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Turkish citizens faced investigations and arrests for their online activities, with a large number of users being arrested for posting ostensibly false information about the COVID-19 pandemic online. Social media users were also targeted for criticizing the president. After the reporting period, president Erdoğan approved a new social media law that will further strengthen the regime’s ability to censor online content. Surveillance remained a concern.

C1 1.00-6.00 pts0-6 pts

Do the constitution or other laws fail to protect rights such as freedom of expression, access to 1.001 information, and press freedom, including on the internet, and are they enforced by a judiciary that lacks 6.006 independence?

The constitution and laws of Turkey fail to protect free expression and press freedom online despite including broad protections for freedom of expression theoretically. Article 26 states that “everyone has the right to express and disseminate their thoughts and opinion by speech, in writing, or in pictures, or through other media, individually or collectively.”116 Turkish legislation and court judgments are subject to the European Convention on Human Rights and bound by the decisions of the European Court of Human Rights. Despite these guarantees, online journalists and ordinary users frequently face civil and criminal penalties for legitimate expression. The constitution also guarantees the right to privacy, though there are legal limitations on the use of encryption devices (see C4), and surveillance of online activity by security agencies is believed to be widespread (see C5).117

The state of emergency enacted in the wake of the 2016 coup attempt and in effect until July 2018 allowed President Erdoğan to issue decrees without judicial oversight, including decrees that threatened freedom of expression online, which were used to block websites, shut down communication networks, and close civil society organizations and news outlets.118 Decree No. 671, published in 2016, amended the Law on Digital Communications to authorize the government to take “any necessary measure” on the grounds of “national security, public order, prevention of crime, protection of public health and public morals, or protection of the rights and freedoms” guaranteed under Article 22 of the constitution. The decree also obliges telecommunications providers to enforce government orders within two hours of receiving them.119 Despite the fact that the state of the emergency is no longer in effect, the decree remains in force.120

Turkish laws are enforced by a judiciary whose independence has been compromised, particularly since the coup attempt of 2016.121 Judges still occasionally rule against the government, but the appointment of thousands of new,

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loyalist judges in recent years, the potential professional costs of ruling against the executive in a major case, and the effects of an ongoing purge of judges suspected of supporting the coup attempt have all severely weakened judicial independence in Turkey.

Seen as a win for freedom of expression activists, nine people who were involved in the 2013 Occupy Gezi protests were acquitted by a Turkish court in February 2020 (see C3).122 The verdict was a surprise to many people who see Turkey’s courts as lacking independence.123

The Occupy Gezi trial, which has been going on for three years, began with the arrest of a philanthropic businessperson, Osman Kavala, and was concluded in February 2020 with acquittal of all suspects in Turkey. The judges that gave the acquittal verdict are now subject to an investigation themselves for “allowing legal maneuvering to acquit Osman Kavala from prison.” The of 2013 included demands for civil rights and liberties, and the trial has been seen as a political process, further jeopardizing the right to assembly and free expression.124 Kavala was re-arrested before being released from prison with charges of collaborating with coup plotters in 2016, even though he had previously been cleared of charges of the same accusation (see C3).125

C2 1.00-4.00 pts0-4 pts

Are there laws that assign criminal penalties or civil liability for online activities? 1.001 4.004

There are no laws that specifically criminalize online activities like posting one’s opinions, downloading information, sending emails, or transmitting text messages. Instead, many provisions of the criminal code and other laws, such as the Anti-Terrorism Law, are applied to both online and offline activity.

According to Article 7 of the Anti-Terrorism Law, “Those who make propaganda of a terrorist organization by legitimizing, glorifying, or inciting violent methods or threats” can face prison terms of one to five years. The law has been widely criticized for its broad definition of terrorism, which has been exploited by courts to prosecute journalists and academics who criticize the government, with no clear links to terrorist activities.126

