INTRODUCTION
With the emergence of social media and “big data,” both authoritarian and democratic regimes have unprecedented opportunities to monitor people’s online behavior, arm law enforcement and intelligence agencies with new surveillance equipment (Brayne Reference Brayne2017), and engage in “trolling” or Internet manipulation (Bradshaw and Howard Reference Bradshaw and Howard2017). Political regimes that some have described as “new authoritarian” (Guriev and Treisman Reference Guriev and Treisman2015), “networked authoritarian” (MacKinnon Reference MacKinnon2011), or “surveillance states” (Soldatov and Borogan Reference Soldatov and Borogan2013) have become particularly aggressive in manipulating information and giving unregulated surveillance powers to secret services. These “new” authoritarian leaders were first democratically elected but then consolidated their power by changing constitutions, extending their terms of office, and pushing through policies that oppress their opponents (Scheppele Reference Scheppele2018, 545). Unlike autocrats in the past who relied on mass incarceration or mass violence to suppress opposition, new autocrats resort to violence sporadically rather than systematically (Gel’man 2016; Van der Vet 2018). Rather than using brute force, their primary tool for gaining power is the manipulation of information. They are particularly aggressive in using information control to portray themselves as competent leaders (Guriev and Treisman Reference Guriev and Treisman2015).
New authoritarian regimes withhold damaging government data (for instance, on corrupt government officials or court statistics) and suppress alternative political views to control opponents and uphold a public image of capable leadership (Guriev and Treisman Reference Guriev and Treisman2015). They use mass surveillance and unpredictable treason trials to intimidate people who hold potentially damaging information. They fund trolling programs aimed at influencing international and domestic public opinion. While Internet trolls are generally assumed to be unregulated individuals posting fake or misleading posts on social media, most trolls operate collectively in “government, military, or political party teams” (Bradshaw and Howard Reference Bradshaw and Howard2017). New authoritarian regimes operate mass surveillance and “troll” programs with little to no judicial oversight.
As the capacity of states to control and monitor information grows, can lawyers and courts still restrict these strategies of information manipulation, especially in authoritarian regimes where opportunities for legal activism appear to be diminishing? Studies on political lawyering have addressed how legal professionals promote basic legal freedoms, an independent judiciary, and civil society and give legal aid to victims of state coercion (Zemans Reference Zemans1983; Halliday, Karpik, and Feeley Reference Halliday, Lucien, Feeley, Terence, Karpik and Feeley2007, 10; Chua 2019). To those ends, political lawyers, in cooperation with political elites and civil society, employ a wide range of strategies beyond litigation: political lobbying, criminal defense, advocacy for the implementation of court judgments, and government consultancy (Vanhala Reference Vanhala2012; Boutcher and Chua Reference Boutcher and Chua2018; Chua 2019). Scholars have examined how politically engaged lawyers operate in violent and repressive circumstances where governments are prone to curtail civil liberties: in the midst of revolution (Gobe and Salaymeh Reference Gobe and Salaymeh2016; Wilson Reference Wilson2017); during national emergencies following acts of terrorism (Prabhat Reference Prabhat2016); and under authoritarian rule (Moustafa Reference Moustafa, Terence, Karpik and Feeley2007; Hualing and Cullen Reference Hualing and Cullen2008, 2011; Liu and Halliday Reference Liu and Halliday2011; Chua Reference Chua2012, 2014; Pils Reference Pils2014; Nesossi Reference Nesossi2015; Gallagher Reference Gallagher2017; Van der Vet 2018). However, we are only beginning to understand how lawyers work against emergent strategies of authoritarian information control, where secrecy and falsehoods complicate lawyers’ ability to locate victims and investigate strategic court cases.
Using Russia as a case study, I explore the strategies of a group of freedom-of-information advocates—consisting of political lawyers and open-government consultants—against three covert authoritarian strategies of information control: promoting state-sponsored falsehoods through “troll factories,” wiretapping telephone conversations without judicial oversight, and withholding information on public services, corruption, and government finances (Gainutdino and Chikov Reference Gainutdino and Chikov2011; Mostovshchikov Reference Mostovshchikov2015; Chikov and Gainutdino Reference Chikov and Gainutdino2016; Team 29 2017a, 2017d).Footnote 1 Drawing from semi-structured interviews with these Russian lawyers and open-government consultants, this article contributes to our understanding of legal mobilization under a new authoritarian regime that stores, controls, and manipulates information without oversight. It also broadens our understanding of how lawyers and consultants collaborate in these regimes and how they promote the freedom of information and “open government,” understood here as a transparent, accountable, and responsive government where citizens engage with public affairs and have easy access to information on government activities. I find that, despite the range of obstacles the new authoritarian Russian regime places in the way of these lawyers, they nonetheless develop creative and effective strategies that hold government to account. Rights advocates have been particularly effective at challenging the efforts of new autocrats to use information control to portray themselves as capable leaders by publishing rankings on government transparency that undermine the reputation of the government.
POLITICAL LAWYERING UNDER NEW AUTHORITARIANISM
While the study of legal mobilization has its roots in the US legal system, the growing scholarship on political lawyering has considered how lawyers use law to moderate state power in nondemocracies (Halliday, Karpik, and Feeley Reference Halliday, Lucien, Feeley, Terence, Karpik and Feeley2007; Chua Reference Chua2012, 2014, 2019; Moustafa 2014; Boutcher and Chua Reference Boutcher and Chua2018). In their volume on political lawyering outside Western democracies, Terence Halliday, Lucien Karpik, and Malcolm Feely (Reference Halliday, Lucien, Feeley, Terence, Karpik and Feeley2007, 34) find that states where rights are enforced and civil society thrives allow for more robust activism by lawyers and the legal profession at large. Political lawyers work in the vanguard to expand rights and freedoms and in the rearguard to defend rights under direct threat. These lawyers take part in a larger “legal complex” of actors with legal training, including the judiciary and civil society activists.
Studies on legal mobilization in authoritarian regimes have shown the relation between repression and mobilization, particularly how law is used as a tool to exercise social control and how it can curtail mobilization and the ability of activists to organize (Chua 2019). Lynette Chua (2019, 356) finds that the study of political lawyering under authoritarianism has also shown us how “human agency responds to the nature of repression to devise different strategies and tactics.” Finally, lawyers in these regimes often go beyond litigation and the courtroom as they are forced to find alternative strategies to counter authoritarian repression. They engage in advocacy work, policy making, awareness raising, consultancy, and implementation work (McCann Reference McCann1994; Cichowski Reference Cichowski2007; Vanhala Reference Vanhala2012), and they develop legal strategies in cooperation with political elites and civil society (Halliday, Karpik, and Feeley Reference Halliday, Lucien, Feeley, Terence, Karpik and Feeley2007; Moustafa Reference Moustafa, Terence, Karpik and Feeley2007, 2014; Hualing and Cullen Reference Hualing and Cullen2008, 2011; Tam Reference Tam2010; Liu and Halliday Reference Liu and Halliday2011; Pils Reference Pils2014; Kisilowski Reference Kisilowski2015; Gobe and Salaymeh Reference Gobe and Salaymeh2016; Wilson Reference Wilson2017). They often act as intermediaries between state and society, as they have inside knowledge of state operations (Hualing and Cullen Reference Hualing and Cullen2008; Liu and Halliday Reference Liu and Halliday2011). In China, for instance, repressive legislation has radicalized “rights protection” (Weiquan) lawyers in their approach to authorities (Hualing and Cullen 2011). Lawyers react to the repression of protesters by building coalitions with media and civil society (Moustafa Reference Moustafa, Terence, Karpik and Feeley2007; Nesossi Reference Nesossi2015; Gobe and Salaymeh Reference Gobe and Salaymeh2016; Wilson Reference Wilson2017).
