This document summarizes concerns about recent draft digital economy legislation in Thailand. It discusses concerns that the legislation could undermine separation of powers and transparency, and potentially infringe on civil liberties. Key points include: - The new Digital Economy Promotion Office could both set policy and compete with private operators, creating conflicts of interest. - A new Digital Economy Fund lies outside the parliamentary budget process and could give grants totaling billions of baht with limited oversight. - Revisions to the Computer Crimes Act may still be used against online speech and increase surveillance powers of authorities. - Changes to the NBTC Law could strip independence of the telecom regulator and prolong government control over spectrum allocation, undermining competition

1. November 2016 Update on Digital
Economy Legislation for Thailand 4.0:
Buzz vs. Reality
Sarinee Achavanuntakul
Thai Netizen Network
November 2016

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3. Source: Fujitsu, Inc.
Stakeholder
= everyone
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4. Source: Chakravorti, Tunnard, Chaturvedi, Digital Planet, September 2014.
Components of Digital Evolution Index
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5. Source: WEF, Delivering Digital Infrastructure, 2014
Important factors in digital economy development
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6. ที่มา: WEF, Delivering Digital Infrastructure, 2014
WEF recommendations for developing digital
infrastructure
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7. What should be Thai government’s “First
Principles” for digital economy
• Government plays only “facilitator” role
– No conflict of interest with private players
– Clear separation of powers and roles: Policy Maker /
Regulator / Operator
• Create a level playing field, encourage start-ups,
no (crony-style) favors to incumbents or inefficient
State-owned Enterprises (SoEs)
• Avoid technological lock-in situations, e.g. allow
industry / market consensus for standards
• Dramatically improve security of gov’t networks
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8. What should be Thai government’s “First
Principles” for digital economy (cont.)
• Use a participatory and transparent process for
major legislation and measures
• Build “trust” (necessary for digital economy!) for
both operators and users
– Strict definitions of “cybersecurity” that do not infringe
upon freedom of expression, e.g. follow “necessary
and proportionate” principle
– Strong privacy protection & consumer protection
– Clear accountability & due process, e.g. court warrants
for user data
– No onerous or vague burdens for intermediaries 8

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10. Web defacement in ASEAN, 2013
Source: ThreatWatch system, ThaiCERT, Jan-Dec. 2013 10

11. Poor security of government websites
Source: Netcraft, 2014 11

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13. A return of wasteful spending?
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14. Proposed jurisdiction of DE Committee
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15. (Some) concerns over draft DE laws (1)
• DE Development Law (new)
– DE Promotion Office (new entity) can both write
policies (“digital economy promotion strategic plan”)
and compete with private operators
– Digital Economy Fund (new entity) will have funding
from: 25% of spectrum auction proceeds from National
Broadcasting Telecommunications Commission (NBTC),
25% of NBTC’s income, and Universal Service
Obligation (USO) fund – proceeds can be as high as 11
billion Baht: can give grant or lend to anyone
according to criteria by DE Committee  lies
completely outside parliament’s budgetary process
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16. Checks & balance? Separation of powers?
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17. (Some) concerns over draft DE laws (2)
• Computer Crimes Act (revised)
– Can still be abused to prosecute speech (Section 14:
“entering false computer data into the computer
system”), although original intent was against phishing
– New wording makes it crime to enter false computer
information “that is likely to harm public safety,
economic security, public service, or national basic
infrastructure” (in addition to content deemed harmful
to national security or causing mass panic) – this is
extremely vaguely worded. Better to define “critical
infrastructure” as per international standards
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18. (Some) concerns over draft DE laws (3)
• Computer Crimes Act (revised) (cont.)
– Safe harbor added for intermediaries for the first time
(Section 15), but still does not distinguish between
mere conduits, cache, and host
– Safe harbor language mandates penalty for any
intermediary that “collaborates, consents, or is
accomplice to” crimes in the law – “consent” on the
Internet is almost impossible to establish
– Uses “notice and takedown” not “notice and notice”
– Burden of proof rests on intermediary, not on
prosecutor: contradicts criminal law principle
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19. (Some) concerns over draft DE laws (4)
• Computer Crimes Act (revised) (cont.)
– Traffic retention: increased maximum from 1 to 2 years
– Gives DE Minister the authority to mandate criteria,
timing, and means to “prevent the dissemination or
erase computer information” – this implies power to
commit surveillance & hacking!
– Sets up “computer information screening committee”
by order of DE Minister (2 out of 5 must be from
related private sector) – this committee has authority
to ask court permission to remove “computer
information that contravenes public order or public
morals” that is against any law (Section 20)
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20. (Some) concerns over draft DE laws (5)
• NBTC Law (revised)
– Strip NBTC’s independence – put under DE Committee
– Mandates NBTC to “allocate sufficient spectrum for
public service provided by the state” – this may
prolong or make impossible spectrum re-allocation
(back from the hands of government agencies,
including the army). Also, locks ‘public service’ in the
hands of SoE only.
– No need for spectrum to be auctioned; beauty contests
allowed – back to the ‘dark age’ of crony capitalism?
– NBTC must “compensate” government agencies for
spectrum re-allocation – this is actually their “duty”!
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21. Telecom regulation: going backward?
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