“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master — that’s all.”
“Through the Looking Glass” (Lewis Carroll)
Network society, of information, of knowledge, of knowing, post-industrial. There have been many terms to try to understand contemporary relationships and ways of life. Despite the diversity of positions and approaches, consensus has been established based on the recognition of the core role of Information and Communication Technologies (ICT) in global development and, consequently, the vindication of the so-called “fourth generation” rights.
The debate on this new type of rights is not exhausted. For some, the current social dynamics do not give rise to new rights, but rather introduce different ways to exercise or violate them, so that they do not consider it necessary to refer to a “fourth generation.” Others argue that in the new context, in addition to the old forms of exercising or depriving the traditional ones, those that have been “underdeveloped” — such as information or communication — acquire a central value, to such an extent that society uses them to define itself.1
Although there are many and varied ICT regulations in the world, and each country has assumed differently the design and implementation of its policies, common trunks can be identified that have as their genesis legislation on two dimensions in particular: access to information and access to the Internet as technology, both closely related.
In 2011, the General Assembly of the United Nations (UN) declared the access to Internet as a human right for the first time and, with this, reaffirmed the importance of this technology for the protection and exercise of other rights such as freedom of expression. Organizations such as the United Nations Educational, Scientific and Cultural Organization (UNESCO) or the Association for Progressive Communications (APC) have reaffirmed that access to information is an indispensable right for the construction of any democracy and that, in today’s societies, this is directly linked to Internet access. Thus, the establishment of guarantees for its exercise contributes to the consolidation of many of those enshrined in the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1976) or the Convention on the Elimination of All Forms of Discrimination against Women (1980).
The World Summit on the Information Society, held in 2003, became one of the great milestones of the 21st century to the extent that it revitalized the debate around information as a right and recognized that its materialization includes diverse spheres, which is why it is essential to generate inclusive perspectives where civil society plays a role that is as active as that of the States.
On the other hand, the Inter-American Commission on Human Rights recognized that access to the Internet implies compliance with a series of guiding principles, among which the following stand out: 1) Access; 2) Pluralism; 3.) Non-discrimination; 4) Privacy.2
The conception of the Internet as a right has also generated important discussions that are related to the centrality that the digital divide and inequalities still have today. The conditions of access and the possibilities of appropriation of societies and individuals vary according to dimensions of a socio-economic, political, cultural and even subjective nature. It is a complex system of relationships, of interdependent rights that require the multidimensional design of public policies to learn to live and participate in information and knowledge societies.
The recognition of the Internet as a human right has also led to important transformations in the laws of different countries. Some interesting experiences are recognized in Latin America, such as the cases of Costa Rica and Mexico, both of which modified their constitutions and explicitly recognized access to the Internet, and to ICT in general, as a citizen right. In Brazil, on the other hand, the “Civil Framework of the Internet” was approved, which is also known as “The Constitution of the Internet.” This legislation seeks to guarantee access, freedom and privacy in virtual environments and especially in digital social networks.
Cuban regulations on ICT
Cuba, for its part, has had countless peculiarities both in the development of ICT and in the creation of its regulations. Several researchers have been in charge of systematizing and carrying out critical analysis of the trajectories and conditioning factors of these processes. Most agree by pointing out as an unquestionable mediation the conflict with the United States government and specifically the imposition of the economic and commercial blockade, which to this day hampers satellite links, limits and makes access to services and devices more expensive. In turn, the regime change strategies to which the U.S. government dedicates millionaire funds began to be redirected almost exclusively to digital environments, which ended up influencing internal policy decisions regarding ICTs.
The studies also highlight as main conditioning factors the economic and infrastructural situation of the country and the design of policies that were characterized by the predominance of vertical and centralizing logics, legal voids and instrumental notions in which the control and guarantee of political interests and national security was prioritized before the full democratization of access to technologies such as the Internet. All this appealing, as a real argument and as a shield, to the situation of a besieged country.
