A Handy Pretext for Autocracy: The Bylock Case of Turkey

-- By NevfelAkkasoglu - 4 May 2021

Introduction

It was a sunny September day in Istanbul, right after the failed coup in 2016, when a dozen policemen showed up at the door of 66-year-old Judge Aydin Akay, a prominent defense lawyer and a United Nations war crimes tribunal judge, to arrest him. The warrant indicated that Judge Akay was under terrorism charges for using a smartphone-messaging application called Bylock, putting him among the 75,000 people who would eventually be imprisoned for the same reason: downloading the encrypted messenger app. It was a horrifying time for Turkish users of the Bylock, which had been downloaded more than 600,000 times worldwide.

Using the above-mentioned Bylock case in Turkey as an example, this essay focuses on how, by attacking the means of secure communication tools, a state actor can systematically and effectively curtail fundamental freedoms on a large scale to target political opponents and activists. The criminalization of encryption and abuse of metadata are among the increasingly widespread tactics used by authoritarian regimes for this purpose; however, no government has employed them as widely and publicly as Turkey.

Background

Following the 2016 coup attempt in Turkey, the Erdogan Government launched a massive crackdown against many individuals and groups labeled as dissidents against its authority. Seeking justifications to maintain authoritarian practices that were already in place by then, the Erdogan regime employed an unprecedentedly useful pretext, the coup attempt, to consolidate its power. While many opposition leaders, including Kurdish politicians, leftist groups, and various religious communities, were targeted, the most significant clampdown was against the Gulen Movement, a social and religious movement which Erdogan accused of plotting the military coup. The Movement vehemently denies this. The Government associated the Bylock app with the Movement, and 112,000 people who were in some way linked with the app were prosecuted on terrorism charges; 75,000 of these were imprisoned. Not only users of Bylock, but also users of other secure chatting apps like KakaoTalk? and Tango were under the radar of the regime. At the end of the day, Turkey's use of ByLock? in mass prosecutions quickly evolved from being a means to (allegedly) find Gulenists to being used as an exclusive proof of conspiracy.

Criminalization of Encryption

The Turkish regime could not explicitly attack freedoms, since as a country still negotiating a stalled accession to the European Union, it did not want to break its ties with the democratic world entirely; and because there was a certain degree of consciousness, albeit weak, regarding individual rights in Turkish society. Although the goal of the Erdogan regime was to restrict freedoms eventually, [Fn1] it managed to sell its long-term democracy-weakening scheme to its citizens in a different format, taking advantage of citizens' unawareness regarding their right to privacy. To that end, the Erdogan regime demonized and criminalized the use of secure communication channels. While Internet technologies are not unfamiliar to the public, the same cannot be said for encryption. In an effort to manipulate this situation, the Government carried out a series of propaganda operations against so-called Bylock users through government-controlled media, police raids, and arrests. Most people heard of encryption for the first time in a context associated with criminals, national security, and terrorism, which resulted in a public perception that it was related only to illegal activities. This all happened at a time when the concept of encryption was just beginning to sprout and become known to the general public. Eventually, the Government's tactics worked. By distorting the potential of a healthy understanding of encryption via Bylock investigations, a chilling precedent was established against the very existence of encryption. While aiming for encryption might not seem to have been the focus of the Turkish regime's repression, frightening a country of 80 million people away from encrypted communication channels and ultimately leaving them indifferent to privacy and anonymity was a critical step in strengthening the regime's autocracy.

Abuse of Metadata

Another aspect of the Bylock case portrays how metadata can turn into a weapon in the hands of autocratic passions. In most Bylock-related judicial proceedings, despite the lack of incriminating messaging content, the sole indication of an IP address matching with Bylock servers obtained from ISPs was considered sufficient evidence for a conviction. While the Government's acquiring so-called incriminating evidence (IP logs) from ISPs without a court order and seizure of the Bylock server (for content) were blatantly illegal under Turkish laws, simply accepting a TCP/IP connection as incriminating evidence was shockingly incompatible with any international criminal adjudication standards. The Clegg and Baker report demonstrates that the alleged use of Bylock does not satisfy the provision of ECHR Article 5/1(c), which stipulates a person's right to liberty and security, thereby rendering the detention of individuals on the basis of their connection to the Bylock server via an IP address is arbitrary; and fails the test of reasonable suspicion. The capacity of a dedicated despotic government to incarcerate tens of thousands of people with only one type of metadata (IP address) requires a serious reconsideration of the traditional distinction between content and non-content information. In this sense, separating metadata from content information and subjecting it to lighter judicial scrutiny is an oxymoronic delusion, given the ability of governments to access a plethora of information stored by data collectors—often data-mined and ready to use. [Fn2]

Conclusion

In an age when many fundamental freedoms are related in some way to individuals' online presence, the Bylock case provides a striking example of this. Encryption offers an online privacy space for individuals like Judge Akay to exercise their freedom of expression without any type of arbitrary and unlawful interference, especially from state actors. Therefore, advocating and promoting secure communication methods, especially federated platforms in which the users control their metadata, has become equated with, and necessary for, the defense of fundamental freedoms against the whims of government in the digital age.

Fn1: See Turkey’s social media legislation of 2020.

Fn2: See this, and this (the section by Rita Raley.)

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