By Leila NachawatiPublished on
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In January 2023, an Ecuadorian court found Swedish programmer Ola Bini innocent of the charges brought against him. The ruling came after a long legal ordeal that began in April 2019, when Bini was arrested following an accusation by the Prosecutor’s Office that he had hacked into Ecuador’s National Telecommunications Corporation. Pressure from individuals and organisations that helped raise awareness on the connection between this case and the wider context of the protection of human rights online was instrumental in obtaining this outcome.
To gain insight on this process and the lessons that can be learned from it, APC spoke with three of the people behind the campaign: Damián Loreti, APC Associate and a lawyer, a university professor specialising in the right to information and freedom of expression and a litigant before the Inter-American Court of Human Rights; Rodrigo Adriel, a political scientist and specialist in political sociology; and Valeria Betancourt, a long-time activist in the field of human rights and the internet and the manager of programmes and advocacy engagement at APC.
Before we start, can you tell us how Ola Bini is?
Rodrigo Adriel (R.A.): He is doing well, although waiting to see what the next steps are and looking forward to this finally being over. This decision is good, but it needs to be made final after the appeal, and that is what we are working on now with the campaign’s coordination team.
Damián Loreti (D.L.): As Ola Bini’s representative before the human rights protection system, I was in close contact with him right up until the verdict was handed down. That day he was happy. Now he is anxious to see the written grounds. In Ecuador, the courts first deliver their verdict and then issue their legal grounds in writing. So he is understandably nervous, while he waits for the precautionary measures that prevent him from reuniting with his family to be lifted and for his innocence to be properly ratified, with detailed grounds set out for each charge.
Valeria Betancourt (V.B.): Exactly. Even though the Criminal Guarantees Court ratified Bini’s innocence, we, at APC and all the other organisations involved in the campaign, are still cautious as we wait for the appeal from the Prosecutor’s Office, which could hinder his freedom. Given the critical challenges to fully guaranteeing rights online, it is essential to protect human rights defenders whose technical expertise is key in the digital environment. Ratifying Ola Bini’s innocence is not the end of this process. We need to move forward towards reparation. There is no justice without reparation.
Why is this case so important? Is it a watershed moment?
R.A.: This case has, without a doubt, been a turning point in the defence of digital rights. The fact that a court did not resort to ignorance as a springboard to pave the way for persecution was very important. This case turned into a cause, as it represents the relevance of human rights in the digital age.
V.B.: The importance of defending digital rights came into sharper focus in Ecuador because of this case. It helped establish the idea that the same rights that individuals have offline apply in the digital environment, and that online rights are not inferior rights. Regionally and globally, the case is part of the onslaught on experts and activists whose work is critical for preserving online privacy and security, and, ultimately, for the working of democracy. Winning this case was important for highlighting the dangers posed to democracy and rights by the criminalisation of experts and activists for political reasons, without solid technical grounds and ignoring the principles of proportionality in the application of laws.
D.L.: The action was brought without there being any acts that could be considered cause for investigation. The charges were based on something that was not even a suspicion, and which was politically motivated. The witnesses themselves said as much. They did not know what crime had been committed, but they did know that there had been a press conference at the highest political level accusing Ola Bini. This was the first time a crime was investigated in which the charges were clearly focused on the use of certain tools and not on a criminal act, and the defendant was denied his rights to due process. The Office of the Special Rapporteur became involved and the case was included in the report of the Inter-American Commission on Human Rights.
What role would you say the campaign played in securing that successful outcome?
V.B.: The civil society organisations that work on a regional and global level and that participated in the campaign helped draw attention to the case’s international implications. They connected it with the special mandates of the United Nations and the inter-American human rights system. Its particularities were connected with the political context in Ecuador notwithstanding, the Ola Bini case should not be seen as isolated from the global trend. We are witnessing growing persecution and criminalisation of individuals who work in the field of digital security, people who develop tools and investigate vulnerabilities in computer systems with the aim of protecting privacy and security rights online. The campaign had to have a global dimension in order to situate the case in a larger context and expand the impact of the advocacy efforts around it.
