The News on Sunday: What is the rationale behind the cybercrime act?

Nighat Dad: We have been saying that Pakistan needs a cybercrime law because of increased penetration of internet as well as increase in mobile usage. There was a prevention of electronic crimes ordinance promulgated by Pervez Musharraf in 2007. The ordinance, badly drafted, was massively criticised by different stakeholders including the civil society; and because of its weakness could never become a law. It was especially criticised by Anusha Rahman when she was in opposition to the extent that she was sort of an ally to us.

Then her party came to power and she became the IT minister and her ministry came up with the first draft in 2014. I have already said that there is a need to regulate cyberspace. There are lots of other areas that need to be tackled, for instance electronic fraud, hacking etc.

Frankly speaking, a law is needed but the law itself could have been much better than it is. The problem with this legislation is that the language is very unclear and it shows a lack of understanding of technology.

TNS: So many different kinds of crime have been clubbed together in the legislation. Would amending the existing legislation on various kinds of crime to take the effect of increased mobile and internet penetration have been a better strategy instead?

ND: Yes. There is a need to be more thorough. Take the case of online harassment of women. One of our suggestions in response to arguments given by the government where they said "our daughters and sisters are being abused online and we need a remedy" was that there is existing legislation that can be amended and tweaked to add the impact of technology: There is Section 509 in the Pakistan Penal Code which deals with the modesty of women. Fighting online harassment against women is something that I actually do. I feel that there is lack of mechanisms and legal recourse for women to actually get legal remedies. But the provisions regarding online harassment of women and stalking are very vague and surely they could have been more specific.

TNS: How difficult will it be for the government to educate people about the new rules of online conduct given that there is a trend of political activism, satire and heated debates on social and political issues online?

ND: There is lack of awareness. You have passed a law. You have internet and mobile penetration. But, what about digital literacy -- including it in our curriculum, for instance? Or building the capacity of the law enforcement agencies that are already dealing with cybercrime? These are all problems that have not been addressed.

The entire focus was on making a law and that too they could have done a much better job with. Also, you can judge the intention behind the law yourself; I don’t have to say that it is draconian. Everyone knows that online political activism is going strong in Pakistan. Different mediums of expression are being used -- people are making videos; writing posts on social media; satire and caricatures are going viral. If you notice, as compared to other posts on social media in Pakistan, political posts are shared the most and go viral. It will be very challenging to inform people and make them aware with respect to how they should regulate themselves on social media. People of all ages use social media.

It is just a sad reality and it is against the principles of democracy to curb freedom of speech -- you will be telling people not to criticise like this, not to comment like this, not to write like this otherwise you will find yourself behind bars. We are sacrificing our civil liberties for [the sake of] security with this law.

TNS: Could online criticism of the cybercrime act amount to cybercrime once it is operational?

ND: Till now, I am comfortable with critiquing the law because it hasn’t been signed by the President. Somebody has filed a case in KP under this law. But, we have to wait for the President’s signatures for it to be operational.

TNS: What options do you have after the President signs it?

ND: We are looking at the possibility of challenging it in the high court and then the Supreme Court. But we also don’t want to set a bad precedent. Say, we go to the high court and it says that yes, social media should be regulated because our younger generations are becoming immoral and losing values. So, we need to be careful and see how this law will be implemented.

Unfortunately, we will have to wait and see how our reservations are proven right to make a stronger case because then we can talk with greater confidence. Sadly, our legal system is the kind where you have to wait for anyone to abuse a law in order to challenge it.

TNS: It is being said that the 50 plus amendments that have been made to the law have somewhat blunted its impact. What are your thoughts?

ND: A lot of judicial oversight has been added but those amendments don’t improve the law overall. For instance, we had asked them to remove section 29 of data retention. These discussions took place during the meetings with the standing committees in the Senate. There was clear resistance because there is a huge issue of national security being threatened by terrorism; internet service providers have to retain data of internet users for a year. We had proposed that the data retention period be shortened to three months. There was resistance to this as well.

Then we had said that there should be a judicial oversight process: if they’re going through data, any agency that needs to access the data should get a judicial warrant; and we sort of added the language of Fair Trial Act where there is a judicial oversight mechanism for surveillance and real time monitoring. So that it is a bad law made slightly better through an amendment. Even this they did not fully go through with in the sense that only a line was added stating that a judicial warrant can enable an officer to get access to an internet user’s data.

This wasn’t ideal but we were still relieved. I mean look at what we were negotiating for and how much we got. The problematic chunk still exists.

Section 34 still gives power to the Pakistan Telecommunication Authority to ban any content deemed obscene, immoral or against national interest. That is extremely problematic. These are the same terms given in Article 19 which talks about freedom of speech and its limits. To that, the government said that it had just copied that very article and people criticising this aspect were actually criticising the constitution.

But, Section 34 gives one authorised officer of an executive body the power to decide what is obscene, what is immoral, what is against the glory of Islam and the national interest of Pakistan. This makes it all very subjective. The ambiguity of the language still exists. Take the case of glorification of a convicted person: if someone is convicted under the anti-terror act, their supporters would be booked under this law. What happens in case of political prisoners then?

TNS: How successful have your advocacy efforts been to garner support from internet users and make them aware that their rights to free expression will be impacted if this act becomes a law?

ND: We have been doing a lot of advocacy around this. One thing that I feel we couldn’t achieve was making it massive and garnering support. Had there been an understanding that the law was being made for them and would define their conduct, people would have reacted strongly and the situation would have been very different.

In Pakistan, laws are passed but people seldom know what is happening and how their lives would change after that happens. Look at POPA and how political parties resisted it but ordinary people do not even know what it is. Democracy as an idea is still not understood completely; if you listen to people having discussions on politics, there will always be one person talking in favour of dictatorship. So, awareness that comes with political participation is lacking. Such laws will make things worse.

TNS: What challenges will the law create for journalists given that all kinds of news content is available and shared online?

ND: There is and will be confusion for journalists -- will it apply to them or not? For instance, Radio Pakistan has a website as well. A lot of the things that are broadcast are also available online; will it apply in such cases? What about the work of investigative journalists? Section 4 and 5 talk about unauthorised access to information.

This law also doesn’t take into consideration the difference between public and private persons either. No one can post pictures of another person without their consent. Also, for emails and text messages, the cyber stalking provisions apply. If I have a good lawyer, I can easily use this against journalists asking uncomfortable questions using these mediums.

TNS: What challenges will the government and its machinery face in implementation of the law?

ND: I’ll give you a small example. They say that the PTA will ban this content or that content but it doesn’t have the capacity to do that. Had this been the case, it wouldn’t have completely banned YouTube. They cannot delete any Tweet or any post on Facebook. These companies follow the American law which values freedom of expression. So, the PTA and the judiciary need to understand that they cannot ban any content. Some people say, "Why are you so worried? It’s not like laws are implemented effectively in this country." But the most dangerous legislation is the one that seems to have a dormant status because that can be used against anyone at any point in time.