Egypt’s Dangerous New Strategy for Criminalizing Queerness – Slate

Earlier this year, Adel went on Grindr to surf and meet other queer people in town. (Adel is a pseudonym I’m using for his protection.) Adel eventually set a date with someone he had been talking to. The date arrived at his house—but it wasn’t whom he had been talking to. This wasn’t a date; it was entrapment. Adel was met by officers who arrested him for debauchery and digital crimes, using his chats on the app as reason for the arrest.

He was charged with “debauchery crimes” as well as cybercrimes and telecommunication crimes for the chats he’d had on Grindr and other apps with a “police consultant,” and for other pieces of evidence discovered on his person and devices. His case is being heard in the Egyptian economic courts and is indicative of a worrying change in how the Egyptian government targets the queer community.

Over the past few years, Egyptian prosecutors have started increasingly relying on the gathering of digital evidence to prosecute LGBTQ people through online dating app entrapments or evidence from people’s devices. However, as of this year, prosecutors are moving LGBTQ cases to the economic courts of Egypt, which are known for prosecuting online “moral” crimes. The result is that sentences, charges, and fines are being doubled.

Egypt has a long history of prosecuting the LGBTQ community. Though Egyptian law does not directly prohibit “homosexuality,” a complex legal infrastructure of interpretations and precedents has allowed for continuous and targeted prosecution of LGBTQ individuals.

There was a noticeable increase in targetings after the introduction of the internet in Egypt in 1993, along with a clear shift to online communications by LGBTQ people looking to create connections. But things massively escalated in 2014, when Abdel Fattah el-Sisi took power. Under his presidency, the Ministry of Interior introduced new campaigns to target LGBTQ communities. According to the Egyptian Initiative for Personal Rights, between 2000 and 2013 there was an average of 14 arrests per year for LGBTQ “crimes.” From late 2013–17, the yearly average increased to 66.

2017 saw one of the biggest crackdowns on the community, with 75 arrests after a rainbow flag was waved at a concert. In 2019, the LGBTQ NGO Bedayaa recorded 92 arrests. And arrests haven’t stopped during the COVID-19 lockdowns, though they have slowed down temporarily due to restrictions and reduced movement. (It is important to note here that even with these numbers we do not have a full picture. Many cases go unreported to the NGOs that are working hard to keep up.)

Egyptian authorities use a number of laws to prosecute LGBTQ individuals for activities online and offline. Up until about March 2020, the main article of law used has been Article 9(c) of the 1961 law on Combating of Prostitution, which calls for the sentencing of “Whoever habitually engages in debauchery or prostitution.” As a habitual act is hard to prove, courts have often relied on digital evidence from dating apps, chats, and photos or videos found on individuals’ devices. In these cases, the charges were generally of the crime of incitement or publicity of debauchery, according to Article 14(a). These cases were tried in the misdemeanor courts, and convictions carried sentences of around three months to three years with a maximum fine of 300 Egyptian pounds (about U.S.$19).

In my research into the use of digital evidence against LGBTQ communities, I have witnessed the trajectory of this shift. The change to this pattern came this year just as the world went into COVID-19 lockdowns. Starting in March, LGBTQ-prosecuting cases started being tried in the economic courts. The courts are optimizing how to turn private interactions and communication, deemed queer, into a certified sentence.

The shift for these cases seems to be linked to challenges prosecutors faced from meticulous NGOs and defense attorneys. Thanks to their efforts, crimes of “advertising,” “publicising,” or “habitually practicing” debauchery have become harder to prove. Sharif (a pseudonym I’m using for his protection), one of the main defense lawyers working on these cases, told me, “The accused get acquitted often simply because according to the debauchery law, you have to add a sense of publicity into a conversation.” But these conversations are clearly private—there is no “publicity.” With challenges to clumsily gathered digital evidence, defense lawyers have garnered more reduced sentences and acquittals in recent years.

“The public prosecutor started take note that if [they] lose debauchery cases because of lack of ‘publicity,’ they may be able to use articles from the new laws, to mix it with the debauchery law. [Then] they can prosecute people and actually win the case or get a [higher] sentence out of the court,” Sharif explained. By trying these cases in the economic courts, they not only increase chances of convictions but are bringing more charges and with higher sentences.

