Research Briefs

The Prevention of Electronics Crimes Bill 2015

Fahad Nabeel
Written by Fahad Nabeel

Note: The draft of the bill can be viewed at the here

The National Assembly Standing Committee on Information Technology approved the Version 4 [1] of the Prevention of Electronics Crime Bill, 2015 on 16th April.

According to the Ministry of IT, the law deals with hate speech, terrorist activities on the internet and protects critical government infrastructure from hackers.[2]

Clauses of the Bill

According to the bill, online criticism of religion, the country, its courts, and the armed forces are among subjects which will invoke official intervention.

The bill proposes up to a maximum punishment of 14-year jail and Rs 50 million fines, to curb cyber terrorism in the country. The Electronic Crime Bill said whoever prepares or disseminates intelligence through any information system or device where the commission or threat is with the intent to;

(a) Glorify an offence or the person accused or convicted of a crime,

(b) Support terrorism or activities of proscribed organizations and

(c) Advance religious, ethnic or sectarian hatred, shall be punished with imprisonment for a term which may extend to five years or with fine up to Rs 10 million or both.

Under the proposed law Pakistan Telecommunication Authority (PTA) has been empowered to manage intelligence, and issue directions for removal or blocking of access of any intelligence through any information system. The Authority or any officer authorized by it in this behalf may direct any service provider, to remove any intelligence or block access to such intelligence, if it considers it necessary in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign states public order, decency or morality or in relation to contempt of court or commission of or incitement to an offence under this Act.

According to the proposed law whoever sells or otherwise provides SIM card, re-usable identification module (R-IUM) or other portable memory chip designed to be used in cellular mobile or wireless phone for transmitting intelligence without obtaining and verification of the subscriber’s antecedents in the mode and manner for the time being approved by the Authority shall be punished with imprisonment for a term which may extend to three years or with fine up to Rs 0.5 million or both.

According to the bill anybody found guilty of unauthorized access to information system or data shall be punished with imprisonment for a term which may extend to three years or with fine up to one fifty thousand rupees or both. Any person found guilty of unauthorized copying or transmission shall be imprisonment for a term of may extend to six months or with fine up to Rs 0.1 million or with both. Any person found guilty of electronic fraud shall be punished with imprisonment for a term, which may extent to two years with fine up to Rs 10 million or both. Whoever found in making, obtaining or supplying devices for use in offence be punished with imprisonment for a term may extend to 6 months or with fine up to Rs 50,000 or both.[3]

How the Bill was approved?

Headed by Captain (Retd) Muhammad Safdar, son-in-law of Prime Minister Nawaz Sharif the meeting of the standing committee of National Assembly on Information Technology & Telecommunication was held at parliament house.[4]

The half a dozen PML-N members of the committee, who were present to deliberate on the draft bill, did not object to the law that was laid before the parliament. MQM MNA Ali Raza Abidi was the only member who opposed some aspects of the bill. The committee also discussed some of the sections of the bill that critics had described as “ridiculous”.

Of the 20 members of the committee, all 14 PML-N MNAs approved the bill, while five of the six opposition members were absent from the initial meeting. The members had earlier alleged that they had not been provided copies of the bill for review.[5]

Some viewpoints of the opposition members in the standing committee

“I just received a copy. It’s obvious the bill has been approved in haste. Nobody is willing to listen,” Mr Abidi said, explaining how the members did not have adequate knowledge about the internet, its technicalities and how best to address them.

“If they do not heed the concerns of critics today, it can also affect their children tomorrow,” he said.[6]

Viewpoints of critics

Critics of the Prevention of Electronics Crimes Bill 2015 argue that it is draconian, suppresses civil liberties and freedom of expression besides giving unfettered powers to law enforcement agencies to make arrests without seeking proper permission from the courts.

The joint action committee, which is a group consisting of representatives of Internet service providers, IT companies and entrepreneurs along with other stakeholders, argued that checks and balances on investigation agencies and officers have been removed under the bill that also fails to define the mechanisms of enforcement.

“For example, there no longer exists a need – under the new law – for an investigation officer to give reasons to obtain a warrant from the court to search, seize or make arrests. The safeguards introduced by the IT industry, such as protection against self-incrimination and the right of an accused to know the charges against him/her, have also been omitted,” Mr Siraj said.

“In its present form, the new bill will seriously discourage students, academics and universities who conduct research,” he said.

Pakistan Software Houses Association (PASHA), Executive Member for IT Syed Ahmad explained how the bill gave authorities the powers to confiscate devices and data, something foreign investors who valued their privacy would be uncomfortable with.[7]

The controversial sections of the Bill:-
Section 2

IT expert explained how the Prevention of Electronic Crimes Bill 2015 had serious issues with regards to definitions and technical language.

