Since February 17, 2024, X [formerly Twitter] has been inaccessible in Pakistan without a Virtual Private Network (VPN) with the exception of the random instances when it works without one. It was not until a month into this disruption that the government came clean that there was in fact, officially, a ban in place. However, at the time, Information Minister Atta Tarrar contended there was no notification.

On March 20, 2024, the Pakistan Telecommunication Authority (PTA) submitted a notification issued by a section officer of the Federal Investigation Agency (FIA) to block access to X. This was in ongoing proceedings before the Sindh High Court (SHC) challenging the restriction on X. Then on April 17, 2024, the Ministry of Interior (MoI) submitted a response before the Islamabad High Court (IHC) in which it cited two reasons for this restriction:

• National security
• X’s refusal to accede to requests and comply with the Removal and Blocking of Unlawful Online Content (Procedure, Oversight and Safeguards) Rules 2021 (RBUOC Rules).

Here’s a look at some of the claims made by the MoI in its response submitted to the IHC and how they check out.

It’s about national security, but is it?

According to the MOI’s response to the IHC, “The decision to impose a ban on Twitter in Pakistan was made in the interest of upholding national security, maintaining public order, and preserving the integrity of our nation.” Para 13 states:

Clearly, no one in the government got the memo since they have all been using VPNs for the last two months to post on X. Have government departments and government officials — including the minister heading the MOI making this claim — knowingly and unknowingly been sabotaging “national security”, “public order” and “integrity of the nation” through their use of X? Does their continued use of X despite the ban and admission of reasons following the submission of this response to court, not do so?

How does a platform threaten national security and public order? How has its ban, yet use via VPNs, prevented this? What is so secret that has to be presented in a sealed envelope? Many claims are thrown around but answers to basic questions, there are none.

The timing of the restriction is a little more than a coincidence, coming in the wake of a statement by then Rawalpindi district commissioner — aired on channels and published in the mainstream press — on election manipulation, as well as election irregularity accounts rife on X by candidates and parties — primarily the Pakistan Tehreek-i-Insaf (PTI), but also the National Democratic Movement.

Is the Ministry of Interior’s action lawful?

Curiously, MOI’s response cites “the failure of X to adhere to lawful directives of the Government of Pakistan and address concerns regarding the misuse of its platform,” which “necessitated the imposition of a ban”. Para 12 states:

Directives can only be lawful if issued in exercise of lawful authority, which the MOI is devoid of vis-à-vis online platforms and content. After the enactment of the Prevention of Electronic Crimes Act, 2016 (PECA), Section 37 outsources content regulation — which is really a content censorship regime — to the Pakistan Telecommunications Authority (PTA).

A public body can only do what it is authorised to do by law. No law vests any powers in the MOI to undertake the regulation of online platforms or content. The notification produced before the SHC regarding the restriction of X is signed by a section officer of the Federal Investigation Agency (FIA). Neither the MOI nor the FIA have any authority under Section 37 of PECA; this is vested solely in the PTA, and yet, no PTA notification is on record with respect to the ban on X.

Asked whether the MOI or the federal government can instruct the PTA to block access to a platform or online content, lawyer Zainab Janjua explained: “The PTA is an independent regulator. Under the Telecom Act, 1996, the federal government has been given the power to issue policy directives on certain issues such as telecommunication system and services etc; however, the same are only policy directives and are not binding if they are in violation of law or go beyond the policy mandate and amount to usurping the power of PTA”.

Under Section 37(3) of PECA, during the transitory period (till rules were framed) the PTA was directed to exercise powers under PECA in accordance with the directions issued by the federal government. The IHC in 2018, while discussing Section 37 clearly held that “the federal government like any other person can lay information before the Pakistan Telecommunication Authority but the same cannot be treated as binding in the context of subsection (1) of section 37. The Authority is exclusively empowered under subsection (1) of section 37 of the Act of 2016 to consider any information laid before it and then to decide whether or not to take action in the manner prescribed therein”.

The court further held that the PTA is required to exercise its powers and discretion under Section 37 independently and without being influenced by direction or information laid before it by the federal government.

“In view of this very clear judgment of the IHC,” said Zainab, “the position of the PTA and MOI before the IHC today that establishes that X was blocked merely upon the directions of the MOI, is blatantly in violation of the law and the court’s directives.”

Neither the PTA nor the federal government can feign ignorance as they were respondents in the case and are well aware of the court’s orders. The government’s directives aren’t so lawful after all — they should, at the very least, first review their own conduct before instructing companies and citizens to follow the very law they are themselves flouting.