Defamation is a criminal offense punishable by a fine and up to two years in prison. Charges have frequently been used to prosecute government critics. Defaming a public official carries a minimum sentence of one year in prison, while insulting the president is punishable by between one and four years in prison, according to Article 299 of the criminal code. Several courts deemed Article 299 unconstitutional in the first half of 2016, but the Constitutional Court upheld the provision in December 2016.127 Since 2015, there have been approximately 100,000 complaints filed against people accused of defaming the president. Of the 17,541 cases that went to trial, only 2,676 were acquitted.128 While thousands of people go on trial for insults to the president, one specific case resulted in demotion of the sentence. An court ruled in favor of a citizen who shared a post about President Erdoğan. The individual had been taken to court with the accusation of defaming the president, but the court ruled that the suspect was targeting Erdoğan as the AKP party leader not as the President in his expression, thus the sentence to be given should only be considered as "insult" instead of "insult to the President."129

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C3 1.00-6.00 pts0-6 pts

Are individuals penalized for online activities? 2.002 6.006

Prosecutions and detentions of Turkish citizens for their online activities continued during the coverage period. Many journalists, activists, and ordinary citizens faced arrest in retaliation for criticism of the war in Syria and other government policies, as well as expressions of Kurdish identity. According to the Journalists Union of Turkey (TGS), a total of 85 journalists are imprisoned in Turkey as of March 2020 (see also C7).130

Journalists, writers, and activists continued to be detained and arrested in Turkey during the reporting period. On November 4, 2019, journalist and novelist Ahmet Altan was released from prison after being convicted of “helping a terrorist group” and spending three years in jail.131 However, he was arrested again a week later, after prosecutors appealed against his release, following a critical article he published in which he wrote “I am waiting for an objection to my release as I type these words.”132 He was awaiting an appeal by the court at the end of the coverage period.

Prosecutions for insulting the president online have increased in recent years. Some of the defendants have been jailed while awaiting trial. Insulting the president online is an offense punishable by up to four years in prison. Yet on March 9, 2020 a court ruled that insult to AKP chair and President Erdoğan does not constitute a crime of insulting the president, as Erdoğan has registered with a political party and lost his impartiality.133 Even though this decision is up for appeal with the Supreme Court, it remains for now. Despite this, arrests and detentions have continued for insulting Erdoğan on social media.134

During the coronavirus pandemic, nearly 100,000 prisoners were released in April due to concern over the potential high spread of the virus in Turkey’s prison system. However, journalists, writers, and activists were not among those released.135 Citizens were also arrested for posting false information regarding the coronavirus online. The Ministry of Interior announced on May 21, 2020 that 510 people were arrested for allegedly “sharing false and provocative news about coronavirus” on social media.136

Dila Koyurga, the Republican People’s Party (CHP) local secretary for the İzmir youth unit was detained on May 27, 2020 for her social media posts insulting Erdoğan, the prime minister at the time of the posts in 2013.137 Although some of the content subject to criminal complaints was from 7 years ago, which nearly exceeds the statute of limitations, Erdoğan’s lawyers filed the complaint to the İzmir Chief Public Prosecutor's Office with the accusation of “insult to (a) public officer” and for more recent content published by a total of 7 people including local CHP representatives that ostensibly insulted the president.138

In May 2019, the main opposition CHP official in , Canan Kaftancıoğlu, was indicted for posts on Twitter from between 2012 and 2017 that allegedly insulted the Turkish government, AKP chair and president of Turkey Erdoğan, and other public servants; incited “hatred and enmity;” and spread “propaganda for a terrorist organization.” In June 2020, after the reporting period, Kaftancıoğlu was convicted and sentenced to nine years in prison.139

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Activists, political oppositions members, and citizens alike are penalized for content posted on their social media accounts. For example, the local chair of Socialist Party of the Oppressed (ESP) in Rize’s Fındıklı, Tugay Köse, was detained and spent a night at the police precinct due to the party's social media comments regarding the resignation of Minister of Interior Süleyman Soylu.140 In November 2019, human rights defender and citizen journalist Nurettin Aldemir was sentenced to 18 months and 22 days in prison for “propagating terrorism” through his social media posts.141 Lawyer Harika Günay Karataş was sentenced to 37 months and 15 days in prison in Hakkari's Yüksekova due to her social media activity that allegedly propagated terrorism. The charges cited all of her social media posts from the last 7 years, as she was an open critic of government policies regarding the dismissal of elected mayors.142 In September 2019, Jinnews correspondent Melike Aydın was sentenced to suspended 15 months in prison for her 2016 social media activity.143

