The proposed Prevention of Electronic Crimes Bill 2015 drafted by the Ministry of Information Technology and Telecommunications is being castigated for its ambiguous verbiage and ‘draconian’ tendencies of unwarranted censorship. It is believed that if the bill is passed in its existing form, the government would have the clout to block websites, and breach citizens’ privacy, at will.
The government is being accused of using the pretext of ‘terrorism’ and ‘National Action Plan (NAP)’ to silence political speech, with poorly worded clauses pertaining to Penal Code crimes creating apprehension with regards to a potential hike in blasphemy allegations, instead of countering hate speech.
Flashback
The Musharraf-introduced Pakistan Electronic Crime Ordinance (PECO) lapsed in 2009, two years after it was introduced. PECO was castigated by industry leaders for giving excessive powers to the Federal Investigation Agency (FIA). Internet Service Providers Association (ISPAK) and Pakistan Software Houses Association (P@SHA) spearheaded the efforts to introduce PECO as an act.
Last year the Ministry of IT and Telecommunications hosted meetings to finalize the industry stakeholder draft for the act. The meetings were attended by representatives of P@SHA and ISPAK, without any participation of the civil society. The draft was sent to the Cabinet Division, where it has been significantly modified.
“We were informed the bill was being presented before the National Standing Committee for approval, and one of the MNAs asked us to send in any reservations if we had any, which we did,” says Farieha Aziz, Director of Bolo Bhi, a not-for-profit organisation advocating for government transparency, internet access, digital security and privacy.
“After this, a sub-committee was formed to work on the bill. Bolo Bhi held consultations with industry and civil society members, and technical experts,” she adds.
Aziz continues, “The National Assembly’s Standing Committee on IT constituted a sub-committee but since then only a government-led committee has been reviewing and modifying the draft. This was expressed recently by MNA Shazia Marri and Senator Mushahid Hussain in the presence of Minister Anusha Rahman on Hamid Mir’s show, saying the bill has not been shared with them. Ask any MNA on the committee who does not belong to PML-N and they will tell you the same thing.”
“Parliamentarians in opposition have been kept in the dark about it,” she claims.
Poorly phrased
The modified Prevention of Electronic Crimes Bill 2015 has been criticised for being “poorly phrased” and having “ambiguous” verbiage, ostensibly to ensure that the government can interpret the bill to block websites at will.
“The wording is certainly wide enough to be all encompassing and prone to abuse,” says Gul Bukhari from Bytes for All, a human rights organization and research think-tank with a focus on Information and Communication Technologies
“Very significantly, exceptions have not been identified to exclude any threat to human rights.” she adds.
“This is a conscious attempt to ensure that the state can take action against a wide array of people,” says Ale Natiq, blogger, human rights activist and founder of Roshni, a popular Urdu language social platform, whose website was blocked by PTA in 2010.
“It leaves it open for the state to criminalize literally anyone, especially those who use the internet to campaign for human rights,” he adds.
Natiq further says, “Roshni’s website was banned only because we published an academic essay which shared details and stats around the blasphemy cases registered in Pakistan and the debate on the subject from a jurisprudence point of view.”
Get Out of Jail Free card
Article 31, of the proposed bill, which is the major bone of contention, reads: “The Authority or any officer authorized 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.”
The government is yet to come up with guidelines to define terms like ‘glory of Islam’ or ‘morality/decency’, and that till those guidelines are issued it will have complete authority over deciding what is moral or ‘against Islam’ and what isn’t.
“This section is such a blatant effort at controlling any or all information by the government it is not even funny,” says Bukhari. “It’s a ‘Get out of Jail Free’ card to censor at will with impunity,” she adds.
Natiq claims that the move epitomises the PTA’s recent manoeuvres.
“The PTA has been acting for a very long time as a body without a set of standard operating procedures. A rejection or criticism of a state policy, campaigning against blasphemy laws can both be covered under this legislation to criminalise people.”
“Looking at this new legislation, it adds nothing to those shortcomings so this is not a step in the right direction,” he adds.
“Our Facebook page keeps on getting blocked and we are now operating from fourth version of the page. Apparently, PTA only relies on number of email complaints received by users and blocks just any website or a URL.”
Devil in the Detail
Aziz highlights that the language used in the bill will up the ante on government surveillance.
“Notice how Article 31 doesn’t say ‘content’; it says intelligence. ‘Intelligence’ has been picked up from the PTA act. Intelligence means data, sound, etc. Hence, this isn’t just about the internet anymore.”
Aziz continues, “Intelligence through any information system includes your phone and your laptop. Any such medium, they will be able to prevent access to or just simply block.”
Bukhari is equally concerned about privacy being breached.
“With the Fair Trial Act 2013 (FTA 2013), the government took away your and my right to privacy, whereby it may monitor us on mere suspicion without following or establishing the ‘probable cause’ standard.”
