Internet Rights and Legislation in Pakistan: A Critique on Cyber Crime Bill 2016
By Haroon Baloch
The National Assembly (NA) of Pakistan has passed the controversial draft of the Prevention of Electronic Crimes Bill, 2016 (PECB)1 on April 13, 2016. The Government of Pakistan has faced much opposition to this legislation from various sections of society. Opposition parties including Pakistan Peoples Party (PPP), Pakistan Tehreek-e-Insaaf (PTI), Muttahida Qaumi Movement (MQM) and Awami National Party (ANP) maintained reservations over the draft bill during deliberation process in the NA’s Standing Committee on Information and Technology. Bytes for All, Pakistan and its partner Association for Progressive Communication already expressed their serious concerns on the Prevention of Electronic Crimes Bill (PECB) 2016 regarding the provisions violating freedoms2.
Bytes for All, Pakistan has been engaging with different stakeholders on this Bill, and in one of its advocacy efforts on PECB 2016 at national level, senators and media professionals in Islamabad were invited to deliberate on its critical sections. In the meanwhile, it also has worked on a detailed issue paper on the draft passed by National Assembly, which is accessible on following link:
PECB aims at restricting internet freedoms including freedom of speech, access to information, rights to privacy, peaceful assemblies online and of association. The bill contains several sections open to vague interpretation, leaving enough room for abuse and misuse by the authorities as well as vests them with complete control of information shared on the internet and legitimized surveillance. If the bill is enacted as a legislation users of the internet could be targeted for political and/or ideological reasons and for expressing dissent.
The Preamble of the bill indicates that the scope of the law is very wide as it deals with the investigation, the whole process of trial, prosecution and most impo
rtantly it talks about the international cooperation, as it provides mechanism for the trial of offences under the law. The preamble also clarifies that it is not only a substantive law but also the procedural law.
PECB 2016 is also problematic as suspects accused of a cyber crime are assumed guilty until proven innocent. Given that the law creates new offences, increases the gravity of existing offenses and has increased penalties in terms of imprisonment and fines. It is very much necessary that legislators review this legislation with care and caution.
While the stated objective of the bill is to counter ICT driven crimes in the country, but most of the provisions aim at shutting down the free exchange of expression and opinion on the internet. The bill must be redrafted explicitly to address crimes and not criminalise expression and associated fundamental rights.
Further, several provisions of the legislation have vague, ambiguous and broad words which have been drafted loosely leaving too much room for interpretation. In an environment where the rule of law is as such compromised such legislations will pave the way for rights’ abuse. These complications will ultimately result in backlogs of cases adding to the strain of trial courts as well as the apex court. Similarly, the complex and ambiguous language would also create great difficulties for the common person using the internet as there is an uncertainty of what acts would constitute an offence.
For instance, the bill in Section 2 talks about misuse of digital gadgets and unauthorized access to information under Sections 3 to 8. Section 9 criminalises glorification of ‘crime’ and Section 10 declares ‘cyber-terrorism’ as an offence. Offences against dignity and modesty of natural persons and minor under sections 18 and 19, as well as cyber-stalking and spoofing under sections 21 and 23, are also vague. None of these terms have been clearly defined and as a result can be interpreted to include many things and, and anything should the State choose to criminalise a particular act or person.
More particularly, the bill criminalises the production, distribution and use of encryption technology under Sections 13 and 16. This provision compromises freedom of expression and privacy of individuals. Especially when commenting on political, religious and social issues that may be controversial, persons need the comfort of anonymity and encryption. Whistle-blowers, human rights defenders, and journalists in Pakistan as such work in very dangerous and challenging circumstances, by denying them access to encryption, their data and sources would become vulnerable and they may be subjected to surveillance. Section 13 also criminalizes the making, obtaining or supplying of devices for use in an offence. In essence, this prevents and penalizes programmers, coders and techies assisting in the creation of encryption tools, which can have a stifling effect on secure communication for those dealing with controversial issues in their profession.
Sections 3 to 8 of this bill criminalize “unauthorized access” to information and the vague drafting of these sections make them highly susceptible to broad interpretation. These provisions will impede the work of civil society as well as journalists particularly working on accountability issues in Pakistan.
Similarly, Section 10 of the Bill provides, “Whoever commits or threatens to commit any of the offences under sections 6, 7, 8 or 9, where the commission or threat is with the intent to: (a) coerce, intimidate, create a sense of fear, panic or insecurity in the government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society; or (b) advance inter-faith, sectarian or ethnic hatred.” This would essentially mean that dissent and freedom of assembly and association online could be targeted in the name of public order. In an age where HRDs and journalists are increasingly using the internet and social media for rights’ promotion, dissemination of information and advocacy, their legitimate work and expression may be construed as threatening order and creating chaos.
Furthermore, Section 34 provides for arbitrary blocking and removal of the content which violates the right to information, as well as freedom of expression of persons by promoting censorship. This is in direct violation of international as well as constitutional guarantees. This section provides the Pakistan Telecommunication Authority (PTA), an executive body blanket powers when it comes to blocking and removing content. This replaces judicial action with executive decision thereby preventing scrutiny and opportunity for redressal.
On the other hand, Section 39(2) allows the federal government to transfer citizens data collected in forms of audio, video, images, text, or any digital format to foreign governments or agencies without seeking prior permission from a judicial authority in the name of international cooperation. This violates the right to privacy of persons and prevents them from having recourse. Although, such practice is currently exercised by the government of Pakistan, however, approval of the said bill (with its current text) will give this act legitimacy.
Finally, in addition to Section 45, which provides for broad punitive measures, many provisions of the bill heighten punishment for supposed acts of crime which may extend up to 14 years of imprisonment and 50 Million Rupees in fines. Such harsh punishments violate the rule of proportionality and will have a chilling effect on rights and freedoms.