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Prevention of Electronic Crimes, Laws must regulate, not strangulate

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On August 11, 2016, the National Assembly passed the controversial Prevention of Electronic Crimes Bill (PECB) 2015 after the Senate of Pakistan had unanimously adopted it on 29th of July after successful negotiations between the government’ and the opposition in the parliament. The bill is yet to receive the Presidential assent. The ‘draconian’ bill has been heavily criticised by the IT industry, civil society organisations and rights activists for curbing human rights and giving overreaching powers to law-enforcement agencies.

Introduction

The passage of the Prevention of Electronic Crimes Bill, by the Parliament has ignited a debate in the country about the intentions behind the implementation of this law. The Bill has been received with a widespread criticism by the IT industry as well as civil society because they see it as a mechanism to curb basic human right of freedom of speech. They assert that it will be detrimental to personal liberties in the country as it gives extraordinary powers to the law-enforcement agencies. On the other hand the legislators in the Senate, like Leader of the Opposition in the Senate, Senator Aitzaz Ahsan, believe that they had proposed better amendments to the Bill as a section was incorporated for parliamentary oversight over the bill besides strengthening of judicial oversight. Minister of State for Information Technology and Telecommunication, Anusha Rehman, opines that the law will “effectively deal with cyber crimes throughout the country.”

Need for Cyber Law

There is no denying the fact that a society is best governed when there is the supremacy of law. Like many other fields of life, the cyber world also needs to be regulated through laws which ensure that this boon does not become a bane. However, the first question that pops up in mind is that why we need cyber laws at all, whether there is actually a need for a separate field of law to cover cyberspace and that isn’t conventional law adequate to cover cyberspace?

The answer to this question is that the advent of the internet has effected numerous revolutionary changes in all aspects of life. Moreover, a plethora of video-sharing sites like YouTube, etc., social networking sites like Facebook, Twitter, Snapchat, etc., have altogether changed the very concept of mortal life as they have created a virtual world where people remain in touch with others round the clock. At present, it is estimated that a major part of the global population — nearly one-fourth of it — have access to the internet with the numbers rapidly increasing.

So, owing to a great dependence of cyberspace on informatics and telecommunication for almost every activity and service, it’s extremely dangerous to ignore the growing phenomenon of cyber crimes and the increasing number of threats to citizens’ lives and activities as well as governmental systems.

Moreover, easy access to social media sites has provided the rogue elements and criminals with new venues to fulfil their nefarious designs. Those who are out to forcefully ‘enforce’ their own brand of religion, those who propagate religious hatred and thus create unrest and chaos in the people, those who indulge into reprehensible practices of blackmailing others through fake identities, those who fleece people of money through fake schemes and projects in form of online marketing, and last but not least, those who indulge into immoral practices of pornography and such other despicable acts need to be brought to justice for every wrongdoing they commit. Like many other countries of the world, these ills have plagued Pakistan too. Since Pakistan hitherto had no law to comprehensively deal with the growing threat of cyber crimes and the existing telecommunication laws had no such provisions to deal with traditional online crimes, a completely new and comprehensive legal framework that focuses on online conduct of individuals/organisations in the virtual world was direly needed. So, we needed to formulate new laws in order to arm the state with tools that will help it in dealing with the growing cases of cyber crimes in Pakistan.

Salient features of bill

1. Up to three years imprisonment, Rs1 million fine or both for unauthorised access to critical infrastructure information system or data
2. The government may cooperate with any foreign government, foreign or international agency, organisation or 24×7 network for investigation or proceedings relating to an offence or for collecting evidence
3. The government may forward any information to any foreign government, 24×7 network, foreign or international agency or organisation any information obtained from its own investigation if the disclosure assists their investigations
4. Up to seven years, Rs10 million fine or both for interference with critical infrastructure information system or data with dishonest intention
5. Up to seven years, Rs10 million fine or both for glorification of an offence relating to terrorism, any person convicted of a crime relating to terrorism or proscribed individuals or groups. Glorification is explained as “depiction of any form of praise or celebration in a desirable manner”
6. Up to six months imprisonment, Rs50 thousand or both for producing, making, generating, adapting, exporting, supplying, offering to supply or importing a device for use in an offence
7. Up to three years imprisonment, Rs5 million fine or both for obtaining, selling, possessing, transmitting or using another person’s identity information without authorisation
8. If your identity information is used without authorisation, you may apply to the authorities to secure, destroy or prevent transmission of your information

