Internet in Afghanistan - Legal and Regulatory Frameworks

Legal and Regulatory Frameworks

Afghanistan is one of the least developed countries mainly due to the decades of war and lack of foreign investment. Freedom of expression is inviolable under the Constitution of Afghanistan, and every Afghan has the right to print or publish topics without prior submission to state authorities in accordance with the law. However, the normative limits of the law are clear: under the Constitution no law can be contrary to the beliefs and provisions of the sacred religion of Islam. Mass media law has become increasingly attentive to a more vigorous adherence to this principle. The Media Law decreed by President Hamid Karzai in December 2005, just before the national legislature was formed, included a ban on four broad content categories: the publication of news contrary to Islam and other religions; slanderous or insulting materials concerning individuals; matters contrary to the Afghan Constitution or criminal law; and the exposure of the identities of victims of violence. A draft amendment of the law circulating in 2006 added four additional proscribed categories: content jeopardizing stability, national security, and territorial integrity of Afghanistan; false information that might disrupt public opinion; promotion of any religion other than Islam; and "material which might damage physical well-being, psychological and moral security of people, especially children and the youth."

The independence of the media was also brought into question by the March 2004 Media Law enacted by the transitional government, which handed the Minister of Culture and Information important veto powers (e.g., foreign agencies and international organizations may print news bulletins only after obtaining permission from the Minister) and leadership of a Media Evaluation Commission that reviews appeals of rejections of licenses by the Ministry of Information and Culture. The proposed amendment to the Media Law in late 2006 dissolved the Media Evaluation Commission and two other regulatory bodies, the National Commission of Radio and Television Broadcast, and an investigation commission that reviewed complaints against journalists and decided which cases should be forwarded to courts for prosecution.

With the approval of the Telecommunications Services Regulation Act in 2005 (Telecom Law), an independent regulatory agency called the Afghanistan Telecom Regulatory Authority (TRA) was created out of the merger of the Telecommunications Regulatory Board and the State Radio Inspection Department (SRID) under the Ministry of Communications. The TRA assumed responsibility for telecommunications licensing as well as promoting sustainable competition for all telecommunications services.

Licensing requirements are straightforward: companies must abide by the law to be licensed by the TRA, and only those with licenses can sell telecommunications services. Of the two types of ISP licenses, transit and national licenses, only transit licenses allow ISPs to establish international connectivity. Part of the TRA mandate is to protect users from the abuse of monopoly market share: companies determined to have “significant market power” must apply to have an amended license and are subject to additional penalties for anti-competitive behavior. A license may be revoked if the licensee has broken the law or has failed to fix repeated breaches in the agreement, has misleading/false information in their application, or does not pay the fee even after a warning.

Under the Telecom Law, ISPs are duty-bound to protect user information and confidentiality. However, the TRA is also authorized to demand the operator or service provider to monitor communications between users as well as Internet traffic in order to trace “harassing, offensive, or illegal” telecommunications, although what constitutes these prohibited communications is not specified. Where an issue of national security or a criminal case is involved, operators and service providers must hand over the required information and give the authorities immediate access to their network. In cases where there is no such immediate need, the TRA still has the right to “relevant information” as long as the TRA has given two weeks’ notice. In its Acceptable Use Policy, the AFGNIC prohibits the use of the “.af” domain to make any communications to commit a criminal offense; racially vilify others; violate intellectual property rights; and distribute, publish, or link to pornographic materials that a “reasonable person as a member of the community of Afghanistan would consider to be obscene or indecent.” The ban on spam or junk mail also includes unsolicited political or religious tracts along with commercial advertising and other information.

On June 12, 2006, the National Directorate of Security (NDS), Afghanistan’s national intelligence agency, issued a list of broadcasting and publishing activities that “must be banned” in light of heightened security problems that could deteriorate public morale. The list of proscribed press activities was quite extensive and attributed negative intention, causality, and morality to reporting on specific issues (primarily terrorism and the Taliban insurgency). President Hamid Karzai denied these were instructions, saying they were merely guidelines and a request for media cooperation. Restricted activities included the publication or broadcasting of exaggerated reports against national unity or peace; decrees, statements and interviews of armed organizations and terrorist groups; and even the proscription against news on terrorism serving as the lead story.

OpenNet Initiative testing found no evidence of filtering in Afghanistan, although testing was not as extensive there as it was in some other countries.