IV. How Surveillance Leads to Censorship, Monitoring, Hacking and Violence

IV. How Surveillance Leads to Censorship, Monitoring, Hacking and Violence

IV. How Surveillance Leads to Censorship, Monitoring, Hacking and Violence

The unchecked and pervasive power of surveillance exercised by the Syrian regime and affiliated groups, is a key cog in the machinery of state control and violence. That power is established and unleashed through a flawed legal and institutional infrastructure that provides for broad authority and lacks institutional processes for oversight and accountability.¹⁴⁴ This power has been used by the regime in various ways to silence, torture, and kill human rights defenders and those the State deems a threat. Surveillance has facilitated censorship on the internet and interference with access; hacking, tracking and monitoring of journalists, human rights defenders and critics of the regime; and the detention, torture and execution of journalists, human rights defenders and critics of the regime. As a result, the Syrian peoples’ ability to express themselves, to share information and ideas, to organize and participate in political life without fear of immediate and severe reprisal is systematically extinguished. These acts of control and violence are facilitated by tools and technologies supplied by multinational and foreign corporate entities. Lack of corporate accountability further undermines efforts to challenge and stop the Assad regime’s ongoing assault on safety and security of the Syrian people.

A. Abuse Enabling Legal and Institutional Infrastructure

The state is required to establish a legal framework and institutions to ensure human rights obligations it has taken on under international law and duties it owes to its people. The protection of the right to privacy, the right to life and freedom from torture, all require a legislative and institutional infrastructure that empowers and limits official actors and provides for processes of oversight and accountability. The legal framework authorizing the state’s power to surveil, to detain, and to punish, however, provides broad grants of power and authorizes the targeting, arrest and prosecution of individuals for vague and imprecise interests. No privacy protecting legislation exists to safeguard the rights of people from illegal and disproportionate government surveillance, and the penal and cyber laws set imprecise standards and allow for broad discretion and authority. This legal framework has been used to surveille and punish individuals engaged in or suspected of opposing the regime.

¹⁴³ The Report of the United Nations High Commissioner for Human Rights, Practical Recommendations for the Creation and Maintenance of a Safe and Enabling Environment for Civil Society, based on Good Practices and Lessons Learned, A/HRC/32/20 (Apr. 11, 2016) 17, available at: https://undocs.org/en/A/HRC/32/20.

¹⁴⁴ See generally United States Department of State, Bureau of Democracy, Human Rights, and Labor, Syria 2019 Human Rights Report, available at https://www.state.gov/wp-content/uploads/2020/03/SYRIA-2019-HUMAN-RIGHTS-REPORT.pdf (last visited Dec. 2, 2020).

Lack of judicial independence and an institutional infrastructure that facilitates human rights violations means there are no checks and no remedies for those pursued and ensnared by the regime.

The regime has relied on a set of laws granting the government broad discretion to arrest and prosecute individuals it deems a threat. Most prominently, the Penal Code 148/1949, Media Law 108/2011, the Cybercrime Law 17/2012 and the Anti-Cybercrime Law 9/2018 have been used to prosecute internet users, journalists and dissidents for vague offenses that grant the state almost absolute discretion. These offenses include “threatening national unity” or “publishing false news that may weaken national sentiment.”¹⁴⁵

While the constitution sets general due process guarantees, the lack of a rule of law oriented legal infrastructure means the constitutional guarantees are little more than paper promises. As a result, the right to privacy and the related rights to freedom of expression, freedom from torture and cruel, inhumane and degrading treatment, the right to liberty and of life are systematically undermined.

Syria’s Emergency Law, enacted in 1963 - the day that the Assad Baath party (under Hafez al-Assad) seized power – provided government agents the right to both monitor and imprison individuals with no explanation or justification.¹⁴⁶ This law suppressed rights guaranteed in the Syrian Constitution, such as freedom of assembly, freedom of speech, and freedom of movement by granting Syrian authorities wide latitude to arrest and detain individuals without due process or access to lawyers.¹⁴⁷ Specifically, the Emergency Law gave the government nearly unlimited authority to restrict individual freedoms and to investigate and detain suspects when national security and public safety were deemed to be at risk.¹⁴⁸ Further, the law granted the government authority to detain anyone who opposed the Syrian regime, including journalists, lawyers, and other human rights defenders with no legal justification beyond that of unspecified interests of national security.¹⁴⁹

As a response to the protests in 2011, Bashar al-Assad repealed the Emergency Law.¹⁵⁰ However, since its repeal, there has been no real change in practice and similarly problematic legislation remained in place while new problematic legislation was enacted to take its place. Journalists and human rights defenders have been charged and detained pursuant to Article 285 and 286 of the Penal Code for undermining national unity and promoting fake news.¹⁵¹ Media Law 108/2011, the Cybercrime Law 17/2012 and the subsequent Anti-Cybercrime Law 9/2018 grant the government authority to arrest individuals for their online expressions with little or no judicial oversight. The 2012 Cybercrime Law requires website owners “to save a copy of their content and traffic data to allow verification of the identity of persons who contribute content on the network.”¹⁵² In other words, the law requires websites not only to publish the names of the owners and administrators but also to provide to the government the names of those who contribute or post on the platform or website and the content of those posts.

