Media Matters for Democracy called to the proceedings of ‘Standing Committee on Information & Technology’ to consult on Prevention of Electronic Crimes Bill 2015

Media Matters for Democracy called to the proceedings of ‘Standing Committee on Information & Technology’ to consult on Prevention of Electronic Crimes Bill 2015

Islamabad, 25 May 2015: Media Matters for Democracy along with a group of national civil society organizations was called to a consultative meeting with National Assembly’s Standing Committee on IT and Telecom yesterday. 

The invitation was extended by National Assembly’s staffers assisting the Standing Committee on IT and Telecom on the instructions of the Committee Chair MNA Captain Retd Safdar.

MMfD having analysed the draft of Prevention of Electronic Crimes Bill 2015, had various concerns over multiple sections of the proposed legislation. A comprehensive list of concerns was submitted to the Chair along with recommendations.

The Committee ensured Media Matters for Democracy and various other civil-society organisations present that no decisions will be made without taking the staekholders in confidence.

MMfD submissions read:

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Our analysis:

We’ve reviewed the draft believed to be approved by the Standing Committee and have found following immediate concerns in Chapter II – download a copy here:

1. On page 2 under the Definitions, sub-section (x) states:

 (x) “offence” means an offence punishable under this Act except when committed by a person under seven years of age or by a person above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion.;

Problem:

According to this, children up-to 7 years of age can be tried under the Act and 13 in case of ‘not attaining sufficient maturity’. The legal age of maturity in Pakistan is 18 years and the application of this Act on minors is a serious misstep towards child rights.

2. Section 9 on Page 4 states:

9. Glorification of an offence and hate speech. Whoever prepares or disseminate intelligence, through any information system or device, where the commission or threat is with intent to:-

(a) glorify an offence or the person accused or convicted of 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 ten million rupees or with both.

Explanation: “Glorification” includes depiction of any form of praise or celebration in a desirable manner.

Problem:

According to Section 9, to advocate for a person wrongly accused or convicted of a crime is not just illegal but punishable by 5 years in prison or ten million rupees or both.

Real life example: Under this Act the campaign to save Shafqat Hussain (an alleged juvenile charged with murder) can not only be bowdlerized but State can also lawfully arrest those expressing sympathies for the victim (online).

3. Section 10 on Page 4 states:

10. Cyber Terrorism:  Whoever commits or threatens to commit any of the offences under section 6,7,8 or 9 of this Act, where the commission or threat is with intent to:-

(a) coerce, intimidate, overawe or create a sense of fear, panic or insecurity in the Government or the public or a section of the public or community or sect or create a sense for fear or insecurity in society; or

(b) advance religious, ethnic or sectarian discord,

shall be punished with imprisonment of either description for a term which may extend to fourteen years or with fine up to fifty million rupees or with both.

Problem:

According to Section 10 political campaigns and/or protests can be potentially seen as an attempt to “create …  insecurity in the Government or the public …” and those expressing support for them online can be punished for fourteen years or with fine up to fifty million or with both.

Real life example:  

Citizens’ supporting PTI’s dharna could potentially be seen as creating insecurity in the Government or the public – and under this Act can be charged with Cyber Terrorism. Similarly, PML-N’s long march for the restoration of judges (set in this scenario) could be seen as another example. An extremely dangerous provision especially when valid for all forms of electronic information exchange.

4. Section 18 on Page 5 states:

18. Offence against dignity of a natural person- (1) whoever intentionally publicly exhibits ordisplays or transmits any false intelligence, which is likely to harm or intimidate the reputation or privacy of a natural person shall be punished with imprisonment for a term which may extend to three years or with fine up to one million rupees or with both:

Provided, nothing under this sub-section (1) shall apply to anything aired by a broadcast media or distribution service licensed under Pakistan Electronic Media Regulatory Authority Ordinance, 2002 (XIII 0f 2002).

Problem:

It criminalizes the act of transmitting false intelligence which may (or may not) hurt an individual’s reputation and has a huge potential to be used a tool to curb legitimate expression especially when it’s equally applicable to ALL forms of electronic communication.

Real life example:

Saying the least, the truth is subjective. For instance, only a certain allegation proved in a court of law can be perceived as truth. “XYZ political leader seems to be a dishonest person” – might not necessarily be true and can be perceived as an attack on ones’ reputation – this message alone can potentially land one in jail for 3 years!

