With the government exploring the pros and cons of initiating a single international gateway (single gateway), uncertainty is being felt in the country's growing tech industry and e-commerce sector. A number of legal concerns related to the project are apparent, as it could impact international legal commitments and the digital economy policy.
The cabinet ordered relevant state agencies to report legal complications concerning the deployment of a single gateway. Setting up a single gateway would enable the government to control the bottleneck of internet connections and filter content flowing into Thailand and block any websites it wished.
Here is an excerpt from the article "Liberalizing International Gateways" contributed by Singapore's Infocomm Development Authority to the International Telecommunication Union (ITU), the UN's specialised agency for information and communication technologies:
"The ITU defines an international gateway as any facility through which electronic communications (voice, data and video) can be sent between the domestic networks of one country and another. In practice, the gateways provide links either to an international (often submarine) cable system, or to a satellite through an Earth station. Whether terrestrial or space-based, their purpose is to aggregate and distribute incoming and outgoing international voice and data traffic.
"But as well as providing connections, international gateways are also potential bottlenecks that may restrict traffic flows and thus cause artificially high prices. To overcome this, regulatory frameworks are needed that introduce new models of sharing and collocation, and that encourage competition through lowering the barriers to new market entrants." (Link: www.itu.int)
In short, the ITU recommends liberalising an international gateway service.
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The telecommunications and IT industries in Thailand, and the government entities that administer them, have come a long way. In the past, the Communications Authority of Thailand (the predecessor of CAT Telecom) was the principal provider of international communications services, including an international gateway service.
In a commitment to the World Trade Organization (WTO) to liberalise the telecom sector by 2006, the government reformed the telecom regulatory regime by using a licensing system rather than the granting of concessions.
In October 2004, the National Telecommunications Commission (NTC) -- now the National Broadcasting and Telecommunications Commission (NBTC) -- was set up as an independent regulator of the telecom industry. Since then, the private sector has been able to obtain licences from the NTC, and later the NBTC, to provide international gateways in Thailand. Within a few years, the number of licence holders rose from one to more than 10. Not only is the price of internet connectivity now lower, the diverse demand for internet services has also been met.
1. Legal effects of a single gateway
(a) International commitments
Thailand is under international commitments, including the WTO's General Agreement on Trade in Services and those under the Asean Framework Agreement on Services, both of which aim to liberalise the telecom industry.
Telecom services, previously monopolised by a single local player, are now open to foreign entities. For international internet gateway (IIG) providers, foreigners are now entitled to hold up to 49% of shareholdings. Limiting the number -- and nationality -- of service providers, may conflict with existing international commitments.
Thailand endorsed the Universal Declaration of Human Rights on Dec 10, 1948, which guarantees the right to communication. This is evident in many laws, including the previous constitutions, which protect the rights to communication for Thai citizens. Monitoring of content and communications via an international gateway without due process and reasoning may therefore result in a breach of the Universal Declaration of Human Rights.
(b) Local laws
Thailand's telecom industry is overseen and regulated by the NBTC in accordance with the Telecommunications Business Act (TBA) of 2000. The TBA requires all telecom business operators to obtain a licence from the NBTC before commencing their businesses, including international gateway services. The NBTC is responsible for promoting free and fair competition and has so far issued a number of notifications to liberalise international gateway services and promote competition in the market.
The NBTC's efforts over the past 10 years have paid off. So far, more than 10 licences have been issued to the private sector, and competition is robust in the internet services industry.
By introducing a single gateway, the TBA and the NBTC regulations may need to be revised. The NBTC may also need to revoke the licences of existing providers. Depriving their right to operate could pose significant challenges.
2. Are existing regulations sufficient?
Using a single gateway may assist the government in monitoring data and traffic flows into and out of Thailand. Let us explore some of the existing regulations to see whether these could be deemed sufficient to assist the government.
The Computer Crime Act requires service providers to retain users' computer traffic data for 90 days from the date the data was input into the computer system. Generally, what must be retained include the user's personal code or data that can identify the service user, or the user ID of the seller of goods or services, or the user ID and email address of the service user; and access logs. Content that leads to problems is normally content available to the public. Thus, violators are traceable by using the existing retention requirement.
The government also has the right to shut down websites with court orders if prohibited content is found. It also has the right to intercept data. Although an inspection, interception or act performed to know a message communicated by others is prohibited by law, the government may exercise its right for the purpose of maintaining public order, good morals or national security.
In summary, a number of channels and mechanisms already exist for use by the authorities in the monitoring of content and tackling of cybercrime.
3. Effect on digital economy initiative
The digital economy initiative aims to create a digital hub for the tech industry. A single gateway may actually inhibit this stated aim if results in a bottleneck of connections. The strategy to attract e-commerce and IT businesses from overseas would be hindered. Further, the objectives of the many bills under the digital economy initiative, such as the Amendment to the Computer Crime Act and the Cybersecurity Bill, already serve the purpose of monitoring and controlling the flow of data.
Fundamentally, the proposal for a single international gateway seems like a step backward. It may protect citizens from harmful information, but at the same time it prevents citizens from using their own judgement.
On top of that, unwiring liberalisation would not be easy. The effort of liberalising telecom services over the past 10 years could go to waste if the core infrastructure is monopolised again.
It is yet to be seen whether the government will proceed with this project. Nevertheless, one's right to communication should be protected. Liberalisation is also necessary and a fundamental notion in creating competition, increasing customer choice and supporting the growth of e-commerce and IT businesses in Thailand. Improving the existing legislation to keep pace with innovation should serve the purpose of the government.
Dhiraphol Suwanprateep is a partner and Pattaraphan Paiboon an associate at Baker & McKenzie.