We have less knowledge, however, of how legal mobilization strategies develop following national security crises and creeping surveillance laws. In the wake of terrorist threats, states have passed legislation that enable security services to surveil, arrest, and interrogate terrorist suspects, putting considerable pressure on basic freedoms, such as rights to family life and privacy. By examining legal mobilization strategies following emergency laws and counterterrorism cases in Northern Ireland and post-9/11 United States, Devyani Prabhat (Reference Prabhat2016) found that these national crises change the legal field in which lawyers work, creating demands for new legal expertise on the criminal defense of terrorism suspects. In this sense, authoritative rules and crises not only provide new opportunities for legal mobilization, as Frances Zemans (Reference Zemans1983) notes, but also create new legal expertise.
How do legal expertise and political lawyering strategies develop under new authoritarian regimes that pass surveillance laws due to national security concerns? The covert nature of new authoritarian strategies, as well as the lack of regulation over the activities of the secret services, hinders lawyers’ ability to litigate against the regime and their capacity to find strategic court cases that could change surveillance laws. Most forms of state coercion in these regimes are covert: eavesdropping on telephone conversations, trolling, and granting unrestrained access to personal data to intelligence services. Because these forms of coercion are covert and citizens are often unaware of surveillance or trolling, lawyers may not find applicants to represent in court. While new authoritarian regimes stymy lawyers’ efforts, these covert forms of repression also offer opportunities for lawyers to develop strategies to combat the regime’s repressive tactics. Moreover, the Russian security services—the Federal Security Service of the Russian Federation (Federal’naya Sluzhba Bezopasnosti Rossiyskoi Federatsii [FSB])—has lobbied for new laws on Internet control and surveillance (Soldatov Reference Soldatov2015), with minimal judicial oversight (Chikov and Gainutdino Reference Chikov and Gainutdino2016). These laws have increased the government’s control of the Internet and social media networks and, with it, control over what can be said online. Bryan Druzin and Gregory Gordon (2018) have found that complete Internet censorship is impossible but that ambiguous laws around censorship force people to engage in self-censorship (see also Schimpfössl and Yablokov [Reference Schimpfössl and Yablokov2014] on self-censorship among news anchors in Russia’s media). For instance, in a study on Internet surveillance and self-censorship in Uzbekistan, Sarah Kendzior (Reference Kendzior2015) finds that the online presence of the national security services in Uzbekistan curtails activism by invoking a fear of “being watched” (see also Pearce and Kendzior Reference Pearce and Kendzior2012).
The covert nature of these new authoritarian strategies—for instance, surveillance or information control—presents two opportunities to expand the study of legal mobilization in nondemocratic regimes. First, how do lawyers operate in these new authoritarian regimes and which adjustments do they make in their practice when security services can wiretap with minimal judicial oversight? Second, how can lawyers mobilize the law against the withholding of public government data and against information distortion by troll factories?
INFORMATION CONTROL IN RUSSIA
Russia’s new authoritarian regime consolidated in 2012 when Vladimir Putin returned to the presidency for the third time. Putin, who had been president between 1999 and 2008, evaded a two-term constitutional limit by serving as prime minister from 2008 to 2012, switching positions with then Prime Minister Dmitry Medvedev. This so-called “tandem of power” also enabled Putin’s return to the presidency. In 2012, Medvedev and Putin switched places once again when Medvedev left the presidency and returned as prime minister by leading the ballot of the majority party United Russia (Edinaya Rossiya) in the parliamentary elections of 2011. Putin was reelected as president in 2012. After both national elections, protesters participated in mass demonstrations against alleged mass election fraud across Moscow and other major Russian cities.
In response to these mass public protests (Horvath Reference Horvath2012; Gel’man Reference Gel’man2013), the State Duma passed new laws to regulate civil society, social media, and the Internet (Muravyeva Reference Muravyeva2017; International Federation for Human Rights 2018). One of these laws, Federal Law no. 121-FZ (better known as the Law on Foreign Agents) curtailed the foreign funding of nongovernmental organizations (NGOs) by forcing any NGO with foreign funding that engages in “political activities” to register as a foreign agent (inostrannye agenty) with the Ministry of Justice (Crotty, Hall, and Ljubownikow Reference Crotty, Hall and Ljubownikow2014; Daucé Reference Daucé2015; Flikke Reference Flikke2015; Van der Vet and Lyytikäinen Reference Van der Vet and Lyytikäinen2015).Footnote 2 As a result, dozens of organizations were forced to close or otherwise work with less or no foreign funding. The law restricts civil society’s ability to check the government through alternative streams of information by discrediting NGOs registered as foreign agents. All NGOs must label their reports and online publications with “foreign agent” or else face administrative penalties. Because the foreign agent law is vague in defining “political activity,” investigators could label any activity or information produced by a NGO as a political activity.
The Law on Foreign Agents was soon followed by legislation regulating the media, Internet, and access to government data. In 2012, the Duma introduced a blacklist of websites containing child pornography, advocating illegal drug use, or advocating suicide. In 2013, this blacklist was expanded to include those websites that allegedly incite hatred, call illegal meetings, or are suspected of containing “extremist” content. Once Russia’s media censor Roskomnadzor (Federal’naya Sluzhba po Nadzoru v Sfere Svyazi, Informatsionnykh Tekhnologii i Massovykh Kommunikatsii [Federal Service for Supervision of Communications, Information Technology and Mass Media]) blacklisted a website, the security services could block the website’s content. Responding to the rise of citizen journalists and bloggers critical of state policies—including anti-corruption blogger, opposition leader, and presidential candidate Aleksei Navalny—President Putin signed the “blogger law” in May 2014, forcing blogs with a large readership to register with Roskomnadzor.Footnote 3 By 2015, Roskomnadzor granted over five hundred blogs the status of registered media (Sredsvta Massovoi Informatsii) (Izvestiya 2015). Under the law, bloggers are liable for the information they post, effectively censoring them. They are also forbidden to “hide or falsify information of general interest” or vilify any citizens or organizations (Reporters without Borders 2014). Roskomnadzor ordered the shutdown of forty-five hundred websites with alleged extremist content over the course of 2014 (Moscow Times 2015).