Between October 9 and December 25, 2019, a total of 636 people were subjected to judicial proceedings regarding their social media posts about the government’s Operation Peace Spring in the north of Syria; 86 were arrested, 249 were released with judicial control orders, and 550 were released freely.144 Rudaw TV journalist Rawin Sterk was arrested due to his social media activities after getting detained alongside many other journalists who followed refugees to the Greek border in Edirne.145

Social media influencer Pınar Karagöz, who uses the nickname “Pucca” online, was detained in October 2018 for social media posts that referenced drug trafficking while discussing the popular television show Narcos, which prosecutors claimed encouraged drug use. In July 2019, Pucca was sentenced to five years and ten months in prison for the posts.146 The conviction was subsequently appealed.147

In August 2018, during Turkey’s currency crisis, the Ministry of Interior announced that an investigation had been launched into 346 social media accounts that posted provocative content on the Turkish lira.148 While the results of the investigation are unclear, in June 2019, two Bloomberg journalists who had written about the depreciation of the lira in August 2018 were indicted, as were 36 people who had commented on the article or criticized the economy on social media.149 In solidarity, multiple Turkish financial experts have silenced their social media accounts and stopped giving commentary on the Turkish economy. As a result of this animosity, various Turkish journalists have anonymously stated that they could not schedule guests on their television programs or interview anyone for publication without consulting a more central authority at their news outlet .150

In January 2018, a number of journalists were arrested for online criticism of Operation Olive Branch, a Turkish military operation in Syria’s Afrin.151 The Turkish police force has associated criticism of the operation with terrorism, accusing critiques of spreading PKK propaganda.152 Furthermore, Turkey asked social media sites including Facebook and Twitter to take down posts that criticize Operation Olive Branch (see B2).153 As part of the crackdown, journalists Hayri Demir and Sibel Hürtaş were detained for comments on social media that criticized the Turkish military’s role in Afrin and contradicted the government’s assertions about the conflict.154 They were detained for “inciting the people to violence” and convicted of “terrorist propaganda via the media.”155Although they were released on bail after four days, Demir, Hürtaş and 10 other defendants faced up to 10 years and 6 months in prison for their criticism of the operation on social media.156 Following a number of delays, the next trial date was set for December

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2019.157 In May 2018, Demir was handed a separate suspended sentence of 18 months and 22 days for spreading terrorist propaganda online.158

According to the Ministry of the Interior’s yearly report for 2018, over 42,000 social media accounts were investigated for spreading propaganda for terrorist organizations, praising these organizations, publicly declaring that they are involved in terrorist organizations, encouraging hatred and enmity, and insulting government officials, among other offenses. More than 18,000 people faced legal action as a result of these investigations.159 However, it is unclear how many of these cases were legitimate. While on an irregular basis the Ministry of Interior announces legal proceedings targeting hundreds of social media users, later reports appeared to contradict the numbers, making it harder to monitor the situation.

These arrests and others have led to increasing rates of self-censorship online by many users who fear that if they speak out against the government, they too may face prosecution (see B4).160

C4 1.00-4.00 pts0-4 pts

Does the government place restrictions on anonymous communication or encryption? 2.002 4.004

Limitations on encryption and anonymity are concerns in Turkey. According to the Inclusive Internet Index, as of June 2020 only 46 percent of people trust that they can maintain their online privacy. However, 50 percent of people trust government websites and applications, while only 10 percent of people trust non-government websites and applications.161

The anonymous purchase of mobile phones is not allowed; buyers must provide official identification. According to a presidential decree issued in May 2019, Turkish citizens may only import one mobile phone every three years.162 Imported devices can be registered at mobile service providers’ subscription centers and an e-government website for a fee of 1,838 Turkish liras ($320). Devices that are not registered within 120 days of purchase are blocked from telecommunications networks, excluding emergency services.

In 2011, the BTK imposed regulations on the use of encryption hardware and software. Suppliers are required to provide encryption keys to state authorities before they can offer their products or services to individuals or companies within Turkey. Failure to comply can result in administrative fines and, in cases related to national security, prison sentences.

During the post-coup state of emergency rule, an online encryption application called “By-Lock” was demonized and used as pretext for long-term pretrial detentions.163 As a result, citizens shy away from using emerging encrypted messaging apps for fear of being accused of engaging in activities that threaten national security.