¹⁴⁵ Freedom House, Freedom on the Net 2018 – Syria, 1 November 2018, available at: https://www.refworld.org/docid/5be16af6116.html (accessed Dec. 3, 2020).

¹⁴⁶ See Human Rights Committee, Communication No. 2326/2013, N.K. v. Netherlands, views adopted July 18, 2017, at para. 9.5 (“Even with regard to interferences that conform to the Covenant, relevant legislation must specify in detail the precise circumstances in which such interferences may be permitted.”).

¹⁴⁷ *Id. *

¹⁴⁸ Syria’s Emergency Law Lifted After 48 Years (Ask and Editor), ENCYCLOPEDIA BRITANNICA BLOG (Apr. 19, 2011) available at: http://blogs.britannica.com/2011/04/syrias-emergency-law-lifted-48-years-editor/.

¹⁴⁹ Human Rights Watch, A Wasted Decade: Human Rights in Syria During Bash al-Asad’s First Ten Years in Power (July 16, 2010) available at: https://www.hrw.org/report/2010/07/16/wasted-decade/human-rights-syria-during-bashar-al-asads-first-ten-years-power.

¹⁵⁰ See, e.g., Syria Protests: Bashar al-Assad Lifts Emergency Law, BBC (Apr. 21, 2011), available at: https://www.bbc.com/news/world-middle-east-13161329 (“The repeal of the emergency law was a key demand of protesters. It abolishes state security courts and allows citizens to protest peacefully. But prominent opposition figure Haitham al-Maleh said the move was ‘useless,’ reported Reuters news agency.”).

¹⁵¹ Penal Code 148/1949, Arts. 285-86; see also Syrian Government Passes New Anti-Cybercrime Bill, SMEX (Mar. 14, 2018) available at: https://smex.org/syrian-government-passes-new-anti-cybercrimebill/#:~:text=On%20March%205%2C%20the%20Syrian,at%20the%20Court%20of%20Appeal (last visited Dec. 3, 2020).

¹⁵² Freedom on the Net 2018-Syria, supra note 145.

The regime can arrest and detain anyone who deliberately fails to comply with these requirements.¹⁵³ These laws empower the state to compel compliance from telecommunications providers in order to gather information on individuals, and then to punish individuals for what they say and who they associate with.

The human rights violations facilitated by broad grants of substantive authority are further compounded by due process and fair trial failures. For example, as part of the new Anti-Cybercrime Law (2018), Syria appointed 58 new judges to oversee special courts charged with public prosecutions and enforcement of cybercrime laws.¹⁵⁴ These judges were trained by the Syrian regime in “filtering online content, especially on social media, and collecting data stored on computers, information systems or storage devices to vindicate cases.”¹⁵⁵ Human rights experts raised concerns about the independence of these newly created courts and the continuing targeting and detention of individuals engaged in speech online.

As widely reported, the Assad regime “detained without access to fair public trial tens of thousands of individuals, including those associated with NGOs, human rights activists, journalists, relief workers, religious figures and medical providers.”¹⁵⁶ There is a lack of an independent judiciary and rampant due process violations.¹⁵⁷ The Human Rights Council stated that:

While the Syrian Constitution provides due process guarantees and outlaws arbitrary detention, the Syrian criminal justice system, which encompasses civilian courts, the Counter terrorism Court, military and field courts, is systemically failing to uphold international human rights standards at every step of the judicial process…The judiciary fails to conduct oversight of the national justice system and provides no effective remedy for victims of violations attributable to the State, with individuals not daring to challenge abuses for fear of retribution.¹⁵⁸

Dissidents and human rights defenders have been arrested and lost in the state’s jails and detention centers, unable to access a lawyer or to have their day in court.¹⁵⁹ According to the Syrian Network for Human Rights from the start of the conflict in 2011 to August 2020, there have been 130,758 arbitrary arrests and 84,371 forced disappearances carried out by the regime.¹⁶⁰ When cases are finally assigned to a court, that assignment occurs in “an apparently arbitrary manner to Counterterrorism Court (CTC), courts-martial, or criminal courts.”¹⁶¹ Once individuals are brought before the courts, both “[m]ilitary and civilian courts consistently failed to order investigations into cases where detainees appeared before a judge were visibly illtreated, sometimes displaying severe injuries, and in cases of deaths in custody.”¹⁶² Military intelligence memo’s found by the nonprofit organization, Commission for International Justice and Accountability, revealed measures taken by intelligence leadership to shield officers involved in torture and extrajudicial killings from prosecution, outlining steps to ensure “judicial immunity.”¹⁶³

¹⁵³ Freedom on the Net 2018-Syria, supra note 145.

¹⁵⁴ Syria: Newly Enacted Anti-Cybercrime Law Threatens Online Freedom of Opinion and Expression, GCHR (May 16, 2018), available at: https://www.gc4hr.org/news/view/1861 (last visited Nov. 25, 2018).

¹⁵⁵ *Id. *

¹⁵⁶ Syria 2019 Human Rights Report, supra note 144, at 15.

¹⁵⁷ See, e.g., Freedom House, supra note 4.