Criticism

1. Vagueness & Ambiguities

The law, in effect, has numerous vaguely-defined crimes which apparently are intended to leash the power of social media, given its increasingly transformational role in shaping public opinion and holding rulers accountable. For instance, it talks of the offence of “child pornography”, but there is no word about those who spread pornographic material and contribute toward the degeneration of the social values of our society.

Besides, the law dealing with criminal access to “critical infrastructure” information conveniently leaves “critical infrastructure” undefined. Similarly, the clause regarding violation of the dignity of a natural person can be easily stretched to target political opponents. The law rightly bars superimposing the face of a natural person on sexually explicit images but then stretches to also rope in those who distort the natural face.

Vaguely defined crimes like the illegal use of internet data or tampering with mobile phones carry jail sentences of up to three years.

2. Mechanisms for Implementation

Mechanisms for implementation are missing from this bill. The authority has to frame rules after this becomes law. It is a vague thing; there is no mechanism for the working of the authority, so they have to chalk out these rules. It may take them two, three or four years to do this.

3. Freedom of Speech

It is the state’s responsibility to protect the right to information and freedom of expression of its citizens. But these rights have been curtailed in the bill as it could not strike a balance between freedom of expression and regulations. The Human Rights Commission of Pakistan (HRCP) has raised ‘grave concerns’ over the law by noting that it is a threat to constitutional rights; freedom of expression, privacy, human rights and democracy. The law does, in fact, prescribe harsh punishments with an ill-defined process of how an investigation will take place.

Democracy does not allow the basic right of freedom of speech to be curbed in any way. A minority opinion holds weight just as a majority opinion does.

4. Censorship

The bill did not distinguish between telecom offences and cyber crimes, which as a consequence had increased the liability placed on businesses and service providers. This had led to an increase in censorship on social media and other platforms as well, which are important tools for citizen awareness and collection action.

5. Cybercrime vs. Cyber-terrorism

Confusion prevails on the issues of cybercrime and cyber-terrorism which needs to be cleared because a relatively high punishment had been prescribed for cyber crime. It is despite the fact that no change has been made in the controversial definition of what exactly constitutes cyber-terrorism or spreading hate material.

6. PTA’s Powers

A sizeable objection remains at the freedom and extent of powers granted to the Pakistan Telecommunication Authority (PTA), that can block any website on the complaint of any citizen after “thoroughly” examining the activity and the PTA is also authorised to reopen any website. The amendments in the bill hope to address the lack of clarity as to what constitutes an offence under the bill and gives a clear picture of the degree of sentences awarded for the varying offences. Although the bill is stringent, a cyber crime law is required to address these crimes that go unchecked. But that does not mean that PTA should be allowed an uninhibited reign in the online space.

7. Implementation Challenge

Although a restriction on incitement of violence and defamation is appreciable, yet who will set the line? A person might consider a statement derogatory, but the other person might not feel the same. In a country where there are sympathisers of questionable organisations and sectarian outfits, the implementation of this law in its true sense will be a herculean task.

Conclusion

It is indubitably true that a law on cyber crimes was the need of the hour and no one has ever argued against the need for a cyber crimes law. But we need to recognize that the domain of cyberspace is immense, and so are its possibilities of good and bad. Moreover, social media is continuously evolving and warrants an equally dynamic set of carefully framed laws. Regulation, not strangulation, should be the spirit and laws must not stifle free opinion, debate and access to information. Although it is an important step toward regulating the digital world, the lawmakers need to lend a sympathetic ear to the constructive criticism offered by civil society and human rights groups.

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