The Russian government’s strategies to control information extend to media outlets and their foreign owners. In 2015, lawmakers pushed a bill through Parliament that required media outlets that receive foreign financial support to register as a “foreign agent” with Roskomnadzor (Litvinova Reference Litvinova2015). In 2017, Putin signed Federal Law no. 327-FZ (Foreign Agent Law for the Media), which requires foreign media reporting in Russia to brand their reporting with the label “foreign agent” and to disclose their funding (Reuters 2017).Footnote 4 An earlier law from 2016 limited the stakes of foreign owners in Russian media outlets to 20 percent. In October 2019, the government supported capping foreign ownership of Russian Internet companies at 50 percent (Tsydenova and Soldatkin Reference Tsydenova and Soldatkin2019). In addition to these restrictions of bloggers and media, the government seized large parts of Russia’s Internet infrastructure and businesses (Pallin Reference Pallin2017). By seizing control of Internet infrastructure, the government gained more control over the regulation of the Internet itself. By increasing government control through informal networks between politicians and Internet entrepreneurs, much of this political pressure remains invisible (Pallin Reference Pallin2017).Footnote 5 In July 2017, President Putin signed a law limiting anonymous Internet usage through virtual private networks.Footnote 6
In 2018, the Supreme Court of the Russian Federation ordered Telegram, an instant messenger application, to grant security services access to its users’ encrypted messages. Telegram appealed to the Supreme Court, arguing that getting access to the messages did not require the security services to acquire a court order, thus violating privacy rights (Radio Free Europe/Radio Liberty 2018). When Telegram missed the deadline to hand over its encryption keys, Roskomnadzor ordered Telegram shut down in Russia, and the Taganskii District Court in Moscow upheld the order (Rozhkov, Novyi, and Zanina Reference Rozhkov, Novyi and Zanina2018). While the app is officially banned, the Russian government has not been able to find a technological solution to shut down individual online services without affecting other online traffic (Kolomychenko Reference Kolomychenko2018).
In addition to taking control of parts of Russia’s Internet structure, the Russian government has passed laws restricting the spread of misleading information by online media aggregators. In June 2016, Federal Law no. 208-FZ made news aggregators, such as foreign-owned Yandex.ru, liable for spreading misleading information written by third parties, while exempting news produced by government media outlets (BBC Russia 2016; Bryzgalova Reference Bryzgalova2016).Footnote 7
Russians are starting to feel the consequences of these laws. Amendments to high treason and espionage legislation, passed in 2012, have led to a growing number of Russians randomly being investigated by the security services for both Internet- and non-Internet-related infractions (Chelishcheva Reference Chelishcheva2016; Team 29 2017a). Some suspects face up to twenty years in prison. Between 2014 and 2017, over eighty people have been prosecuted for sharing or “liking” posts on social media, receiving fines, prison sentences, or forced psychiatric treatment under the Criminal Code of the Russian Federation and the Administrative Offenses Code (Mostovshchikov Reference Mostovshchikov2015; Team 29 2017d; Van der Vet 2019).Footnote 8
The legislation on Internet surveillance culminated in a law that the State Duma passed in 2016 that amended public safety laws and anti-terrorism legislation under the so-called “Yarovaya package,” which is named after Irina Yarovaya, the deputy chairman of the Russian State Duma for the ruling United Russia party. The package includes: (1) mass storage of Internet and phone communications and metadata related to user location and time; (2) provisions that give the FSB unrestricted access to encrypted user communications on social media and messaging apps; (3) a ban on missionary activities outside churches; and (4) criminal liability for a failure to report that someone is planning or perpetrating a terrorist attack (Lokshina Reference Lokshina2016).Footnote 9 Under the Yarovaya package, telecom providers must store the personal data of Russian users on Russian soil. It also forces telecom operators to provide law enforcement with information regarding users of communication services, services provided to those users, and “other necessary information.” In July 2018, when the law came into force, telecom providers were struggling to comply with the law and build the new infrastructure for data storage (Moscow Times 2018).
A final new authoritarian strategy is the spread of misleading information or pro-government social media posts through “internet trolls.” Trolls are often employed by the government or by a private company that serves business or political interests (Bradshaw and Howard Reference Bradshaw and Howard2017). Russian trolls came under the international spotlight during the investigation of special counsel Robert Mueller into Russia’s interference and disinformation campaign during the 2016 US presidential elections. In February 2018, Mueller’s team indicted thirteen Russians, of whom twelve had worked for the Agency of Internet Studies. According to a story in the New Yorker,
the Agency has been linked to a campaign of online disinformation that included the creation of hundreds of fake political pages on Facebook and accounts on Twitter that were presented as belonging to everyday Americans; during the election, according to the indictment, this disinformation campaign was aimed at boosting Donald Trump, undermining Hillary Clinton, and sowing general “political discord” in the United States by supporting radical causes on both sides. (Chen 2018)
The Russian government has thus employed three overlapping, covert forms of information control: first, securing its monopoly on information by curbing alternative forms of information through prosecutions and trolling; second, increasing the surveillance and mass storage of online communications and user data while simultaneously and unpredictably increasing surveillance and treason prosecutions; and, third, securing its monopoly on information by obscuring government data and regulating foreign ownership of NGOs and media organizations.
METHODS AND CASE SELECTION
Taking Russia as a single-country case study allows us to explore two phenomena: first, how new authoritarian regimes that rely on surveillance and disinformation programs manipulate the law to remove potential checks on those programs and, second, how lawyers in these new authoritarian regimes respond by developing litigation and nonlegal strategies to challenge and circumvent these same programs. This article is a part of a project on the strategic responses of lawyers and NGOs to state coercion and repressive legislation in Russia between 2012 and 2017. This project draws on NGO reports, domestic court judgments, decisions by the European Court of Human Rights (ECtHR), and semi-structured interviews, conducted in English and Russian, with twenty lawyers, freedom-of-information activists, and academics working in St. Petersburg and Moscow. In addition to the three covert authoritarian strategies on which I focus in this article—telephone tapping, secrecy, and disinformation campaigns—Russia has engaged in a concerted program of overt government repression, including criminal prosecutions of Internet users for their posts or “likes” on social media (Kornya Reference Kornya2015), trials of people suspected of high treason (Team 29 2017a; Van der Vet 2018), and administrative and civil lawsuits against NGOs under the Law on Foreign Agents (Daucé Reference Daucé2015; Flikke 2018; Moser and Skripchenko Reference Moser and Skripchenko2018; Tysiachniouk, Tulaeva, and Henry Reference Tysiachniouk, Tulaeva and Henry2018; Van der Vet 2018).
The practitioners were interviewed during three fieldwork trips between September 2015 and February 2016. The semi-structured interview format allowed the lawyers and activists to reflect on their decisions, motivations, and strategic planning during a period of political backlash. The interviewees were recruited through snowball sampling and from the author’s existing network among the NGO and lawyer community in St. Petersburg and Moscow. Bias in the selection was reduced by interviewing several respondents at each organization and by asking interviewees to reflect on the work and cases of other organizations. The interviews were transcribed by the author with the help of a Russian native speaker. The interview answers were analyzed through open coding. Most of the respondents’ names have been anonymized for privacy and security reasons. The interviewed applicant to the ECtHR was not anonymized with permission, as his name is attached to the court case.