“There is a difference between ‘a warrant is required’ and ‘a warrant may be required’. Civil safeguards have been removed by parliamentarians who do not understand the technicalities of the subject,” he said.[8]

Section 15

Those opposing the bill’s passage also argue that Section 15 allows regulators to prosecute foreign cellular companies for selling unauthorized SIMs. Section 15 reads: “Whoever sells SIMs for use in cellular mobile phones without biometric verification as approved by PTA, shall be punished with imprisonment up to three years and fine up to Rs500, 000.”[9]

Section 17 and 18

Wahajus Siraj explained how political criticism and political expression in the form of analysis, commentary, blogs, cartoons, caricatures and memes has been criminalized under sections 17 and 18 of the new bill.[10]

He was critical of Section 18 that deals with offences against the dignity of a person.

Section 18 states that whoever “intentionally publically exhibits or displays or transmits any false intelligence, likely to harm or intimidate reputation or privacy of a person shall be imprisoned for three years and fined Rs500, 000.”

It also states, “Nothing [contained herein] shall apply to anything aired by a broadcast media or distribution service licenced under Pakistan Electronic Media Regulatory Authority Ordinance, 2002.” According to Mr Siraj, this law strangles social media but allows everything to continue, as is, on television and in print.

“Sharing videos of former Interior Minister Rehman Malik being off-loaded from an aircraft or the Sharif family’s guards beating up employees of a bakery will now be illegal,” he said.[11]

Section 20

Disseminating obscene or immoral messages on Facebook, Twitter or other social networks has been made an offence under Section 20 without defining ‘obscenity’ or ‘immorality’, thus giving sweeping powers to investigating agencies to implicate anyone on these charges, he said.

Farieha Aziz, director of Bolo Bhi – an advocacy organization focusing on Internet policy, digital security and privacy – explained how posting a photograph of any person of Facebook or Instagram without their permission would be an offence under Section 20 of the new bill.[12]

Section 21

Wahajus Siraj was also critical of Section 21.1.d, which prohibits “[taking] a picture of any person and display[ing] or [distributing it] without his consent or knowledge in a manner that harms a person.”

Talking about this stipulation, the ISPAK representative asked if uploading a picture of a politician who wears a toupee, without his wig, would be illegal because it could be offensive to that individual personally.

 “Section 21 says that sending an email or message without the recipient’s permission will become an offence. This means that an expression of consent from a recipient will be needed before texting him or her, without which the end user can report to the law enforcement agencies and have the sender thrown behind bars for anywhere between a few months to several years,” Ms Farieha Aziz said.[13]

Section 22

“….Nowhere in the world is spam a criminal offence, but it is about to become one in Pakistan,” said Internet Service Providers Association of Pakistan (ISPAK) Convener Wahajus Siraj.[14]

Section 26

Critics were also concerned about Section 26 – the definition of service providers – traditionally limited to ISPs and telecom companies. According to the speakers, the definition has now been expanded to include any place that offers access to Internet to the public such as restaurants, malls, hotels, offices, airports bus stations.

“This puts burden on cafes and restaurants to retaining traffic data for three months and they can be punished for not doing so,” Ms Aziz explained.[15]

Section 31

Critics were also critical of Section 31, which supposedly gives the government unfettered powers to block access or remove speech not only on the Internet, but which is transmitted through any device, limiting the media’s freedom and citizens’ right to expression.

Under this section, the government could block access to any website “in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign states, public order, decency or morality….” Who is to decide what undermines the integrity of Pakistan, or its relations with other states?

Who exactly are the “friendly foreign states”, and where would countries with which Pakistan has fluctuating ties such as the US be placed? Critics also refer to several other technically flawed and vague definitions that pose threats to ordinary citizens.[16]

Section 34

Article 34 permits “authorized” officers of the state to block or remove any information if the state:

“Considers it necessary in the interest of the glory of Islam, or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign states, public order, decency or morality.”[17]

Viewpoint of original drafters of bill

“In its current form, the bill is a disaster. It was not made by an expert draftsman with adequate knowledge of the nuances of language, a comprehension of technicalities and technologies, someone who understands international laws. This is a hard combination to find,” Mr Ahmad said.

Mr Ahmad spent three years drafting what he calls “the original bill” alongside a group of IT experts and lawyers. He said that the government had sidelined all the relevant stakeholders from the process of drafting the law.