5. Section 19 on Page 5 states:

19. Offences against modesty of a natural person and minor: (1) Whoever intentionally and publicly exhibits or displays or transmits any intelligence which:

a) superimposes a photograph of the face of a natural person over any sexually explicit image; or

b) distorts the face of a natural person OR includes a photograph or a video of a natural person in sexually explicit conduct; or

c) intimidates a natural person with any sexual act,

shall be punished with imprisonment for a term which may extend to seven years or with fine up to five million rupees or both.

Problem:

While the section generally attempts to provide a safety net for the victims of online sexual abuse – by limiting the condition with ‘OR’ – it makes possible a rather open interpretation and can be easily extended to caricatures and satirical cartoons online.

Real life example:

Satirical cartoons and caricatures are a legitimate form of expression and the Act can possibly compromise the right of citizens/journalists to free expression. Have a look at the cartoon by Sabir Nazir – this can potentially be seen a the ‘distortion of natural face(s)’

sabir

Solution:

Replace OR with AND – “distorts the face of a natural person AND includes a photograph or a video of natural person in sexually explicit conduct”

6. Section 21 on Page 6 states:

21. Cyber stalking. (1) Whoever with the intent to coerce or intimidate or harass any person uses information system, information system network, the Internet, website, electronic mail, intelligence or any other similar means of communication to:-

(a) communicate obscene, vulgar, contemptuous or indecent intelligence; or

(b) make any suggestion or proposal of an obscene nature; or

(c) threaten to commit any illegal or immoral act; or

(d) take a picture or photograph of any person and display or distribute without his consent or knowledge in manner that harms a person; or

(e) display or distribute information in a manner that substantially increases the risk of harm or violence to any person,

commits the offence of cyber stalking.

(2) Whoever commits the offence of specified in sub-section (1) shall be punishable with imprisonment for a term which may extend to 2 years or with a fine of up-to one million or both.

Problem:

Cyberstalking is a genuine concern but the counter mechanisms created in the Act are extremely broad in nature and has the potential to be misinterpreted. Obscene, vulgar and contemptuous are subjective terms and use of such terms to define a criminal act is least to say, dangerous.

A sub-section also criminalizes unauthorized capturing and displaying of a person’s picture without explicit permission of knowledge – again a very generic statement.

The sub-section (e) appears to be completely redundant.

7. Section 22 on Page 7 states:

22. Spamming: (1) Whoever intentionally transmits harmful, fraudulent, misleading, illegal or unsolicited intelligence to any person without the express permission of the recipient, or causes any information system to show any such intelligence commits the offence of spamming.

Explanation: “Unsolicited intelligence” does not include:

i. Marketing authorized under the law; or

ii. Intelligence which has not been specifically unsubscribed by the recipient. 

(2) A person engaged in direct marketing shall provide the option to the recipient of direct marketing to block or unsubscribe such marketing.

(3) Whoever commits the offence of spamming as described in sub-section (1) or engages in direct marketing in violation of sub-section (2), for the first time, shall be punished with fine not exceeding 50,000 and for every subsequent violation shall be punished with imprisonment for a term which may extend to three months or with fine up to one million rupees or both.

Problem:

Unsolicited intelligence is defined in the new draft but 4 other categories of intelligence remains undefined – ‘harmful’ and ‘misleading’ are extremely broad terms and should not under any circumstances be used to define a criminal act.

The Act calls for overly harsh punishment for the offenders of Spamming – considering a lot of small business and entrepreneurs use mass-SMS software as their primary mode of advertising (which effectively qualifies as spamming). First and second offenders should only be served with a warning.

8. Section 29 on Page 8 states:

29. Retention of traffic data: (1) A service provider shall, within its existing or required technical capability, retain its traffic data for a minimum period of one year or such period as the Authority may notify from time to time and provide that data to the investigation agency or the authorized officer whenever so required.

(2) The service providers shall retain the traffic data under sub-section (1) by fulfilling all requirements of data retention and its originality as provided under Section 5 and 6 of Electronic Transaction Ordinance, 2002 (LI of 2002).

(3) Any person who contravenes the provisions of this section shall be punished with imprisonment for a term which may extend to six months or with fine up to five hundred thousand rupees or with both.

