Decree-Law 35 enables any information - true or false - that goes against official discourse, or directly criticizes the Cuban government, to be categorized as a crime.
cuba decree-law 35
Photo: Alejandro Rojas

On August 17, 2021, just 18 days after the July 11 protests, the Cuban Council of State published a package of legal measures aimed at regulating cyberspace and telecommunications in the country. The package has three decrees, Decree-Law 35, Decrees 42 and 43, and Resolutions 105, 107 and 108 of the Minister of Telecommunications. 

Decree-Law 35 provides the State with a legal apparatus to restrict freedom of expression to its citizens, and is related to similar laws in countries with authoritarian leadership. The new law seems to have few benefits and many negative aspects for the lives of everyday Cubans,. 

What is Decree Law 35 “On Telecommunications, Information, Communication Technologies and the use of the Radioelectric Spectrum?”

Mainstream U.S. media has one believe that these measures were implemented solely in response to the July protests. While that certainly triggered the response, it goes deeper; the Cuban parliament originally proposed these provisions in April, 2021. From the beginning, its general objectives were clear: telecommunications services must be an instrument for the defense of the Revolution; satisfy the general needs of the State, the Government and those related to Security and National Defense, Internal Order and Civil Defense, in matters of telecommunications and the use of the radio spectrum. 

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The measures also define the duties and rights for customers of the telecommunications monopoly in Cuba, ETECSA. One of the rights is that customers must obtain a quality service that does not violate their privacy and personal data – unless the law so provides. Also, that users should be compensated for connection shutdowns; after the internet cuts caused by July 11th protests, ETECSA compensated its users with 1GB of mobile data.

These are practically the only rights we have.

In other words, any information – true or false – that goes against the official discourse, or directly criticizes the Cuban government, can be categorized as a crime.

Some usage limitations are obvious and common in many developed countries, such as not using the internet to carry out actions or transmit offensive information against people. And I think that’s ok. But, things get serious when customers are prevented from using telecommunications services to undermine security and internal order in the country. You could probably say: “Ok, that sounds pretty logical so, what’s the big deal?”

havana el capitolio
El Capitolio during its refurbishment. File Photo: Jonah Elkowitz

In a country with a solid democratic system and a very well delimited division of power, the possibilities of that responsibility being used in an arbitrary way against users, are very low. But, we all know that Cuba is not known for being a country like that.

Why Has Decree-Law 35 Been Dangerous?

In a system like the Cuba’s, where the laws have a descending direction – that is, from the ruling apparatus to the people, and it is not really the people who propose the laws in an exercise of participatory democracy – the laws are used as coercive mechanisms.

If the language used in the decree is carefully analyzed, we can see that ambiguous, vague, and generalized concepts such as National Security and Public Order are used to criminalize certain actions on the networks. With these concepts, practically any action can be used to penalize dissenting citizens and media. For example, the law criminalizes the disclosure of information or “false news” that endangers “public order” or “national security.” 

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In other words, any information – true or false – that goes against the official discourse, or directly criticizes the Cuban government, can be categorized as a crime. Not to mention the calls for anti-government demonstrations, even when it is a right protected by the Cuban Constitution. Obviously, in practice it is impossible to penalize the thousands of Cubans who disagree with the government. This mechanism is being used only against those who represent a real problem for the Cuban authorities.

…it is impossible to penalize the thousands of Cubans who disagree with the government. This mechanism will be used only against those who represent a real problem for the Cuban authorities.

That’s not the only thing that has made Decree 35 dangerous. In Title III, the Cuban State remains the sole owner and regulator of telecommunications services, acting through the Ministry of Communications (MINCOM). What does this mean? It means that any negotiation on telecommunications matters with foreign organizations or companies must be done through the MINCOM and therefore the Minister of Communications.

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But, the most outstanding thing is that not only the Minister of MINCOM has jurisdiction to monitor this radioelectric spectrum, but also the Minister of the Revolutionary Armed Forces (FAR) and the Minister of the Interior (MININT). These ministers of military and police forces respectively can implement restrictive measures in telecommunications at regional and national scale. For example, if in a certain region of the island the people take the streets to protest against the government – as was seen on July 11th – it is legal to cut off internet access to prevent the spread of events in real-time.

Also of interest is Resolution 105. It exposes 17 different ways of breaking the law in Cuban cyberspace. Each isn divided into categories according to their level of danger: from very high to low. For instance; spreading “false news” that defames the prestige of the country or its leaders is a highly dangerous offense (yes, I’m serious). Finally, it is reflected in the law that a specialized cybersecurity entity will soon be created where MINCOM, the FAR and the MININT will jointly participate. 

How Decree 35 Is Affecting Daily Life for Cubans

The existence of legislation that regulates cyberspace is not negative itself, as long as it is fair and does not serve to restrict the freedoms of citizens. No one has been legally prosecuted – yet – in Cuba for violating the provisions of the new law, however, it was recently announced that Yoan de la Cruz, who was the first to broadcast the July 11 protests live on Facebook, has been convicted to eight years in jail. There are more cases of people being persecuted by political police for what they share in social networks like Facebook and Twitter.

An example of that is Rafael Santos -openly dissident – who has been fined 3000 Cuban pesos under the Decree-Law 370, only for speaking freely on Twitter. Previously, he was interrogated three times by the police in the same week. Another example is David Martínez, a professor of the Medical Sciences University in Cienfuegos, who was expelled for his political position and stripped of his title as an instructor professor on October 19. These are two very recent examples of a very old phenomenon.

havana plaza del cristo
Cubans using the Internet on their phones in Havana. Photo: Jonah Elkowtiz

Sometimes people think that repression can only be exercised violently; through physical abuse, jail, or assassination. In reality, repression is exercised both violently and passively. In Cuba, the one that abounds is the second. For decades, the Cuban government has coerced its people in many ways, and one of them has been through fear. Fear of speaking badly about the government and being listened to, fear that you will be expelled from your job for thinking differently.

The list is endless.

This fear, which previously had only a physical plane, has been transferred to cyberspace. This is the worst of Decree 35; it introduces the fear to people that, if they say something against the government, they will be punished. And this is a way of repressing. For those who are openly opposed to the Cuban system, life will not change much, because they are already used to having their telecommunications service cut off, have been pressured physically and psychologically, and even probably may go to prison.

But, the most affected by these laws will be millions of Cubans who work with official institutions – or not – but have a critical point of view about Cuban reality and politics. They will frequently practice self-censorship, afraid of reprimands. The worst thing is that most of the time they won’t be afraid of actions against themself, but of coercion against their families. It’s not that Cuban authorities will imprison your mother, for example, but they can call her to say that if you keep publishing things against the Government, they will expel you from school or work.

Also, thousands of young intellectuals, social scientists, professors, etc., cannot freely publish content that goes in a direction different from official discourse, and of course, they also will frequently practice self-censorship, to avoid troubles. That not only goes against free speech but also against the intellectual nature itself.

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Mario González is a historian who graduated from the University of Havana. Currently he is a professor and also teaches Cuban History classes. A true believer in win-win, he is interested in Political Science and hopes to pursue a master's degree in Cuba-United States relations.

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