“Our version of the bill curtailed the abusive powers of agencies such as the Federal Investigation Agency (FIA). We insisted that authorities get permits before making arrests. We had also tried to make sure that innocent people were not thrown in jail,” he said, explaining that the bill in its current form did not protect the rights of citizens.

“Our version of the bill emphasized the rights of defendants and the qualifications of judges who would adjudicate on cybercrime cases,” said Afaque Ahmad.[18]

 Viewpoint of former IT Minister

Former IT minister and MNA Awais Khan Leghari has been insisting on the formation of special courts.

“The present judicial system cannot handle cybercrime cases and it will lead to havoc,” Mr Leghari had said during deliberations at one of the meetings of the National Assembly Standing Committee on IT and Telecom[19]

 Response of Government officials to criticism

Apparently reacting to media reports highlighting the flaws in the bill, committee chairman, retired Capt Mohammad Safdar said, “All possible efforts have gone into drafting this law and the committee is satisfied,” before approving the bill.”

State Minister for Information Technology Anusha Rehman responded to the criticism when she explained to the committee that the picture was not as gloomy as painted by the anti-bill lobby.

“The bill protects the interests of foreign investors and offers local businesses a bail out option. It does not hold them responsible for objectionable content placed on the Internet by an individual. It does not criminalize an individual until intent is proven and the bill permits law enforcement agencies to confiscate data and equipment as evidence,” Ms Rehman said as she explained how the government did not want IT businesses in the country to suffer.

However, PML-N MNA Farhana Qamar believed that those who committed cyber crimes should be punished harshly.

 “We can also not move forward unless judges are trained in the subject to decide cases of cyber crime. Offences relating to information systems are in line with local laws. The law also binds us to cooperate with other countries to fight terrorism,” Anusha Rehman said.

PML-N MNA Tahir Iqbal argued that law enforcement agencies should not need a warrant from the courts to make arrests and confiscate data and electronic devices.

“The situation in the country demands immediate action to fight terrorism. Law enforcement agencies do not have time to get warrants and let terrorists win. This is only way to save society,” the former army major said.

Defending the bill, Barrister Zafarullah Khan, who is the Prime Minister’s Special Assistant on Law Parliamentary Affairs, believed that the language used in the new law on cyber crime was taken from the Constitution.

“Those who challenge it are challenging the Constitution of Pakistan,” he said, explaining to the committee that some of the stakeholders’ concerns were incorporated and others excluded from the bill.

“It is the job of elected parliamentarians to decide what is best for the masses. The draft presented by the so-called civil society and NGOs claiming to be the voices of the people was riddled with loopholes,” Mr Khan said, explaining that the draft bill that is now in the custody of parliament was discussed clause by clause with all stakeholders.[20]

Talking about some of the bill’s salient features, a senior MoIT official said the bill was drafted in line with the current legal system to minimize chances of failure in prosecution.

“One of the major challenges was establishing special courts to fight cyber crime. But that would be a time-consuming process. We have to deal with the problem urgently under NAP, hence it was decided that session’s judges would be trained in the subject, enhancing their capacity and making them smarter than the person committing the crime,” the official said.[21]

 Laws of other countries

Around the world, parody and satire are protected as a part of free speech. In the landmark Falwell vs Flynt, the US Supreme Court prohibited awarding damages to public figures to compensate for emotional distress intentionally inflicted upon them because reasonable people would not interpret the parody to contain factual claims.

“Around the world, telecom companies are prosecuted when necessary under the terms and conditions of their licence agreements. The government has now added a section to criminalize the selling of unverified SIMs to subscribers,” Mr Siraj said[22]

Timeline details

16th April 2015: The National Assembly Standing Committee on Information Technology approved the Prevention of Electronics Crime Bill, 2015

2nd April 2015: Prevention of Electronic Crimes Bill 2015 has been sent to the National Assembly Standing Committee on IT & Telecom after deliberations by Special Review Committee[23]

24th February 2015: 2nd meeting of Special Review Committee[24]

11th February 2015: Technical committee comprising of technical and legal experts and MNAs has started reviewing the proposed prevention of electronic crime bill 2015[25]

28th February 2014: The Minister of State for IT Mrs. Anusha Rahman has said that the comprehensive draft of cyber crime bill which was finalized few days back has been vetted and endorsed by the Ministry of Law and Justice[26]

14th February 2014: Comprehensive draft of cyber crime bill is finalized[27]

 

 

About the author

Fahad Nabeel

Fahad Nabeel

studies Journalism and Mass Communication from the Virtual University of Pakistan. He has considerably researched on regional geo-political issues and militancy trends.

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