The interviewed lawyers work either independently or for one of the following organizations: the Glasnost Defense Foundation in St. Petersburg and Moscow (Fond Zashchity Glasnosti), the Russian Union of Journalists (Soyuz Zhurnalistov Rossii), the Russian Justice Initiative/Astreya, the Regional Press Institute (Instituta Regional’noi Pressy), the European Human Rights Advocacy Center (EHRAC), the Moscow Memorial Human Rights Center, Team 29 (Komanda 29), Infometer (Infometr), the Lawyers Group “Onegin” (Advokatskaya Gruppa “Onegin”), Threefold Legal Advisers, and the Center for the Development of Noncommercial Organizations (Tsentr Razvitiya Nekommercheskikh Organizatsii). While this article is based on the data from all of these interviews, it mainly draws from six expert interviews conducted with representatives of Infometer, Team 29, an applicant to the ECtHR, and independent lawyers.
TROLLS IN THE SHADOWS: MANIPULATING INFORMATION BY SECRET TROLL FACTORIES
This section examines how political lawyers discovered information control efforts in the government’s use of the shadow economy in which trolls work.
Where the Russian Trolls Live
While trolls are often associated with authoritarian regimes, political parties in democratic countries more often and more efficiently use strategies of Internet manipulation to target their domestic audiences (Bradshaw and Howard Reference Bradshaw and Howard2017). Based on a comparative study of troll agencies in twenty-eight countries, Samantha Bradshaw and Philip Howard (Reference Bradshaw and Howard2017, 3) found that most target domestic audiences and are funded predominantly through “public money, to help define and manage what is in the best interest of the public,” though some are funded by private sources. Troll agencies—or cyber troops—are “government, military or political party teams committed to manipulating public opinion over social media” (3).
In Russia, Bradshaw and Howard (Reference Bradshaw and Howard2017, 17) found that social media manipulation comes from four sources: the government; government-recruited citizens who often hold a prominent position online or in society; civil society organizations (for instance, the pro-Kremlin youth movement Nashi); and private companies that operate on behalf of business or government interests. One of the most prominent examples of the latter group is the Agency of Internet Studies (Internet-Issledovaniya, which is elsewhere translated as the Internet Research Agency), a secret Internet troll factory (fabrika internet trollei) in St. Petersburg that disseminates pro-Kremlin opinions. The teams working at this and similar Russian private companies are taught to use English and instructed to post on specific topics on social media, for instance, vKontakte, Twitter, and Facebook (Chen Reference Chen2015; Bradshaw and Howard Reference Bradshaw and Howard2017). Employees of Russia’s troll companies are told to portray themselves as ordinary people on social media and receive specific instructions on the types of comments they have to produce, including positive comments about the government (Chen Reference Chen2015; Soshnikov Reference Soshnikov2016). In a 2014 article titled “Where the Trolls Live. And Who Feeds Them,” the opposition newspaper Novaya Gazeta revealed that more than two hundred people have worked in the Agency for Internet Studies. Trolls working at factories in Moscow and St. Petersburg were instructed by their supervisors to post up to one hundred comments daily (Garmazhapova Reference Garmazhapova2013).
Taking the Trolls out of the Shadows through Labor Rights Litigation
Lyudmila Savchuk was one such troll or Kremlebot (Kremlin bot) employed by the Agency for Internet Studies. Upon leaving her job in 2015, she filed a complaint with the Petrogradsky District Court, alleging that the Agency for Internet Studies did not offer its employees proper contracts and did not pay wages on time and demanding her unpaid wages (Petlyanova Reference Petlyanova2015). In an interview with Novaya Gazeta, Savchuk explained that she initiated the court proceedings to attract public attention and “pull the troll factory into the light. … Now hundreds of thousands of people are talking about this” (n.p.). In August 2015, the Petrogradsky District Court ruled that the Agency for Internet Studies had to compensate Savchuk. Savchuk told the independent newspaper Novaya Gazeta that she infiltrated the troll factory to expose their work to the public, claiming that she wanted to “close down that factory of lies” (n.p.).
Savchuk was represented in court by Ivan Pavlov, the chief lawyer of Team 29, an informal collective of St. Petersburg-based lawyers and activists working on freedom-of-information cases and defending Russians accused of high treason.Footnote 10 Initially registered as the Freedom of Information Foundation (FIF), the foundation closed its doors in 2012 in response to the growing pressure of the Law on Foreign Agents.Footnote 11 Then, in an attempt to circumvent the Law on Foreign Agents, the lawyers created two separate, but cooperative, organizations out of the FIF: Team 29, a collective primarily working on the criminal defense of treason suspects (named after Article 29 of the Constitution of the Russian Federation, which safeguards the freedom to receive and distribute information), and Infometer, a commercial organization that consults on open government for officials and regional branches of government and audits courts’ websites.Footnote 12 Registering as a commercial organization allowed Infometer to circumvent the Law on Foreign Agents, which does not apply to companies. Likewise, working as an informal collective of lawyers allowed Team 29 to bypass the Law on Foreign Agents, which only applies to registered organizations (Van der Vet 2018). Team 29 primarily represents people accused of high treason, but it also engages in legal activism on open access to archives and the freedom of information. Infometer and Team 29 work closely together in pursuit of a range of strategies: domestic litigation, media outreach, creating ranking systems for open government, and international litigation.
A member of Team 29 explains that Savchuk’s case was aimed to expose how the state engages in propaganda and how Internet factories work in a shadow economy:
The main goal was to raise public awareness about propaganda. People working in this troll factory have no labor rights; they own a grey salary. Political propaganda is nothing special, many countries use this practice. But I don’t think they violate labor rights at the same time. The idea was to take it from the dark into the light. It was Lyudmila Savchuk’s own idea. She came to us and we decided to help her. It was literally a labor rights case, but the goal was different: to make the situation public. We are still suing. After we sued them for the first time, [the troll factory] changed its legal entity. They run away and we are chasing them.Footnote 13
In the interview with Novaya Gazeta, Savchuk stressed, in a similar vein, that she did not go to court to seek revenge or wish to receive financial compensation: “It is more important to me now to attract attention to the problem [government manipulation of social media]. With that goal in mind we brought the lawsuit to court” (Petlyanova Reference Petlyanova2015). Savchuk gave the one-and-a-half months of salary that were paid to her in compensation (70,000 rubles) to charity (BBC Russia 2015).
Instead of directly focusing on Russia’s political misinformation tactics, Team 29 filed a labor rights claim against the Agency for Internet Studies to hold it legally accountable for labor rights violations. Complaining about social rights and welfare provision is a widespread practice in Russia. Complaints or lawsuits on social rights and welfare provision—for instance, rights to housing and to work—resonate more with the Russian public than, for instance, complaints on civil and political rights (Henry Reference Henry2009, 63). Laura Henry (Reference Henry2009, 63; see also Bogdanova Reference Bogdanova2006) found that, due to citizens’ widespread practice of complaining to political elites on violations of social rights in the Soviet Union, today, “violations of social rights are more likely to engender a complaint … than the violation of political rights.” Moreover, such complaints also channel “violations of social rights into the realm of the bureaucracy, emphasizing the administrative or technocratic natures of ‘the problem’ rather than its human rights or political implications” (Henry Reference Henry2009, 63). For instance, the majority of the complaints brought before the national and regional Ombudsman (a national human rights institution) concern violations of housing and other social rights (Henry 2012; Van der Vet 2017). While it is unclear, hypothetically, whether Team 29 considered making freedom-of-information claims against troll factories, it is unlikely that Team 29 would have been able to expose the inner bureaucratic workings of the troll factory before the Russian public had it based its claims on freedom of information. On their website, Team 29 chief lawyer Ivan Pavlov comments:
We use all the legal means and methods possible to defend the freedom of information. If the labor codex helps us to achieve those aims, then we will use that arsenal. We are not only interested in representing the interests of the plaintiffs, but also in pulling [the Agency for Internet Studies] into the legal sphere. We try to take away this mask of anonymity so people will know who is concretely responsible for attacks on the internet, for trolling. (Team 29 2017c, n.p.; Soshnikov Reference Soshnikov2016)
With a group of activists, Savchuk established the organization Informatsionnyi Mir (Informational Peace) in 2014 in St. Petersburg. On its vKontakte page, the group calls itself a citizen’s movement that aims to act as a “counterbalance to the information war, partly by the work of paid trolls, waged against citizens in the press and on the Internet.”Footnote 14 One of its main aims is to close the troll factory in St. Petersburg.
