Why new rules endanger Ukrainian Internet

The National Commission for the State Regulation of Communications and Informatization (NCSRCI) has come up with new business rules. It approved the relevant document, “Rules for the Telecommunications Sector regarding Internet Access Provision,” on December 10 and has already sent it for registration to the Ministry of Justice. According to its authors, the regulation will adequately ensure free market access for telecom operators involved in Internet access provision, and “protect the rights of service providers as well as consumers’ right to high-quality Internet access telecommunications services.”

The rules got wide coverage in mainstream media publications lately. Journalists paid most attention to Clause 4.9, stating that telecom operators had a duty to cooperate with the investigating authorities, in particular, to facilitate their operations and to not disclose organizational and tactical techniques used by them. However, as The Day learned at the Internet Association of Ukraine (IAU), the clause was in fact of no importance. After all, it has been on the books in Ukraine for nearly a decade (!). “This clause is a literal quote from the Law of Ukraine ‘On Telecommunications,’ which was adopted in 2003. This norm is 10 years old. I do not understand why they had it repeated and extended to all businesses, as it is relevant for telecom operators only,” chair of the IAU Tetiana Popova said. She also explained that information about individual’s activities on the Internet, such as websites one visited or one’s e-mail, could be obtained by the investigators from the operator only as long as it was linked to the investigation’s needs, and they needed a court decision first.

The IAU’s chair emphasized that the regulation was still problematic because of other shortcomings. The association sent a letter to the NCSRCI’s head Petro Yatsuk on December 10, asking him to postpone approval of the draft rules due to a significant number of gaps and contradictions found in the document. “We spent two years proposing amendments, but in the end, not all of our proposals have been implemented. Therefore, we are preparing a letter to the Ministry of Justice asking them to refrain from registering this document,” Popova added.

The Ukrainian Union of Industrialists and Entrepreneurs’ vice president for IT, president of the IT group Adamant Ivan Pietukhov laid out for The Day flaws and dangers found in the document. “In Ukraine, private initiative in this industry has developed without subsidies. It turns out that foreign governments are even helping to fund it. For example, Estonia took out loans to train people and teach them how to use the Internet. We are doing everything through private initiative only, but now the NCSRCI wants to restrain it. The only question is: Why do they do it?” he concluded. According to Pietukhov, adopting the document in its present form will allow the NCSRCI to control more Internet activities. “The commission resorts to such steps exactly to expand its field of work and collect more fines via their enforcement arm,” he added.

The expert cited two stumbling blocks in the rules. The first is use of misleading terms. The title of the document’s Paragraph 4 reads: “The Technological Requirements for Telecommunication Businesses.” However, Pietukhov noted that the national legislation regulating Ukrainian web space had no rules that would define the term “telecommunication business.” There are only definitions of “operator” and “provider.” Thus, the document is covering all businesses participating in Internet economy, instead of just operators, as the current regulations provide. The second stumbling block is Clause 2.3.8 of the “Rules,” instituting obligatory recording of volume (duration) and value of services provided by each service separately. “I have no idea how they expect it to be done, because the only true service on the Internet is access itself, everything else is a Web service. They want to use these rules to regulate Web services, such as Email,” Pietukhov said. However, he noted, the implementation of this clause would see small- and medium-scale businesses hiring more accountants and incurring increased costs.

“We believe that the Ministry of Justice has to send the document back for revision, and not register it as it is. No regulation should aspire to interpret laws and expand the legal framework. They ought to explain the laws, not use misleading terms,” Pietukhov maintained.