by Javeria Younes
The Asian Human Rights Commission (AHRC) has initiated a series of articles on the proposed Prevention of Electronic Crime Act, 2015; this is the third article in the series. The Bill has draconian provisions that seek to muzzle the freedom of expression and speech over the Internet to discourage dissent and stifle intellectual discourse. The Bill has been presented in Parliament for consideration after being passed by the Standing Committee on Information Technology and Telecommunication. This is the part 4 of the series.
Section 26 of PECA are also quiet extensive and burdensome for the small ISPs. Sections 5 and 6 of the Electronic Transaction Ordinance, 2002 (LI of 2002).provides
- Requirement for original form.—(1) The requirement under any law for any document, record, information, communication or transaction to be presented or retained in its original form shall be deemed satisfied by presenting or retaining the same if:
(a) there exists a reliable assurance as to the integrity thereof from the time when it was first generated in its final form ; and
(b) it is required that the presentation thereof is capable of being displayed in a legible form.
(2) For the purposes of clause (a) of sub-section (1);
(a) the criterion for assessing the integrity of the document, record, information, communication or transaction is whether the same has remained complete and unaltered, apart from the addition of any endorsement or any change which arises in the normal course of communication, storage or display ; and
(b) the standard for reliability of the assurance shall be assessed having regard to the purpose for which the document, record, information, communication or transaction was generated and all other relevant circumstances.
- Requirement for retention.—The requirement under any law that certain document, record, information, communication or transaction be retained shall be deemed satisfied by retaining it in electronic form if :
(a) the contents of the document, record, information, communication or transaction remain accessible so as to be usable for subsequent reference;
(b) the contents and form of the document, record, information, communication or transaction are as originally generated, sent or received, or can be demonstrated to represent accurately the contents and form in which it was originally generated, sent or received; and
(c) such document, record, information, communication or transaction, if any, as enables the identification of the origin and destination of document, record, information, communication or transaction and the date and time when it was generated, sent or received, is retained.
Pakistan has a user base of 25 million users and according to the World Bank report is showing a double digit growth since the past five years. Investment by Telcos might also suffer as a result of stringent laws and requirement which might cause huge lose to the national exchequer and the economy. The requirement must be struck or toned down so as not to curb growth in the IT sector.
Section 27 and 28 states:
- Warrant for search or seizure.-(1) Upon an application by an investigating officer that demonstrates to the satisfaction of the Court that there exist reasonable grounds to believe that there may be in a specified place an information system, data, device or other articles that-
(a) may reasonably be required for the purpose of a criminal investigation or criminal proceedings which may be material as evidence in proving a specifically identified offence made out under this Act; or
(b) has been acquired by a person as a result of the commission of an offence, the Court may issue a warrant which shall authorise an investigating officer, with such assistance as may be necessary, to enter the specified place and to search the premises and any information system, data, device or storage medium relevant to the offence identified in the application and access, seize or similarly secure any information system, data or other articles relevant to the offence identified in the application.
- Warrant for disclosure of traffic data.-(1) Upon an application by an investigating officer that demonstrates to the satisfaction of the Court that there exist reasonable grounds to believe that specified data stored in an information system is reasonably required for the purpose of a criminal investigation or criminal proceedings with respect to an offence made out under this Act, the Court may, after recording reasons, order that a person in control of the information system or data to provide such data or access to such data to the investigating officer.
(2) The period of a warrant issued under sub-section (1) may be extended beyond seven days if, on an application, a Court authorizes an extension for a further period of time as may be specified by the Court.
The term “satisfaction of the court” is based on a mere application by the investigation officer; apparently no detailed reasoning by the same is required. What grounds will be sufficient to establish the “satisfaction” of the court is also not provided for. The safeguard against arbitrary search and seizure, self incrimination are also not provided. Prima fascie a complete impunity and legal blanket cover is afforded to the LEA to seize any and all data and not just the specified data required for the investigation. The provision is in direct contravention to article 19 of the constitution of Pakistan which guarantees the freedom of speech. The provisions of the two sections are Damocles sword for all the internet users who might be airing their critique of the state and the LEA openly or anonymously over the internet. The initial draft prepared by Pakistan Software House Association P@SHA had many inbuilt safeguards such as only specified data would be seized and deputing a magistrate to accompany the investigation officer during the seizure etc have been omitted deliberately. Without accountability and check and balance mechanism the law will stifle freedom of expression.