Bringing these labor rights cases against the Internet troll factory has had two outcomes. First, the litigation has revealed how a new authoritarian regime uses the shadow economy to hide troll factories and deny its employees labor rights. Savchuk’s lawsuits prompted other employees to seek legal aid as well. After she won her case, Savchuk urged her former colleague Olga Mal’tseva to lodge a similar lawsuit against the Agency for Internet Studies (Team 29 2017c). Mal’tseva, who had worked for a year and a half at the troll factory OOO “TEKA” in St. Petersburg, had been in contact with the British Broadcasting Corporation about her work at the troll factory and had shot and shared a video of her office space. When she asked her employer for a contract and official maternity leave, the troll factory fired her. According to Mal’tseva, she was offered compensation by her employer not to make the story public (Soshnikov Reference Soshnikov2016). With the aid of Team 29, Mal’tseva lodged a case with the Nevsky District Court in St. Petersburg, arguing that the factory should pay her maternity leave benefits of 300,000 rubles (approximately US $5,100). On February 22, 2017, the court rejected her claim. Team 29 lodged an appeal through the Nevsky District Court to the St. Petersburg City Court in March 2017, where, as of 2019, it was still under review.
A second outcome was that this litigation—and subsequent international news coverage—helped pull the troll factory out of secrecy and into the legal sphere. A year before Savchuk’s lawsuit, there were a few investigative articles that exposed the location and working practices of troll factories in St. Petersburg and Moscow (Garmazhapova Reference Garmazhapova2013). By exposing the shadow economy, secrecy, and the legal ambiguity in which the troll factory exists, Savchuk, Mal’tseva, and Team 29 have shown that “trolls” are often exploited employees who are denied labor rights and social benefits.
STATE SURVEILLANCE AND TELEPHONE TAPPING
In this part, I examine the lack of judicial oversight over surveillance requests in Russia. I also look at how strategic litigation lawyers have challenged the secret services’ direct access to mobile networks at the ECtHR.
Russians under Surveillance
In a study sampling surveillance requests, the Russian NGO Agora reports that between 2007 and 2015 domestic courts sanctioned eavesdropping on around 10 percent of the Russian population (Chikov and Gainutdino Reference Chikov and Gainutdino2016; Team 29 2017b). Courts granted all but 3.4 percent of the surveillance requests by security services (Chikov and Gainutdino Reference Chikov and Gainutdino2016, 10), indicating that judicial oversight on surveillance requests is minimal and that Russian courts cater to the interests of the security services (Soldatov Reference Soldatov2015, 72). During Soviet rule, when the security services began to develop new techniques to eavesdrop on telephone conversations, “no one gave any thought to supervising surveillance” (74). Order no. 70, passed by the State Committee for Communications and Information Technologies in 1999, gives security services direct access to the networks of mobile telephone providers through installed equipment and without an official request (Rice Reference Rice2015; Dedov Reference Dedov and Susi2019).Footnote 15 In other words, the FSB can eavesdrop on telephone calls, e-mails, and text messages without having to inform the operators whom they are targeting. Security services could gain access with the help of the operation system Systema Operativno-Rozysknykh Meropriyatii (SORM) (System of Operative Investigative Measures), which was developed by the Komitet Gosudarstvennoi Bezopasnosti (KGB), the forerunner of the FSB. Operating in Russia and parts of Central Asia since 1996, SORM aims to “provide the interception of any type of fixed or mobile communication” (Dedov Reference Dedov and Susi2019, 393). The system consists of three parts: the SORM-1 system captures telephone conversations, SORM-2 collects data on internet traffic, and SORM-3 collects metadata (such as recordings and locations) from the previous two systems (Dedov Reference Dedov and Susi2019).
Order no. 70 specifies that mobile network providers must install specific equipment to allow the government to collect user data through SORM. Order no. 70 was never officially published, but it details that the “interception of communications is performed by law-enforcement agencies from a remote-control terminal connected to the interception equipment installed by the mobile network operators” (Dedov Reference Dedov and Susi2019). It furthermore details what the equipment should be able to do, such as transmitting the data to a remote-control terminal. Andrei Soldatov (Reference Soldatov2015, 74) has found that, while FSB officials must get permission from the courts for wiretapping, “service providers do not have the right to know whose discussions or e-mails the intelligence agencies are intercepting.” Although secret services must seek court permission, the international monitor Privacy International (2015) has revealed that Russian district courts rarely request additional information from the FSB to assess if surveillance was necessary.
