The British Virgin Islands could soon have laws that restrict freedom of the press more than perhaps any other jurisdiction in the Western World if the territory’s governor assents to an act passed by the territory’s House of Assembly in March.
A rubber stamp on the Computer Misuse and Cybercrime Act by BVI Gov. Boyd McCleary would mean that government watchdogs and whistleblowers could be punished more harshly than child pornographers.
The law, which BVI lawmakers say will help prevent the “misuse of computers and data comprised in computers,” lays out a penalty of up to 15 years in prison and a $500,000 fine for publishing “information obtained from a computer… without lawful authority,” and similar penalties for leakers of such information. The same bill only levies a maximum 10 years and $250,000 for publishing or possessing child pornography on a computer.
This moral discrepancy has not gone unnoticed by the rest of the world.
“Reporting financial wrongdoing is apparently more heinous (than child pornography),” wrote The Economist in a criticism of the bill.
Negative press has pushed members of the House of Assembly to pass a slightly less draconian of the bill for Gov. Boyd McCleary’s review. The current proposed penalty for publishers of unauthorized information reduced from the original 20 year, $1 million punishment, and whistleblowers would be able to present unlawfully-obtained information to “lawful authority” without being prosecuted.
But while those small reductions may look good to some on paper, they don’t do anything to lessen the chilling effect the bill will have on government transparency.
For one, presenting information to a “lawful authority” instead of the press simply gives the government a chance to cover its tracks and keep any reported corruption in house. This happened in the U.S. when the former assistant inspector general of the Security and Exchange Commission David Weber was terminated after trying to bring information to his superiors about alleged misconduct in the Bernie Madoff Ponzi-scheme investigations, among other internal wrongdoings.
It also seems doubtful that the spectre of serving 15 years in prison instead of 20 would have any effect on the decision of a bureaucrat to leak or a journalist to publish unlawfully obtained information.
But perhaps most importantly, the bill doesn’t contain what the media has been crying for: a clause that would allow information in the public interest – e.g., information about government corruption or illegal conduct – to be published without prosecution. A journalist or whistleblower could receive harsher penalties for publishing information about a government worker having child porn on his computer than the actual bureaucrat who was looking at it on the taxpayers’ dime.
For lovers of liberty, the especially twisted part of the BVI’s Computer Misuse and Cybercrime Act is the fact that it’s actually meant to protect the territory’s decidedly libertarian goal of providing financially freedom and security to investors throughout the world.
In the spring of 2013, The Washington Post and the International Consortium of Journalists published stories on more than 2.5 million leaked records containing information of thousands of incorporated companies. Most of it was simply chronicled the wealthy protecting their assets from taxation, but some of that information contained shocking scandals such as third-world government officials and other criminals storing their illegitimately received funds in tax-free companies created on the island.
When this information was made public, libertarians such as Cato economist Dan Mitchell came to the BVI’s defense, arguing that the small tropical paradise and other places like it promote tax competition and serve as deterrents on countries from shaking their citizens down for their last dollar.
Nevertheless, the information that most of the world construed as negative did quite a bit of damage to the territory’s financial sector. Incorporations were down 21 percent in the third quarter of 2013.
With no property or income taxes, one of the BVI government’s major sources of income is the hundreds of millions of dollars it receives in fees from companies incorporating. It risks losing that cash cow if investors aren’t confident their financial data, and their identity, is secure. Hence, one of the most the most oppressive bills on freedom of the press in the Western World – especially oppressive for the fact that it not only punishes the leaking of unlawfully obtained information, but also its publication.
When The BVI Beacon asked BVI Premier Orlando Smith to cite jurisdictions that have similar bills, he provided a list that included Barbados, Bermuda, the Cayman Islands, Jamaica, Guernsey, Isle of Man, Jersey, Portugal, the United Kingdom, the United States, Australia, Hong Kong, Malaysia, and Singapore. But the paper’s business editor said he reviewed all the laws cited and wasn’t able to find a single provision that outlawed the publication of unlawfully data.
And that’s the major difference between the BVI and other countries and territories: prior restraint of the press. The criminalization of publication not only has a chilling effect on journalist, but also potential whistleblowers. That’s because while journalists elsewhere can keep their mouths shut and protect their sources, a journalist in the BVI facing 15 years of hard time is far more likely to cut a deal and reveal the data leaker.
It’s obvious that the BVI and other similar jurisdictions are under attack by the G8 and other major countries, and those places have every right to fight to maintain their status as havens for investors. But squashing the free press and making government transparency all but impossible isn’t the answer.
McCleary is expected to make a decision on assenting to the bill in the coming weeks.