Violating privacy and human rights

The draft of the much debated Prevention of Electronic Crimes Bill (PECB) is likely to be presented for approval in the upcoming National Assembly session. A draft on cyber laws was approved by the Cabinet Division in February 2015 but it was soon replaced by an entirely new government bill as of April 2015 on the pretext of aligning it with the National Action Plan (NAP).

This bill has been criticised for being oppressive and violative of individual privacy and human rights.

There are apprehensions the ruling party will try to get it passed without much hassle. The resistance has come from the opposition, mainly the PPP, and civil society organisations while the masses seem to be totally unaware of what the law entails.

The fundamental flaw that the opponents find with the bill is that it tries to kill too many birds with one stone and disproportionately at that. There is no distinction between telecom offences, cybercrimes and social ills — they have all been packed into one law and criminalised.

Another objection is that the loosely worded sections leave too much room for interpretation and misinterpretation, widening the window for misuse and likelihood of the provisions of this bill being used for score-settling rather than addressing criminality. Blanket censorship, curtailment of political speech, dissenting views and debate and dialogue will be sanctioned if Sections 9, 18 and Section 34 of the bill are approved.

The fact that much is left to the discretion of authorised officers, authorities, agencies and the federal government perturbs many. They lament the fact that excessive powers have been given to regulatory and investigation bodies without any checks and balances or accountability mechanisms, too much is left to the rule making powers of the government and judicial oversight remains overwhelmingly absent in the proposed law.

Nighat Dad, Executive Director Digital Rights Foundation, tells TNS that the very foundation of the proposed law is wrong as the government intends to legalise mass surveillance instead of targeted surveillance with judicial oversight. She says, “the government is demanding of the telecom and IT-based companies to provide them data of users and access to their account. It would try its influence to get this data but once this law comes into force the companies will be legally bound to comply.”

Dad says the government is increasingly asking for user data and has made record data and content-related requests to Facebook during the year 2015. “Blackberry has decided to move out of Pakistan as it does not find it appropriate to share its customers’ data with the authorities. The company also refused to comply when data of Pakistan’s former Ambassador to the US, Husain Haqqani, was requested.”

Dad fears that passage of this “dreaded” law will affect foreign investment, especially in the IT sector. The reason she cites is that most global business giants are part of international alliances like the Global Network Initiative (GNI) which have to adhere to the guiding principles of the UN on clean business practices and human rights. “I don’t think any such international organisation would like to obey such commands.”

Farieha Aziz, Director Bolo Bhi, tells TNS that repeated attempts by members of opposition, industry and civil society groups to provide input and make this a public and transparent process have been thwarted. “Repeated requests for meetings and hearings have been denied. Meetings, to which members of opposition were invited, have been scheduled at a day’s notice at times.”

She says despite all the verbal and written input provided, nothing has been accommodated in the latest approved version of the bill. Not only was the bill once again approved with much haste, but a copy of the bill was not even placed before the members of the NA Standing Committee on IT to review before casting a vote. She strongly believes the proposed bill will function as a gag law should it come to pass in its current form. “It prescribes blanket censorship, curtails political speech, and seeks to control dissenting views, debate and dialogue.”

Her organisation, Bolo Bhi, has discussed the bill section-wise and mentioned the risks involved as well. For example:

Section 18 on natural dignity of a person deals with reputational damage already covered under the Defamation Act. Political expression, satire is not exempted. Rather than authority resting with a judicial body i.e. to determine the very subjective nature of this, powers instead have been delegated to the PTA to play judge, jury and executioner.

Section 21 on cyber stalking criminalises the transmission of ‘obscene, vulgar, indecent, immoral’ material — which could be interpreted as anything and misapplied. Moreover, there is no exemption for pictures taken without permission if they are covering crowds at public events, which impacts media coverage. And this section carries a jail term of one year as well.

Section 27 gives too much power to the government authorities and there is no provision of judicial oversight, especially in the matters related to data.

Section 29 talks about retention of data contrary to the right to privacy. In the absence of privacy and data protection legislation, this puts at risk the data of citizens to misuse by authorities and others who may gain access to it. The concerned companies have to retain users’ data up to one year.

Section 34 gives the government/Pakistan Telecommunication Authority (PTA) unfettered powers to block access or remove speech not only on the Internet but transmitted through any device, through its own determination.

Aziz says the bill needs to be heavily amended to bring it in line with a constitutional framework that safeguards rights. She adds the age distinguishing a minor and an adult should be 18, the term ‘malicious intent’ should be added to all sections on offences to establish mens rea, warrants should be required for not only search and seizure, but for all offences, an officer should have to provide reasoning before court as to why he needs access to a person’s data, device or to the accused himself/herself is necessary. “This becomes all the more necessary in the absence of data protection and privacy legislation.”

She says penalties should exist for service providers and investigation officers who step beyond the scope of duty and misuse information they may gain access to. The data of Pakistani citizens should not be readily shared or handed over to foreign governments — protections and procedures need to be in place.

Her point is that given that there is still relatively low computer and technology literacy in the country, a law that deals with crimes needs to be carefully crafted. “While it should serve the rightful purpose of curtailing criminal activity, it should not place the fear of technology among a people still embracing and learning to use this medium. Neither should it treat every user as a potential criminal.”

Aftab Alam, an Islamabad-based lawyer with interest in media laws, says the parliamentarians must be careful while discussing the draft as they are the ones most likely to be affected. Any recorded communications of theirs can be used against them especially when they become admissible evidence under law.

He rejects the idea of amending the law saying its whole premise is wrong and it is just a badly and loosely worded draft. When you do not clearly differentiate between what is a crime and what is a not, there is a lot of space for misinterpretation and misuse like many other laws, he adds.

“The very nature of social media is such that you follow each other even inadvertently. What if someone terms it cyberstalking and levels criminal charges against you?” says Nighat Dad. Similarly, she says, one can be booked for creating political caricature and memes due to the vague wording of this law. Furthermore, people quarrelling with each other can produce old text messages before law authorities saying these were sent to them without their consent, she adds.