Proposed Prevention of Electronic Crimes Bill 2015 By Yasmeen Aftab Ali

The way it has been handled should worry every citizen

The increasing influence the internet on its users worldwide cannot be denied. Crime rates have increased owing to this expanding use of medium. Sajjan M Gohel writes, “The virtual world is fast becoming the most important meeting place for terrorists, and a major venue where extremists can make contact with like-minded individuals. Through these relatively anonymous contacts, an extremist can be brought into the terrorist fold and become physically involved in terrorist plots. Today, there are a growing number of cases in which terrorist groups, or jihadist radicalisers, have used the internet to recruit individuals in the West, providing them a starting point to engage in terrorist activity. By ignoring this developing issue, there is the risk of becoming complacent about an emerging threat that appears to be growing more significant with time.” (December 3, 2009)

A local newspaper reports, “The recent case of two men involved in the horrific murder of Lee Rigby in Woolwich has raised serious questions about how the men were radicalised. Evidence has now emerged that the suspects had been keeping ‘in touch’ with the radical preacher Omar Bakri who was deported from the UK but has continued to use the internet as a vehicle to drive home his ‘extremist’ views. In Britain, the fight against online cyber extremism has become a key priority as the Strategic Defence and Security Review in 2010 highlighted. Moreover, the Home Secretary Theresa May recently told the BBC’s Andrew Marr show on Sunday that a new workforce would be set up to examine online cyber extremism because as in her words ‘cyber jihad’ was the ‘new’ threat the UK faced.” (June 3, 2013)

With the increasing presence of ‘Cyber Influence’, Pakistan too promulgated the Cyber Crime Prevention Bill in 2007 and Prevention of Electronic Crime 2008. The Ordinance of 2008 gave exclusive right to the Federal Investigation Agency (FIA) to conduct investigation and handle cyber crimes. The Ordinance lapsed. Like much, the need for a law to govern cyber space was brushed under the carpet.

Hate speech in different hues and shades, unfortunately, has become a part of cyber space as have rumours and unverified news that spread like wildfire having negative cascading effects. “In comparison to traditional print-based media, the accessibility and relative anonymity of cyber space has torn down traditional barriers between an individual and his or her ability to publish. Any person with an internet connection has the potential to reach an audience of millions with little-to-no distribution costs. Yet this new form of highly accessible authorship in cyber space raises questions and perhaps magnifies legal complexities relating to the freedom and regulation of speech in cyberspace.” (Noor Alam Khan, Advocate, Supreme Court of Pakistan)

In light of the changing communication dynamics the new proposed Prevention of Electronics Crimes Bill 2015 was approved for a second time on September 7, 2015, by the Standing Committee of the National Assembly on Information Technology and Telecommunications.

An organisation ‘Bolo Bhi’ for advocacy, policy and research along with many other digital rights organisation as well as IT industry associations like Pakistan Association of Software Houses (PASHA) and ISPAK offers the following reservations on the proposed bill: “The major concerns regarding the bill and its provisions remain unaddressed. Recommendations on sections pertaining to powers of authorities, agencies and officers; checks and balance through defined procedures; judicial oversight mechanisms, content and speech restrictions; privacy breaches; all remain unaltered. The bill, in essence, remains as problematic as the version approved before it.”

If one takes a cursory look at the proposed bill, one sees loopholes that will lead to confusions if passed in its present form. Section 2 (x) states “offence” means an offence punishable under this Act except when committed by a person under [ten] years of age or by a person above [ten] years of age and under [thirteen], who has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion.” The age factor is in conflict with the age of 18 determined by law of the land for criminal offences for the offender to be subject to punishment for crimes of serious nature. The proposed law sets no difference between an offender attaining maturity and that of a juvenile. There is a difference between punishment for both world over. “For example, in 2005, the Supreme Court banned the death penalty for juvenile offenders because “people under 18 are immature, irresponsible, susceptible to peer-pressure and often capable of change.” (NYT, June 5, 2012) Kelly Richardsin his paper for the Australian Institute of Criminology writes about the doctrine of doli incapax, “The rate at which children mature varies considerably among individuals. Due to their varied developmental trajectories, children learn the difference between right and wrong—and between behaviours that are seriously wrong and those that are merely naughty or mischievous—at different ages. The legal doctrine doli incapax recognises the varying ages at which children mature.” Note that in Pakistan it has been fixed at 18.

Yet another confusion can be created by Section 27: Power to investigate — (1) Only an authorised officer of the investigation agency shall have the powers to investigate an offence under this Act. Under the Prevention of Electronic Crime 2008, the cyber crime section fell under the FIA. The website provided a complaint form that could be filled and submitted electronically which was treated as an FIR. Further, the section and subsequent sections do not lay out the parameters within which the investigative officer is to operate in terms of duties to carry out the investigation.

Section 3 on unauthorised access to information system or data, states: Whoever intentionally gains unauthorised access to any information system or data shall be punished with imprisonment for a term which may extend to three months or with fine up to fifty thousand rupees or with both.”

An interesting question arises here: how does one determine the access was accidental or intentional? A computer glitch not shutting off a site properly can lead to another user logging in as the initial authorised user did not sign out properly. The system may have server problems whereby it was not possible, or a genuine oversight. Yet the proposed law does not make a distinction between “white hacking” and “black hackers” and “blue hat hackers”. Techopediadefines, “People who break into a computer system and inform the company that they have done so, they are either concerned employees or security professionals who are paid to find vulnerabilities. White hat hackers are the “good guys”. Contrast with black hat hacker and blue hat hacker.” The black hat hacker is defined as, “A person who breaks into a computer system with the purpose of inflicting damage or stealing data. In other words, a “bad guy”. Whereas a blue hat hacker is defined succinctly as, “A security professional invited by Microsoft to find vulnerabilities in Windows.” Yet the proposed law lumps all in one category.

Afia Salam, a journalist having over three decades of experience of print and electronic journalism and digital rights activist, has the following to say, “As an ordinary citizen of Pakistan who has been closely following the developments related to the proposed Pakistan Electronic Crime Bill, I am actually perturbed at the way it is being handled. I have been over the many drafts, and have seen the civil society as well as industry reservations, and am not at all comfortable at the criminalisation of innocent mistakes, and overbroad definitions without checks and balances which render it liable to misuse.

However, more than the letter of the law, the spirit that is being displayed is alarming as there is a definite streak of obstinacy being displayed to push it through brute majority, without taking into account the reservations voiced by the Joint Action Committee and the members of the opposition from PPP, MQM PTI and ANP.

Despite promised, on public platforms, the members of civil society were not called for meetings and NA Standing Committee approved the bill in a manner that drew the ire of one of its members Shazia Marri. This means that there is every likelihood of a NA Senate scenario taking place.

This is totally against the spirit of the understanding of ‘no legislation without representation’. I have tried to share the bigger picture here. Dissecting the proposed law in a few hundred words is simply not possible, but I hope the point is conveyed. Hilary Mantel, who is the bestselling author of many novels including Wolf Hall, correctly states, “When you are writing laws you are testing words to find their utmost power. Like spells, they have to make things happen in the real world, and like spells, they only work if people believe in them.”

May I request our lawmakers to kindly visit the real world?

The writer is a lawyer, academic and political analyst. She has authored a book titled ‘A Comparative Analysis of Media & Media Laws in Pakistan.’ She can be contacted at: yasmeenali62@gmail.com and tweets at @yasmeen_9.