An article via Justice at Swiss Supreme Court Thomas Stadelmann about @BylockReality
Category : LEGAL OPINIONS
COULD IT BE A CRIME TO USE BYLOCK?
Turkish judicial and administrative authorities have been trying to establish a perception through ByLock which is an encrypted messaging application for smart phone, and can be downloaded in google play and used to be downloaded in apple store as well. Although Bylock, which is a legal app, can be downloaded via apple store and google play, they reflects it as an illegal application in order to strengthen their thesis and their claims. From their perspective using or downloading ByLock is considered a crime which means a member of armed terrorist organization behind the attempted coup and so it was accepted and applied as the most important evidence of membership of terrorist organization.
The statement of Mr. Mehmet Yılmaz who is Vice President of HSYK was published in some newspapers.1 He mentioned in his statement about the smart phone application which is called ByLock, have been used by the Gülenist for encrypted conversation. He briefly said that “We call on them to benefit from the Repentance Law. The number of people who want to benefit from the law has increased, particularly after the emergence of lists of people using ByLock. I believe it will increase further from now on,”
Labor and Social Security Minister Mehmet Müezzinoğlu also told reporters in Bursa on Tuesday that the Turkish Intelligence Agency has determined the identity of nearly half the 180,000 users of ByLock,. It is claimed by the Justice and Development Party (AKP) that plotters of the July 15 coup attempt used it for communicating.2
According to the prosecutors, members of HSYK and the government officials, smart phone application ByLock is the main communication tool among members of the Gülen Movement. As I said before from their perspective using or downloading ByLock is considered a crime which means a member of armed terrorist organization behind the attempted coup and so it was accepted and applied as the most important evidence of membership of terrorist organization. Therefore so many people have been arrested just because they used ByLock application.
However the truth is so different.
1) As far as I can see from the statements comes from the judicial and administrative authorities and some news from variety of newspapers such as Guardian3 The Turkish Intelligence Agency has been working on it for a long time. So the list of names that allegedly used or downloaded ByLock made by intelligence services. But Intelligence reports cannot be used as an evidence in judicial proceedings. Because of the nature of intelligence; this information is not in conformity with the guiding principles of the criminal proceedings, since “unilateral, indirect, confidential, precise information of certainty and certain processed (impure) information”. Therefore, it cannot be used as an evidence in the application of the protection measure in the criminal proceedings, in the opening of the public case and in the sentence of conviction.4
2) ByLock is a legal smart phone application. The ByLock messaging app appears both Apple and the Google Play App stores, in 20014, then later on it removed from these platforms by the developers in the same year. New versions subsequently, which appeared on less secure app downloading websites, can be reached by Android, Windows Phone and Blackberry users. 5 “ByLock is an encrypted messaging application that is not widely used today,” Tim Strazzere, director of mobile research at US-Israeli security firm SentinelOne told Reuters. “Anyone who wanted to reverse-engineer the app could do so in minutes.”6 So everyone not only in Turkey but also in the world can download this application to their smartphone from the Apple and Google Play. So using or downloading legal application is never considered a crime.
3) In Turkey, there has been public fear and belief for a long time that intelligence services or somebody can illegally listen people’s conversation and records their messaging on the phone. So illegal wiretapping is so common in Turkey. We have witnessed so many bad examples in Turkey. That is why encrypted messaging application such as WhatsApp, Telegram, Cover Me, Viber, Eagle, Facebook Messenger or I Message are so common in Turkey. People in Turkey can use or download ByLock just because of the need of secure line, not because of being a member of terrorist organization. Even if it is considered as an evidence to show main communication tool for a terrorist organization, it should be also proved that this service has been used for reaching the organization illegal aim. There is always a possibility for this kind of application open to public that some people might use or download it just because they are curious and want to try how it works. This experience cannot be considered as a crime which causes them to be dismissed from their work and to be detained or arrested.
4) An anonymous blogpost in November 2014 purporting to be from the developer claims ByLock had attracted around 1 million users, making it difficult to maintain, in part because the app had come under attack from unnamed “Middle East Countries”.7 The number of ByLock users are according to the Sabah Newspaper’s 150 thousand, Science and Technology Minister Faruk Ozlu’s 215 thousand, Hurriyet Newspaper writer Murat Yetkin 165 thousand, Google around 500 thousand.8
If downloading ByLock is considered a crime, all these people must be a member of FETÖ and also they have to be prosecuted and detained or arrested.
5) A felony court in Hatay has recently ruled that use of the ByLock application alone cannot be considered a crime. Because it is not known when the suspects downloaded the application, with whom they communicated using it and what the content of their conversations was, saying that they cannot be accused simply for downloading ByLock.9 Without knowing, showing the content of their conversation through ByLock, people cannot be accused of being terrorist organization just because they used or downloaded ByLock.
6) After the Attempted Coup, Turkish Authorities said that the smartphone chat application may have been created by FETÖ members, so they could communicate secretly about the coup plot.10 And also it is claimed by the Justice and Development Party (AKP) that plotters of the July 15 coup attempt used it for communicating.11 A senior Turkish official told Reuters “The ByLock data made it possible for us to map their network — at least a large part of it”, “What I can say is that a large number of people identified via ByLock were directly involved in the coup attempt.” The Turkish official also said ByLock may have been created by the Gulenists themselves so they could communicate.12 However, in the same news it was said that experts consulted by Reuters were not able to verify that ByLock may have been created by the Gulenists themselves.13
The other thing is that HSYK said in its public statement on the day of first of November 2016 (01/11/2016) 14 “…according to the information obtained from the authorities and the public open source, the application of ByLock has not been used since February 2016 by the member of organization (referring FETÖ).” So if ByLock has not been used since February 2016, how could this application be used by the members of the organization during the attempted coup period which was occurred 15 July 2016.
7) According to the news of The Wall Street Journals15 senior Turkish intelligence officials said that “ in the months before Turkey’s failed coup, the country’s spy agency penetrated online chat rooms and decoded millions of secret messages but found no mention of the plot, None of the ByLock messages referred to a coup plot.” So if this is true, how can using and downloading ByLock application be used as the most important evidence of membership of terrorist organization.
To summ up, Turkish judicial and administrative authorities are trying to establish a perception through ByLock. They are especially trying to spread and express it in order to strengthen their thesis and their claims. Unfortunately downloading and using ByLock application has become main reason or legal ground for thousands of people are being arrested and victimized illegally.