Professor and journalist Milena Recio, in one of her approaches to the design of the policy of “social access” to the Internet in Cuba, systematized a series of regulations regarding ICTs issued mainly between 1996 (when Cuba’s connection to the Internet first took place) and the first decade of the 2000s. Her analysis concluded that in this period more than 100 instruments were created that addressed fundamentally issues such as: information security, website operation, copyright or electronic commerce, to name just a few. This stage is defined by the overabundance of government decrees, resolutions and agreements that were never synthesized or raised to a higher legal level. By then the visions and approaches on ICTs were fundamentally instrumental and a perspective focused on access rights was practically nil.3
Among the most important documents of the beginning of the millennium, the Governing Program of the Computerization of Cuban Society (2005) is usually distinguished. It was recognized as one of the first of its kind in the region and a pioneer in the promotion of an “orderly and intensive” social use of the ICTs, which would contribute to the satisfaction of the needs of different sectors of the population. In addition, it drew up guidelines for the insertion of ICT in educational processes and the establishment of joint projects with the sectors of culture and science. However, it was also critically reviewed for these processes’ unilateral approach, lack of social participation in its conception, and reductionist approach. According to Cuban researcher Hamlet López, the Program seemed to assume that “the role of the State in the development of the minimum necessary infrastructure, the regulatory framework, and in the production and dissemination of content is enough for ICT to have an effect in the rationality and efficiency of the social and economic processes of the whole of society, and that in the long run it becomes a factor of continuous improvement in the economic and social indicators.”4 Thus distorting the central role of citizens as protagonists in these dynamics.
The transformation process initiated with the so-called Update of the Cuban Economic and Social Model, enunciated some displacements in info-communication terms. For example, in the “Conceptualization of the Cuban Economic and Social Model of Socialist Development” (2016), some ideas that had never been assumed as they are in the political discourse were outlined, such as the recognition of information, communication and knowledge as citizen rights and public goods.
However, let’s see what happens to the rest of the guidelines. For 2017, the “Comprehensive Policy for the improvement of the computerization of society in Cuba” was approved, it also recognizes access to technologies as a right, while establishing some general principles such as: that the development of this sector becomes a weapon for the defense of the Revolution; to guarantee cybersecurity against threats, risks and attacks of all kinds; ensure sustainability and technological sovereignty; promote the access of citizens to the use of New Information Technologies; preserve the development of human capital associated with the activity; develop and consistently modernize all spheres of society, in support of the country’s priorities in line with the rate of development of our economy; integrate research, development and innovation with the production and marketing of products and services.5
That the first two principles of the policy focus on ICT as a “weapon for the defense of the Revolution” and on cybersecurity issues, confirm that the same perspective remains in the design of these strategies as in previous stages, marked by the politicization and defensive approach.
The Policy also declares the beginning of strategies for the consolidation of electronic commerce and government in the country. The latter is assumed from four stages: 1) Presence; 2) Transaction; 3); Interaction; 4) Transformation. This is relevant insofar as, well executed, they have the potential for a real impact in the formation of new digital institutional designs. But for these experiences to contribute to the generation of true participatory processes, structural changes are needed in the political system, commitment of all government instances with the principles of transparency, inclusion, access to information and accountability, a citizenry prepared to exercise and demand their rights and, above all, coherence between what the laws stipulate and the specific practice of the policy.