D.L.: The campaign undermined the attempt to portray Ola as a criminal and an “operator of strange things”. In the reformulation of the charges brought against him it was argued that “only criminals use the Tor software,” a tool recommended by the United Nations Special Rapporteur. Encryption is a right, so it was important to tear down the image of a public enemy and evidence that Ola is a scientist, a researcher in digital rights. The state of permanent suspicion focused on issues of privacy, freedom of expression, etc., is a threat to the full enjoyment of human rights. The campaign was also significant in its mission, which entailed international organisations taking up the cause. It sets a precedent; it creates case law.
R.A.: All of what Valeria and Damián mention was the result of sustained efforts over time involving many different actors. The fact that Ola was hardly known in the country was something that conditioned this case, as was the fact that people were not familiar with the issue. Now, after the pandemic, there is more talk about it, people know the issue exists. But in 2019 there was little awareness of the issue in Ecuador. Which is why the first thing we needed to do was raise awareness locally, educate the country’s human rights organisations, which were not experts on digital issues, and in that way link it to local politics. If in Ecuador the rights of Amazon human rights defenders are violated – which is a very serious thing – people can clearly see the gravity of that. But when it comes to digital matters, it becomes diluted, and the gravity is not so clear. The first step, then, was to educate. This was also important for those who were more tech-savvy, because it allowed them to practice how to explain technical issues to non-technological audiences. Another aspect in which the campaign was crucial was in developing the language of human rights and digital rights around this case, incorporating plurality, so that it would not be monopolised by one political group and weaponised against another, and to appeal to different audiences. We understood that we had to make it plural.
How can something so plural remain unified and retain common objectives?
R.A.: There are different ways of organising campaigns. You can have a solidarity committee, an alliance… We chose to set up a permanent observatory precisely to further unity and plurality at the same time. Building trust gradually was very important. We needed to raise a third voice in a highly polarised country. In a dispute between two sides, the observatory positioned itself as a referee. It is a third voice. Not a disinterested third voice, but one that calls for due process and the right of defence. It is a third voice that tries to bring other elements to the table, essential elements.
D.L.: I agree with Rodrigo. In promoting convergence towards a common struggle, there are principles that cannot be up for partisan debate, such as basic respect for human rights. That issue goes beyond, or should go beyond, politics. Because there is no question that Ola Bini’s human rights had been violated, and that was established by the special rapporteurs on freedom of expression who monitored the case.
What advice would you give to those working in other human rights advocacy cases in this digital context?
R.A.: We use the term “moving up in generalisation.” What we mean is that we do not just limit ourselves to talking about a specific case as if that were the cause itself, but as a symptom of a wider, more universal problem. This is applicable as well to many other cases, such as that of our friend Alaa Abd el-Fattah, detained in Egypt. But it is also critical for understanding the local context and how in each case the systems of persecution and the separation of powers are organised, and for knowing what margins we have.
V.B.: As we have said, understanding the contextual particularities of the cases and extrapolating them to more general dimensions is essential for defending rights, especially when in an increasingly antidemocratic environment the conditions for guaranteeing rights are not present.
D.L.: I am waiting for the ruling... Our hope is that the written grounds for the ruling set out the particularities of digital rights, the nature of the use of certain technologies, and the human rights principles required by the rule of law. That will be essential in order to have case law, clear precedents regarding how judicial bodies interpret what “access” means, what a system is, what a computer is… what authorisation implies or does not imply, the margins for surfing the internet without feeling like we are being watched when we should not be watched… And, of course, the relevance of the use of encryption software, recognising what the United Nations has already recognised.
At APC, we will continue to closely follow this case. To stay up to date with any new developments, we recommend following the Centre for Digital Autonomy, directed by Ola Bini.