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Iranian Lawyers: Rouhani Government Can Challenge Judiciary's Ban on Telegram Messaging App

Source: Center for Human Rights in Iran

Iranian President Has Refused to Directly Counter Ban on Widely Used Social Network

Iran's Communications Minister Mohammad Javad Azari Jahromi

Two lawyers in Tehran told the Center for Human Rights in Iran (CHRI) that the Iranian president has the authority to object to the prosecutor's order to ban the Telegram messaging app.

Unlike political hardliners, President Hassan Rouhani and his Communications Minister Mohammad Javad Azari Jahromi had previously repeatedly stated they were not interested in banning foreign social media apps, but they have not taken any substantive counter-measures since Telegram, used by a reported 40 million Iranians, was blocked in Iran on April 30, 2018.

That day, the Iranian Judiciary's news site reported that Branch 2 of the Culture and Media Prosecutor's Office in Tehran had ordered all internet service providers and the Telecommunications Ministry, which operates under President Rouhani, to "prevent access to content on the [Telegram] network with any kind of software, including circumvention tools."

The order also warned that anyone who violated the ban would be prosecuted.

An attorney in Tehran specializing in media affairs, who spoke on the condition of anonymity due to the threat of reprisals by the judiciary, told CHRI: "From a legal standpoint, orders issued by assistant prosecutors must be enforced but they can be challenged. As the target of this order, the government can lodge a complaint and ask the provincial court to make a ruling. But the question is, does the government want to take legal action or not? This is more of a political issue. In the same manner, the judiciary had invoked security laws to shut down 40 newspapers in 2000."

Asked whether the government has taken legal action, he said: "As far as I know, the government has not taken a legal position. The only reaction was a statement that was good of course but unfortunately, the government's legal advisers have acted as if they don't exist."

Without naming Telegram, the Rouhani government's Information Dissemination Council issued a statement on May 1 indirectly blaming the judiciary for blocking the popular network.

The statement said in part: "The Supreme National Security Council (SNSC) has sole authority to determine threats, make policy and take appropriate actions regarding national security," adding, "issuing orders regarding public affairs that concern the needs and wishes of tens of millions of citizens cannot be solely based on selective judicial decisions."

Commenting on the ban, Mostafa Tajzadeh, a former advisor to President Mohammad Khatami and political prisoner tweeted: "The government's statement regarding the banning of Telegram... shows that the president believes decisions related to cyberspace is within the jurisdiction of the SNSC and he does not believe that this judicial order is lawful."

A different attorney who has represented people that have been prosecuted in Iran for their online posts told CHRI: "As the head of the executive branch, Mr. Rouhani can lodge a complaint and say that using Telegram is not against national security."

The lawyer added: "When an assistant prosecutor issues an order, especially regarding an important matter such as blocking a messaging app in the whole country, he is affecting the government's realm and the government can object and express its opposition to the prosecutor by challenging him in court and even appeal to higher courts."

On May 4, three days after Telegram was blocked, Rouhani posted a note on his Instagram page suggesting that the ban was issued by Supreme Leader Ali Khamenei; "If a decision has been made by the highest level of the state to restrict or block people's communications, the people, who are the real owners of this country, should be informed.

In Farsi he also added the hashtags, #WeHaveNoSecrets, #TopDownRuling."

But to date, he has refused to launch any direct or legal action against the ban despite being urged to by reformist newspapers in Iran.

On May 4, the Etemad daily carried an interview with Tehran attorney Nemat Ahmadi who said, "Regardless of whether the judicial official had the authority to order the banning of Telegram or not, we have to ask what sort of legal decision is this?"

The report added that Nemati had "called on the government to take action against the ban on Telegram by invoking Article 116 of the Criminal Procedures Regulations, which according to him would send the matter to court for a ruling."

Article 116 states, "The assistant prosecutor, acting in his jurisdiction in compliance with the contents of this law, can launch an investigation into the following areas where necessary by law: 

  1. When a crime has occurred in his legal jurisdiction. 
  2. When a crime is committed elsewhere but is discovered, and the suspect is arrested, in his jurisdiction.
  3. The crime was committed elsewhere but the suspect is a resident in his jurisdiction."