Although the predecessor documents clearly distinguished information as a human right, in the new Constitution, approved in 2019, they are not explicitly conceived this way. For its part, the State is committed to “building an information and knowledge society centered on the person, inclusive and oriented towards sustainable development, in which everyone can create, consult, use and share information and knowledge for the improvement of their quality of life; and defends the cooperation of all States and the democratization of cyberspace, as well as condemns its use and that of the radio electric spectrum for purposes contrary to the above, including the subversion and destabilization of sovereign nations.”6
In the last four years, some of the most important transformations for the development of ICT in Cuba have taken place, especially since the inauguration of the mobile data Internet service. It is precisely in this period that new legal norms were established in order to regulate the implementation of the process of computerization of Cuban society. Two of those that have generated the most controversy so far are: Decree Law 370 (DL370) “On the Computerization of Society in Cuba” and Decree Law 35 (DL 35) “On Telecommunications, Information and Communication Technologies and the use of the Radio Electric Spectrum,” the latter is part of a package of regulations published in the Gaceta Oficial on August 17, 2021. The first has already been widely debated and analyzed by Cuban civil society and in this media. Let’s focus on DL35 and what it has in common and different with respect to other regulations both in Cuba and in other contexts.
Is a legal norm such as Decree Law 35 and the accompanying resolutions necessary?
Unquestionably. The development of ICTs and their appropriation by society have to be strengthened and regulated. It is up to the states to guarantee and promote the right to privacy, data protection and non-discrimination, guarantee freedom of expression in digital environments and turn them into safe spaces for their users; counteract misinformation; protect and bet on technological sovereignty.
Now then, how are those expectations and demands enforced? DL35 reproduces the same limitations that have been pointed out in relation to other regulations on ICTs in Cuba. The first of these is the predominance of an instrumental and defensive approach. Hence, the first of its objectives is precisely: “to help make the use of telecommunications services an instrument for the defense of the Revolution.”7 That this be considered before establishing guarantees for the exercise of other citizen rights is not new or casual. ICTs are assumed, in the first instance, as tools to sustain political power, and based on this other rights are promoted.
Another problem is related precisely to the ambiguities in the wording of many of its regulations. Users, for example, have the duty to “prevent telecommunications/ICT services from being used to undermine the country’s Security and Internal Order, transmit false reports or news, or in actions aimed at causing harm or damage to third parties. and as a means to commit illicit acts.” When is Security attacked? What is the Interior Order and how is it safeguarded? What crimes are we talking about? Cyberterrorism actions, fraud? DL35 does not classify or clarify any of these issues and the vagueness in the wording of each of the sections opens doors to discretionary interpretations in which dissent and the public declaration of positions contrary to those of the government can be assumed as crimes.
These fears are not born of irrational mistrust on the part of civil society. It is worrisome because there are antecedents, because subsection i) of article 68 of a previous regulation (D370) considers as a contravention: “to disseminate, through public data transmission networks, information contrary to social interest, morality, good customs and the integrity of persons.” And it served to impose fines on opponents, journalists and activists, using everything from works published in the media to personal publications on social networks.
Both in the previous regulations and in the current DL35, inspectors appointed by the Ministry of Communications are charged with the responsibility of ensuring compliance with the provisions. This is another problematic issue, as decisions on aspects directly related to the exercise of universal rights are left in the hands of citizens with diverse backgrounds, administrative or civil servants, and which therefore should be evaluated by judges with the necessary competencies. This is how these procedures are established in similar regulations that have been designed in other countries.
Along with DL35, other resolutions were approved, such as the “Regulation on the National Action Model for Responding to Cybersecurity Incidents.” To this are attached a series of cybersecurity incidents classified according to their “level of danger.” The first one that is defined is related to “ethical and social damages,” which are recognized among the most serious offenses and are associated with events such as “spreading false news, offensive messages and defamation with an impact on the prestige of the country.” One of the main problems of this crime lies precisely in the possibility of its application to common users, which would mean the application of sanctions to the victims of disinformation themselves. How is treachery proven to a person who is part of the endless chains of transmission of “fake news”? Where are the procedures for action in the face of this new class of crime explained? The rest of the resolution returns to place us before a vague and tricky construction. When do acts to the detriment of the country’s prestige carried out? Even more important, what is the prestige of the country?