¹⁵⁸Out of Sight, Out of Mind: Deaths in Detention in the Syrian Arab Republic, HUMAN RIGHTS COUNCIL (Feb. 3, 2016) at para. 16 (citing Article 51-53, Constitution of the Syrian Arab Republic) available at: https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27- 4E9C-8CD3-CF6E4FF96FF9%7D/a_hrc_31_crp_1.pdf.

¹⁵⁹ Syria 2019 Human Rights Report, supra note 144, at 11-12 (“The law limits the length of time authorities may hold a person without charge to 60 days, but according to various NGOs, activists, and former detainees, police held many individuals for longer periods or indefinitely.”).

¹⁶⁰ Syrian Network for Human Rights, Statistics of 2020, at https://sn4hr.org/ (last visited Dec. 12, 2020); *see also Id. *at 12 (“Regime authorities held the vast majority without due process or access to legal representation or to their families.”).

¹⁶¹ Syria 2019 Human Rights Report, supra note 144, at 11-12.

¹⁶² Out of Sight, Out of Mind, supra note 158, at para. 89.

¹⁶³ Anne Barnard, Inside Syria’s Secret Torture Prisons: How Bashar al-Assad Crushed Dissent, NYTIMES (May 11, 2019), available at: https://www.nytimes.com/2019/05/11/world/middleeast/syria-torture-prisons.html.

The laws and the legal system broadly enabled and empowered the regime to take whatever measures it deemed necessary in the name of self-preservation. Lacking an independent judiciary, the regime has been able to establish systems of mass surveillance and an infrastructure of intimidation and violence with no fear of oversight or exposure.

B. Access Shutdowns, Censorship and Self-Censorship

The extent of government control over internet infrastructure empowers the state to shutdown internet access during critical periods in specific locations and to filter and remove content the authorities deem critical of the regime. Websites and certain platforms have been used by human rights defenders, protestors, and those critical of the Assad regime to share information and opinions, organize and mobilize the opposition, to document human rights abuses and to publicize the reality on the ground. Unsurprisingly, these sites and specific messages were blocked by the regime. Areas controlled by the regime have seen internet shutdowns and slowdowns, targeted censorship and filtering of information online, and censorship of mobile communications. The level of monitoring and censorship has in turn led to significant levels of self-censorship by individuals too afraid to express an opinion and journalists afraid to report the news. Such interference with the peoples’ ability to speak and to receive information, to organize and to commiserate, violates the rights to freedom of expression and of participation in public affairs. Given the targeting of critics and those involved in opposing the regime or holding it to account, that interference has especially impacted human rights defenders and journalists working in the country.

The state-owned STE and private ISPs have shut down the internet in response to unrest, planned protests or in support of kinetic operations.¹⁶⁴ In the immediate aftermath of the 2011 uprising, the Syrian regime shut down all access to the internet in eastern Syria.¹⁶⁵ Localized blackouts were reported in the aftermath of the uprising,¹⁶⁶ and continued throughout the conflict.¹⁶⁹ Reports suggest that the Syrian regime decreased internet speeds and entirely shut off 3G services prior to besieging an area during the Civil War.¹⁶⁸ During this time, activists and authorities in Syria told the Associated Press that cell phone networks and landlines were unavailable in parts of the capital.¹⁶⁹ Further, the regime has “cut phone lines and Internet access in areas where regime forces [were] conducting major military operations”.¹⁷⁰

These practices have continued. According to the State Department 2019 Human Rights Report “regime officials obstructed connectivity through their control of key infrastructure, at times shutting down the internet and mobile telephone networks entirely or at particular sites of unrest.”¹⁷¹ Removing access to the internet and the mobile telephone networks cuts off peoples’ access to information and silences them, frustrating their ability to speak and to communicate and organize with others.¹⁷² Lacking such access can lead to even more severe consequences when information is needed to seek safety or to help individuals on the ground to access lifesaving

¹⁶⁴ Christopher Rhoads, Syria’s Internet Blockage Brings Risk of Backfire, WALL ST. J. (Jun. 3, 2011), available at: https://www.wsj.com/articles/SB10001424052702304563104576363763722080144.

¹⁶⁵ Open Season, supra note 2.

¹⁶⁶ Id.

¹⁶⁷ Freedom House, supra note 4.

¹⁶⁸ Open Season, supra note 2; but see Spencer Ackerman, Snowden: NSA Accidentally Caused Syria’s Internet Blackout in 2012, THE GUARDIAN (Aug. 13, 2014), available at: https://www.theguardian.com/world/2014/aug/13/snowden-nsa-syria-internet-outage-civil-war (relaying Edward Snowden’s claim that the 2012 internet blackout in Syria was caused by the U.S.).

¹⁶⁹ Open Season, supra note 2.

¹⁷⁰ Catharine Smith, Syria’s Internet Reportedly Shut Down, HUFFPOST, (Nov. 29, 2012) available at: https://www.huffpost.com/entry/syria-internet-down_n_2211458.

¹⁷¹ Syria 2019 Human Rights Report, supra note 143, at 41.