Problem:

The Act defines a ‘service provider’ and ‘traffic data’ as follows:

(aa) “service provider” includes a person who:

(i) act as a service provider in relation to sending, receiving, storing, processing or distribution of any electronic communication or the provision of other services in relation to electronic communication through an information system;

(ii) owns, possesses, operates, manages or controls a public switched network or provides telecommunication services;

(iii) processes or stores data on behalf of such electronic communication service or users of such service; or

(iv) provides premises from where or facilities through which the  public in general may access an information system and the internet such as cyber cafes;

(cc) “traffic data” includes data relating to a communication indicating its origin, destination, route, time, size, duration or type of service;

According to this act all of the following will be considered as internet service providers:

1. Hotels, motels, restaurants, coffee-shops etc.

2. Shopping malls, markets, shops, petrol stations  (if they provided an active WiFi connection to consumers)

3. Universities, colleges and all other educational institutes providing active WiFi access to students and/or visitors.

4. Pretty much another established with an active public WiFi connection.

All of above in accordance with this Act will be required to store one year of ‘traffic data’ (as defined in the Act). In case they are not technically capable of doing so in the present infrastructure, they’ll be required to acquire such capacity. Those who don’t comply and are unable to provide the data if and when required can be jailed up to 6 months.

The IT Minister has on numerous occasions guaranteed that the said law will be made business-friendly, a claim which is hardly substantiated with the Section 29 of the Act.

9. Section 34 Page 9 states: 

34. Power to manage intelligence and issue directions for removal or blocking of access of any intelligence through any information system: (1) The Authority is 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 defense 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.

(2) The Authority may prescribe rules for adoption of standards and procedure to manage intelligence, block access and entertain complaints.

(3) Until such procedure and standards are prescribed, the Authority shall exercise its powers under this Act or any other law for the time being in force in accordance with the directions issued by the Federal Government not inconsistent with the provisions of this Act.

Problem:

The Inter-Ministerial Committee For Web Evaluation was constituted by then Prime Minister of Pakistan in 2006 – mandated to evaluate and restrict offensive online content the committee was headed by the Secretary of IT and had  representation of various Ministries, entities, and agencies. Bolo Bhi, a civil society organization recently challenged the legality of IMC under Constitution of Pakistan in Islamabad High Court – as a result of which the Committee was restrained from blocking websites until the final decision of the case.

Disbanding IMC is a step towards securing open access to the Internet in Pakistan, but not for long. Pakistan Electronic Crimes Bill 2015 if passed in its current form will authorize the Pakistan Telecommunication Authority to block access to online content. Furthermore, it’ll allow PTA to designate an individual officer to make decisions regarding the blocking of online content; the step is an extreme form of centralized censorship and is directly used to curb citizen’s right to free expression.

10.  Section 37 on Page 11 states:

37. International Cooperation – (1) The Federal Government may on receipt of request, extend such cooperation to any foreign Government, 24 x 7 network, any foreign agency or any other international organization or agency for the purposes of investigations or proceedings concerning offences related to information systems, electronic communication or data or for the collection of evidence from relating to an offence or obtaining expeditious preservation and disclosure of data by means of an information system or real-time collection of data associated with specified communications or interception of data under this Act.

(2) The Federal Government may, at its own, forward to a foreign Government, 24 x 7 network, any foreign agency or any international agency or organization any information obtained from its own investigations if it considers that the disclosure of such information might assist the other Government, agency or organization etc. as the case may be in initiating or carrying out investigations or proceedings concerning any offence.

(3) The Federal Government may require the foreign Government, 24 x 7 network, any foreign agency or any international agency to keep the information provided confidential or use it subject to some conditions.

(4) The Federal Government shall be responsible for sending and answering requests for mutual assistance, the execution of such requests or their transmission to the authorities competent for their execution.

(5) The Federal Government may refuse to accede to any request made by a foreign Government, 24 x 7 network, any foreign agency or any international organization or agency if the request concerns an offence which may prejudice its national interests including its sovereignty, security, public order or an ongoing investigation or trial.

Problem:

The Act gives the Federal Government unregulated, arbitrary powers to share information with international governments/agencies without any oversight which is troubling. The definition of information very well covers ALL form of electronic communication, SMS, phone calls and emails and combined with absolute powers to share such data with international organizations at will presents a serious concern for citizens’ right to privacy.

In sub-section (3) the Act attempts to limit international governments to keep the information confidential or use is subject to some conditions – which is completely redundant. International governments are neither bound by this Act nor by any such conditions that Pakistan’s Government may subject the information to.