Local law and the rules don’t apply

To further advance the justification for the ban on X, the MOI has relied on the RBUOC Rules 2021. These rules were introduced by the PTI government first in 2020, then via an amended version which was gazetted in 2021 amid stiff opposition by rights and pressure groups.

The rules, as intended under the scheme of 37(2), were supposed to prescribe an oversight mechanism for the exercise of powers by the PTA to keep it in check; instead, they give additional powers to the PTA which even the Act does not authorise. The compliance requirements cited in Rule 7(5) is one such example of the rule and powers being in excess of the parent law and provision — Section 37 of PECA.

The vires of the rules were challenged through various petitions filed before the IHC. Clubbed together, in Muhammad Ashfaq Jutt Versus Federation of Pakistan, etc. (W.P. No.3028/2020), order dated 11.05.2022, the IHC observed:

Not only has no such review taken place, but rules referred to as “prima facie in violation of Article 19” are being invoked and used as a legal basis for blocking X for non-compliance with them, while the challenge to these remains pending. Rules challenged on the basis of their lack of legal validity and unconstitutionality are being cited as a legal justification for the restriction on X.

It’s all about localisation…

Telling is the MOI’s response, about what the restriction on X is actually about — localisation. Para 11 states:

Getting companies to incorporate locally to conform to local laws and rules has been a longstanding demand and attempt by successive governments. With a legal and physical presence, coercion and forcing compliance becomes much easier.

But companies do not establish local domains and especially offices because a government wants them to, particularly in a volatile environment where no legal or regulatory certainty exists and the risk of extra-legal measures, including threats to the safety of their staff, runs high. Even at the time of the YouTube ban, this was Google’s response on localisation:

In the absence of legal presence in a country, local laws do not apply. The only route for such requests is either through community guidelines or the government requests channel which has a prescribed process and is subject to internal due diligence processes which vary from company to company — not local laws where platforms are accessible but not incorporated.

Notice-and-takedown systems require at the very least, a notice. Such notices must specify offending content, which means the URL/URI, the category it falls under, relevant section of law or requisite court order accompanying the request, and reasons for its restriction or removal. Google’s response at the time of the YouTube ban outlined this:

These cannot be secret notices and companies too have a disclosure obligation, especially when there is compliance with a government request. This was witnessed recently when X restricted certain posts in India, where the exact requests were publicly disclosed in the interest of transparency.

Notices cannot be non-existent or concealed. Lawful notifications have to be with requisite legal authority as well as specific and reasoned — the notification to restrict X produced before the SHC and IHC meets none of these tests.

Blanket bans are a tactic to force compliance

Apart from being unconstitutional and an overbroad restriction, blanket bans are a tactic to collectively punish all users to force companies to come to the table and meet the government’s demands by keeping their platform hostage and inaccessible, indefinitely.

For the first time in two months since the restriction on X, the company has spoken. Through its Global Government Affairs account, X posted: “We continue to work with the Pakistani Government to understand their concerns.”

What concerns are these that are not present in responses submitted to court nor any other official notification? That companies and governments have backchannels is known to all. The ones who are disenfranchised through this process are users and rights advocates fighting the long and hard battle of rights.

When YouTube was banned, the unconstitutionality and legality of the ban was called into question. While a court challenge was underway, and debates ensued in parliament and the public, Google launched a .pk domain after which the government unblocked the platform.

YouTube remained banned for three years. Despite court challenges, resolutions in Parliament to lift the ban, it was only when Google launched a .pk domain and content requests were acceded to at the country-level, that the platform was unblocked. While access to YouTube was restored, the issue of unconstitutional and illegal government action was not, which persists to this day.

Similarly, TikTok has been blocked multiple times. In 2020, the ban was challenged before the IHC, but it was only lifted by the PTA after there were assurances by TikTok of compliance with requests; the compliance rate as recorded in TikTok’s transparency report, has surged over the years.

It appears the same tactics are being used now with X as is evident through the MOI’s response, to at least force compliance at the country level, if not global. It’s the age of an Internet with borders, where users are sandwiched between coercive government action and company compliance.

Others do it too, so why shouldn’t we?

The oft-taken line is: but this happens elsewhere too. Recently, examples of proposals to ban TikTok in the United States (US) have been referenced, most recently by the foreign minister. Such legislative proposals are squarely being opposed by rights advocates in the US. What has been framed as a data ownership and national security issue, is also a free speech and access to platform issue as put into perspective by rights advocates there.