¹⁷²* See* Kaye,* supra* note 116, at para. 6 (“Human rights law imposes duties on States to ensure enabling environments for freedom of expression to protect its exercise. The duty to ensure freedom of expression obligates States to promote,* inter alia*, media diversity and independence and access to information. Additionally, international and regional bodies have urged States to promote universal Internet access.”).

medical care or services. Along with shutdowns, the regime has blocked the websites of critics and human rights organizations including the Syrian Observatory for Human Rights and the Syrian Human Rights Committee.¹⁷³

The government has also engaged in more targeted censorship, filtering text messages in connection with planning of protests and individual posts and articles critical of the government. According to one report, special intelligence unit named Branch 225 ordered telephone providers Syriatel and MTN Syria to block text messages that contained words indicating planning or participation in a protest, words included “revolution” and “demonstration.”¹⁷⁴ Similar targeted censorship removed specific social media posts, articles and blogs critical of the regime. For example, in a 2019 report, Freedom House reported on a journalist who was instructed by the security services to remove a Facebook post on living conditions in Syria and an activist who was made to unlike a Facebook post by the security services.¹⁷⁵ According to logs accessed by a hacktivist group mapping the Syrian regime’s use of surveillance and censorship, social-networking and video-sharing websites were especially targeted by the government, as were websites and blogs covering the uprising.¹⁷⁶

The censorship and monitoring of individuals’ social media posts and articles has led many to stay quiet for fear of retaliation. The serious risk of torture and death, as documented in the section below, means many will self-censor. ¹⁷⁷ One student interviewed by researchers, Ahmad,¹⁷⁸ a Syrian student attending university in 2011 spoke about how he changed his behavior due to fears of government surveillance. Ahmad was not a regime supporter and attended peaceful protests after the revolution.¹⁷⁹ Ahmad and his friends suspected that their social media accounts were being monitored by the university’s Student Union, which was a state sponsored organization with staff members appointed by the regime.¹⁸⁰ He suspected that the Student Union office was monitoring him and his friends because they were called into the Student Union Office and was shown pictures of himself [Ahmad] and his friends’ social media pages.¹⁸¹Although Ahmad was not arrested for his posts, this caused him to take more steps to ensure that his accounts were private and to self-monitor what he was posting online.¹⁸² Ahmad’s fear of retaliation and of persecution was shared by many student protesters and others who through in-person activism or social media posts shared anti-regime views.

Fear of retaliation has led to self-censorship by news organizations and NGOs, as well as individuals. The news site Damascus Now had its offices raided and its director arrested in December of 2018 for publishing pieces the regime deemed critical. After the raid the site stopped publishing for several weeks and when it resumed publishing, it declined to publish anything on the arrest or the raid.183 The new leadership received the message, ‘report on anything that casts the regime in a negative light, and you too can be arrested and worse.’ Reports from bloggers, journalists and human rights defenders indicate self-censorship has become a significant barrier to freedom of expression, sharing of information and publication of documented human rights violations.

¹⁷³ *Freedom on the Net 2018-Syria, supra *note 145.

¹⁷⁴ Freedom House, supra note 4.

¹⁷⁵ Freedom House, supra note 4.

¹⁷⁶ Jennifer Valentino-Devries, Paul Sonne & Nour Malas, U.S. Firm Acknowledges Syria Uses Its Gear to Block Web, WALL STREET JOURNAL (Oct. 29, 2011) available at: https://on.wsj.com/t6YI3W; Michael Pizzi, The Syrian Opposition Is Disappearing From Facebook, THE ATLANTIC (Feb. 4, 2014), available at: https://www.theatlantic.com/international/archive/2014/02/the-syrian-opposition-isdisappearing-from-facebook/283562/ (“Activists believe groups supportive of Syrian President Bashar al-Assad are gaming the system and reporting on their rivals [to Facebook to take post down]. Facebook does not disclose information about who reported whom, making it impossible to confirm these theories. But the pro-Assad Syrian Electronic Army (SEA)…has publicly gloated about this tactic.”).

¹⁷⁷ Nicole Bogart,* Propaganda vs. self-censorship: Syria’s virtual civil war,* GLOBAL NEWS (Aug. 29, 2013) available at: https://globalnews.ca/news/809766/propaganda-vs-self-censorship-syrias-virtual-civil-war/.

¹⁷⁸ Name has been changed to protect confidentiality.

¹⁷⁹ Interview by UIC John Marshall Law School International Human Rights Clinic with [Ahmad], February 11, 2020.

¹⁸⁰ Interview by UIC John Marshall Law School International Human Rights Clinic with [Ahmad], February 11, 2020.

¹⁸¹ Id.

¹⁸² Id.

¹⁸³ Freedom House,* supra* note 4.

C. Hacking, Tracking, and Monitoring

Removal of information and censorship are not the only tools deployed by the regime to surveille and control the population. The regime, with support from affiliated third-party hacking groups, has limited the Syrian peoples’ ability to employ tools that facilitate anonymous communication while deploying hacking and tracking techniques to identify and monitor critics and human rights defenders. The combination of these strategies ensures a complete lack of privacy and provides the state with the information it needs to intimidate and silence. Unsurprisingly, these tools have been used as part of a broader campaign of violence, in the arrest, detention, and torture of human rights defenders.