Bukhari adds that, “The FTA 2013 is in direct contravention of the constitution of Pakistan which guarantees privacy to citizens. Indeed, Bytes for All has challenged in the Lahore High Court, but not a single hearing has been fixed for the past year and a half or more. Now with Section 31 of this bill, the government seeks to legalise censorship, again in contravention of the right to access information guaranteed by the constitution. And the beauty is, that Section 7 and 8 of this bill seek to criminalise any resistance to the government’s overreach.”
Cyber Terrorism
The Bill defines “critical infrastructure information system or data” as “any information system, program or data that supports or performs a function with respect to a critical infrastructure” and “critical infrastructure” as “the infrastructures so designated by any Government in Pakistan and such other assets, systems and networks, whether physical or virtual, so vital to the State or its organs including judicature that their incapacitation or destruction may have a debilitating effect on national security, economy, public health, safety or matters related thereto.”
Bukhari is sceptical.
“Clearly, to my mind, ‘critical infrastructure’ is so defined that it can include surveillance and/or internet blocking software being deployed by the government. Hence, Section 7 potentially criminalizes circumvention of surveillance by citizens as well as any attempts at bypassing censorship of the Internet by the government, with these ‘crimes’ punishable by up to seven years in prison.”
Section 8 of the bill enhances the punishment to 14 years in prison by labelling the same crimes as in Section 7 as ‘cyber terrorism’. Hence, a cyber-terrorist is anyone who commits, or threatens to commit, any of the offences under sections 5 and 7 where:
(a) The use or threat is designed to coerce, intimidate, overawe or 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) The use or threat is made for the purpose or motive of advancing a religious, ethnic or sectarian cause.
“Please note that commitment of a crime is not necessary to put someone away for 14 years,” Bukhari points out.
“My question here: If I use software to circumvent government surveillance, will the government feel ‘overawed’? Or if I circumvent internet blocking and access and circulate information on the state’s activities vis-a-vis the Balochistan problem, will I be creating ‘a sense of fear, panic or security’ and be charged with a crime?”
National Action Plan
“There were certain offences that were built in after the bill went to the ministry, ostensibly to align it with the National Action Plan (NAP),” Aziz says.
She believes that the government is using ‘NAP’ and ‘terrorism’ as an excuse to ensure that it retains the clout to block internet data to suit its own agenda.
“The IMCW has been there since 2006. Terrorism isn’t a new problem. A list of 64,000 websites that have been blocked, has been submitted – most of them for pornography and blasphemy – if terrorism is the reason behind the censorship why do we not see any of the websites affiliated with banned militant outfits? Instead they block IMDB, Instagram, Wordpress or Laal Band’s Facebook page, etc.”
Aziz adds, “The IT Minister said on Hamid Mir’s show that the stay order is barring them from blocking websites. A couple of days later WordPress was blocked.”
She further highlights how blocking websites is not a productive counterterrorism strategy.
“Once a website is removed, how difficult is it to create a new one? YouTube is blocked in Pakistan but it’s still available through a proxy – so what’s the point?” she exclaims.
“PTA should block websites so long as it submits a list and its reasoning to the court – but none of that is happening.”
An overview of the proposed bill suggests that the government is trying to arbitrarily set up a body and empower it with ‘investigative’ authority and the power to make verdicts on what should and shouldn’t be banned. Either that or the federal government wants those decisions to be left at its discretion, ostensibly in accordance with the NAP.
“The committee that was disbanded is now trying to unconstitutionally recreate the law, which makes no sense. Because the executive can’t make those decisions,” Aziz says.
Bukhari is concerned that ISI hasn’t been named.
“My biggest concern here is that the ISI has not been named as an agency that may not conduct investigations. And the reason for that is that it is already beyond the reach of the law, unanswerable to any person or institution. Further, it has no moorings in any law of the land. Thus, any investigations it conducts would be unacceptable.”
Blasphemy quagmire
Article 22 of the proposed bill reads: “The provisions of the Pakistan Penal Code 1860 (XLV of 1860), to the extent not inconsistent with anything provided in this Act, shall apply to the offences provided in this Act.”
This means all that Penal Code offences will be cyber-crimes, including blasphemy. How would the already high frequency of unsubstantiated blasphemy accusations be affected by this?
“Several hundred cases are registered under blasphemy laws every year, which according to data are only used for political aims or to settle personal scores. This particular legislation will open the gates further to trap anyone with little evidence,” says Natiq.
“The legislation fails to define what blasphemy really is. The case of Junaid Hafeez has left a series of questions unanswered,” he added.
Bukhari, however, asserts that the problem lies with the Penal Code provisions and not the Cyber Crime bill.
