by Javeria Younes
The Asian Human Rights Commission (AHRC) has initiated a series of articles on the proposed Prevention of Electronic Crime Act, 2015. 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 6th and final part of the series.
Section 37 of the PEC Bill reads as follows:
- Real-time collection and recording of data.-(1) Notwithstanding anything contained in Investigation for Fair Trials Act 2013 (Act No. I of 2013) or any other law for the time in force, if a Court is satisfied on the basis of information furnished by an investigating officer that there are reasonable grounds to believe that the content of any intelligence or data is reasonably required for the purposes of a specific criminal investigation, the Court may order, with respect to intelligence or data held by or passing through a service provider, to the service provider to collect or record such data in real-time in coordination with the special investigation agency:
Provided that such real-time collection or recording shall not be ordered for a period beyond what is absolutely necessary and in any event not for more than seven days.
(2) The period of real-time collection or recording may be extended beyond seven days if, on an application, the Court authorizes an extension for a further specified period of time.
(3) The Court may also require the service provider to keep confidential the fact of the execution of any power provided for in this section and any information relating to it.
(4) The application under sub-sections (1) and (2) shall in addition to substantive grounds and reasons also-
(a) Explain why it is believed the data sought will be available with the person in control of the information system;
(b) Identify and explain with specificity the type of data suspected will be found on such information system;
(c) Identify and explain with specificity the identified offence made out under this Act in respect of which the warrant is sought;
(d) If authority to seek real-time collection or recording on more than one occasion is needed, explain why, and how many, further disclosures are needed to achieve the purpose for which the warrant is to be issued;
(e) What measures shall be taken to prepare and ensure that the real-time collection or recording is carried out whilst maintaining the privacy of other users, customers and third parties and without the disclosure of data of any party not part of the investigation;
(f) Why the investigation may be frustrated or seriously prejudiced unless the real time collection or recording is permitted; and
(g) Why to achieve the purpose for which the warrant is being applied, real time collection or recording by the person in control of the information system is necessary.
The Section is an extension of Section 26 of the Bill. The difference, however, is that under Section 26, the Pakistan Telecommunication Authority (PTA) is empowered to order retention and recording of data. However under Section 37 of this Bill the court has been empowered to order the retention of data. It appears that the law enforcement agencies are granted several options to seek an order from different authorities; if one refuses to pass the required order, the same can be obtained from another authority. By virtue of this Section, the law enforcement agencies are being given a blanket legal cover to spy on an unsuspecting victim’s online activity.
The Section mentions “investigation of fair trial Act 2013”, which allows the law enforcement agencies to approach the court and seek permission to wire tap any person they suspect of indulging in terrorism or activities detrimental to national security. However, the mention of the Act in the Section is unclear. The intention of the legislatures here was perhaps to furnish a plethora of surveillance enabling laws to allow the law enforcement agency to snoop on the real time data of the user.
The term “on the basis of information furnished” is also vague because the term does not define the kind of information that must be furnished to satisfy the court. Also the term “any intelligence or data” is too broad; the law enforcement agency, especially the FIA, doesn’t have the required expertise to sieve through vast amounts of data and to discriminate raw data from the information required for the investigation. The term data and intelligence is left open-ended to let the law enforcement official get access to all personal and private information; the right of privacy of individual is thus severely compromised and jeopardized.
Furthermore, sub-section 3 requires the service provider to keep the surveillance confidential, which is against the provision of Article 19 A on the Right to information, which states, “Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law”.
Why must the Internet service provider be subservient to the law enforcement agency?
The section is arbitrary and unjust and must be deleted.
Next, is Section 30 on international cooperation:
- International cooperation.-(1) The Federal Government may cooperate with any foreign Government, 24 x 7 network, any foreign agency or any international agency for the purposes of investigations or proceedings concerning offences related to information systems, electronic communication or data or for the collection of evidence in electronic form of 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, without prior request, forward to such foreign Government, 24 x 7 network, any foreign agency or any international agency, any information obtained from its own investigations if it considers that the disclosure of such information might assist the other Government or agency 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 investigating agency shall be responsible for sending and answering requests for mutual assistance, the execution of such requests or their transmission to them authorities competent for their execution.
(5) The Federal Government may refuse to accede to any request made by such foreign Government, 24 x 7 network, any foreign agency or any international agency if the request concerns an offence which is likely to prejudice its sovereignty, security, public order or other national interests.
(6) The Federal Government may postpone action on a request if such action would prejudice investigations or proceedings conducted by its special investigation agency.
The major problem with this Section is that it is broad and does not specify how Pakistan’s governments and agencies will interact with foreign governments and agencies, how the requests will be made, how data will exchange, etc. Especially troubling is the clause “the federal government may, without prior request, forward to such foreign government.” It is a legal absurdity where without any notice or request for information the state will share all such intelligence because it deems it necessary and pertinent.
Data protection and privacy law and international norms dictate that due process be followed prior to handing over any such intelligence obtained by the law enforcement authority during investigation. The Section doesn’t state whether the intelligence sharing has its basis in any treaty or convention signed by the State; given the lack of legal basis all such intelligence sharing is thus unjust.
Section 39 draws a distinction between cognizable and non cognizable crimes under the proposed Act:
- Offences to be compoundable and non-cognizable.- (1) All offences under this Act and abetment thereof, except offence under section 8, shall be noncognizable, bailable and compoundable.
(2) Offence under section 8 and abetment thereof shall be cognizable, non-bailable and non-compoundable
And Section 40 prescribes the procedure of litigation in both cases:
- Cognizance and trial of offences.- (1) The Federal Government, in consultation with the Chief Justice of respective High Court, shall designate Magistrates and Session Judges at such districts or places as deemed necessary who shall be competent to try the offences under this Act.
(2) Notwithstanding the provisions of provincial public service commission laws, the designated judges under sub-section (1) shall have successfully completed training conducted by the Federal Judicial Academy with respect to all aspects of this Act including cyber forensics, electronic transactions and data protection.
(3) All offences under this Act, except offence under section 8 and abetment thereof, shall be cognizable and tried by the Magistrate designated under sub-section (1).
(3) Offence under section 8 and abetment thereof shall be tried by the Sessions Judge designated under sub-section (1). [These sections are reproduced as it is which were mentioned in the draft].
(4) In all matters with respect to which no procedure has been provided in this Act, the provisions of the Code and Qanun-e-Shahadat 1984 (X of 1984) shall apply.
By making cyber terrorism non bailable, cognizable, and non compoundable the Legislature is allowing the law enforcement authority to misuse its power and register all cases under cyber terrorism. Since the ambit of cyber terrorism is not clearly defined, and given the history of law enforcement behavior in Pakistan, there will likely be misuse of authority.
Furthermore, letting a magistrate, with no prior training in dealing and adjudicating in such matter, try the cases will not curb cyber crime. A provision for training of judges should be provided in the Bill.
The ambit of the law is extremely ambiguous and broad; this may result in frivolous litigation and misuse of power by law enforcement agencies. The state has deliberately not inserted safeguard mechanisms that can protect the interests of the people.
The law is a continuation of the enactment of draconian laws to oppress the masses into submission. The façade of a dummy democracy is being maintained by the state to hide its fascism. Since the Nawaz Sharif government has come into power, the State appears to be turning against its own people. The law enforcement and intelligence agencies are being given complete impunity to maintain law and order in the country. However, the irony is that the situation is worsening. It is high time that the State rethinks its public policies and enacts people friendly laws so as not to alienate the Pakistani populace.
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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