Virtual Private Network (VPN) services are regularly used by internet users globally to safely connect to the internet. VPN services allow users to safeguard their privacy and anonymity online while also circumventing geographic based blocking and censorship. Because an internet user’s personal information, browsing history, IP address and more can be tracked, particularly where the telecommunications infrastructure is government owned and managed, VPNs provide individuals means of safeguarding their privacy. The Syrian regime, however, blocks software and tools that allow internet users to communicate anonymously. Because the state controls the internet infrastructure, the government is able to use “deep packet inspection (DPI) filtering on the Syrian network, authorities were able to block secure communications tools such as OpenVPN, Later 2 Tunneling Protocol (L2TP), and Internet Protocol Security (IPsec).”¹⁸⁴ In fact, because government forces know people will need the tools to maintain anonymity on the internet “authorities have developed fake Skype encryption tools and a fake VPN application, both containing harmful Trojans” to infiltrate and surveille those seeking privacy.¹⁸⁵ Without VPNs, internet users are vulnerable to state and non-state surveillance.

This vulnerability is further exploited through aggressive strategies deployed by, among others, state affiliated hacking groups targeting regime critics. SEA, for example, sent links and fake software updates to install malware and gain access to devices and accounts of activists and human rights defenders.¹⁸⁶ Malicious software, or malware, “refers to software code designed to be harmful to the software user, often by breaking down protective security measures and giving access or control to unintended third parties.”¹⁸⁷ Malware can “enable wiretapping, turn on cameras, or physically track someone.”¹⁸⁸ According to reports, the SEA developed malware called SilverHawk built into Microsoft Word and YouTube fakes as well as fake updates for WhatsApp and Telegram to hack devices.¹⁸⁹ Once downloaded, the malware gives the SEA access to the users’ device, opening up the users’ content, location, and history.

SEA also began using fake profiles in conjunction with phishing and spear phishing techniques in order to target anti-regime activists on Facebook and Skype.¹⁹⁰ SEA targeted organizers or individuals connected to anti-Assad activities through fake profiles, often posing as women sympathetic to the cause. SEA were able to persuade the target to disclose sensitive information such as: meeting locations, whether anti-Assad groups were armed, and the identities of other people engaged in anti-Assad activism.¹⁹¹ The SEA also deployed malware through

¹⁸⁴ Freedom House, Freedom on the Net 2018-Syria, supra note 144.

¹⁸⁵ See Freedom House, supra note 4.

¹⁸⁶ See Freedom House, supra note 4.

¹⁸⁷ ACLU, How Malicious Software Updates Endanger Everyone, available at: https://www.aclu.org/issues/privacytechnology/consumer-privacy/how-malicious-software-updates-endanger-everyone (last visited Dec. 12, 2020).

¹⁸⁸ Id.

¹⁸⁹ Thomas Brewster, Syrian Electronic Army Hackers Are Targeting Android Phones with Fake WhatsApp Attacks, Forbes (Dec. 5, 2018), available at: https://www.forbes.com/sites/thomasbrewster/2018/12/05/syrian-electronic-army-hackers-are-targeting-androidphones-with-fake-whatsapp-attacks/?sh=3031bf5d6ce4.

¹⁹⁰Railton, supra note 71, at 11 (Although this report does not directly attribute the SEA to all of the stolen data and instead refers to pro-Assad hacking groups, the surveillance described in the report and the tactics used are similar to those known to be used by the SEA).

¹⁹¹ Id. at 11-15.

Facebook and other forms of messaging services by sharing videos in support of anti-Assad groups.¹⁹² By clicking these links, malware capable of reading file contents of the phone or computer would be installed on the individual’s device.¹⁹³ Trojans such as Darkcoment and Xtreme, “[act] as remote action tools capable of capturing webcam activity, monitoring keystrokes, and stealing passwords.”¹⁹⁴ The monitoring and hacking of devices are suspected to inform kinetic operations that have cost the lives of many and undermined the crucial work being done by doctors and human rights defenders.

Monitoring and hacking leads officials to dissidents, and in turn, dissidents lead officials to others in their networks. For example, a man in his 20s living in Syria said that the police demanded his Facebook password in April of 2011 after arresting him at his workplace and taking his laptop.¹⁹⁵ The unnamed man recalled his encounter with the Syrian police: “I told him, at first, I didn’t have a Facebook account, but he told me, after he punched me in the face, that he knew I had one because they were watching my ‘bad comments’ on it;” which led him to conclude they were monitoring him.¹⁹⁶ Detentions and arrests of identified dissidents have been used to compel disclosure of online passwords for social media and other accounts leading to further monitoring and pursuit of networks of activists and human rights defenders.¹⁹⁷

Such hacking and tracking techniques have been used against doctors and human rights defenders working to minimize the harm and destruction visited on the Syrian people. In 2016, an Aleppo hospital was bombed by suspected Russian warplanes, killing two patients.¹⁹⁸ The hospital was bombed after David Nott, a British surgeon and human rights defender, provided remote instructions via Skype and WhatsApp to assist doctors in performing surgery in the underground hospital.¹⁹⁹ Nott’s instructions were broadcast on BBC days after providing the surgeons with remote instructions.²⁰⁰ Nott believes that the timing of the attack—weeks after providing surgeons with remote instructions—and the precise nature of the bombing show that “the target could only have been gleaned from the coordinates on his computer.”²⁰¹ Nott believes that the deadly bombing occurred because someone who saw the televised events targeted his computer and gained access to the data identifying those he had been in contact with in Syria.²⁰² While some experts believe Nott’s theory is credible,²⁰³

¹⁹² *Id. *

¹⁹³ *Id. *

¹⁹⁴ Olesya Tkacheva, supra note 12, at 90.