The specifics of every situation must be considered. Moreover, important is the discourse by local rights advocates and what their take on the issue is rather than citing government action as a justification; by this measure, will the Pakistan government also cite and support the suspension of Internet services in India-occupied Kashmir or a communication services blackout in Gaza by Israel, or the shadowbanning of pro-Palestine voices on social media platforms?

There is no need to emulate what is problematic or go several steps in a direction to outdo the bad instead of doing better. Awareness of the critique as well as the challenges brought by citizens and companies against such government action elsewhere is important to keep sight of. Moreover, consequences of compliance with local laws, especially in election contexts, should serve as a warning, especially in election and politically volatile contexts as witnessed in various countries.

Various users in Pakistan routinely receive emails from X, saying their content was reported as a violation of local law but no action was taken. Depending on how “concerns” are addressed between the government and X, this could soon go in the direction of Turkey or India, where requests are acceded to even if there is “disagreement”.

Bans cause more disinformation

The answer to everything is not blocking. Blanket bans on platforms exacerbate disinformation, which needs to be countered with accurate information. Contrary to claims that the prevalence of disinformation necessitated the restriction on X, blocking platforms spreads more disinformation as channels to verify information become unavailable. Fact-checking organisations are also facing problems in engagement and reach. This is actually contributing to disinformation and misinformation out there and thwarting the work of organisations and the mechanisms in place to combat them.

According to Benazir Shah, editor at Geo Fact Check: “The official blocking of X (Twitter) has made it difficult for fact checkers to track disinformation and misinformation online in real time. Firstly, fact checkers are now forced to purchase VPNs to access X, where most politically-related disinformation circulates. Secondly, the suspension of X also prevents fact checkers from accessing official information from government sources which in some cases is essential to determine the accuracy of a claim. Rather than assisting fact checkers and journalists in verifying claims, by providing easy access to official documents, records and information, the government has chosen to ban a platform which is a vital source of information. Government officials further use disinformation as an excuse to justify censorship in the country.”

Disinformation on platforms or political censorship?

Requests recorded in Google’s transparency report are revealing. What is passed off as a violation of local law is actually an attempt to censor political content and speech.

Clearly recorded is non-compliance with these requests. Yet, Google and its services remain accessible in Pakistan. Other platforms also have not incorporated, or set up offices in Pakistan, yet they remain operational. The selectivity and timing of the restriction on X, which has fewer users compared to other platforms but far more political relevance and reach globally, exposes the actual reasons behind its restriction.

Digital Pakistan?

When PTI was in government, it built up Digital Pakistan as a brand and yet introduced the draconian social media rules despite criticism. These rules are now being used to justify blanket bans on platforms such as X, and direct takedown notices to others. Similarly, the present PML-N government is also promoting its vision for Digital Pakistan amid a prevailing restriction on X now in its third month.

According to Mubariz Siddiqui of Carbon Law — a law firm for startups and investors that specialises in commercial and legal advisory — “Foreign investors seek stable markets with regulatory certainty. Blanket bans without any explanation, in this case even an acknowledgement, give all the wrong signals. The technology sector in Pakistan is competing with many other markets in the region for foreign investment. Arbitrary measures like these reflect lack of coherent regulatory policy aimed at supporting technology businesses in Pakistan.”

In Pakistan, not only is there regulatory uncertainty, but despite court challenges, the only thing that is for certain is that restrictions are applied arbitrarily and indefinitely — and court challenges and orders also do not provide instant or timely recourse — if at all.

Earlier statements by the Asia Internet Coalition (AIC) with respect to the rules and data protection bill have made it clear that such regulations would make it difficult to operate in Pakistan and could lead to companies to withdraw their services from the country and hamper digital growth and the economy.

So contrary to the pipe dreams of the government, not only will they not open their offices but their services, which are currently utilised by millions of Pakistani users and local businesses, risk becoming unavailable, making Pakistan a digital pariah and robbing opportunities available to other global actors.

The Sindh High Court gave the government one week to withdraw its notification. The week is up, but there is no news of the notification being withdrawn, and the ban on X remains in place.

The end game, very simply, is control. Yes, disinformation and online harms are very real problems, but to tackle these, it will require an understanding of the medium, public consultation and informed and proportionate policymaking. A blanket ban does nothing to address these and instead creates more problems, violates the law as well as the rights of citizens.