The economic courts were created in 2008, given jurisdiction over the 2003 Telecommunication Regulation Law in addition to other financial and economic laws. In August 2019, a decree granted the economic courts jurisdiction over Egypt’s 2018 Anti-Cyber and Information Technology Crimes Law (known as the “cybercrime law”).

The economic courts have since become a core prosecution pillar of the Egyptian authority in policing online “morality” and surveilling people’s everyday life, as seen in the recent TikTok cases where six social media influencers were charged with crimes against “public morals” for their public social media content.

Egyptian lawyer Islam Khalifa, who worked on older LGBTQ cases, explained that this was part and parcel with the Egyptian government’s online surveillance and policing under the guise of “Egyptian values”: “It’s [a] new system of internet surveillance that the LGBTQ are heavily falling in the crossfire of.”

I have never seen another country with such a robust system of prosecutions—and now it’s being further optimized.

The laws under which these cases are tried in the economic courts are vague and broadly applied: Article 76 of the Telecommunication Regulation Law criminalises the “misuse of telecommunications,” and Article 25 of the cybercrime law criminalizes the use of technology to “infringe on any family principles or values in Egyptian society.”

The most dangerous of the laws is that “family values” law. “An article like [that is] so flexible and open to interpretation that no individual will have an understanding of it to prevent doing that crime,” Sharif told me. These laws are not only very broad—they lack interpretations from higher courts. This has allowed for judicial power to not just apply the laws but also to define them.

Starting in March, police, prosecutors, and courts aligned for this new pattern of arrests and prosecutions. “[Before March] the police didn’t really know to note that the person had violated the cybercrime law. … They would just follow the same old rhythm. They would just write debauchery [charges],” Sharif told me. “But, after March, police officers took note of the change and started writing that the person also violated the cybercrime law in [the] police report. … It is much easier for the prosecutor to send it to the economic courts because … there’s more guarantee to get a sentence that he wants.”

The sentences that accompany these new convictions are significant. “While debauchery law cases usually had around a 400 Egyptian pound fine [about one week’s worth of groceries for an average family], and three to six months imprisonment if they were sentenced … the new law has a minimum fine of 50,000 EGP and maximum 100,000 EGP, and the minimum sentences are usually two years … so it’s a very big jump,” Sharif pointed out. This is echoed by the other caseworkers and lawyers I’ve spoken to as well as by court files: same interrogations, same investigations, higher charges and higher fines.

And things are getting worse. On Sept. 1, the Egyptian government released the executive list for the cybercrime law. Prior to this, lawyers had been able to use a lack of a definitions and procedures as part of their defense. However, the executive list now codifies a broad range of elements that are chargeable digital offenses. It also provides the courts with power to bring in technical experts to certify the digital evidence presented.

In the misdemeanor courts, challenging unverified and clumsy evidence-gathering was a possibility. This will be very difficult now for defense lawyers. Sharif said the court brings in a “specialized cyber person, an engineer sometimes, that comes and checks the phone, checks the conversation, checks the data and checks the IP [addresses], checks everything, and gives a detailed technical report to the court.” They are very serious about confirming convictions and standardizing their methods.

The picture is dire. Right now, increased digital reliance is unavoidable, and the courts are adapting. In my time researching arrests and prosecutions of LGBTQ groups, I have never seen another country with such a robust system of prosecutions—and now it’s being further optimized.

That doesn’t mean things are hopeless. My research collaborator and the executive director of Cairo 52, Nora N., reminds me, “Even with their new changes, the lawyers and community will learn about the courts and make things difficult for them again.” From analysis of court files, case documentation, interviews with victims, and hours and hours of interviews with the front-line lawyers in Egypt, I know this to be true. And they must be supported in this work.

Egyptian President Abdel Fattah el-Sisi—Trump’s “favorite dictator” and French President Emmanuel Macron’s most recent recipient of the Grand Cross of the Legion of Honour—will continue to scapegoat and crack down on the community in this cat-and-mouse chase. The communities affected by this persecution need more support worldwide. International leaders need to be held accountable for their cozy relationships with the Egyptian government, especially as they attempt to champion LGBTQ causes in their own countries. And tech companies whose digital tools are used to gather evidence in these cases need to do more in response to their growing role in the prosecution of queerness. They should be working with these victims and those representing their cases to improve the safety and security of their tools.

Egypt’s increasingly creative framework for criminalizing the queer community is not only a threat to Egyptians but to any LGBTQ people whose leaders may be inspired by its strategies. The world needs to pay attention now.

Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.

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