Ahmadi also told Etemad, "The law says if the assistant prosecutor makes a decision, the opposing side can challenge it. What I want to know is, doesn't the government have legal assistants? Why doesn't the government use its legal options under Article 116? Right now the government can go to the Criminal Court in Tehran and submit a petition against the assistant prosecutor and ask for a ruling. The government has a duty to take action because it has been given an order that it is unable to carry out."

Ahmadi said that legal actions are taken either by private plaintiffs or, in cases concerning public matters, by prosecutors.

He told Etemad: "Regarding Telegram, if we make the determination that it is a public matter, then the relevant prosecutor subject to Article 114 can only enter the case if the crime has taken place within his area of jurisdiction. Has that been the case?... Where is the area of Telegram's operation according to the law? The Tehran assistant prosecutor has made a decision that is not within his jurisdiction. That's against the law. The order states that the government should block Telegram so that it cannot be accessed even with a circumvention tool, but this is not within the government's capability. It has been required to do something that it cannot. This indicates that the deciding authority does not even have a grasp of the matter at hand." 

But the director of the Supreme Cyberspace Council (SCC), Mohammad Hosseinpour, has defendedthe judiciary's action, stating in an interview on April 30: "The blocking of Telegram is on the basis of a judicial order and completely lawful and it must be carried out accordingly."

Asked if decisions on this matter are instead within the jurisdiction of the SCC, Hosseinpour said: "Judicial orders do not contradict the decisions of the SCC and they have to be carried out."

"Instead of telegram, filter poverty."
cartoon by Mansoureh Dehghani, Ghanoon daily

Government's Silence Increases Public Distrust

In addition to Rouhani, his communications minister has also been noticeably reluctant to directly criticize the judiciary's ban on Telegram and has made no comment on whether the government will challenge it.

Hours after Telegram was blocked, Mohammad Javad Azari Jahromi tweeted, "Even if one application can no longer be used, citizens' access to sources of information is unstoppable."

He added, "We cannot ignore the fact that there is no international standard to protect the sovereignty of countries over cyber applications. Most countries are facing this conflict. When a country's laws are not repeated, the reaction of the states will appear un-natural and irrational."

Iranian hardliners have repeatedly accused Telegram, which is based in Berlin, of being a tool for foreign adversaries to foment discord in Iran as well as of violating Iranian censorship laws.

Although Jahromi referred to the people's "unstoppable" access to "sources of information," he was at the same time justifying the judiciary's action by arguing that Iran has the right to block whatever app it wants if that app violates Iranian laws.

But Iranian officials have also violated their own laws by illegally encroaching on citizens' online information through wiretaps, hacking and malware, as well as international standards on personal privacy. This double standard has not been lost on the Iranian people or foreign-based social media networks, like Telegram, that have ignored or refused to comply with Iran's demands to block content on their apps.

The ongoing arrests and prosecution of journalists as well as civil and political activists in Iran for publishing material on the internet that allegedly "insulted" the supreme leader or "disturbed public opinion"-actual crimes in Iranian law-also shows that despite Jahromi's protestations, it is in fact the Iranian state that is ignoring international standards.

The Iranian peoples' increasing distrust of officials' statements including their justifications for banning apps and websites, is due to the domination of security, intelligence and judicial agencies over the country's internet infrastructure, and the government's inability to protect online privacywhen users opt to utilize domestic apps and online services.

In recent years, domestic messaging apps in Iran have made little progress in attracting Iranian users despite receiving financial and legal backing as well as endorsements from the state. 

Reacting to Jahromi's statements, Member of Parliament Gholamreza Heydari tweeted: "As a citizen who believes in supporting him [Jahromi], I must say he has made a lot of false promises. It is cowardly of him to make certain promises when he needed votes for his confirmation but did nothing to carry them out. Despite existing pressures, Mr. Rouhani himself should give answers."

"I don't trust the communications minister and I don't know how much of what he says is true because at one time he used to be deeply involved in these issues and now he's a minister," he added. "Of course, I'm not making a judgment but I don't trust him. Any citizen can distrust another person. I see inconsistencies in his statements."

... Payvand News - 05/07/18 ... --

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