11.  Section 38 on Page 12 states:

38. Offences to be compoundable and non-cognizable(1) All offences under this Act, except the offences under Section (10) and (19) of this Act, and abetment thereof, shall be non-cognizable, bailable and compoundable:

Provided that offences under section 15 shall be cognizable by the investigation agency on a written complaint by the Authority.

(2) Offences under section (10) and (19) and abetment thereof shall be non-bailable, non-compoundable and cognizable by the investigation agency.

Problem:

Section 10 and 19 of this Act has the potential to be used politically. Making such offences non-bailable presents a serious concern. For instance:

Section 10 states:

10. Cyber Terrorism:  Whoever commits or threatens to commit any of the offences under section 6,7,8 or 9 of this Act, where the commission or threat is with intent to:-

(a) coerce, intimidate, overawe or create a sense of fear, panic or insecurity in the Government or the public or a section of the public or community or sect or create a sense for fear or insecurity in society; or

(b) advance religious, ethnic or sectarian discord,

shall be punished with imprisonment of either description for a term which may extend to fourteen years or with fine up to fifty million rupees or with both.

Problem with Section 10:

According to Section 10 political campaigns and/or protests can be potentially seen as an attempt to “create …  insecurity in the Government or the public …” and those expressing support for them online can be punished for fourteen years or with fine up to fifty million or with both.

Real life example:  

Citizens’ supporting PTI’s dharna could potentially be seen as creating insecurity in the Government or the public – and under this Act can be charged with Cyber Terrorism. Similarly, PML-N’s long march for the restoration of judges (set in this scenario) could be seen as another example. An extremely dangerous provision especially when valid for all forms of electronic information exchange.

Section 19 states:

19. Offences against modesty of a natural person and minor: (1) Whoever intentionally and publicly exhibits or displays or transmits any intelligence which:

a) superimposes a photograph of the face of a natural person over any sexually explicit image; or

b) distorts the face of a natural person OR includes a photograph or a video of a natural person in sexually explicit conduct; or

c) intimidates a natural person with any sexual act,

shall be punished with imprisonment for a term which may extend to seven years or with fine up to five million rupees or both.

Problem with Section 19:

While the section generally attempts to provide a safety net for the victims of online sexual abuse – by limiting the condition with ‘OR’ – it makes possible a rather open interpretation and can be easily extended to caricatures and satirical cartoons online.

Real life example:

Satirical cartoons and caricatures are a legitimate form of expression and the Act can possibly compromise the right of citizens/journalists to free expression. Have a look at the cartoon by Sabir Nazir – this can potentially be seen a the ‘distortion of natural face(s)’

sabir

12. Section 43 on Page 12 states:

43. Prevention of electronic crimes – (1) The Federal Government or the Authority, as the case may be, may issue guidelines to be followed by the owners of the designated information systems or service providers in the interests of preventing any offence under this Act.

(2) Any owner of the information system or service provider who violates the guidelines issued by the Federal Government under sub-section (1) shall be guilty of an offence punishable, if committed for first time, with fine up-to ten million rupees and upon any subsequent conviction shall be punishable with imprisonment which may extend to six months or with fine or with both.

Problem:

The Act defines offences vaguely and while its being constantly pleaded by the law-makers, that Constitution of Pakistan, case-law, fair trial act and/or criminal code can be referred to for clear definitions, the fact of the matter remains, this Act is wide-open for interpretation. The Act gives absolute power to the Federal Government and PTA to direct service providers as they please, without having to actually justify the cause or reason for their actions. It presents a huge concern for citizens’ right to uninterrupted access.

Using kill-switch is a standard practice in Pakistan (kill-switch refers to complete or partial disclosure of communication services) and is commonly used in the name of ‘prevention of crimes’. This Act if taken in the context, not only justifies the use of kill-switch but also constitutionally legalize it.

The Act equally applies to telecom operators and internet service providers and so if the Federal Government and/or the PTA ‘feels’ blocking GSM, mobile data, WhatsApp, FB messenger, Viber, Tango, Skype and/or pretty much any other web/mobile/phone related service is ‘necessary’ to prevent cyber crimes, under this Act,  they will be legally empowered to do so.

The Act also allows for the violators (service providers, telcos etc) to be criminally charged.

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The proceedings of the Committee meeting were widely covered by the mainstream media. Dawn reported:

ISLAMABAD: Heeding the concerns of the Joint Action Committee (JAC) of Information Technology (IT) industry stakeholders, the National Assembly Standing Committee on IT has asked its members to sit down with stakeholders from the industry and correct errors in the Prevention of Electronic Crimes Bill (PECB) 2015.

