cybercrime regulations and counterterrorism legislation to prosecute online activism and stifle dissenting opinions. Between 2011 and 2015, at least 39 individuals were jailed under the pretense of counterterrorism for expressing themselves online—for composing a tweet, liking a Facebook post, or writing a blog post. And while Saudi Arabia has no specific law concerning gender identity and sexual orientation, authorities have used the 2007 Anti-Cyber Crime Law to criminalize online content and activity that is considered to impinge on “public order, religious values, public morals, and privacy.” 

These provisions have been used to prosecute individuals for peaceful actions, particularly since the Arab Spring in 2011. More recently, in August 2022, Salma al-Shehab was sentenced to 34 years in prison with a subsequent 34-year travel ban for her alleged “crime” of sharing content in support of prisoners of conscience and women human rights defenders.

These cybercrime laws demonstrate that if the proposed UN Cybercrime Convention is ratified in its current form with its broad scope, it would authorize domestic surveillance for the investigation of any offenses, as those in Articles 12, 13, and 14 of Jordan's law. Additionally, the convention could authorize international cooperation for investigation of crimes penalized with three or four years of imprisonment, as seen in countries such as the UAE, Tunisia, Egypt, and Saudi Arabia.

As Canada warned (at minute 01:56 ) at the recent negotiation session, these expansive provisions in the Convention permit states to unilaterally define and broaden the scope of criminal conduct, potentially paving the way for abuse and transnational repression. While the Convention may incorporate some procedural safeguards, its far-reaching scope raises profound questions about its compatibility with the key tenets of human rights law and the principles enshrined in the UN Charter. 

The root problem lies not in the severity of penalties, but in the fact that some countries criminalize behaviors and expression that are protected under international human rights law and the UN Charter. This is alarming, given that numerous laws affecting the LGBTQ+ community carry penalties within these ranges, making the potential for misuse of such cooperation profound.

In a nutshell, the proposed UN treaty amplifies the existing threats to the LGBTQ+ community. It endorses a framework where nations can surveil benign activities such as sharing LGBTQ+ content, potentially intensifying the already-precarious situation for this community in many regions.

Online, the lack of legal protection of subscriber data threatens the anonymity of the community, making them vulnerable to identification and subsequent persecution. The mere act of engaging in virtual communities, sharing personal anecdotes, or openly expressing relationships could lead to their identities being disclosed, putting them at significant risk.

Offline, the implications intensify with amplified hesitancy to participate in public events, showcase LGBTQ+ symbols, or even undertake daily routines that risk revealing their identity. The draft convention's potential to bolster digital surveillance capabilities means that even private communications, like discussions about same-sex relationships or plans for LGBTQ+ gatherings, could be intercepted and turned against them. 

To all member states: This is a pivotal moment. This is our opportunity to ensure the digital future is one where rights are championed, not compromised. Pledge to protect the rights of all, especially those communities like the LGBTQ+ that are most vulnerable. The international community must unite in its commitment to ensure that the proposed convention serves as an instrument of protection, not persecution.