¹⁹⁵ Jennifer Preston, Seeking to Disrupt Protesters, Syria Cracks Down on Social Media, NYTimes (May. 22, 2011) available at: https://www.nytimes.com/2011/05/23/world/middleeast/23facebook.html.

¹⁹⁶ Id.

¹⁹⁷ Freedom House, supra note 4 (“Activists and bloggers released from custody have reportedly been pressured by security agents to provide the passwords of their Facebook, Gmail, Skype, and other online accounts. . . . The Law for the Regulation of Network Communication against Cyber Crime, passed in February 2012, requires websites to clearly publish the names and details of the owners and administrators.”); see also Syria Telecommunications Law art. 51(e) (“No Telecommunications Network Operator, Service Provider, the affiliates thereof, and the Users of such services shall utilize any encryption of Telecommunications Services devices, without obtaining the Authority’s prior approval, in coordination with the Ministry of Defense and the Relevant Security Agencies.”).

¹⁹⁸ Hayley Dixon, Aisha Majid, & Steven Swinford, Hackers ‘Led Warplanes to Syrian Hospital’ After Targeting British Surgeon’s Computer, Telegraph (Mar. 20, 2018), available at: https://www.telegraph.co.uk/news/2018/03/20/british-surgeon-helped-syrianoperations-hacked-reveal-secret/.

¹⁹⁹ *Id. *

²⁰⁰*Id. *

²⁰¹ *Id. *

²⁰² Id.

²⁰³ Id. (“Prof Alan Woodward, from the Surrey Centre for Cyber Security, said Mr. Nott’s computer or phone could have been hacked during the operation, but it would have been far easier to gain access at a later date to find out who he had been talking to. It is a method that has been used by governments and law enforcement agencies for a number of years, he said, adding: ‘It is a fairly classic way of getting information. You don’t need to do it at the time, you can break in at your leisure.’”).

others are hesitant to establish a correlation.²⁰⁴After the hospital bombing, Nott has stated he will no longer provide lifesaving instructions to surgeons over the internet, in Syria or elsewhere.²⁰⁵

D. Detention, Torture, and Executions

Monitoring, tracing networks of activists and human rights defenders, and hacking devices, not only violates the privacy and expression rights of the Syrian people, it also forms a crucial part of an apparatus of systematic and widespread violence. The Syrian regime has continually punished human rights defenders for their work in documenting human rights abuses, protecting the human rights of the people, and speaking out against the regime’s repressive practices. As has been widely reported and documented, the Syrian regime inflicts torture and forcibly disappears persons that it deems “revolutionary” or anti-regime.²⁰⁶ According to a Human Rights Council Report and the Independent International Commission of Inquiry on the Syrian Arab Republic , “[t]ens of thousands of individuals in official and makeshift detention centers” are held, tortured, and “subsist in severely inhumane conditions.”²⁰⁷ The “whereabouts of tens of thousands of detainees remain unknown and unacknowledged by the state.”²⁰⁸ Some of the torture methods have included severe beating, kicking to the head and vital organs, mutilation of genitals, malnutrition to the point of emaciation, gastro-intestinal illnesses, and long term exposure to cold weather.²⁰⁹ Long months of torture are compounded by terrible inhumane detention conditions and lack of medical assistance.²¹⁰ Many detainees who were later identified by family members were almost unidentifiable due to their emaciated and unrecognizable bodies.²¹¹ Many torture victims suffered for long periods of time, sometimes months, before dying in detention.²¹²

Surveillance capabilities facilitate the identification, location, and arrest of dissidents. Once in the regime’s clutches, individuals are detained and subjected to inhumane treatment and conditions. Akram Raslan, a cartoonist who worked for the Hama-based newspaper Al-Fedaa and contributed to several other news websites was targeted and arrested for his work.²¹³ In 2012, intelligence officials arrested him at his workplace in Hama for publishing cartoons that “offended the state’s prestige.”²¹⁴ For two years, nobody knew where he was, he disappeared into the state’s network of jails and detention sites with no contact with his family or an attorney. Then in 2015 it was reported that Raslan had been tortured to death in 2013.²¹⁵

²⁰⁴See, e.g., Chris Baraniuk, Surgeon David Nott: Hack Led to Syria Air Strike, BBC (Mar. 21, 2018), available at: https://www.bbc.com/news/technology-43486131 (“Matthew Hickey of cyber-security company Hacker House pointed out that there were many other ways in which an aggressor could have spied on the hospital. Without accessing the computer devices used and analyzing them forensically, there was no way of knowing what actually happened, he told the BBC.”).

²⁰⁵ Id. (“Dr. Nott has said that, following advice from people working in war zones, he will not offer help to surgeons via the internet again. ‘It is a crime against humanity that you can’t even help a doctor in another country carry out an operation. It is a travesty,’ he told the Telegraph.”).

²⁰⁶ E.g., Amnesty International, End the Horror in Syria’s Torture Prisons (2016) available at: https://www.amnesty.org/en/latest/campaigns/2016/08/syria-torture-prisons/ (last visited May 7, 2019).

