ISLAMABAD: Under the proposed cybercrime bill, the Pakistan Telecommunication Authority (PTA) has been given the power to remove any ‘offensive’ content on the basis of a complaint, even before a formal report is lodged with the enforcing agency – in this case, the Federal Investigation Agency (FIA).

This was the explanation given to a subcommittee of the Senate Standing Committee on Information Technology by representatives of the Ministry of Information Technology (MoIT) and FIA when senators quizzed them on the need for involving PTA in the process of registering a complaint, which was the job of the enforcing agency.

“Under the proposed law, a complaint cannot be made directly to the enforcement agency. As this is a non-cognisable offence, the agency cannot arrest or even register a case unless ordered by a judicial magistrate,” explained MoIT Member (Legal) Nasir Ayaz.

“It is quite a lengthy process,” he said, noting that this was why PTA had been empowered, under Section 18 of the proposed Prevention of Electronic Crimes Bill (PECB) 2015 to remove, destroy or block access to information that is false, harmful or intimidatory.

Clarifying that the blocking of offensive/harmful content and the registration of a criminal complaint were two separate procedures, Mr Ayaz said that in order to file a case, the complainant would have to prove his case prima facie before the court, which would then issue notices to the accused party and give them a chance to defend themselves.

However, Committee Convenor Senator Osman Saifullah took issue with the MoIT’s explanation, asking: “You mean that if I don’t want to go to court, but I want a particular piece of content blocked, I can do that?”

“Yes,” was the MoIT official’s succinct response.

Mr Ayaz clarified, however, that any Internet user who may have shared or retweeted information – that is deemed harmful – in good faith will not be liable for prosecution. “Nothing will be initiated against them,” he concluded.

Providing context, FIA Deputy Director Syed Aon Abbas Bukhari told the subcommittee that most of the complaints lodged with the agency’s National Response Centre For Cyber Crime (NR3C) were withdrawn the moment investigators were able to identify the culprit.

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The registration of a formal complaint, Mr Bukhari said, was predicated on the presence of forensic evidence – proof that an offence has been committed.

“The nature of our society is such that most people prefer to settle such matters on their own, rather than involve the authorities,” he said.

Overlap with existing laws

MoIT officials tried unsuccessfully to explain how a number of sections that overlapped with existing laws, such as the Defamation Ordinance or the Electronic Transactions Ordinance (ETO), fitted into the current PECB.

Wahajus Siraj of the Internet Service Providers Association of Pakistan (ISPAK) pointed out that Section 18, which deals with ‘Offences against dignity of natural person’ read like a defamation law, but did not contain any of the protections available under the existing defamation law.

But while FIA and MoIT officials defended this by saying that it was necessary to have a separate defamation criteria for cyberspace and social media, they admitted that in the presence of the ETO 2002, it was not necessary to include protections for proprietary information or data in the current PECB.

Senators Osman Saifullah, Farhatullah Babar and Shibli Faraz all took issue with this double standard, repeatedly questioning the need for having a separate defamation clause in the cybercrime bill when established defamation laws already existed. However, no suitable explanation was given for this discrepancy.

Agree to disagree?

Wednesday’s subcommittee meeting witnessed several disagreements between industry stakeholders and civil society representatives – who were invited to give their views – and the officials present.

When Nighat Dad of the Digital Rights Foundation (DRF) and Asad Baig of Media Matters for Democracy (MMfD) pointed out that the bill did not contain any “whistleblower protections” for those who leaked information to journalists in the public interest, the FIA official noted that anyone who gave out confidential information was committing a crime, or worse, guilty of “spying”.

PPP Senator Farhatullah Babar noted with concern that Section 22, which deals with ‘spamming’, could be an attempt by the state to circumscribe the freedom to ask questions. However, MoIT officials clarified that this clause dealt specifically with commercial and marketing spam and did not cover unsolicited communications between, say, a journalist and a political figure.

He pointed to five areas of concern: whether the bill was contrary to freedom of expression or free-flow of information; whether the individual user’s data would be protected; what were the internet service provider’s (ISP) responsibilities; how the law would affect an individual’s right to privacy; and, whether there was any oversight on the powers of the investigating agency.

Senator Osman Saifullah also noted that rules of procedure and safeguards seemed to be missing from the current draft of the PECB and asked officials from the MoIT to come up with alternative formulations.

However, Rizwan Bashir Khan, the MoIT additional secretary, told the subcommittee that while they would be more than willing to assist the senators if they made specific observations, they could not be expected to reformulate the draft that had already been ratified by the National Assembly on their own.

The committee also noted that Section 21 on ‘cyber-stalking’ gave PTA too much control over the Internet and observed that it required additional protection for activities that were in the public interest.

The convenor then asked Mr Siraj and other stakeholders to come up with alternative formulations of several clauses, including those on spamming and data retention, by the next meeting.

The subcommittee expects to hear from representatives of intelligence agencies over sections related to ‘cyber-terrorism’ today (Thursday).

Published in Dawn, June 30th, 2016