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 5th part of the series.
Section 30 of the PEC Bill reads as follows:
- Dealing with seized data.-(1) The Federal Government may prescribe rules for dealing with the information system, data or other articles seized under this Act
The matter of dealing with seized data has been left to the discretion of the federal government. The security and safety is thus vested with the federal government. Neither has there been a detailed standard operating procedure delineated to ensure transparency of investigation nor have any guidelines been laid out for the rule making procedure. It appears as if the government has deliberately deleted the safeguards to ensure security of data seized, which is in clear violation of Article 24 of the Constitution of Pakistan, which guarantees protection for the right to property. Article 24 of the Constitution on protection on property rights states, “no person shall be compulsorily deprived of his property save in accordance with law”. Without framing proper guidelines for rules, the Section is arbitrary and unjust and may cause not only loss of precious data but huge monetary loss to the ISP and data mining industry.
Section 31 is the most controversial part of the PEC Bill 2015. It states:
- Power to issue directions for removal or blocking of access of any intelligence through any information system: (1) 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, commission of or incitement to an offence.
(2) The Federal Government may prescribe rules for adoption of standards and procedure by the Authority to monitor and block access and entertain complaints under this section. Until such procedures and standards are prescribed, the Authority shall monitor and block intelligence in accordance with the directions issued by the Federal Government.
The intent of the government in inserting the Section was to legalize blocking powers, to exert control over the Internet and curtail freedom of expression. Rights groups and legal experts are terming this section as a tool of oppression. The state is now extending its tentacles to the Internet, the only medium available to the urban populace to openly share their views and access credible information not available via the mainstream media. By using ambiguous terms such as “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, commission of or incitement to an offence” the state is providing legal cover to institutional terror.
As discussed earlier, there is currently no mechanism available with the Pakistan Telecommunication Authority (PTA) to block particular content; they instead resort to blocking of the whole site, as is the case with YouTube in Pakistan. Given their limited technical capability and inefficiencies, it is likely that many other social sites such as Facebook, Twitter, and MySpace will get blocked completely.
Strangling free speech on the Internet may back fire for a nation already sick of being muzzled and oppressed by the state. As is evident from a perusal of the Act and enactment of other draconian laws, Pakistan is fast becoming a totalitarian state. No state that denies its citizens right to freedom of expression can last long. Such states are doomed to disintegrate and collapse under their own contradictory strangleholds. Thus, the government must ensure that its citizens are allowed freedom to air their thought without fear of repercussion.
Next, it is important to consider Section 32 of the PEC Bill.
- Limitation of liability of intermediaries and service providers.- (1) No intermediary or service provider shall be subject to any civil or criminal liability, unless it is finally established that the intermediary or service provider had actual notice, specific actual knowledge, willful and malicious intent and motive to proactively and positively participate, and not merely through omission or failure to act, and thereby facilitated, aided or abetted the use by any person of any information system, service, application, online platform or telecommunication system maintained, controlled or managed by an intermediary or service provider in connection with a contravention of this Act, rules made thereunder or any other law:
Provided that the burden to prove that an intermediary or service provider had notice, specific actual knowledge, willful and malicious intent and motive to proactively and positively participate in any act that gave rise to any civil or criminal liability shall be upon the person alleging such facts and no interim or final orders, directions shall be issued with respect to any intermediary or service provider unless such facts have so been finally proved and determined:
Provided further that such allegation and its proof shall clearly identify with specificity the content, material or other aspect with respect to which civil or criminal liability is claimed including but not limited to unique identifiers such as the Account Identification (Account ID), Uniform Resource Locator (URL) Top Level Domain (TLD) Internet Protocol Addresses (IP Addresses) or other unique identifier and clearly state the statutory provision and basis of the claim.
(2) No intermediary or service provider shall under any circumstance be liable under this Act, rules made thereunder or any other law for maintaining and making available the provision of their service.
