Wanted: privacy commissioners

Updated April 26, 2015


Shahzad Ahmad
Shahzad Ahmad

Shahzad Ahmad is the country director of Bytes for All, Pakistan, a human rights organisation with a focus on information and communication technologies (ICTs). His focus includes ICT policy advocacy, internet rights, privacy, and freedom of expression online. In March 2014, Shahzad was awarded the prestigious Index on Censorship Award for his advocacy work on freedom of expression. We speak to him regarding his reservations about PECB 2015

Groups such as yours have complained that the current cybercrime bill did not take stakeholders on board. What exactly do you mean by this and what kind of consultation would you have wanted?

In any democratic country, when laws are framed there is usually an associated implementation mechanism suggested and framed by lawmakers. This ensures that citizens are made part of the process: what do they need, how can they be facilitated, what new institutions and structures do we need to build, how do we staff them, how do we satisfy the citizenry’s qualms and redress their grievances, how do we better serve them? These are the questions that need to be addressed.

Unfortunately, our incumbent government has shown a tendency to discuss, debate and implement critical legislation behind closed doors. In practice, what this means is that those who’ll be affected by this new legislation are kept out and their voices shunned. Looked at another way, the state, for all ostensible purposes, is acting in its interests and not of its citizenry. This distance between the government and the governed is at the heart of the current debate and the perception that the new legislation is draconian.

Privacy and digital rights groups have complained about the ‘draconian’ provisions in the Prevention of Electronic Crimes Bill 2015, but do they have any solutions to offer?

The best practices to make the citizenry an active stakeholder are found in developed democracies such as Canada, Australia and New Zealand, where they have instituted privacy commissioners. These are independent individuals, who work as a bridge between the government and the governed, and ensure that individual liberties are not curtailed in the name of security. They ensure that personal information is protected and respected while the state carries on its stated objectives of net neutrality.

What Pakistan needs is privacy commissioners, answerable to the parliament, and for the government to help setting them up, fund them, and establish a connection with the citizenry.

Till now, what we have witnessed is that no judicial oversight has been ensured, lawyers don’t know much about the internet or about net governance, citizens have low awareness about how their privacy is being compromised, and all power rests with various law enforcement agencies.

Privacy commissioners will help us bridge that gap. They will ensure that all offices that need to be set up to facilitate and help common citizens are built, they will listen to common people’s complaints and outstanding issues, and they will tell us which law enforcement agency is crossing its bounds or misusing its authority. If privacy commissioners can help in making common people part of the process, citizens are likelier to welcome new legislation and actually feel secure about it.

Surely online hate speech needs to be curbed, and this bill is a step in that direction ...

To criminalise hate speech this way means that you will exclude a certain segment of your population from any national debate. In Pakistan, this means that that our minorities’ thought and speech will be curbed.

If you scan our current netscape, you will notice that Shias and Ahmadis, for example, are often targeted and harassed online by sectarian organisations for their belief systems. Then there are non-state actors who find patronage from various powerful actors, which allows the former impunity to do as they please, both offline and online. After the legislation, you will find that those at the receiving end of hate speech will be at a greater risk for being punished if they respond to any abuse or insult hurled at them.

We believe that there should be open channels of communication. Hate speech and divisive ideas, particularly in Pakistan, can only be countered with more speech and critical, constructive ideas. Nobody should be prosecuted or killed because of what they think. We need to start discriminating between hate speech and incitement to violence; the latter can be dealt with through the provisions already provided in the penal code. Hate speech cannot be criminalised through subjective provisions.

“Privacy commissioners will ensure that all offices that need to be set up to facilitate and help common citizens are built, they will listen to common people’s complaints and outstanding issues, and they will tell us which law enforcement agency is crossing its bounds or misusing its authority.

What then would be the way forward, if we were to concentrate on what the government should be doing?

To reiterate, there is a distance between the government and the governed. The new cyber crimes legislation has come about as part of the National Action Plan (NAP) to counter terrorism, with the government receiving much support within Parliament to take whatever measures it needs to.

Pakistan is a signatory to a United Nations convention on human rights, whereby it has to constitute a “national human rights institution” that can listen to and redress citizen complaints. The government has recently announced the formation of this institution, but we don’t know what its composition is and who are its members. And since this step has come about as part of the NAP initiatives, the law passed recently excludes jurisdiction on human rights violations carried out by security agencies.

Second, on June 19, 2014, Chief Justice of Pakistan Justice Tassaduq Hussain Jillani issued a historic judgment to remind the government that it must uphold the law to protect minorities. Justice Jillani had directed the federal government to establish a taskforce to develop strategies to tackle religious intolerance, to establish a national council for minorities, and also to constitute a special police force that can protect the minorities’ places of worship.

Then there were directions on bringing the delinquents of social media to court, those who resort to hate speech of various kinds. The court had also ordered the law enforcement agencies to work within the ambits of the constitution, to take prompt action against those involved in hate speech.

In total, Justice Jillani had laid out 10 directives for the government, which were to act as a roadmap for the protection and security of minorities. None of those directives have been met in totality thus far.

What the government needs to realise is that these laws are not symbolic, but are connected with the larger fabric of society and with lowering the volume of faith-based hate that seems to have become the norm in many parts of the country.

If we can begin by implementing Supreme Court orders, we will see that genuine cyber crime too will be easier to thwart. We also need to make existing laws consistent with human rights requirements, and remove all predatory provisions from the Pakistan Protection Act and Fair Trial Act.

Law requires all citizens to be deemed equal; law enforcement agencies cannot be exempted from this. In fact, the government needs to ensure the national human rights institution’s capacity to deal with complaints around cyber crime, and to do that, it needs to ensure that no human rights violations take place at the hands of law enforcement agencies.

The state and the government need to work towards ending the prevalent environment of distrust and fear; there is a culture of impunity skewed towards preachers of hate in Pakistan, and it targets journalists and human rights defenders. On the other hand, law does not govern those spreading hate or the law enforcement agencies. This culture of impunity needs to end; else the government should assume responsibility for the damage being caused to society.

Beyond the obvious concerns regarding privacy and abuse, what other negative effects are you concerned about?

Educators and businesses both stand to lose in the event that this legislation is implemented in its current shape and form.

The government has been arguing that after this law, YouTube will be re-opened. With localised versions of YouTube, the major trend across the globe is that they leave service providers open to arm-twisting in terms of what they put up. Instead of sensitising the citizenry to new ideas or to innovative approaches to problem-solving, censorship will bind them in antiquated ideas.

Businesses will lose out because no Western trading partner will accept the draconian clauses in this legislation, and they are likely to advise their investors against entering Pakistan. We must situate this new legislation within a human rights framework to prevent such an eventuality. Even though security underpins the approach of this bill, it has to be pro-people, pro-human rights, and pro-business.

But if we choose an isolationist stance, it will have far-reaching impacts on tech and innovation in Pakistan, since much of the capital and patronage for new tech businesses arrives from the West, business relationships are built with Western companies, and technical advice and assistance is provided by established ventures.

This will also affect how businesses think about innovation, since the main advantage of technology is for cyberspace to reach far-flung areas and to benefit them in ways similar to urban centres. One can cite agricultural solutions or even access to education as innovations driven by tech. The new legislation will make such outreach or social mobility prohibitive and exclusionary.

The writer tweets @ASYusuf

Published in Dawn, Sunday Magazine, April 26th, 2015

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