“That is a problem with the Penal Code provisions on blasphemy, not with Section 22 aiming to define the same crimes as crimes if committed in cyberspace.”
The government is being accused of using the pretext of ‘terrorism’ and ‘National Action Plan (NAP)’ to silence political speech, with poorly worded clauses pertaining to Penal Code crimes creating apprehension with regards to a potential hike in blasphemy allegations, instead of countering hate speech.
Flashback
The Musharraf-introduced Pakistan Electronic Crime Ordinance (PECO) lapsed in 2009, two years after it was introduced. PECO was castigated by industry leaders for giving excessive powers to the Federal Investigation Agency (FIA). Internet Service Providers Association (ISPAK) and Pakistan Software Houses Association (P@SHA) spearheaded the efforts to introduce PECO as an act.
Last year the Ministry of IT and Telecommunications hosted meetings to finalize the industry stakeholder draft for the act. The meetings were attended by representatives of P@SHA and ISPAK, without any participation of the civil society. The draft was sent to the Cabinet Division, where it has been significantly modified.
“We were informed the bill was being presented before the National Standing Committee for approval, and one of the MNAs asked us to send in any reservations if we had any, which we did,” says Farieha Aziz, Director of Bolo Bhi, a not-for-profit organisation advocating for government transparency, internet access, digital security and privacy.
“After this, a sub-committee was formed to work on the bill. Bolo Bhi held consultations with industry and civil society members, and technical experts,” she adds.
Aziz continues, “The National Assembly’s Standing Committee on IT constituted a sub-committee but since then only a government-led committee has been reviewing and modifying the draft. This was expressed recently by MNA Shazia Marri and Senator Mushahid Hussain in the presence of Minister Anusha Rahman on Hamid Mir’s show, saying the bill has not been shared with them. Ask any MNA on the committee who does not belong to PML-N and they will tell you the same thing.”
“Parliamentarians in opposition have been kept in the dark about it,” she claims.
Who will define 'glory of Islam', 'morality' and 'decency'?
Poorly phrased
The modified Prevention of Electronic Crimes Bill 2015 has been criticised for being “poorly phrased” and having “ambiguous” verbiage, ostensibly to ensure that the government can interpret the bill to block websites at will.
“The wording is certainly wide enough to be all encompassing and prone to abuse,” says Gul Bukhari from Bytes for All, a human rights organization and research think-tank with a focus on Information and Communication Technologies
“Very significantly, exceptions have not been identified to exclude any threat to human rights.” she adds.
“This is a conscious attempt to ensure that the state can take action against a wide array of people,” says Ale Natiq, blogger, human rights activist and founder of Roshni, a popular Urdu language social platform, whose website was blocked by PTA in 2010.
“It leaves it open for the state to criminalize literally anyone, especially those who use the internet to campaign for human rights,” he adds.
Natiq further says, “Roshni’s website was banned only because we published an academic essay which shared details and stats around the blasphemy cases registered in Pakistan and the debate on the subject from a jurisprudence point of view.”
Get Out of Jail Free card
Article 31, of the proposed bill, which is the major bone of contention, reads: “The Authority or any officer authorized 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.”
The government is yet to come up with guidelines to define terms like ‘glory of Islam’ or ‘morality/decency’, and that till those guidelines are issued it will have complete authority over deciding what is moral or ‘against Islam’ and what isn’t.
“This section is such a blatant effort at controlling any or all information by the government it is not even funny,” says Bukhari. “It’s a ‘Get out of Jail Free’ card to censor at will with impunity,” she adds.
Natiq claims that the move epitomises the PTA’s recent manoeuvres.
“The PTA has been acting for a very long time as a body without a set of standard operating procedures. A rejection or criticism of a state policy, campaigning against blasphemy laws can both be covered under this legislation to criminalise people.”
“Looking at this new legislation, it adds nothing to those shortcomings so this is not a step in the right direction,” he adds.
“Our Facebook page keeps on getting blocked and we are now operating from fourth version of the page. Apparently, PTA only relies on number of email complaints received by users and blocks just any website or a URL.”
Devil in the Detail
Aziz highlights that the language used in the bill will up the ante on government surveillance.
“Notice how Article 31 doesn’t say ‘content’; it says intelligence. ‘Intelligence’ has been picked up from the PTA act. Intelligence means data, sound, etc. Hence, this isn’t just about the internet anymore.”
Aziz continues, “Intelligence through any information system includes your phone and your laptop. Any such medium, they will be able to prevent access to or just simply block.”
Bukhari is equally concerned about privacy being breached.
“With the Fair Trial Act 2013 (FTA 2013), the government took away your and my right to privacy, whereby it may monitor us on mere suspicion without following or establishing the ‘probable cause’ standard.”
