ISLAMABAD: Although few would argue against the need for a law governing cyberspace, IT experts and digital rights activists agree that the Prevention of Electronic Crimes Bill (PECB), which was adopted by the National Assembly a day earlier, was not written by people familiar with the technical aspects of online activity.

The bill itself has been substantially amended and is somewhat different from the draft that caused uproar among civil society organisations and industry stakeholders alike. However, critics argue that there are still loopholes in the legislation that will not only allow criminals to slip through the cracks, but may also be misused by the state to curb individual freedoms.

The amendments incorporated by the government appear to be broadening the scope of the PECB to incorporate other types of offences that were omitted from previous drafts. Earlier versions dealt primarily with crimes such as fraud, forgery, impersonation and defamation.

The amended version that passed the lower house on Wednesday, however, incorporates punishments for other crimes that fall under the National Action Plan (NAP), such as cyber-terrorism, hate speech, and spreading sectarian and ethnic hatred.

On the other hand, the opposition’s amendments appear to be attempts to ‘water down’ clauses that were too harsh – in cases of punishments – or too broad in their application – such as stipulations against activities including ‘spamming’, ‘cyber-stalking’ or ‘spoofing’.

The addition of the words “with mala fide intent” to most clauses that define the nature of online crimes indicates that members want to draw a distinction between someone who deliberately commits a criminal act and someone who may do so inadvertently.

“I don’t know who is advising the government, but some of these changes are ridiculous,” said Nighat Dad of the Digital Rights Foundation. She pointed out that clause 34, which used be titled ‘Power to manage online information’, has been renamed to ‘Unlawful online content’, but very little had been changed in the text of the clause. “Vague words such as ‘decency’, ‘morality’ are still there, and we still don’t have a yardstick for ‘unlawful’,” she said.

She also pointed out that the stipulation asking Internet Service Providers to retain data for at least a year carried with it the danger of “violation of privacy”, because users did not know who could access that data. Rather than fixing this, they have added provision number 38 ‘Confidentiality of information’, which basically just protects the data retention clause, she said.

Saying that the FIA would be the most likely agency to enforce this law, Ms Dad said that there were no separate courts that could understand or handle cybercrimes. “They are going to do what the investigating agency tells them,” she concluded.

Saroop Ijaz, the Human Rights Watch representative in Pakistan, told Dawn that adding the element of ‘intent’ and lowering prescribed punishments did make the law better, but the government clearly did not understand the fundamental nature of digital space and information.

Criminalising something like spamming, which is a very annoying phenomenon, involving sending someone an unsolicited message, is mindboggling, he said. “In layman’s terms, you have to initiate contact to ask for permission to have more contact. I don’t think they understand the implications of these stipulations,” he said.

“I fear that this bill will most likely not be used against the people it claims to target - militants and people who advocate violence – and instead will be used to silence dissent and minority voices.”

“The capacity to investigate crimes under this law assumes a far more sophisticated understanding of the digital space and IT. While the state possesses sophisticated surveillance tools, I don’t see the justice system having the sophistication or capacity to process them,” he said.

He also pointed out that the criminalisation of actions in the digital space could play out in dangerous ways. “We have seen a serious rise in offences such as blasphemy, which is a death penalty offence. There, the knowledge of using the instruments of technology to investigate forensically, become a matter – literally – of life and death.”

A number of clauses have also been removed from the original draft of the bill, including Clause 47, ‘Exclusion of Telecommunication Law Related Cases’. The clause states that nothing in the act will apply to any offence with respect to telecommunication, or matters related to laws “specified under the schedule and vice versa”.

The laws specified under the schedule are: The Pakistan Telecommunication (Re-organisation) Act 1996, The Telegraph Act 1885 ad The Wireless Telegraphy Act 1933. No offence in any of these laws shall be included in, or form the basis of investigation, prosecution or trial related to any offence under this act, and offences under these laws would be excluded from any investigation, prosecution, trial or exercise of powers conferred by any provision of the act.

Clause 48 on ‘Savings of Intelligence Services Powers’ has also been removed. This clause stated that offences, powers and procedures provided under the act “are not related to and have no application upon the activities, powers or functions of intelligence agencies or services and are without prejudice to the operation of or powers” under – among others – the Pakistan Army Act 1952, the Pakistan Air Force Act 1953, the Pakistan Navy Ordinance 1961 and the purview of the Intelligence Bureau.

Published in Dawn, April 15th, 2016

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