“Constitutional laundering”, a term I first coined at RightsCON 2016 on March 30 at a CSR panel, is a governmental strategy of packaging de facto compulsive state actions under permissive laws and thereby making the otherwise state actions free from constitutional challenges. For instance, Korean Telecommunications Business Act Article 83(3) states that a telecommunication service provider “may disclose” the identification data of the users if the investigatory agencies require the data for “investigatory purposes.” Although the law is only permissive, the network operators comply with almost all information requests as if compulsory, leading to the unmasking of the identities of the parties to more than 10 million communications each year, which would have otherwise remained anonymous, in a country of only 50 million people. The problem is that the parties who believe they were unmasked unreasonably have no recourse because the service providers are simply doing what the law permits. The end result of constitutional laundering: the user privacy falls in legal limbo where neither the state nor the companies can be held accountable.
The users’ free speech rights are also in a similar limbo state: Korean Communication Commissions Establishment Act Article 21 Item 4 authorizes the country’s online censorship agency to issue “corrective requests” to the Internet companies for taking down contents and to the network operators for blocking certain URLs. Although not all “corrective requests” are subject to enforcement procedure, 99% of the requests on about 130,000 URLs per year are filled by the companies religiously, according to the agency’s FOIA disclosure on file with this author. What is diabolical, for the pretext that corrective requests are not mandatory, they are issued under the loose standard of “what is necessary for nurturing sound communication ethics”, which means that many lawful contents are taken down or blocked, and through a procedure that has not granted the authors any right of rebuttal, at least not until January 2015 when the National Assembly passed an amendment.
It is not just the government-issued takedown or blocking requests that work wonders through the private actors’ ‘voluntary cooperation.’ Information Communication Network Act Article 44-2 states that, whenever someone notifies a digital intermediary of content claimed to be defamatory or privacy-infringing to him or her, the intermediary hosting it “may temporarily blind” the content. Amidst an ongoing controversy over whether this is mandatory or permissive, which was finally resolved in favor of ‘mandatory’, the intermediaries have chosen to comply with a lion’s share (above 90%) of the requests anyway, again taking down clearly lawful contents, resulting in about 500,000 takedowns a year.
Why do these private actors do that? All telecommunication businesses, essentially all types of Internet companies and network operators, are subject to the registration requirement, which exempts only the companies with capital less than 100 million Korean won, equivalent roughly to 100K USD. This means that the companies like KAKAO, NAVER, etc., each have a registration number without which they cannot do business, and which can be taken away under Article 27 Para.2 Item 4 of Telecommunication Business Act if they engage in any conduct “harming consumer interests” under Article 92 Para 1 Item 2 and do not correct it upon an administrative order. No cancellation of registration has yet to take place. However, this registration requirement is symbolic of the cloud of state paternalism that the companies must work under.