International Litigation against State Surveillance
In 2003, Roman Zakharov, a journalist at the St. Petersburg branch of the Glasnost Defense Foundation (Fond Zashchity Glasnosti) and the publisher of an aviation journal, went to court to challenge the expanding powers of the security services to tap telephone conversations. In his claim at the ECtHR, Zakharov alleges that Russian legislation does not offer sufficient safeguards to protect individuals against arbitrary surveillance, particularly because the security services have the technological means to access all mobile communications:
We have the wish to abolish, first, the norms of SORM, which are unlawful, and second, to push our initial claim that any mobile operator should not allow the security services to eavesdrop on telephones and surveil internet correspondence. Any mobile phone provider should understand that … they are responsible.Footnote 16
In 2005, the Vasilieostrovskyi District Court in St. Petersburg rejected Zakaharov’s complaint. The court ruled that Zakharov did not prove that the telecom operators had allowed the secret services unrestricted access. Additionally, the law required telecom providers to install eavesdropping equipment, and, therefore, Zakharov’s right to privacy was not violated.Footnote 17
With the help of several NGOs, Zakharov brought his complaint to the ECtHR, the Council of Europe’s (CoE) regional human rights court. Citizens of the CoE’s member states can apply to the ECtHR after they have exhausted domestic remedies. Zakharov volunteered to bring the case to the ECtHR as a victim.Footnote 18 While Zakharov lent his name to the case, it was a class action that included several journalists and NGOs, among which was the St. Petersburg-based NGO Citizen’s Watch (Grazhdanskii Kontrol’), an organization mainly working on access to justice. At a later stage, the London-based EHRAC, in cooperation with the Moscow Memorial Human Rights Center, took over the case when the ECtHR decided to have a Grand Chamber hearing.Footnote 19
In his application to the ECtHR, Zakharov complained under Article 8 of the European Convention on Human Rights (ECHR) that domestic legislation on the surveillance of mobile and internet communications gives law enforcement agencies unrestricted access to telecommunications, allowing them to monitor any person without judicial oversight.Footnote 20 He also alleged that the law contains insufficient procedural safeguards against unauthorized monitoring by law enforcement agencies.Footnote 21 Finally, Zakharov claimed under Article 13 that he had no access to an effective domestic remedy as he was unable to challenge Order no. 70.Footnote 22 Zakharov was initially unsure if he was a victim of telephone tapping himself.Footnote 23 He explains in his initial complaint against the telecom providers who provided access to the security services:
I had three contracts with three operators. They could not say that this had nothing to do with me. There were also reasons to suspect that I was bugged thanks to, or because of, my work at the Glasnost Defense Foundation. To be clear, we have no evidence of that. [We do know] that in the early 2000s the Federal Security Services could record the telephone conversations of everybody without exception.Footnote 24
In the case at the ECtHR, the Russian government argued that Zakharov did not have a victim status and that he had not exhausted all domestic remedies before litigating at the ECtHR. The ECtHR disagreed, finding that Russian law does not allow people to challenge eavesdropping retrospectively and that there are no effective remedies for persons who suspect that they are under surveillance: “Russian law thus eschews an important safeguard against the improper use of secret surveillance measures.”Footnote 25 The ECtHR therefore unanimously declared that Zakaharov’s case was admissible, allowing him to apply in abstracto, without alleging that he had been a victim.Footnote 26 The court found “that there has been an interference with his rights as a result of the mere existence of legislation permitting secret surveillance measures and a risk of being subjected to such measures, rather than as a result of any specific surveillance measures applied to him.”Footnote 27 Moreover, it found that Russian law does not provide any remedies for people who suspect they have been under state surveillance.Footnote 28 In a Grand Chamber hearing, the ECtHR ruled in Zakharov v. Russia that the Russian state had violated Zakharov’s rights of private and family life under Article 8 of the ECHR and that Russia should pay him €40,000 in damages.Footnote 29 According to Zakharov’s lawyer Kirill Koroteev, the compensation does not matter as much as the legal implications for the ECtHR’s case law on wiretapping practices (quoted in Kornya Reference Kornya2015). While the ECtHR suggested that Russia reform its wiretapping legislation, Koroteev explains that such changes are unlikely considering Russia’s history of ignoring ECtHR judgments (Kornya Reference Kornya2015).
The Zakharov ruling affected subsequent cases on the oversight of surveillance and spurred the passage of new laws on communication surveillance in other European countries (Milanovic Reference Milanovic2015; Rice Reference Rice2015). The Council of Europe cited the case when it criticized the United Kingdom’s Investigatory Powers Act, which expanded government oversight and the collection of bulk data, for failing to outline requirements to prove the necessity of surveillance (Commissioner for Human Rights 2016).Footnote 30 The Centre for Democracy and Technology (2016a, n.p.; 2016b), a British NGO working on human rights and the Internet, submitted a brief to the Public Bill Committee referring to the Zakharov judgments to argue that “the broad descriptions of these [surveillance] powers fail to satisfy legality requirements outlined by the European Court of Human Rights.” The Investigatory Powers Act was passed by both UK Houses of Parliament and signed on 29 November 2016.
While the Russian lawyers working with Zakharov litigated at the ECtHR to challenge wiretap legislation in Russia, the court’s ruling had an impact on policies of state surveillance beyond Russia. Moreover, the lawyers forced the ECtHR to say that, under the current political system in Russia, it was likely that Zakharov and many other Russians were arbitrarily surveilled without their knowledge. Russian NGOs have been eagerly using the ECtHR as a platform for strategic litigation for causes ranging from torture and discrimination to prisoner’s living conditions and victims of violent conflict in the North Caucasus (Leach Reference Leach2008; Sperling Reference Sperling2009; Hodson Reference Hodson2011; Sundstrom Reference Sundstrom2012, 2014; Van der Vet Reference Van der Vet2014; Sundstrom, Sperling, and Sayoglu Reference Sundstrom, Sperling and Sayoglu2019). In 2015, this strategy seemed to have been undermined when the Constitutional Court of the Russian Federation (CCRF) ruled that the judgments of the ECtHR would not be automatically implemented if they were in conflict with the Constitution (CCRF 2015; see also Mälksoo Reference Mälksoo2016). Since the CCRF and the ECtHR have only disagreed in a handful of cases, however, the 2015 judgment will likely have little impact on most strategic cases. Some of the lawyers interviewed think that the CCRF only passed the ruling to avoid the ECtHR’s judgment in OAO Neftnaya Kompaniya Yukos v. Russia, in which the Russian state was ordered to pay €1.9 billion in damages to the stakeholders of Yukos Oil Company.Footnote 31
Zakharov’s case displays the dynamics of new authoritarianism and oppositional legal mobilization. It illustrates the extent to which legislation under new authoritarian regimes are prone to arbitrariness. While secret surveillance always carries the risk of abuse, that risk is higher in regimes where the intelligence community and law enforcement have the technological tools to get unrestricted direct access to all mobile and Internet communications (Dedov Reference Dedov and Susi2019). It also confirms earlier studies on political lawyering that find that jurists often collaborate within a network of civil society organizations. By taking the complaint to the ECtHR, these NGOs had the strategic goal of highlighting how the country monitors citizens with direct access to telephone providers. The case furthermore sets new precedents in the case law of the ECtHR on surveillance and victimhood, affecting possible future applications on eavesdropping from other CoE member states.
“SOVEREIGN OPENNESS”: REPUTATIONAL CONCERNS AND OPEN GOVERNMENT
This section examines legal mobilization in response to the new authoritarian strategy of hiding and blocking citizens’ access to public data on, for instance, population statistics, corruption, salaries of government employees, or court judgments. I focus on two reform efforts in particular: litigation to open the archives of the secret services and open-government activism.
Litigation and Access to the Archives of the Secret Services
Following the disintegration of the Soviet Union and the sudden release of its political prisoners, NGOs such as the Moscow Memorial Human Rights Center (MHRC) have tried to build archives on the hundreds of thousands of people sent to “corrective labor camps” across the Gulag system (Glavnoe Upravlenie Lagerei) and help former political prisoners receive official rehabilitation (Adler Reference Adler1993, 2004). The MHRC’s requests for the declassification of files in the secret services’ archives have been denied. In 2012, Nikita Petrov, a historian and deputy chairman of the MHRC who specializes in the secret services, and Team 29 prepared a case at the CCRF to gain access to secret service documents (on the activities of the Soviet Union’s secret services in Germany following the Second World War) that were marked as state secrets over thirty years ago (Pushkarskaya Reference Pushkarskaya2013). In particular, they wanted to press the Constitutional Court to say whether the 1993 Law on State Secrets, which introduced a maximum thirty-year embargo on state secrets, could also be applied retroactively to documents issued before 1993.Footnote 32
In 2013, the CCRF ruled that state secrecy on the KGB archives had indeed expired (Pushkarskaya Reference Pushkarskaya2013). Nevertheless, it declared that only the Interdepartmental Commission for the Protection of State Secrets (Mezhvedomstvennaya Komissiya po Zashchite Gosudarstvennoi Tainy) could extend the secrecy of files and that declassification is not within the jurisdiction of the CCRF to decide (Pushkarskaya Reference Pushkarskaya2013). While Petrov’s case aimed to force the hand of the CCRF to take a stance on the thirty-year embargo and open access to the archives, it further complicated access as it caused the government to specify its stance on the length of the embargo on state secrets. In response to the CCRF’s ruling, the secret services could now make decisions on access requests per document (Belichenko Reference Belichenko2015). In 2014, the Interdepartmental Commission for the Defense of State Secrets, to which the CCRF referred in its judgment, adopted a new protocol, prolonging the embargo on the archives of the security services containing files from 1917–91 for another thirty years. This protocol covers twenty-three categories of information, including information on searches and the identity of informers (Belichenko Reference Belichenko2015). Only in 2044 will relatives of former political prisoners and researchers get access to the investigation files.