The use of telecommunications platforms or services to incite mobilizations or other acts that alter public order is also described as a crime. In the first place, this directly proportional relationship between mobilization and disturbance of public order is counterproductive and a reductionist look at the forms of social and political participation. To this is added that social networks and online messaging services are precisely the most important scenarios and tools for convening, organizing and articulating citizen mobilizations throughout the world and an indispensable mechanism for the achievement of civil and political rights.
The package of legal regulations approved in August 2021 has other limitations, but also strengths that should not be made invisible: the establishment of citizen protection mechanisms in the face of discrimination, harassment, bullying, or crimes associated with pedophile deception. It commits the State and the institutions with the protection of personal data and privacy. It prepares Cuba for future scenarios that already constitute some of the most important challenges for other countries in the world.
Latin America in the face of the problem of disinformation
According to the report “Cybersecurity: risks, progress and the way forward in Latin America and the Caribbean,” by the Inter-American Development Bank (IDB) and the Organization of American States (OAS), online crime accounts for half of all property crimes that take place in the world and the economic damages as a result of cyberattacks are becoming more and more notable, which in some cases account for more than 1% of the Gross Domestic Product (GDP) of some countries. Therefore, it is urgent to create national and international collaboration strategies to combat cyberterrorism and guarantee safer access to the Internet.8
Faced with the proliferation of phenomena such as “fake news” and cyberattacks, several countries have opted for the creation of legal protection frameworks. In Latin America, very different cases stand out, such as Brazil, with the approval in the Senate of the “Brazilian Law of Freedom, Responsibility and Transparency on the Internet” — commonly known as the “Fake News Law” —, Nicaragua and its “Law of Digital Crimes,” or Argentina, which opted for non-punitive strategies and created the “Observatory of Disinformation and Symbolic Violence” (NODIO).
According to the LatAm Journalism Review (LJR) website, 11 countries in Latin America have promoted — not in all cases successfully — laws or bills against disinformation that carry fines and even jail sentences. All have generated strong controversies in the region by identifying dangers such as: holding common users responsible for the circulation of disinformation; leaving in the hands of the states the decision on what is considered false or harmful and the possibility of manipulating these conceptions according to their benefit; surpassing the task of pursuing “fake news” to establish new forms of control over users; using legal norms to attack opponents and journalists. In this case, the recently approved Cuban legislation could also support these types of violations.
Carlos Jornet, president of the Committee on Freedom of the Press of the Inter-American Press Association (IAPA), commented in an interview with LJR that: “Behind bills that are presented with the laudable purpose of avoiding this danger, other objectives tend to be hidden, which tend only to censorship or self-censorship, to neutralize investigative journalism or silence opponents.”9
Faced with criticism, some countries chose to restrict regulations on electoral processes; to only sanction the use of robots or automated accounts; exclude the media and journalists from possible sanctions; impose new regulations on sponsored content; try to define more rigorously the actions of private telecommunications companies and social networks, among others. But the problems derived from disinformation and cybersecurity continue to grow in Latin America and intervene in all dimensions of social life, with an increasingly direct and harmful influence on political processes, as in the case of President Jair Bolsonaro’s electoral campaign. The panorama indicates that regulating digital scenarios and citizen practices through the ICTs is necessary and inevitable. However, the regulations must be accompanied by others that guarantee the rights of information, expression, access and participation, in addition to establishing mechanisms that allow society to demand the commitment of the states to these principles and supervise them when they fail to comply with them.
For Cuba, the conflict with the U.S. government further complicates the scenario and makes cybersecurity strategies an imperative. However, the trend cannot continue to be one of assuming centralization, control and obstruction of the exercise of human rights for certain groups. Regulations that seek the protection of individual and social rights in cyberspace are rendered meaningless when the enjoyment of other rights without political and ideological exclusions is not guaranteed and, above all, if the regulations contradict the exercise of those which have been endorsed in the Constitution.
