Guilt by Geolocation? Bulk SMS Intimidation of Protesters in Ukraine

UkraineReports that the Ukrainian government may be tracking the movements of anti-government protesters using their cellphones raises a number of difficult questions for telecommunications providers operating in that country.

On January 21, cellphone subscribers in the vicinity of Kiev’s Independence Square — the epicentre of recent anti-government protests — received an SMS that read: “Dear subscriber, you are registered as a participant in a mass disturbance.” According to Andrea Peterson of the Washington Post, the language of the text message mirrors a law recently enacted by the government of President Victor Yanukovich imposing restrictions on the freedom of assembly that are inconsistent with international human rights norms.

Ukraine’s three main cellphone providers, Kyivstar, MTS Ukraine, and Life, have all issued statements denying any involvement in sending the messages. A statement on Kyivstar’s Facebook page suggests that “pirate base stations” may have been used to send out the messages. Such base stations, which are also known as “IMSI catchers”, are widely used by law enforcement and intelligence agencies to trick nearby cellphones into connecting to them by offering a stronger signal than bona fide nearby cellphone towers. Once connected, the “pirate base station” operator can broadcast text messages, eavesdrop on voice conversations, and monitor data transmissions, among other functions.

Assuming that Ukraine’s cellphone network operators were not involved in sending the threatening bulk SMS on Tuesday night, there is still a real risk that the government will ask the operators for personal information about subscribers or for assistance in tracking down the locations of the individuals who received the SMS. Like companies everywhere, Ukraine’s network operators must comply with local law, but pursuant to the U.N. Guiding Principles on Business and Human Rights, they must also avoid causing, contributing, or being directly linked to human rights violations.

Now is the time, therefore, for responsible companies to begin thinking carefully about how they might respond to any requests from the Ukrainian government in the coming days. One good place to begin would be the Telco Action Plan released by Access, a digital rights advocacy group, which provides guidance on steps that telecommunications companies can take to minimize their adverse human rights impacts. The Telco Action Plan draws on the lessons of the Arab Spring protests in Egypt, during which the then-government of President Hosni Mubarak shut down all telecommunications for nearly three days. (Full disclosure: Foley Hoag assisted Access in revising its Telco Action Plan in early 2012.)

Ukraine’s network operators may also wish to consult with or even join the Telecommunications Industry Dialogue being facilitated by the Global Network Initiative (GNI). The Dialogue is a group of nine leading international telecommunications companies that is currently grappling with their responsibilities to protect freedom of expression and privacy pursuant to the U.N. Guiding Principles.

Finally, foreign-owned telecommunications companies in Ukraine may wish to consult with their home country governments and other international stakeholders to bring pressure to bear against any potential government requests that are inconsistent with human rights norms. This tactic may prove particularly effective in the case of Kievstar, Ukraine’s number one mobile service provider, given that its parent company, Vimpelcom of the Netherlands, is a signatory of the U.N. Global Compact and has therefore pledged to avoid complicity in human rights abuses. (Ukraine’s number two mobile provider, MTS, is a former U.N. Global Compact member that was expelled for failing to comply with the Compact’s annual reporting requirement.)

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