Section 29 elucidates Power of the Investigation officer.
- Powers of an investigating officer.-(1) Subject to provisions of this Act, an investigating officer shall have the powers to –
(a) have access to and inspect the operation of any specified information system;
(b) use or cause to be used any specified information system to search any specified data contained in or available to such information system;
(c) obtain and copy any data, use equipment to make copies and obtain an intelligible output from an information system;
(d) have access to or demand any information, code or technology which has the capability of retransforming or unscrambling encrypted data contained or available to such information system into readable and comprehensible format or plain version;
(e) require any person by whom or on whose behalf, the investigating officer has reasonable cause to believe, any information system has been used to grant access to any data within any information system within the control of such person;
(f) require any person having charge of or otherwise concerned with the operation of any information system to provide him reasonable technical and other assistance as the investigating officer may require for investigation of an offence under this Act; and
(g) require any person who is in possession of decryption information of an information system, device or data under investigation to grant him access to such decryption information necessary to decrypt data required for the purpose of investigating any such offence:
Explanation.- Decryption information means information or technology that enables a person to readily retransform or unscramble encrypted data from its unreadable form and from ciphered data to intelligible data.
(2) In exercise of the power of search and seizure of any information system, program or data the investigating officer shall-
(a) at all times act with proportionality;
(b) take all precautions to maintain integrity of the information system and data subject of the search or seizure in respect of which a warrant has been issued;
(c) not disrupt or interfere with the integrity or running and operation of any information system or data that is not the subject of the offences identified in the application for which a warrant for search or seizure has been issued;
(d) avoid disruption to the continued legitimate business operations and the premises subject of the search or seizure; and
(e) avoid disruption to any information system, program or data not connected with the information system that is not the subject of the offences identified in the application for which a warrant has been issued or is not necessary for the investigation of the specified offence in respect of which a warrant has been issued.
(3) When seizing or similarly securing any information system or data, the investigating officer shall make all efforts to use technical measures while maintaining its integrity and chain of custody and shall only seize any information system, data, device or articles, in whole or in part, as a last resort, for sufficient reasons that do not make it possible under the circumstances to use such technical measures or where use of such technical measures by themselves would not be sufficient to maintain the integrity and chain of custody of the data being seized.
The powers are all too encompassing allowing the LEA to act on their whim if they deem it fit and proper in the interest of maintaining law and order. A cursory look at the powers and authority is enough to comprehend the free hand afforded to the investigation officer. The officer can seize, inspect, access any data or data system used to process that data and can demand that the person who owns that data to provide technical assistance to the officer, the provision is direct contravention of article 13 of the constitution of Pakistan which states “No person shall, when accused of an offence, be compelled to be a witness against himself” section 29 further provides that the officer must at all time act with “proportionality” now the term can have several connotation proportionality as in neutrality in investigation or proportionality as to his demeanor. The ambiguity seems to work in the favor of the LEA official who can barge into any private or public premise and demand that a particular information be handed to them, there are absolutely no safeguards provided into the law that guarantees the citizen right to inviolability of dignity of man as provided under Article 14 of the constitution of Pakistan. It is a sad irony that the citizen of the state are denied the right to information yet the state want to act like a police state and strangle free speech for its citizens. It is extremely dangerous for a country like Pakistan where right to information act is a farce a façade in the name of legislation that only exist in paper such draconian laws like Prevention of Cyber Crime Act be enacted and enforced.
(To be continued)
About the Author: Javeria Younes is an advocate and legal researcher. Her research work titled “Custodial Torture its ramification and failure of institutions” has been published under the auspice of AHRC. She has also written a handbook on torture for the victims of torture to help them seek medical, psychiatric, and legal aid. She can be reached at javeria.younes@live.com