Educating vs Surveillance
Finding balances to regulate environments such as the Internet, from which violations of rights, attacks on sovereignty and democratic institutions are also promoted and carried out, is a challenge for all countries. The tensions between freedom of expression and control; respect and inclusion, rights and their limits, go through all debates in the most diverse fields.
Faced with the challenges imposed by the information society, most of the proposals focus on the so-called “digital literacy,” understood as a process that transcends access or the instrumental domain of ICTs to become cultural, political and civic learning, which puts at the center the formation of critical citizens, prepared to understand and live with the new rules of the game.
Cuba joined the dynamics imposed by ICTs and in particular the Internet quite late. This disadvantage could become a possible potentiality with an effective appropriation of the learning and good practices shown by not a few countries. International experiences show that problems such as disinformation are not solved by consolidating environments of general surveillance or by coercing the creativity and practices of the subjects, but with education. It is about teaching users to identify “what is false,” providing citizens with tools to verify content and contrast sources, as well as forming their own and informed criteria.
The recently approved regulations have as strength the identification of the need to articulate inter-ministerial projects, form trained professionals and update study plans. The challenge is for these educational practices to transcend the instrumental and excluding approaches of the legal frameworks themselves and promote their positive transformation. Some structures that in their time were innovative, such as the Young Computer Clubs, could rethink their commission and make their role effective by promoting the construction of critical citizens from the communities.
But in the Cuban context it is also essential that organizations such as the media and government entities promote, by example, the ethical and responsible use of ICTs, transparency and a commitment to non-discrimination, which do not legitimize themselves as executors of harmful practices of censorship, violation of privacy or defamation.
The expansion of access to ICTs in the country has generated changes in all orders. Social experiences and citizen practices for many years have gone beyond legal frameworks and public policies. The design of new regulations and norms should enhance and take advantage of the experiences of a civil society that, doing more with less, has been responsible for a good part of the processes of economic modernization, cultural development, community articulation and (re) construction of agendas and political practices. The Cuba of the decrees has to, finally, serve the Cubans.
1 Del Río, O. (2012). Aproximación a la información y la comunicación desde el enfoque de derechos. Revista de Estudios Jurídicos, No.12, University of Jaén, Spain.
2 Inter-American Commission on Human Rights. Freedom of Expression and Internet Report. Office of the Special Rapporteur for Freedom of Expression (2013).
3 Recio, M. (2013). La hora de los desconectados. Evaluación del diseño de la política de “acceso social” a internet en Cuba en un contexto de cambios, CLACSO Virtual Library. Latin American Council of Social Sciences.
4 López, H. (2011). Notas para una evaluación sociocultural de la política de informatización de la sociedad cubana. Perfiles de la Cultura Cubana, No. 7. Juan Marinello Cuban Institute for Cultural Research.
5 Ministry of Communications (2017). Política integral para el perfeccionamiento de la informatización de la sociedad en Cuba. Available at: https://www.cubahora.cu/uploads/documento/2018/05/25/politica-integral-para-el-perfeccionamiento-de-la-informatizacion-de-la-sociedad-en-cuba-0 -0.pdf
6 Constitution of the Republic of Cuba (2019). Available at: http://www.cubadebate.cu/noticias/2019/02/26/descargue-aqui-la-nueva-constitucion-de-la-republica-de-cuba-pdf/#.XqIr3sgzbIU
7 Decree-Law No. 35 (2021). On Telecommunications, Information and Communication Technologies and the use of the Radio Electric Spectrum. Available at: https://www.gacetaoficial.gob.cu/sites/default/files/goc-2021-o92.pdf
8 Cybersecurity Report (2020). Cybersecurity: risks, progress and the way forward in Latin America and the Caribbean. Available at: www.observatoriociberseguridad.com
9 Lubianco, J. (2020). Once leyes y proyectos de ley contra la desinformación en América Latina implican multas, cárcel y censura. LatAm Journalism Review.