“The bill has to wait before it’s tabled before parliament. The stakeholders have concerns and after hearing them, it makes sense that we put our heads together again and draft a law that is in the interest of the people,” said committee chairman retired Captain Mohammad Safdar.

He had relented to grant critics of the cyber-crime bill a public hearing on Friday. In the last few meetings of the committee, the chairman had been quite firm on the fact that the bill was ready to be laid before parliament. However, following repeated requests from opposition members, he allowed stakeholders one last chance to be heard.

Also read: ‘NA committee must reconsider cybercrime bill’

JAC members were initially stopped from entering parliament premises, but were allowed in on the intervention of PPP MNA Shazia Marri, who walked to the gate and chastised security officials, saying that parliament was not a bunker and guests invited by committee chairman should be allowed to enter. JAC registered their protest with the chairman as well and objected to how most stakeholders such as journalists’ associations, who could be affected by the law in its present state, were not included in consultations.

What was expected to be a quick, 90-odd minute hearing took nearly three hours as the committee heard JAC members raise objections to several clauses in the draft bill. Capt Safdar also made State Minister for IT Anusha Rehman miss her Supreme Court appearance to respond to objections raised, which he believed were more important.

Stakeholders took turns to point out, clause by clause, what should be omitted, amended and included in the draft bill to ensure human rights were not overstepped. The JAC members argued that the 13-page draft was different from the original 44-pager, which included suggestions from stakeholders to safeguard fundamental civil liberties.

Speaking on behalf of the JAC, Bolo Bhi’s Farieha Aziz said that the PECB 2015 in its current form would adversely impact the IT industry, young professionals as well as affecting economic investment in the country and constitutional rights and safeguards.

The JAC urged the committee to omit sections 9, 15, 18, 22, 29, which criminalise text messaging and emailing without the receiver’s consent. They particularly wanted Section 34 omitted, which the JAC believed, “infringed the fundamental rights of citizens, curbed media freedom and gave sweeping powers to the Pakistan Telecommunication Authority (PTA) to block ‘objectionable’ content on the Internet, such as criticism of the government”.

They also argued that internet service providers such as cafes, offices, universities etc should not be forced to retain data, which would increase their operational costs especially when larger internet service providers were already storing information on their systems.

“Most of these aspects are already covered in the telecommunication and defamation acts of the country,” said Internet Service Providers Association of Pakistan (ISPAK) Convener Wahajus Siraj. He urged the committee to shift unfettered investigative powers from the Federal Investigation Agency (FIA) to a neutral organisation.

Offering to assist the government in drafting PECB 2015, prominent legal expert Babar Sattar argued that the law did not protect the accused and their right to privacy and dignity. “Provisions in the law are too broad and its language needs to be tightened to remove ambiguities. Punishments are not proportionate with minor acts such as spamming, which the law should not criminalize and that are not offences in real life,” Mr Sattar said.

PPP MNA Shazia Marri also objected to the inclusion of text from Article 19 of the constitution into the PECB 2015, without suggesting how it would guide interpreters of law.

“Section 19 is too vague, like many other ambiguities in the cybercrime law. While it is necessary to keep cyber crime in check, it is also important that provisions in the law are not made so stringent that they impede growth of the industry and prove to be counterproductive,” Ms Marri said. She also held back a note of dissent, which she said she would have handed the chairman had he not been compassionate towards the critics of the bill on Friday.

Pakistan Software Houses Association of Pakistan (Pasha) President Jehan Ara feared that the present draft discouraged research and creativity among students and entrepreneurs.

While PTI MNA Amjad Ali Khan, MQM’s Syed Ali Raza Abidi and PML-N’s Khusro Bakhtyar believed that the bill should not infringe upon fundamental rights, other PMLN members – who earlier wanted the draft to be tabled in parliament – did not object to waiting until the law was ‘flawless’.

State Minister for IT Anusha Rehman also appreciated the committee chairman’s softening his stance and said she wanted members to spend more time correcting errors in the law.

“We own the 44-page document today as much as we did in the past. The committee is responsible for changing it and reducing it to 13 pages. Section 34 of the bill was included by members of the committee and not by the ministry. Today, PTA has sweeping powers given to it by the high court to manage and block content on Internet that it deems offensive. The cybercrime bill curbs those unfettered powers and gives more liberties to people, especially women and children than it takes away,” Ms Rehman told Dawn after the meeting.