²⁰⁷ Independent International Commission of Inquiry on the Syrian Arab Republic, Detention in the Syrian Arab Republic: A Way Forward (Mar. 8, 2018), https://www.ohchr.org/Documents/HRBodies/HRCouncil/CoISyria/AWayForward_DetentionInSyria.pdf, at para. 1, citing, A/HRC/31/CRP.1, https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/a_hrc_31_crp_1.pdf, at paras. 1, 4.

²⁰⁸ Id. at para. 2.

²⁰⁹ Id. at paras. 20-29.

²¹⁰ Id. at paras. 29-31.

²¹¹ Id. at para. 25.

²¹² Id. at para. 28.

²¹³ Committee to Project Journalists, Akram Raslan, available at: https://cpj.org/data/people/akram-raslan/.

²¹⁴ Id.

²¹⁵ Id.

In 2012, an anti-Assad activist and human rights defender, Bassel Khartabil, was targeted and arrested.²¹⁶ Khartabil recorded videos of events happening in Syria and sent the recordings to outside news agencies.²¹⁷ The Syrian security forces raided Khartabil’s office. In the summer of 2017, Khartabil’s fiancé announced that he had been executed in 2015—without a trial— after three years of interrogation, torture, and imprisonment.²¹⁸Prior to his arrest, execution, and torture, Khartabil was working on establishing a surveillance free internet in Syria and extending online access to the Syrian people.²¹⁹

The scale of the state apparatus of torture is immense and substantiated by countless accounts from detainees and their families as well as documentary evidence.²²⁰ Accounts of brutal torture and cruel, inhuman and degrading treatment paint a vivid picture of what awaits those the regime deems a threat. Muhannad Ghabbash, an anti-regime protester and law student from Aleppo who organized peaceful protests, was targeted and detained by the regime for daring to speak up. ²²¹ He was tortured for twelve days straight, hung by his wrists for hours, beaten until he was bloody, and shocked with electricity. The torture continued until he wrote a forced confession.²²² After he wrote the confession, he was transferred to a prison in the Mezze air base in Damascus, where the torture continued.²²³ He was shackled to a fence naked and sprayed with water, brutalized and degraded by his guards and witnessed the beatings and deaths of many around him.

The Syrian regime has carried out a systematic practice of torture and ill treatment in detention through arbitrary arrests, forced disappearances, and summary executions. The regime’s tracking of human rights defenders has supported a campaign of terror where human rights defenders have been punished and paid the ultimate price.²²⁴

E. Corporate Involvement

The Assad regime’s and affiliated groups’ campaign of surveillance has been facilitated by an infrastructure and capabilities built on technologies and platforms created by foreign and multinational companies. From the U.S. cybersecurity company Blue Coat (now Symantec), to the Italian company Area SpA, South African MTN, and Facebook, these companies’ technologies and processes have facilitated censorship, surveillance, and ultimately detention of activists, journalists and human rights defenders.²²⁵

²¹⁶ Rachel Rose O’Leary, Murder, Censorship and Syria: Crypto and the Future of Uprisings, CoinDesk (Apr. 29, 2019), available at: https://www.coindesk.com/murder-censorship-and-syria-crypto-and-the-future-of-uprisings.

²¹⁷Alice Su, How One Syrian Fought to the Death for a Free Internet, WIRED (Sept. 27, 2017), available at: https://www.wired.com/story/how-one-syrian-fought-to-the-death-for-a-free-internet/.

²¹⁸ Id.; see also Al Jazeera, Bassel Kartabil: Missing Syrian-Palestinian ‘Executed’, (Aug. 2, 2017) available at: https://www.aljazeera.com/news/2017/08/bassel-khartabil-missing-syrian-palestinian-executed-170802100920059.html.

²¹⁹ Front Line Defenders, Bassel Khartabil, available at: https://www.frontlinedefenders.org/en/profile/bassel-khartabil (last visited May 7, 2019); see also O’Leary, supra note 216 (“According to Halpin, who has been providing tech support to human rights activists in the region since Tahrir Square clashes, the last question [Bassel] Khartabil asked to hackers on IRC before his arrest was: ‘Do you want to help the Syrian people to connect?’”).

²²⁰ See e.g. *Julian Borger, *Syria’s Truth Smugglers, The Guardian (May 12, 2015), available at: https://www.theguardian.com/world/2015/may/12/syria-truth-smugglers-bashar-al-assad-war-crimes.

²²¹ Ann Barnard, Inside Syria’s Secret Torture Prisons: How Bashar al-Assad Crushed Dissent, NYTimes (May 11, 2019) available at: https://www.nytimes.com/2019/05/11/world/middleeast/syria-torture-prisons.html.

²²² Id.

²²³ Id.

²²⁴ Danny Palmer, These Hackers are Using Android Surveillance Malware to Target Opponents of the Syrian Government, ZDNet (Dec. 10, 2018), available at: https://www.zdnet.com/article/these-hackers-are-using-android-surveillance-malware-to-target-opponentsof-the-syrian-government/; Frost, supra note 84, at para. 6 (“Countless . . . human rights defenders have suffered all forms of indignities and abuses.”); see also Front Line Defenders, Syria, available at: https://www.frontlinedefenders.org/en/location/Syria (last visited May 7, 2019) (outlining the human rights violations against human rights defenders in Syria—often includes torture).