Bukhari adds that, “The FTA 2013 is in direct contravention of the constitution of Pakistan which guarantees privacy to citizens. Indeed, Bytes for All has challenged in the Lahore High Court, but not a single hearing has been fixed for the past year and a half or more. Now with Section 31 of this bill, the government seeks to legalise censorship, again in contravention of the right to access information guaranteed by the constitution. And the beauty is, that Section 7 and 8 of this bill seek to criminalise any resistance to the government’s overreach.”
Cyber Terrorism
The Bill defines “critical infrastructure information system or data” as “any information system, program or data that supports or performs a function with respect to a critical infrastructure” and “critical infrastructure” as “the infrastructures so designated by any Government in Pakistan and such other assets, systems and networks, whether physical or virtual, so vital to the State or its organs including judicature that their incapacitation or destruction may have a debilitating effect on national security, economy, public health, safety or matters related thereto.”
Bypassing surveillance or censorship may be punishable by up to seven years in prison
Bukhari is sceptical.
“Clearly, to my mind, ‘critical infrastructure’ is so defined that it can include surveillance and/or internet blocking software being deployed by the government. Hence, Section 7 potentially criminalizes circumvention of surveillance by citizens as well as any attempts at bypassing censorship of the Internet by the government, with these ‘crimes’ punishable by up to seven years in prison.”
Section 8 of the bill enhances the punishment to 14 years in prison by labelling the same crimes as in Section 7 as ‘cyber terrorism’. Hence, a cyber-terrorist is anyone who commits, or threatens to commit, any of the offences under sections 5 and 7 where:
(a) The use or threat is designed to coerce, intimidate, overawe or 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) The use or threat is made for the purpose or motive of advancing a religious, ethnic or sectarian cause.
“Please note that commitment of a crime is not necessary to put someone away for 14 years,” Bukhari points out.
“My question here: If I use software to circumvent government surveillance, will the government feel ‘overawed’? Or if I circumvent internet blocking and access and circulate information on the state’s activities vis-a-vis the Balochistan problem, will I be creating ‘a sense of fear, panic or security’ and be charged with a crime?”
National Action Plan
“There were certain offences that were built in after the bill went to the ministry, ostensibly to align it with the National Action Plan (NAP),” Aziz says.
She believes that the government is using ‘NAP’ and ‘terrorism’ as an excuse to ensure that it retains the clout to block internet data to suit its own agenda.
“The IMCW has been there since 2006. Terrorism isn’t a new problem. A list of 64,000 websites that have been blocked, has been submitted – most of them for pornography and blasphemy – if terrorism is the reason behind the censorship why do we not see any of the websites affiliated with banned militant outfits? Instead they block IMDB, Instagram, Wordpress or Laal Band’s Facebook page, etc.”
Aziz adds, “The IT Minister said on Hamid Mir’s show that the stay order is barring them from blocking websites. A couple of days later WordPress was blocked.”
She further highlights how blocking websites is not a productive counterterrorism strategy.
“Once a website is removed, how difficult is it to create a new one? YouTube is blocked in Pakistan but it’s still available through a proxy – so what’s the point?” she exclaims.
“PTA should block websites so long as it submits a list and its reasoning to the court – but none of that is happening.”
An overview of the proposed bill suggests that the government is trying to arbitrarily set up a body and empower it with ‘investigative’ authority and the power to make verdicts on what should and shouldn’t be banned. Either that or the federal government wants those decisions to be left at its discretion, ostensibly in accordance with the NAP.
“The committee that was disbanded is now trying to unconstitutionally recreate the law, which makes no sense. Because the executive can’t make those decisions,” Aziz says.
Bukhari is concerned that ISI hasn’t been named.
“My biggest concern here is that the ISI has not been named as an agency that may not conduct investigations. And the reason for that is that it is already beyond the reach of the law, unanswerable to any person or institution. Further, it has no moorings in any law of the land. Thus, any investigations it conducts would be unacceptable.”
Blasphemy quagmire
Article 22 of the proposed bill reads: “The provisions of the Pakistan Penal Code 1860 (XLV of 1860), to the extent not inconsistent with anything provided in this Act, shall apply to the offences provided in this Act.”
This means all that Penal Code offences will be cyber-crimes, including blasphemy. How would the already high frequency of unsubstantiated blasphemy accusations be affected by this?
“Several hundred cases are registered under blasphemy laws every year, which according to data are only used for political aims or to settle personal scores. This particular legislation will open the gates further to trap anyone with little evidence,” says Natiq.
“The legislation fails to define what blasphemy really is. The case of Junaid Hafeez has left a series of questions unanswered,” he added.
Bukhari, however, asserts that the problem lies with the Penal Code provisions and not the Cyber Crime bill.
“That is a problem with the Penal Code provisions on blasphemy, not with Section 22 aiming to define the same crimes as crimes if committed in cyberspace.”