C5 1.00-6.00 pts0-6 pts

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Does state surveillance of internet activities infringe on users’ right to privacy? 1.001 6.006

Government surveillance and the bulk retention of user data have violated privacy rights. Under Turkish law, the interception of electronic communications had fallen under the purview of the TİB (now the BTK). Questions remain over the legality of the General Directorate of Security’s practice of using software that can infiltrate targets’ computers.

During the COVID-19 lockdown, the Ministry of Health initiated a “Life Fits in Home” application for mobile devices to inform the population on the latest developments regarding the virus, track risk maps, and issue urgent notifications regarding new measures. This application monitored users’ GPS location, camera, contact list, and Bluetooth to make sure infected people or risk-groups did not violate the quarantine or self-isolation measures. For traveling, an SMS approval requirement was initiated. Six percent of the population— 5 million users—in Turkey downloaded the application despite its highly-centralized data storage and its invasive nature.164 The Alternative Informatics Association warned against use of this state-sponsored application, viewing its potential to transition into a mechanism of digital surveillance as fears of coronavirus rose. The Association called for all gathered data to be deleted after the pandemic is declared cleared from the country.165

The prominence of alleged Gülenists in the police and judiciary had been a major point of discussion in the country in recent years, particularly after Gülenists were widely blamed for leaked wiretaps that led to various government corruption scandals in 2013 and 2014. Further scandals prompted high-level dismissals and reshuffling within the police and judiciary, apparently aimed at removing suspected Gülenist officials.166 The 2016 coup attempt prompted a new wave of surveillance as part of the broader purge of individuals with alleged links to banned groups.167 According to Article 22 of the constitution, “Everyone has the right to freedom of communication, and secrecy of communication is fundamental.” This right can only be limited by a court order in cases affecting “national security, public order, prevention of the commission of crimes, protection of public health and public morals, or protection of the rights and freedoms of others, or unless there exists a written order of an agency authorized by law in cases where delay is prejudicial.”168 For the most part, any action that could interfere with freedom of communication or the right to privacy must be authorized by the judiciary. For example, judicial permission is required for technical surveillance under the Penal Procedural Law, although Turkish security forces allowed to conduct wiretapping for 24 hours without a judge’s permission in urgent situations. However, after the passage of the Homeland Security Act in 2015, this time limit was increased to 48 hours, with a new requirement that officials who conduct wiretapping notify their superiors. In addition, only the Ankara High Criminal Court is authorized to decide whether a wiretapping request is legitimate. Despite constitutional guarantees, most forms of telecommunication continue to be tapped and intercepted.169

Furthermore, the powers of the National Intelligence Organization (MİT) to conduct surveillance were expanded under Law No. 6532 on Amending the Law on State Intelligence Services and the National Intelligence Organization. Passed in 2014, this amendment grants intelligence agents unfettered access to communications data without a court order (see C6).

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In a clause under Law No. 6532 (see C6) related to the MİT’s ability to intercept and store private data on “external intelligence, national defense, terrorism, international crimes, and cybersecurity passing through telecommunication channels,” no requirement to procure a court order is mentioned.170 The law also limits MİT agents’ accountability for wrongdoing. Courts must obtain the permission of the head of the agency in order to investigate agents, and journalists or editors who publish leaks on MİT activities may be imprisoned for three to nine years, which has facilitated a crackdown on government opponents such as the Gülenists.171In a largely positive development, the Data Protection Law entered into force in 2016, and the Personal Data Protection Authority has been operational since January 2017, aligning the country’s legislation with (EU) standards.172 In April 2019, the Personal Data Protection Authority fined Facebook 1.65 million Turkish liras ($286,800) due to an application programming interface (API) bug that allowed third-party applications to access the photos of users, including from Turkey.173 As of 2019, there have been a total of 3,585 submissions of private data breach reports to the Personal Data Protection Authority, with 167 being violation reports; 2,401 applications were finalized and a total of 14 million liras ($2.43 million) in financial penalties have been ordered since 2017.174

C6 1.00-6.00 pts0-6 pts

Are service providers and other technology companies required to aid the government in monitoring 0.000 the communications of their users? 6.006

