DEMOCRACY cannot meaningfully exist without freedom of expression. In the digital age, much political activity takes place online, from politicians engaging with constituents to voters researching their potential leaders. A free and open digital space is vital to the political process precisely because it allows any speaker to reach a global audience, and people to access information from many different perspectives.
In more autocratic parts of the world, access to information is considered dangerous. Those in power prefer not to face inconvenient questions from journalists or the public. The spread of internet access has been accompanied by a proliferation of new laws aimed at cracking down on dissent. Journalists who stray from state-sanctioned narratives are prosecuted for spreading ‘fake news’. Political opponents are accused of ‘extremism’ or some other vaguely worded offence against the government. Basic security measures like encryption, which keep us safe, are framed as an unacceptable challenge to the government’s ability to spy on citizens. These measures often achieve the opposite of what their proponents intend. Efforts to clamp down on opposition voices only strengthen them. New laws that promote ‘security’ leave people vulnerable to malicious attacks.
Earlier this year, when Pakistan published the Citizens Protection (Against Online Harm) Rules 2020, it pushed the country to a decisive point. Will it embrace the digital age as a healthy democracy, with all the economic, cultural and human rights benefits that the internet brings? Or will it slide backwards, rejecting openness and democracy in favour of authoritarianism and control?
The new rules would cut Pakistan off from the world.
The problem is not just that the new rules could be used to target legitimate speech, though they surely could. A new, and completely unaccountable, government office is empowered to order the instantaneous removal of any content which is in “opposition to fundamental values of the state of Pakistan”. The government, presumably, determines what these values are, and how they apply to different speakers. If you disagree, an appeal to overturn their decision may take months. The rules demand that social media companies instal filters to catch defamation, ‘fake news’, and other categories of prohibited content as it is being uploaded. Never mind the fact that it is impossible for an automatic filter to tell whether material is defamatory, or true or false. Surely the government will set the parameters of unacceptable speech here as well.
The biggest threat posed by the new rules is the requirement that social media companies structure their systems to allow for the delivery of any data that government investigators ask for in a decrypted and readable format. In essence, this would mean an end to strong and safe encryption technologies not just in Pakistan, but around the world. No tech company in their right mind would jeopardise their global operations for the sake of a single country’s market. This means, in practical terms, that the impact of the rules will be to push every social media company out of offering services in Pakistan. It would, in essence, cut the country off from the world. This cannot be the future that Pakistanis want.
The online world is a reflection of humanity, with positive as well as negative elements. There is no question that people use the internet for malign purposes, and that social media can be used to spread harmful messages. But these harms must be addressed in a manner consistent with international human rights standards. Chief among these is the International Covenant on Civil and Political Rights, which Pakistan ratified in June 2010. Destroying freedom of expression and privacy in order to prevent bad actors from going online would be a gross overreaction, and a violation of core human rights responsibilities.
The government has since announced that it is suspending implementation of the rules, in order to hold a consultation process “with all relevant segments of civil society and technology companies”. This is a good start, but the current draft will need more than a few minor tweaks in order to be brought into line with international law. Rather, the rules need to be overhauled, including clearer definitions for prohibited speech, a robust and independent process for removing material, and procedural safeguards for users’ privacy, including their right to use strong encryption. Even better would be to reconsider the Prevention of Electronic Crimes Act, 2016, which itself contains provisions that are of grave concern.
Nobody is arguing that the internet should be a lawless place. But just as crime did not start with the internet, measures to combat it online should respect fundamental democratic values.
The writer is a resident fellow at Yale Law School leading the Wikimedia Initiative on Intermediaries and Information.
Published in Dawn, March 11th, 2020