The new Prevention of Electronic Crimes Bill 2015 drafted behind "closed doors" raises suspicions about who it is supposed to serve
Despite serious reservations of stakeholders, the draft of the ‘feared’ Prevention of Electronic Crimes Bill 2015 has been passed by the National Assembly’s Standing Committee on Information Technology. Now it will be discussed on the floor of the National Assembly by the members prior to its approval.
The draft bill was sent by the IT Ministry to the Standing Committee of the NA for review and approval around the start of this month.
There was no update on its status till Tuesday (April 14) when Anusha Rahman, the Minister of State for Information Technology, abruptly announced during an event that the government had finalised the cybercrime bill. Talking to the media present on the occasion, she added that the proposed law was in line with the implementation of the National Action Plan to counter terrorism, with severe penalties proposed for offenders.
There were strong reservations against the bill which had reportedly been revised by the Cabinet division without consulting the stakeholders. These stakeholders -- including internet users, IT industry, print and electronic media, academia, research and development sector, legal fraternity etc -- had drafted a mutually agreeable cybercrime bill in consultation with the government last year.
No doubt Pakistan direly needs a cybercrime law to tackle electronic crime cases, which cannot be investigated and pursued without proper laws. Pakistan did have the 2007 Pakistan Electronic Crime Ordinance which lapsed in 2009. Despite the need for such a law, the announcement has shocked many. The way the proceedings of the NA Standing Committee were kept secret and the changes made in the original draft approved, have perturbed many.
Barrister Zahid Jamil, who was involved in the drafting of the original 2014 bill, says: "The new draft tends to help cyber criminals and terrorists apart from being both technically and legally unsound. It has been amended by people who are not legal or internet experts and therefore has many loopholes." Jamil, who has been advising several countries on cybercrime legislation for the European Union and the Cybercrime Treaty, says Pakistan has suffered much because of laws that are open to abuse and misinterpretation and the said law is one of these.
The flaws identified by him include inappropriate definitions, improper legal language, lack of properly defined procedures, vague terms and too much discretionary powers vested with the investigating officers etc. His point is that as the draft is incompatible with international laws on cybercrime, the possibilities of international cooperation in this regard will be extremely limited. As governments have to sign agreements for international cooperation on crimes, the laws must synch with each other and have procedures that overlap.
Dr Muhammad Farooq Sattar, MQM MNA and member of the NA Standing Committee on IT headed by PML MNA Capt (retd) Muhammad Safdar, supports the legislation on cybercrime prevention in principle, provided it does not infringe on people’s basic rights.
Talking to TNS from London, he says his party has zero tolerance for people involved in cybercrime and acts like hacking and threats delivered online but it is also deeply concerned about the safety of innocent Internet users. He says there are some ambiguities in the said bill that make people vulnerable to criminal accusation and they [MQM] think these should not have been there.
Sattar adds he could not focus fully on the developments in this regard due to his overwhelming engagements in party affairs and its re-organisation. However, he says, there is still room for debate and his party will give positive input to make the cybercrime bill non-controversial, people-friendly and anti-criminal in its true sense.
Wahaj Siraj, Convener, Internet Service Providers Association of Pakistan (ISPAK), tells TNS that there are several clauses of the bill that seriously affect civil liberties and create problems for people associated with IT-based businesses.
Citing a few, he says, in sections 17 and 18, political criticism and political expression in the form of analysis, commentary, blogs and cartoons, caricatures, memes, etc., has been criminalised and ‘obscene’ or ‘immoral’ messages on Facebook, Twitter, etc., have been made offenses as per Section 20, without defining ‘obscenity’ or ‘immorality,’ thus giving sweeping powers to investigating agencies to implicate anyone on these charges. Drawing cartoons and caricatures will be punishable as the draft does not allow anybody to ‘distort the face’ of a person.
Similarly, he says as per section 20, posting of photograph of any person on Facebook or Instagram without their permission is an offence and sending an email or message without the recipient’s permission will become an offence as per section 21. Spam is not a criminal offence in any part of the world but it will become one in Pakistan, he adds.
Besides, Siraj says, section 31 gives the government/Pakistan Telecommunication Authority unfettered powers to block access or remove speech not only on the Internet but transmitted through any device, limiting the media’s freedom and citizens’ right to expression. The worst part of the story is that the intent of the accused will not be taken into account and mere committal of a prohibited act will make him punishable.
Furhan Hussain from Bytes 4 All, an Islamabad-based organisation working for digital rights, fears what may see the light of the day as the implemented cybercrime legislation in Pakistan is a matter of grave concern. This, he says, is because the final version of the bill has been developed behind closed doors for an unknown audience, and the civil society and IT industry stakeholders had both openly rejected the last publicly-available draft of the bill.
He says though there are several other problematic areas, section 31 of the bill poses a direct threat to freedom of expression online, giving arbitrary powers to whoever the government deems fit to censor content. It states: "The Authority or any officer authorised by it in this behalf may direct any service provider, to remove any intelligence or block access to such intelligence, if it considers it necessary in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, commission of or incitement to an offence."
Hussain adds they also have concerns pertaining to the modified definition of service providers, which increases in scope the potential for all people or establishments such as offices, malls, and restaurants facilitating access to the Internet to fall under a blanket monitoring regime. All these will have to bear additional burden of retaining traffic data that has been placed on them -- and they can be punished for not doing so. Similarly, he says, many offenses are based on issues of morality, obscenity and other vague terms that are open to arbitrary interpretation. Fundamental principles of law, such as requiring intent, especially malicious intent to be established for conviction, have also not been followed.
Farieha Aziz, Director Bolo Bhi -- a not-for-profit organisation working on internet access, digital security and privacy -- says the bill has been approved in a hurry by the NA Standing Committee and without listening to the opposition members. She says out of the 20 or so members of the committee, 14 belonged to PML-N who did not listen to any of the reservations of their co-members." Ali Raza Abidi of MQM and Shazia Marri of PPP were the biggest opponents of this law in this shape," she says.
Aziz says in the new draft investigation officers have been given sweeping powers to implicate people in cybercrimes without following a due process. "The draft in its original form would make it binding on an investigating officer to explain it in writing to a court of law as to why he wanted to initiate proceedings against a cybercrime suspect. But now the burden of proof has shifted to the accused that will be considered guilty till the time he proves his innocence. This is against the desired norms of law," she adds.
Aziz hopes there will be opposition to objectionable clauses in the NA. In case, the draft is passed by the NA it will be sent to the Senate where they hope the government will get a really tough time, she says.
Though the criticism against the said bill is increasing by the day, there are a few aspects which may come as relief for ordinary citizens. As H M Shahid Ghani, a Lahore-based Advocate puts it the clause about unauthorised use of identity information offers relief to people suffering from infringement on their privacy. The clause states: "Whoever obtains, sells, possesses, transmits or uses another person’s identity information without authorisation shall be punished with imprisonment for a term which may extend to three years or with fine up to five million rupees, or with both.
Spamming, he says, is also prohibited under the proposed law that states: "A person engaged in direct marketing shall provide the option to the recipient of direct marketing to block or unsubscribe to such marketing."