THE Prevention of Electronic Crimes Bill 2015 is officially out of the National Assembly’s standing committee on IT. Committee chairman retired Capt Safdar, addressing the Assembly on Friday, presented a report, opening the bill up for debate by the house, as statements seem to indicate.

This makes it all the more imperative to understand how just one section of the bill — let alone other contentious sections — will establish the state’s hegemony over information and speech. The instruments that will be used to do so require careful examination.

The authors of Section 34 display a lack of understanding of how the Internet and technology function. What they don’t realise is that ‘managing information’ on the Internet and through devices will be a more difficult task than they think. Part of this is due to the inability to do anything about content present on platforms outside Pakistan — those are the ones most commonly in use. This holds true both from a technical and legal point of view.

The Pakistan Telecommunications Autho­rity, during hearings before the Lahore High Court in a case seeking to lift the ban on YouTube, admitted it did not have the ability to block the specific video in question, as it was on an encrypted protocol — HTTPS. It added that tampering with HTTPS/encrypted traffic would be detrimental to e-commerce online, especially secure transactions.

So if playing Big Brother will be fairly difficult for the PTA due to capacity issues, what’s the problem? If it will not be able to block everything because it does not have the ability to, there should be less reason to worry, right? Actually, no. Look what’s happened with YouTube. Three years on, and still banned. So either websites will remain blocked over some content or, the authorities will find ways to breach encrypted protocols.

Mess with secure protocols, and say goodbye to secure browsing.

Gaining unfettered access to encrypted communications was one way the state was trying to do this in Blackberry’s case. And if not through backdoor access, filters for encrypted traffic will be sought. Weakening encryption will not only allow the state to pry into private communication, but also leave users exposed to online predators who would have a field day gathering passwords users will have to enter and transmit over unsecure channels.

There’ll be a surge in email and social media accounts being compromised, not to speak of banking information slipping into the hands of thieves. Mess with HTTPS and secure protocols, and say goodbye to secure e-commerce, browsing, and communication. Safety, security and most importantly privacy, will become a myth.

The authors of Section 34 are also deluded in thinking that by copy-pasting Article 19’s exclusions into a piece of criminal law, they will pass it off as having given PTA ‘lawful authority’ to block content online. By awarding it overbroad and discretionary powers, the operating assumption seems to be that writing the powers into law will enable them to make requests to foreign platforms, which the latter would have to oblige because their request would then be considered ‘legal’.

That’s not how it works. Platforms such as Facebook, Google, Twitter etc are first and foremost governed by their community guidelines. The laws that come into play are of the country they are incorporated in, which in most cases happens to be the US. Where companies have a physical and legal presence ie local offices or domains, the law of the country they are located in applies. Here, there is no legal or physical presence of these platforms.

Our laws and courts have no jurisdiction over content available on these platforms. While the government, through PTA, routinely makes requests to them for content restriction and user data, each company has a different approach based on its respective policy and legal risk assessment. By giving PTA powers through law does not mean these platforms will do its bidding. Some may, some may not.

The authors of Section 34 and PECB seem to forget the Constitution which confers certain fundamental rights upon the citizens of Pakistan. It is high time they come to terms with this: go back, read the Constitution, specifically Article 8. Especially observe the arrangement of fundamental rights and the importance given to them: they figure over and above all else.

The legislature too, must reacquaint itself with this important yet forgotten fact. It must also not contravene the very essence of the Constitution, neither in letter nor in spirit, even if that has not been the norm lately. State institutions and authorities must remain within bounds. Stepping beyond would be a transgression. Should a violation of the Constitution be allowed? If not, PECB requires a rethink. We need security and rights both: not one over the other.

The writer is co-founder and director of Bolo Bhi, an advocacy forum for digital rights.

Published in Dawn, December 13th, 2015


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