(3) No intermediary or service provider shall be subject to any civil or criminal liability as a result of informing a subscriber, user or end-users affected by any claim, notice or exercise of any power under this Act, rules made thereunder or any other law.
Provided that the intermediary or service provider present and established in terms equivalent to the requirements of the Companies Ordinance 1984 within the territorial jurisdiction of Pakistan, for a period not exceeding fourteen days, shall keep confidential and not disclose the existence of any investigation or exercise of any power under this Act when a notice to this effect is served upon them by an investigating officer, which period of confidentiality may be extended beyond fourteen days if, on an application by the investigating officer, the Court authorizes an extension for a further specified period of time, upon being satisfied that reasonable cause for such extension exists.
(4) No intermediary or service provider shall be liable under this Act, rules made thereunder or any other law for the disclosure of any data or other information that the service provider discloses only to the extent of and under sub-section (3) and sections 25, 27, 28 and 29.
(5) No intermediary or service provider shall be under any obligation to proactively monitor, make inquiries about material or content hosted, cached, routed, relayed, conduit, transmitted or made available by such intermediary or service provider.
Prima facie the section appears to provide immunity to the service provider. However, behind the legislative façade lies the ulterior motive of the state: to be able to suppress dissent by making ISPs partners in crime. For example, sub-section 1 of Section 32 states that unless it is proved that the intermediary or ISP had “actual notice, specific actual knowledge, willful and malicious intent and motive to proactively and positively participate” the ISP will not be implicated for the offence committed under this act. The intention of the legislation here is to make ISP an accessory in curbing freedom of expression by providing impunity and a inserting non disclosure clause such as “the intermediary or service provider… for a period not exceeding fourteen days, shall keep confidential and not disclose the existence of any investigation or exercise of any power under this Act when a notice to this effect is served upon them by an investigating officer”. By virtue of the proviso the user will not be able to fathom and detect that his activities are being monitored and recorded. The agencies will be snooping on the user’s online activity without their consent.
Sifting through megabytes of data will be an uphill task itself; however, any data in the form of pictures, videos, and blogs could be used to implicate the user sharing, uploading, or downloading the same. Professionals, such as data analysts, are required to analyze and sift through data to make sense out of it. How can this specialized expertise be expected of an FIA investigation officer, who is not trained in handling cyber crime?
The sole purpose of this ambiguous law is to implicate persons and citizens who the state or law enforcement officers want to keep quiet in one frivolous case after another. Given the inefficiency of prosecution, it is unlikely that the case against a user can ever be proved beyond a shadow of doubt. However, this law has provided a mechanism for the law enforcement officer to arrest a person and seize the data on the pretext of national interest and the glory of Islam.
Sections 33 to 36 refer to the procedure to be followed in cognizable cases.
- Information in cognizable cases.- (1) Information relating to the commission of a cognizable offence under this Act if given orally to an officer of the special investigation agency authorized in this behalf, shall be reduced to writing by him or under his direction and then read over to the informant and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Federal Government may prescribe in this behalf.
- Information in non-cognizable cases: (1) When information is given to an officer of special investigation agency authorized in this behalf of the commission of a non cognizable offence, he shall enter in a book to be kept as aforesaid the substance of such information and refer the information to the Court.
- Investigation into cognizable cases: Any authorized officer of the special investigation agency may, without the order of the Court, investigate any cognizable case.
- Investigation into non-cognizable cases.- No officer of the special investigation agency shall investigate a non cognizable case without the order of the Court.
(2) Any officer of the special investigation agency receiving such order may exercise the, same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police-station may exercise in a cognizable case.
The PEC Bill, like any other criminal law enacted in Pakistan has drawn a distinction in procedure of cognizable and non-cognizable offence. However, this is probably the first time that without defining what constitutes the offence – cyber terrorism in this case, in Section 8 – the offence has been made a cognizable and non-bail able offence. Given the ambiguity, arrest and investigation without warrant should not be permitted.
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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