After the embargo was extended, Team 29 began working on similar cases and started an online petition. In 2014, Sergei Prudovsky lodged a complaint before a Moscow court against the decision of the Interdepartmental Commission for the Defense of State Secrets after being denied access to archives of the secret services related to his grandfather due to the embargo extension (Belichenko Reference Belichenko2015). Team 29 made an appeal of cassation to “learn more about the ‘exceptional circumstances’ under which the secrecy of the letter was extended” (Belichenko Reference Belichenko2015, n.p.). While the file was accessible online in Ukraine, a Russian court nevertheless ruled that the file is classified as secret. In support of the case, Team 29 started an online petition on Change.org “for the free access to the archives of the VChK-NKVD-KGB,” signed by almost 120,000 people in May 2018. In 2017, Team 29 started looking for, but has not yet found, cases to strategically appeal to court decisions that deny access to the archives and refer to the protocol of the Interdepartmental Commission for the Defense of State Secrets.Footnote 33
Disseminating information on Soviet repression can lead to prosecution. As of the start of the conflict in Eastern Ukraine in 2014, the rate of all prosecutions for high treason under Article 275 of the Criminal Code of the Russian Federation has risen (Team 29 2017a). In most of these prosecutions, the Russian individuals had allegedly disclosed information to the foreign press or foreign states (Chelishcheva Reference Chelishcheva2016; Team 29 2017a). Academics who conduct research on victims of Soviet repression have also been prosecuted. For instance, Mikhail Suprun, a historian who collected data for a book on German prisoners of war in Soviet camps during the Second World War, was arrested in 2009 and accused of violating the privacy of his research informants and their families. He faced charges under Article 137 of the Criminal Code for publishing the contents of a database of personal and family information of German victims of Soviet repression—in particular, those who were exiled and forced to settle in the Archangelsk region in northern Russia after the Second World War (Kosinova Reference Kosinova2014). Suprun had collected data on Russian-speaking ethnic Germans who were deported to the prison camps in the Arkhangelsk region and gained access to a database of forty thousand German camp prisoners through a police official, Alexander Dudaryev. Dudaryev was also arrested and accused of abusing his power.Footnote 34
Team 29’s chief lawyer, Ivan Pavlov, made a complaint to the CCRF on Suprun’s behalf, asking it to clarify how personal or family secrets are defined under Article 137 of the Criminal Code as there had been no precedent (Bass Reference Bass2011). The CCRF rejected the case. Suprun then lodged a complaint with the ECtHR, again represented by Ivan Pavlov. They argued that Russian law does not clarify the concept of “personal and family secret” under the Criminal Code and that the trials against Suprun were therefore in violation of Article 7 (no punishment without law). Suprun contended that the definition of “personal and family secrets” under Article 137 of the Russian Criminal Code was excessively vague and argued that the domestic courts did not make clear the distinction between family secrets and personal data.Footnote 35 Furthermore, they argued that Russia violated Suprun’s freedom to collect and distribute his research on victims of Soviet repression (Article 10 of the ECHR).Footnote 36 The ECtHR communicated Suprun’s complaint to the Russian authorities in 2014, asking the Russian government about the existence of a judicial practice on the definition of “personal and family secrets” (Kogita!ru 2014). According to Pavlov, the Russian government’s memorandum primarily presented the existing judicial practice around private information, declining to answer the direct question of the ECtHR about “personal and family secrets” (Kogita!ru 2014). The case is still pending judgment before the ECtHR.
Team 29 remains skeptical of litigation at the ECtHR, as its procedures commonly take five or more years. According to a NGO representative, the ECtHR has potential, but it is too slow for the short-term planning horizons of NGOs: “Russian nonprofits have a very short horizon for planning. We don’t know if we still work after seven or ten years, or not. We can plan our budget for a year, maximum. But I cannot say that we have a program [to] bring 15 cases to the ECtHR. It’s not realistic.”Footnote 37 The court cases on access to the secret service’s archives illustrate how Russia’s new authoritarian regime protects itself from information that is potentially damaging to its preferred historical narrative on the Soviet Union and the Second World War (Kangaspuro and Lassila Reference Kangaspuro and Lassila2012). Contemporary intelligence services define what constitutes a family secret under the Criminal Code without referring to judicial practice and then unpredictably prosecute citizens who investigate those secrets. Political lawyering in these areas has had limited results. Litigating at the CCRF on the duration of the embargo on the archives of the KGB backfired. Even with continued losses in court, political lawyers are engaging domestic courts and the security services in an ongoing debate over what constitutes a secret under Russian federal law and over the legal grounds for embargos. In the next section, I examine how political lawyers and open-government consultants are forcing political elites to make government data publicly available.
Open Government and Reputational Concerns of Political Elites
Open government—a movement promoting transparency in policy making, citizen participation in public affairs, and easy access to information on government services and public data—was once on the political agenda in Russia. Under Russian federal laws dating from 2006 to 2009, government bodies are required to make information on government activities available to the public.Footnote 38 The concept of “open data” first appeared in Russia in a 2012 presidential decree (Kabanov, Karyagin, and Romanov Reference Kabanov, Karyagin, Romanov and Vinod Kumar2017).Footnote 39 Dmitry Medvedev, during his presidency between 2008 and 2012, pledged to promote open government as part of his broader modernization program for Russia’s society and economy. In February 2012, he signed the Decree on a Working Group to Draft Proposals for Developing the Russian Federation’s Open Government System.Footnote 40 The working group focused predominantly on social policy, human resources for the civil services, and battling corruption.
