Electronic crimes bill in conflict with rights, democracy: HRCP

LAHORE: Human Rights Commission of Pakistan (HRCP) has expressed grave concern that the Prevention of Electronic Crimes Bill's (PECB) 2016 adoption in its present form has immense ramifications for the practice of the Constitutional rights and fundamental freedom of expression, privacy, human rights and democracy in the country.

While we appreciate the committee for listening to the concerns of civil society on the matter, the government seems more interested in questioning the motives of civil society rather than appreciating their efforts, plugging loopholes and addressing flaws in the draft, the commission stated.

HRCP's cited main concerns regarding the PECB as various offences already defined under the Pakistan Penal Code and other laws have been redefined under PECB, often in conflict with other laws and almost always with harsher punishments and lenient processes. Several sections include vague and general formulations and contradictions. It is important to remove such provisions from the law.

Most alarmingly, PECB grants unchecked powers of censorship to Pakistan Telecommunications Authority (PTA), an executive body directly under government control. However, a body with such extensive powers has to be made completely independent of government control, which is not the case with PTA. A particularly grave concern is the lack of safeguards and checks on exercise of authority by investigative agency and PTA under the draft law. Absence of judicial and/or parliamentary oversight of the PTA and the power at its disposal in implementing the law can lead to potential abuse of authority and misuse of the law.

The commission noted that PECB contains various provisions that undermine or are in conflict with the various fundamental rights. Particularly, Sections 9, 18, 19, 22, 29, 34, 36 as well as several definitions of the Bill contain text that remains contrary to human rights and international best practices.

The commission listed the key recommendations made by civil society organisations advocating for improvements in the Bill as:

i. Revision of Section 9, regarding glorification of an offence, to remove the word 'accused' from the text to ensure that accused are not being treated as guilty. A proviso protecting artistic and political expression should also be included in this section.

ii. Section 10 requires extensive redrafting as it deals with an area related more to cyber security than cyber crime. In its current form, the provision does not properly define cyber terrorism and provides life sentence and Rs50 million as fine for offences primarily related to illegal access and misuse of critical data.

iii. Section 18 essentially duplicates provisions of Sections 499, 500 and 501 of PPC besides overlapping of several offences covered under Defamation Act, 2002. It also introduced conflicting punishments and does away with the defences given in PPC and Defamation Act. This section should be removed from the Bill.

iv. Section 19 should be bifurcated into two separate sections, one dealing with crimes against the minors and ensuring child protection against cyber crime. The other section dealing with victims who are not minors should be reviewed in line with human rights standards, should include malicious intent for culpability and contain a proviso protecting artistic and political expression. A formulation for this proviso submitted to the Senate standing committee by media development organisation Media Matters for Democracy addresses these concerns.

v. Section 22 deals with spamming, which internationally is not seen as a cyber crime. Currently this provision also makes vulnerable small business owners who might be dependent on sending marketing emails and SMS to publicise their services. Spamming should ideally be dealt with under PTA licencing agreements and Pakistan Telecommunication (Re-organisation) Act. However, if it has to be included in the PECB, it should be made a civil offence without criminal liability. An alternative formulation of this clause, submitted by digital rights organisation Bolo Bhi to both the Senate standing committee and to the relevant committee in the National Assembly, could be considered.

vi. Section 29, dealing with retention of traffic data, raises human rights and industry based concerns. From a human rights perspective, the retention of one year of traffic data without any determination of its protection, usage and eventual destruction, can lead to invasion of citizens' privacy. The rules of such retention have to be in line with international standards and protection mechanisms defining the use of this data have to be well-defined. The industry has also expressed concerns about the imposition of criminal liability and recommends dealing with this aspect under the terms of licencing agreements with PTA.

vii. Section 32, detailing the powers of an investigative officer, when read with various other sections of this law, opens up the possibility of abuse of power by investigative officers and agency. This section should be reviewed to include safeguards and citizens' protection against abuse of power must be ensured.

viii. Section 34 has remained the most vehemently opposed provision of this Bill. It has been universally denounced by all civil society groups. The provision borrows language from Article 19 of the Constitution, giving the power of interpreting Constitutional provisions to an executive authority, thereby, giving it the power to censor the digital media without any oversight. The section should be removed from this Bill in its entirety.

ix. Section 36 remains directly contradictory to surveillance procedures described in the Fair Trial Act. Real-time surveillance has extremely serious implications towards privacy rights of people. The section does not deal with these concerns properly and sets a very low threshold for an invasive way of gathering evidence. This section should abide by the standards set in Fair Trial Act. The section also legitimises the use of raw intelligence as evidence.

Raw intelligence or surveillance data should not be admissible in court as evidence of an offence and the powers given through this section should only be used to collect further evidence.