²²⁵ Freedom House, supra note 4.

All businesses have the responsibility to engage in practices that protect human rights and ensure that States are not using their technologies, resources, and infrastructure to perpetuate human rights abuses.²²⁶ It is especially important for internet companies to facilitate truthful and accessible information to create “a world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity.”²²⁷ Prioritizing the protection of human rights is especially important because states are increasingly targeting online content.²²⁸ Businesses have become entangled with State violations in different ways. Companies have provided technology, devices or software directly to the regime knowing what the regime is doing. Some companies are regulated or asked by the state to filter content or deliver malware. Corporate procedures have also been manipulated to advance regime goals. In each circumstance, corporate entities have the obligation to exercise due diligence and examine their business practices, supply chains, and processes to minimize human rights violations tied to their products and services. In 2011, the U.N Human Rights Council endorsed the Guiding Principles on Business and Human Rights, which established key global standards for businesses for the protection of human rights.²²⁹ Principle 13 charges business enterprises with the responsibility of “[seeking] to prevent or mitigate adverse human rights impact that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.”²³⁰ Appropriate action on the part of business enterprises to prevent and remedy human rights violations can vary depending on the circumstances but corporations have the responsibility to exercise due diligence and to alter their practices to mitigate harm.²³¹

Syria’s mass digital surveillance technology was built from 2007 to 2011, and expanded and reinforced thereafter.²³² Some of the filtering devices discussed above, that enable the regime to inspect encrypted and secured data, were manufactured by a U.S. company called Blue Coat, based out of California.²³³ According to multiple reports, Blue Coat technology was used by the Syrian regime to log the activity and content of thousands of users, from “the sites they attempted to visit and every word of their communications with the IP addresses that pointed directly to their homes.”²³⁴ Blue coat sold 14 devices to an intermediary in Dubai that then sold 13 of the devices to Area SpA, an Italian company. These devices were then provided to the Syrian regime for surveillance and filtering purposes.²³⁵

Syria has two dominant mobile phone provides, one owned by the cousin of President al-Assad and the other, a subsidiary of MTN, a South African company.²³⁶ As discussed above, MTN Syria was ordered by Branch 225, a special government intelligence unit, to block certain text messages during planned protests to interfere with organizers’ and individuals’ ability to coordinate and organize a protest. MTN implemented the order and blocked messages of its users.²³⁷

²²⁶ Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, https://www.ohchr.org/documents/publications/guidingprinciplesbusinesshr_en.pdf, Principle 1.

²²⁷ Kaye, supra note 115, at para. 1 (citing John Perry Barlow, A Declaration of the Independence of Cyberspace), Feb. 8, 1996.

²²⁸ Kaye, supra note 115, at para. 9 (citing Communication Nos. OL PAK 08/2016 & OL LAO 1/2014).

²²⁹ Guiding Principles on Business and Human Rights, supra note 226.

²³⁰ Id. at Principle 13.

²³¹ Id. at Principle 19.

²³² Open Season, supra note 2.

²³³ Id.

²³⁴ Andy Greenberg, Meet Telecomix, The Hackers Bent on Exposing Those Who Censor and Surveil the Internet, FORBES (Dec. 26, 2011), available at: https://www.forbes.com/sites/andygreenberg/2011/12/26/meet-telecomix-the-hackers-bent-on-exposing-those-whocensor-and-surveil-the-internet/?sh=6d0a0424b089.

²³⁵ Freedom on the Net 2018-Syria, supra note 145.

²³⁶ Freedom House, *supra *note 4.

²³⁷ Id.

There are also reports that Assad regime associated groups and supporters have used Facebook’s Community Standards to target and remove pages that document human rights abuses in the country.²³⁸ According to a report by the Atlantic, the Syrian Electronic Army (SEA) has “publicly gloated” about the tactic of reporting their rivals to Facebook.²³⁹ Since 2012, Facebook has regularly deleted the accounts of those documenting human rights abuses in Syria and critics and dissidents working to organize and oppose the regime.²⁴⁰ In June of 2020, Facebook deleted 10,000 Facebook accounts belonging to regime opposition activist and political opponents.²⁴¹ The words: “Free Army” and “Abdel Bassel al-Sarout” in any post now violate Facebook rules, which results in the deletion of many anti-regime activist accounts. Facebook employs content moderators to address complaints but lacks sufficient number of moderators fluent in Arabic and its dialects. As a result, automated filters and moderators ill equipped to review the content become easy targets for SEA strategies. The ultimate effect of Facebook’s enforcement of their Community Standards is the silencing of regime opponents.

As the Syrian regime continues to exercise its violent power over the Syrian people, the international community must commit to protecting the Syrian people and human rights defenders by holding global companies accountable for their role in helping facilitate violations of human rights. Exercising human rights due diligence is key for ensuring better corporate practices. Principle 17 of the UN Guiding Principles calls on business enterprises to develop processes that include “assessing actual and potential human rights impacts, integrating and acting upon the findings, tracking responses, and communicating how impacts are addressed.”²⁴² The international community must prioritize the protection of human rights defenders and hold corporations and States responsible for human rights abuses in Syria.