In December 2012, President Medvedev, members of the federal and regional government, and civil society activists attended an open-government conference in Moscow (Open Government Partnership 2012). Among those activists were lawyer and FIF director Ivan Pavlov and FIF development manager Tatyana Tolsteneva. FIF, along with other civil society actors such as Transparency International, had participated in the drafting of Russia’s action plan to join the international Open Government Partnership (OGP) and presented its plan at this conference (Open Government Partnership 2012). The OGP is a global network of seventy-five countries “for domestic reformers committed to making their governments more open, accountable, and responsive to citizens.”Footnote 41
Although initially, Russia applied for membership to the OGP, Russia withdrew its membership application in 2013 after Vladimir Putin returned to the presidency (Ivanov Reference Ivanov2013). In a piece written for the OGP, Ivan Pavlov (Reference Pavlov2013), who helped draft the action plan on open government, claimed that Russia was moving toward “sovereign openness,” referring to a system that promotes openness as long as it attracts foreign investment and benefits the economy but restricts citizens’ access to government data and the freedom to distribute information. Within this system of “sovereign openness,” Infometer, Team 29’s sister organization, promotes the freedom to access information on public affairs and government services and consults with government agencies.Footnote 42 Relying on the legal requirements in Russian federal law about the kind of information that government agencies should make available to the public, Infometer monitors local and regional government websites for their “informational openness.”Footnote 43
Infometer measures openness through an audit system with a database that includes 3,131 registered government bodies.Footnote 44 After giving government bodies an initial “openness rating,” Infometer gives those entities time to improve the availability of government data on their websites—for instance, information on available public services, government policies, and government spending—and, based on this information, it provides its ranking.Footnote 45 According to an Infometer representative, the ranking audit “gives us the possibility to get into the system.”Footnote 46 To that end, Infometer also created an information portal that serves as a platform for online consulting and a tool where government officials can request information on their audit.Footnote 47 Once a one-month “communication period” is over, Infometer publishes the final ranking.Footnote 48 According to a representative of Infometer, this ranking system creates competition and fosters reputational concerns among officials to induce them to open data to the public:
Officials do not feel that the public demands openness. Usually, they say that they don’t want to publish anything because nobody visits their website, and nobody cares about how we, for example, “fight corruption in the Voronezh region”. They do not feel the demand. But they have a competitive spirit and they don’t want to end up last.Footnote 49
To pressure government officials into compliance, Infometer encourages national and local newspapers to publish the rankings. As one Infometer official explained, “every government body in Russia monitors the mass media and what the mass media writes about this body. … If the ranking of the government website is good, a government newspaper will make an article about it. If it is bad, the anti-government newspaper will write an article on it.”Footnote 50
These quantitative, evidence-based methods have become prominent in monitoring state compliance with human rights conventions or, in this case, “openness.” Using rankings and technical assessments is, according to Sally Engle Merry (Reference Merry2016, 207), never neutral but always political: “Each measurement system constructs a theory of social life and strategies for change, but the theory of each is embedded in the way data are collected, arranged, and presented.” States sometimes use these international ratings and rankings to exert influence in diplomatic relations, a practice that Judith Kelley (Reference Kelley2017, 7) calls “scorecard diplomacy.” Rankings distill complex behavior into simple scores, making it easy to identify states that engage in certain behavior (Kelley Reference Kelley2017, 12; Kelley and Simmons Reference Kelley and Simmons2015). Scorecard diplomacy is an effective pressure tool because states care about their reputation when compared to other countries on the same scale. This generates “reputational concerns” about states’ current and future ratings (Kelley Reference Kelley2017, 20). This concern, however, is only triggered insofar as NGOs or other actors expose state performance (57). Simmons and Kelley (2015, 55) argue that the ability to disseminate those rankings constitutes an “exercise of social power.”
Because international rankings do not capture the internal disparities and political conflicts of Russia’s federal system, Infometer created its own ranking system based on reputational concerns within Russia’s vertical power system (Kabanov, Karyagin, and Romanov Reference Kabanov, Karyagin, Romanov and Vinod Kumar2017). The vertical power relationship between the federal government and regional elites not only “helps to force innovation by vertical coercion” but also reduces self-directed innovation by regional political elites, who tend to be more concerned with meeting the demands of the central power and minimizing reputational damage (Kabanov, Karyagin, and Romanov Reference Kabanov, Karyagin, Romanov and Vinod Kumar2017, 468). Infometer uses a ranking system based on the quantitative measurement of openness and internal competition to push local government bodies into opening their data to citizens. Through setting quantitative standards on open access and presenting their findings as facts, Infometer creates standards for what can be considered open and closed without further examining how visitors use government websites.
These online ranking tools of Infometer interlace with political lawyering in three ways. First, in general, Infometer and Team 29 work closely together. While they are separate organizations, both programs were once the same organization, the Freedom of Information Foundation, which combined litigation and nonlegal strategies to promote the freedom to disseminate and receive information in Russia. Second, Infometer and Team 29 set up a legal project called Municipal Combat (Munkombat), which gives legal aid to people who want to hold municipal authorities accountable for not making information on government services open to the public or for withholding information about corruption or the income of officials.Footnote 51 Munkombat’s website is styled after the video game Mortal Kombat, asking visitors to “choose your declarant.”Footnote 52 In 2015, a citizen of St. Petersburg used Munkombat to get information on the income of the head of a municipal district in St. Petersburg. Munkombat’s lawyers argued that the lack of information violated Federal Law no. 8-FZ on Providing Access to Information on the Activities of Government Bodies and Bodies of Local Self-Government and Federal Law no. 273-FZ on Combating Corruption.”Footnote 53 The Okyabrsky District Court of St. Petersburg agreed and ordered the publication of the official’s income.Footnote 54 Third, Infometer and Team 29 fostered the development of legal petitioning by launching the online tool Infodozor in 2015. Using the data on government openness from the results of Infometer’s rankings, Team 29 created a “heat map” indicating the levels of information transparency of various government websites. Citizens could use the maps to monitor the level of openness on municipal government’s websites and familiarize themselves with the existing laws that required government bodies to make the information available (Agentstvo Sotsial’noi Informatsii 2015). If the user could not find the government information they were looking for, they could use the Infodozor tool to file a complaint with the prosecutor’s office (Lenizdat.ru 2015).
CONCLUSION
This article has examined three strategies of information control in new authoritarian regimes: (1) spreading falsehoods through “troll factories”; (2) wiretapping telephone conversations without judicial oversight; and (3) hiding government data. Using Russia as a case study, I have examined how a group of collaborating rights advocates—political lawyers and open-government consultants—innovate new legal mobilization strategies when the government distorts and hides information with minimal judicial oversight. The article confirms earlier studies on political lawyering in nondemocratic regimes that have found that political lawyers creatively engage in legal and nonlegal strategies in response to authoritarian control. I offer additional evidence of how these lawyers have cooperated with a broader network of civil society organizations, have invented new strategies, and have nurtured connections with political elites.
Studying lawyering against covert authoritarian tactics furthermore reveals the internal mechanisms of authoritarianism and social control (Stern Reference Stern2017; Chua 2019). The article complicates our understanding of the role of political lawyering in new authoritarian regimes in two ways. First, it exposes how the government uses the law to develop new forms of information control and obscure those strategies through vague legislation. Second, it complicates our understanding of the dynamics between political lawyers and political elites, courts, and civil society. I show how Russian political lawyers work with elites, courts, and civil society to clarify legal concepts and expose governmental malfeasance. Lawyers and open government activists were particularly adept at using the new authoritarian regime’s reliance on information control to their own advantage by using rankings to undermine the public image of political elites and government bodies. As authoritarian regimes continue to expand their campaigns of disinformation and informational control, the challenge for political lawyers will be to locate and exploit new government vulnerabilities.
