Today marks the last day that the Ecuadorean prosecution has to investigate its case against Ola Bini, the Swedish free software programmer who was arrested there in April and detained for over two months without trial and without clear charges. On Thursday, the judge accepted a plea by the prosecutors to change the nature of the charges, switching from one part of Ecuador’s broad cybercrime statute to another. It seems likely that the prosecution will rely on evidence uncovered a few weeks ago that depicted Bini accessing an open, publicly available telnet service: an act that is, in itself, entirely legal under any reasonable interpretation of the law
The sudden swapping out of charges at the last moment is just the latest twist in a politically charged and technically confused prosecution. It should be no surprise, then, that Amnesty International this week released a statement denouncing Ecuador’s treatment of Bini. The organization, which works to protect human rights globally, has determined that the Ecuadorian state failed to comply with its obligations under international law during Bini’s arrest and subsequent detention. In addition to this pronouncement, Amnesty has also expressed serious concern that political interference jeopardizes the chance for a fair trial, concerns that EFF has raised as well.
The sudden swapping out of charges at the last moment is just the latest twist in a politically charged and technically confused prosecution.
Earlier this month, an EFF delegation traveled to Ecuador to learn more about the case. Police officers in Ecuador had detained Bini, a well-known free software developer who has worked on several key open source projects, as he prepared to travel from his home in Quito to Japan for a vacation. The police claimed that he was attempting to flee the country, though Bini had booked the vacation months previous. He was not publicly charged for some time, and the “evidence” seized from his home, used to demonstrate his guilt to the press, was a collection of fairly common devices for someone working in his field—USB drives, technical manuals, and two-factor authentication keys. The prosecution, after pleading with the judge to extend their investigative period, belatedly switched to building a case based on — judging from leaks to the Ecuadorean media — innocuous behavior common to any information security technologist.
Our delegation determined, after nearly a week of interviews with legal experts in Ecuador, that Bini's prosecution is a political case, not a criminal one. The investigation was deeply, and dangerously, intertwined with the political effects of its outcome, leading us to insist that political actors of all sides step away from the case.
After conducting their own analysis, Amnesty has come to a similar conclusion. In their statement, the organization writes that Ecuador violated due process in their arbitrary detention of Bini for 70 days, and in addition, the government has potentially prejudiced his chance for a fair trial by making public statements about his guilt before trial proceedings have been concluded. Indeed, Bini’s defense team has counted 65 violations of due process overall. The court itself recognized the illegal and arbitrary nature of Bini’s initial detention, freeing him on a habeus corpus plea, but the Ecuadorian government has remained steadfast in their assertion of his guilt.
Rightfully, Amnesty is concerned that this undue use of the criminal justice system against human rights defenders like Bini—who has worked for years to promote and protect security for all—could create an intimidating environment for other people engaged in this kind of work.
Over the years, through EFF’s work protecting Coder’s Rights in addition to our global focus on technologists and bloggers who were detained or taken offline, we know that prosecutors with political or other intentions often portray coders and security professionals as dangerous cyber-masterminds, mischaracterizing their work to create tech panics. But as Amnesty’s Americas Deputy Director, Fernanda Doz Costa, put it: “Attacks on human rights defenders frequently go unpunished, while unfounded accusations against them are immediately investigated.”
In addition to Amnesty, over 90 organizations have denounced the due process violations in Bini’s case and insisted that Ecuador ensure his fair treatment.
So far, the investigation has concluded in its final days as we feared it may after our visit: with little evidence of Bini’s guilt, but significant evidence of political maneuvering. We hope that Amnesty’s monitoring of the situation will contribute to more fair treatment of Bini in the future, and to Ecuadorian political actors stepping away from the case.