Vietnam Tightens the Screws on Big Tech

In mid-August, Vietnam issued a decree guiding the implementation of one of the most controversial provisions in its Cyber-Security Law. The decree enables the authorities to ask technology firms to remove online content and collect Internet users’ data. In a country where the authorities have harped on the urgency of controlling cyberspace, this will potentially have far-reaching ramifications on how Big Tech reconciles the need to placate government demands with its commitment to safeguard the data privacy of Internet users.

Taking effect next October, Decree 53 requires, among other things, tech companies — including foreign ones such as Google, Facebook and other telecommunications operators — to set up offices and data servers in Vietnam. Since the drafting process, this rule has drawn widespread hackles over its feasibility. Foreign tech giants have repeatedly argued that data localisation, which their systems were not designed for anyway, would require a substantial investment in building or renting infrastructure in the specific country involved.

Another key feature of the decree is that it provides the legal pretext for the authorities to ask service providers to remove online content flagged as false or detrimental to national security, political stability and national prestige. Also citing the rationale for safeguarding national security, public order and the “legitimate interests” of individuals and organisations, the decree obliges service providers to store personal data of Internet users domestically. Those data range from Internet users’ personal identities, financial records, digital footprints, and online connections and networks. The authorities are then vested with the power to request the collection of such data for investigative purposes.

Since the passage and implementation of the Cyber-Security Law in 2019, Vietnamese authorities have appeared to focus less on enforcing the provision for data localisation. The authorities have instead remained fixated on whether major social media platforms — Google’s YouTube and Meta’s Facebook in particular — have been compliant enough to various government requests to restrict access to or take down what it labels as “false” or “anti-state” content.

In fact, it is content removal that has remained the preferred policy option for Vietnamese authorities at a time when many governments have scrambled to dictate what the public can see or not on social media. When effected, Decree 53 will become another weapon in Vietnam’s legal arsenal to censor online content that the authorities deem objectionable. Since its enactment in 2013, Decree 72 has served as the legal basis for Facebook and YouTube to restrict or scrub content at the behest of Vietnamese authorities. The authorities stopped short of saying whether Decree 53 will supersede Decree 72, despite their similar provisions governing the removal of online content. This means that Vietnamese authorities are likely to have more legal pretext to take down online content they disfavour.

But the landscape is more perplexing for Western tech giants to navigate. They have on the one hand exhibited willingness to comply with local laws while operating across borders but on the other preached the importance of protecting their customers’ data.

But the power of Decree 53 does not lie merely in the written law: its broad remit, together with other Internet controls already in place, serves a dual purpose of deterring both Big Tech firms and Internet users. Under Decree 53, the authorities can suspend or terminate the operations of “information systems” that are used for “unlawful” purposes such as undermining national security and disturbing public order. The thing is “information systems” is such a broad category that, as this legal analysis by the international law firm Baker and McKenzie pointed out, “all different sorts of apps, websites, and devices” could be subject to suspension or termination at the mercy of the Ministry of Public Security.

The vagueness of Decree 53, together with Vietnam’s other Internet controls, appear to be designed on purpose to instil fear in Big Tech and Internet users, inducing compliance in the former and perpetuating self-censorship in the latter. In issuing Decree 53, the ultimate purpose of the authorities does not seem to really force foreign tech giants to set up shop in the country, but to coerce them into abetting the takedown of online content and bolstering the state’s digital surveillance capacity. These are key tactics in Vietnam’s online censorship dragnet.

Decree 53 was released just on the heels of a fierce attack by Vietnam’s state-controlled media on TikTok, the Chinese short-form video platform that has become increasingly popular in the country. The criticism centred on how TikTok has become an incubator for its influencers and users to spread misinformation. Decree 53 appears timed to telegraph an important message to TikTok and foreign social media platforms: toe the party line or you are in trouble.

For TikTok, capitulating to government censorship has almost become its default practice. From the very outset, the Chinese platform does not even seek to create a pretense of protecting free speech. As such, it has fewer compunctions with complying with the dictates of the authorities. But the landscape is more perplexing for Western tech giants to navigate. They have on the one hand exhibited willingness to comply with local laws while operating across borders but on the other preached the importance of protecting their customers’ data.

Compounding the problem is the fact that these tech companies have increasingly become vulnerable to criticism left and right for buckling under the pressure of government censorship, which other democracies (not just autocracies) have increasingly resorted to. Interestingly, the release of Decree 53 comes almost at the same time as Indonesia’s enactment of similar regulations on online content moderation. The striking similarity in legislations in both countries seems to dovetail with a joint initiative hatched in 2019 by four Southeast Asian countries — namely Indonesia, Vietnam, Thailand and the Philippines — to rein in foreign tech giants.

Across Southeast Asia, which is home to 400 million Internet users, it would seem that the screws are tightening on Big Tech to play ball with government regulators on content moderation.

2022/264