Law No. 6532 (see C5) forces public and private bodies—including but not limited to banks, archives, private companies, and professional organizations, such as bar associations—to provide the MİT with any requested data, documents, or information regarding certain crimes related to national security, state secrets, and espionage. Failure to comply can be punished with imprisonment.Under Law No. 5651, hosting and access providers must retain all traffic information for one year and maintain the accuracy, integrity, and confidentiality of such data. In addition, access providers must file the data together with a time stamp and provide assistance and support to the TİB (now the BTK) in monitoring internet traffic. In 2015, the Constitutional Court nullified a set of amendments passed in 2014, including a requirement that hosting providers must store data for up to two years.175 Public-use internet providers have different responsibilities for retaining data, depending on whether they hold commercial or noncommercial status. Commercial providers are defined as entities such as internet cafés that provide internet service for a payment. Noncommercial public-use internet providers are defined as entities that provide internet service at a certain venue for a specific period of time, such as hotels and restaurants. While all public-use internet providers are expected to take measures to prevent access to illegal content and store internal IP distribution logs, commercial providers must also receive permission from the local authorities, use a content-filtering service approved by the BTK, and keep accurate daily records of internal IP distribution logs using software supplied by the BTK, which must be stored for a period of one year. In addition, these commercial providers are required to install a video surveillance system to identify users and retain such records for seven days. All data must be made available to the BTK upon request, and a court order is not required. Those who do not comply can face fines between 10,000 ($1,740) and 100,000 Turkish liras ($17,380).176

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As part of the relief package prepared during the coronavirus pandemic, the governing AKP proposed 66 legislative items, including a draft bill to obligate digital enterprises and social media companies to open local offices in Turkey and store all data inside the country for data localization purposes. The draft bill also allows private companies to observe and store users' private data, despite previous legislative steps taken for the protection of private data.177 Lawyer Ece Güner-Toprak expressed grave concerns that the draft bill bears the potential for censorship against media platforms in Turkey. According to Güner-Toprak, once Twitter, Facebook and other platforms have local offices in Turkey, as the law would require, they would be obligated to “store user data inside Turkey, and apply all content- removal, access blocking, [and other] measures immediately upon orders.” If they do not comply, they risk losing all user traffic due to narrowing bandwidth.”178 Law professor Dr. Yaman Akdeniz agreed that the proposed legislation is an obvious targeting of social media platforms as it obliges all platforms to openly share user data with the governing authority upon request, and further allow content removal at an upgraded level.179

While the legislative proposal was later updated to remove the articles on social media, the Nationalist Movement Party (MHP) filed another draft bill to enforce the use of personal identification numbers issued by the state when signing up for digital services, including social media platforms. The MHP claimed that the absence of such a rule allows troll armies and fake profiles to cause victimhood online.180 Deputy of the MHP Halil Öztürk also stated that the proposed bill sought to enforce data localization and prevent the opening of fake profiles to promote terrorist ideologies online, while also safeguarding national data through personal data protection measures.181 Technologist Onur Mat evaluated the data localization attempts that have been brought to public discussion, and believes that, similar to banning YouTube, PayPal or Wikipedia, the restrictions are a detriment to privacy rights and civil society. Especially in the case of individual small enterprises, “access to technical infrastructure and integration into financial and economic entities is a crucial necessity.” The restriction or blocking of social media and other platforms “kills the competition potential of these small enterprises,” which risks curtailing “the country's economic competitiveness.”182

After the reporting period in July 2020, President Erdoğan reintroduced and approved the social media laws originally drafted in April requiring foreign social media companies with more than one million daily visits from users within Turkey to establish a representative in the country. The regulations further tighten the government’s control over freedom of expression online. Companies will be required to remove content within 48 hours of the government making such a request, or face fines up to $700,000. The law also maintained the data localization component that requires social media companies to store user data inside Turkey, raising serious concerns for user privacy (see B2).183

C7 1.00-5.00 pts0-5 pts

Are individuals subject to extralegal intimidation or physical violence by state authorities or any other 3.003 actor in retribution for their online activities? 5.005

Harassment of journalists on social media is a problem in Turkey. Since 2016, the International Press Institute (IPI) has collected records of at least 950 instances of abusive behavior against journalists online and 176 threats of violence.184 A Twitter account (@ustakiloyunlari) with over 100,000 followers has regularly smeared journalists and

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threatened to release personal information about them. Online speech on Islam or the prophet Muhammad, the Kurdish civil conflict, and even mild criticism of the president, government, or ruling party can result in death threats and legal battles. Citizen journalists and reporters for online news outlets risk assault in retaliation for their reporting.185

