November 2016 Update on Digital Economy Legislation for Thailand 4.0:

Buzz vs. Reality

Sarinee AchavanuntakulThai Netizen Network

November 2016

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Source: Fujitsu, Inc.

Stakeholder= everyone

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Source: Chakravorti, Tunnard, Chaturvedi, Digital Planet, September 2014.

Components of Digital Evolution Index

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Source: WEF, Delivering Digital Infrastructure, 2014

Important factors in digital economy development

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ทีม่า: WEF, Delivering Digital Infrastructure, 2014

WEF recommendations for developing digital infrastructure

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What should be Thai government’s “First Principles” for digital economy

• Government plays only “facilitator” role

– No conflict of interest with private players

– Clear separation of powers and roles: Policy Maker /

Regulator / Operator

• Create a level playing field, encourage start-ups,

no (crony-style) favors to incumbents or inefficient

State-owned Enterprises (SoEs)

• Avoid technological lock-in situations, e.g. allow

industry / market consensus for standards

• Dramatically improve security of gov’t networks7

What should be Thai government’s “First Principles” for digital economy (cont.)

• Use a participatory and transparent process for

major legislation and measures

• Build “trust” (necessary for digital economy!) for

both operators and users

– Strict definitions of “cybersecurity” that do not infringe

upon freedom of expression, e.g. follow “necessary

and proportionate” principle

– Strong privacy protection & consumer protection

– Clear accountability & due process, e.g. court warrants

for user data

– No onerous or vague burdens for intermediaries8

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Web defacement in ASEAN, 2013

Source: ThreatWatch system, ThaiCERT, Jan-Dec. 2013 10

Poor security of government websites

Source: Netcraft, 2014 11

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A return of wasteful spending?

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Proposed jurisdiction of DE Committee

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(Some) concerns over draft DE laws (1)

• DE Development Law (new)

– DE Promotion Office (new entity) can both write

policies (“digital economy promotion strategic plan”)

and compete with private operators

– Digital Economy Fund (new entity) will have funding

from: 25% of spectrum auction proceeds from National

Broadcasting Telecommunications Commission (NBTC),

25% of NBTC’s income, and Universal Service

Obligation (USO) fund – proceeds can be as high as 11

billion Baht: can give grant or lend to anyone

according to criteria by DE Committee lies

completely outside parliament’s budgetary process15

Checks & balance? Separation of powers?

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(Some) concerns over draft DE laws (2)

• Computer Crimes Act (revised)

– Can still be abused to prosecute speech (Section 14:

“entering false computer data into the computer

system”), although original intent was against phishing

– New wording makes it crime to enter false computer

information “that is likely to harm public safety,

economic security, public service, or national basic

infrastructure” (in addition to content deemed harmful

to national security or causing mass panic) – this is

extremely vaguely worded. Better to define “critical

infrastructure” as per international standards

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(Some) concerns over draft DE laws (3)

• Computer Crimes Act (revised) (cont.)

– Safe harbor added for intermediaries for the first time

(Section 15), but still does not distinguish between

mere conduits, cache, and host

– Safe harbor language mandates penalty for any

intermediary that “collaborates, consents, or is

accomplice to” crimes in the law – “consent” on the

Internet is almost impossible to establish

– Uses “notice and takedown” not “notice and notice”

– Burden of proof rests on intermediary, not on

prosecutor: contradicts criminal law principle

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(Some) concerns over draft DE laws (4)

• Computer Crimes Act (revised) (cont.)

– Traffic retention: increased maximum from 1 to 2 years

– Gives DE Minister the authority to mandate criteria,

timing, and means to “prevent the dissemination or

erase computer information” – this implies power to

commit surveillance & hacking!

– Sets up “computer information screening committee”

by order of DE Minister (2 out of 5 must be from

related private sector) – this committee has authority

to ask court permission to remove “computer

information that contravenes public order or public

morals” that is against any law (Section 20)19

(Some) concerns over draft DE laws (5)

• NBTC Law (revised)

– Strip NBTC’s independence – put under DE Committee

– Mandates NBTC to “allocate sufficient spectrum for

public service provided by the state” – this may

prolong or make impossible spectrum re-allocation

(back from the hands of government agencies,

including the army). Also, locks ‘public service’ in the

hands of SoE only.

– No need for spectrum to be auctioned; beauty contests

allowed – back to the ‘dark age’ of crony capitalism?

– NBTC must “compensate” government agencies for

spectrum re-allocation – this is actually their “duty”!20

Telecom regulation: going backward?

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