Imagine a few months from now, a Facebook status ‘glorifying’ a leading politician - who happens to be accused in pending cases under the Anti-Terrorism Act - is published by a young political activist. Five of his friends share this status to their accounts as well.
At the same time, a local news website publishes a report based on a soft copy of draft legislation emailed to them by a government source. The document is yet to officially be made public.
Finally, a group of local bloggers launch a website and social media accounts focused on taking a critical view of Pakistan’s relationship with China.
Days later, the young political activist is charged and arrested as a ‘cyber terrorist’, and his five friends are arrested as well.
The local news website is blocked and the source who emailed the data is arrested.
The group of local bloggers find their website to be blocked. When they ask why, they are told it was necessary in the interest of Pakistan’s ‘friendly relations with foreign states’.
This grim hypothetical imagining, while extreme, is the potential reality that the controversial Prevention of Electronic Crimes Bill (PECB) will bring to Pakistan if made law.
The PECB, which had been in limbo for years, is swiftly entering the final stages of evaluation and approval by the National Assembly’s Standing Committee on Information Technology and Telecommunication. If approved by the committee, the bill will then be presented in parliament for final approval.
If passed into law, it proposes a maximum punishment of 14 years in prison and Rs50 million fine for cyber terrorism.
Since the Army Public School attack in December 2014, a shift in thinking has made it clear that the state sees this as an exercise in tackling militancy.
In February this year, Minister of State for Information Technology Anusha Rehman said the PECB should be compatible with NAP in order to counter terrorism and extremism. Similarly, an implementation report by the interior ministry cited the PECB as one of the cornerstones of NAP. To put it simply, the focus on security has changed the bill into a tool of war, which has grave implications for ordinary citizens.
While there is agreement among legal experts that laws are needed to govern cyberspace, it is the mindset and intent behind the bill that has warped its formulation.
“Cybercrime law is not a measure you bring in for the time being to fight terror,” Islamabad-based lawyer Babar Sattar says. “Other than the fact that it currently reflects a security mindset, it is also problematic because in trying to solve one particular problem, the focus is distorted.”
Expanding on the problem, Lahore-based lawyer Nighat Daad, who is also Director of local NGO Digital Rights Foundation, says the proposed cyber law fails to provide adequate protection to internet users, while at the same time introduces harsh punishments for crimes that can easily be committed unintentionally due to the overbroad framing of provisions.
In the name of 'cyber terrorism'
In its current form, the PECB draft raises serious concerns about the impact it will have on basic rights to freedom of expression and access to information, while also granting sweeping powers to authorities and agencies to carry out unfettered surveillance, data collection and arrests.
“This bill appears to be an effort to use ‘cyber terrorism’ as an excuse to pass laws that have a hidden agenda,” says Muhammad Aftab Alam, a lawyer and expert on media law. “It is trying to legitimise getting around checks and balances on surveillance established in the Fair Trial Act. The due process of law has been completely ignored.”
The agenda of the bill is also called into question by Sattar, who says provisions in the law have been pragmatically included to legitimise online surveillance activities that are already taking place.
Sattar finds the bill to be “overbroad in dealing with issues that should be dealt with under different laws e.g. regulation of telecom licensees.”
He adds that the language used in the bill leaves it open to abuse e.g. a provision that criminalises ‘glorifying’ anyone accused of a crime could be used to target those who praise political leaders such as Altaf Hussain and Imran Khan who have pending cases against them under the Anti Terrorism Act (ATA).
Finally its attempt to censor online content is flawed because it denies people agency, and overlooks the fact that trying to censor the internet is impossible.
The Protection of Pakistan Act comes into play
What complicates matters further is how the PECB will be interpreted, especially in relation to other laws that have overlapping provisions, including the Anti Terrorism Act (ATA), the Fair Trial Act and the Protection of Pakistan Act (PPA).
“The cyber terrorism provision in the PPA is explained through the cybercrime bill,” Alam argues, adding that “all sections in the bill which relate to cyber terrorism may fall under the PPA, in which case suspects can be investigated and their trial conducted under the PPA. This could for example lead to an individual being detained by agencies for 90 days in order to interrogate them.”
With the PECB granting authorities such powers, blind trust would have to be placed in the state to not abuse the law during, or long after its use in fighting the current war.
Unfortunately, with the bill open to misuse by design, ordinary citizens may inadvertently find themselves being charged as terrorists. This scenario would be a consequence of approving, rather than challenging a quick-fix solution to fighting militancy and extremism without oversight.
“The best case scenario would be providing swift justice to victims of online crimes and putting a blanket ban on all kinds of sectarian and terrorist outfits’ web presence, although the government could have already done this under the existing ATA section 11(W),” Daad says. “The worst case scenario would be a discriminatory use of the law with no clear action against online extremist outfits. Where online harassment continues to be the norm and political dissenters, activists and journalists are prevented from expressing their views.”
So will the PECB pass into law? And what could be done if it does?
“My apprehension is that the bill will get through the National Assembly. However, even if the assembly approves it, once the bill reaches Senate, it may be stopped by political parties, aside from the PML-N,” Alam says.
A similar view is expressed by Sattar who believes, “Consensus will have to be developed in the senate in order for the bill to be passed...and even if it passes, the courts can take judicial review of laws to the extent that any provision can be struck down if it is in breach of the Constitution. If the law is overbroad and infringes on fundamental rights, any individual can provide evidence to being the process of judicial review. Let’s hope it doesn’t get passed.”
Published in Dawn, September 12th, 2015