During the coverage period, a progovernment think tank called Political Economic and Social Research Foundation (SETAV) published a document reporting the private and personal information of journalists who work for international media organizations operating in Turkey with financial support from the European Union. Civil society groups, journalism circles, opposition parties, bar associations and many other institutions all denounced the report as seriously flawed and unethical.186 In the document, SETAV presented personal information of journalists in a criminalizing manner.187 The Journalists Union of Turkey filed a criminal complaint against SETAV, accusing the think tank of unlawfully profiling and targeting journalists. Many other journalism associations reacted strongly calling for a retraction to the document from publication.188

Intimidation of journalists through physical attacks also limits the plurality of voices in the media. During the previous reporting period, over a dozen journalists were physically assaulted, beaten, and subjected to gun violence for criticizing the governing alliance’s policies and prominent political figures. Despite international condemnations of these attacks, impunity in these cases is common and encourages further aggression towards journalists.189

House raids of journalists are common in Turkey. Critical journalist Nurcan Baysal announced on October 19, 2019, while she was abroad, that her house was raided at 5 am by dozens of anti-terror police due to her social media activity.190

Following an airstrike targeting Turkish soldiers deployed to Syria's Idlib Province in March 2020, three journalists from the Russian news agency Sputnik were attacked by a far-right group.191 The journalists were later detained. A young man who published an insulting video on his social media accounts regarding the death of Turkish soldiers later appeared in another video where he was violently arrested by special-ops forces as thousands of far-right supporters chanted for the young man to be tortured.192

During the Feminist Night March that took place on March 8, 2020, hundreds of thousands of women marched across Turkey. Despite the governorship banning the march in Istanbul,193 it still took place in areas surrounding the original venue. Social media posts were used for a smear campaign by progovernment media and troll armies, who engaged in the targeted harassment of march-goers through insults and online attacks.194

C8 1.00-3.00 pts0-3 pts

Are websites, governmental and private entities, service providers, or individual users subject to 1.001 widespread hacking and other forms of cyberattack? 3.003

News sites have frequently come under technical attack at politically sensitive moments or after publishing

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controversial information. Independent media platforms experienced digital attacks during the reporting period.

In July 2019, the blog and news site of journalist Fehmi Koru was inaccessible for around two days due to a cyberattack. Koru had published a blog post alleging that the head of the MHP, Devlet Bahçeli, had gained more authority by forming an alliance with the AKP. He was later criticized for the post by Bahçeli, who referenced Koru’s ties to Gülenists.195

Journalist Kenan Kırkaya, who was imprisoned and accused of promoting terrorism through his social media activities, stated that his Facebook account was hacked. Posts that are now the subject of the investigation into his activities were not posted by him as he did not have access to his account while in prison.196

Two journalists, Murat Ağırel and Batuhan Çolak, had their mobile phones hacked through a Signaling System 7 (SS7) breach, downgrading their connectivity from 4G to 2G service in February 2020.197 In March 2020, seasoned journalist Ayşenur Arslan's Twitter account was hacked by unidentified attackers.198 The hacking of these journalists’ accounts sparked discussion in technology circles and around GSM (global system for mobile communications) companies, which did not issue any statement regarding network security risk analysis or whether they take precautions against such incidents.199 The journalists whose phones, email, and Twitter accounts were hacked after posting tweets about the Turkish intelligence operatives losing their lives in Libya defined the incidents as “e-assault” and filed criminal complaints.200

The arts and culture news site Sanatatak suffered technical attacks in 2016 after publishing a letter supporting Turkish actress Füsun Demirel, who had declared that she had “wanted to be a [Kurdish] guerrilla” in her youth. The website was inaccessible for about 48 hours due to distributed denial-of-service (DDoS) attacks.201 While opposition news sites and Twitter accounts are frequently targeted by progovernment hackers, government ministers have also been affected. The 2016 penetration of the personal email account of Berat Albayrak by RedHack, a Turkish hacking group, yielded more than 57,000 messages from 2000 to 2016, including many that covered state affairs. The material was uploaded to Dropbox, OneDrive, GitHub, and Google Drive. In 2017, the BTK announced that the government would set up an army of “white-hat hackers” to defend Turkey online.202

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