Regulating internet through the backdoor
There are approximately 30 million internet users in Pakistan and the country is said to have the highest growth rate of internet users in the region. This is more than the population of many countries. It is also interesting to note that half of these people access internet through mobile devices. This means there are growing opportunities for economic development and technological advancement in Pakistan owing to this growth in the country’s internet population.
We started buying cars and plots through online sources some years ago and I am told that you can now buy the latest lawn prints through online stores as well. This is expected, even if slightly delayed, emergence of the online marketplace in Pakistan. Similarly, newspaper owners can tell you that their online readership now far exceeds the readership of their print editions. This also means that advertisers are going online and it is prudent, if not yet essential, for any significant Pakistani brand to have an online advertising and marketing strategy as well.
This growth story can be attributed to a number of factors including the technological advances made by the mobile phone industry over the last few years and the popularity of social media/network forums such as Facebook and Twitter. However, in Pakistan’s case, one of the key factors undoubtedly has to be the freedom of expression experienced online by our nascent internet population over the last decade. These may have been excesses but generally the internet space has remained accessible without fear for the common man, the aspiring blogger, the modern critic, the religious scholar and the urban moderate. That might be about to change.
In recent weeks, advocacy groups such as Bolo Bhi, representatives of Pakistan Software Houses Association and legal experts have been trying to inform us about a new bill that is expected to be passed by the Parliament. The bill is supposed to be about cybercrimes and related offences; however, it appears that the government is aiming to use it to control and censor information flow on the internet. This shouldn’t just be a concern for Bolo Bhi or the Digital Rights Foundation; it is a matter of concern for all of us.
The proposed Prevention of Electronic Crimes Act 2015 may have some good things in it. However, any law that is shrouded in secrecy is bound to be regarded with suspicion. In particular, a law which may have far reaching implications for as many as 30 million people of Pakistan. Recent news reports suggest that the draft bill (in its modified form) has not even been shared with all members of the relevant committees of Parliament. Moreover, we are talking about a piece of legislation in relation to which public and private sector stakeholders had already worked in tandem earlier to come up with an agreed draft law for consideration by the Parliament. If the government’s draftsmen chose to ignore such public-private collaborative efforts, at least the relevant ministry should have invited stakeholders’ comments on the latest final draft before submitting it for approval before the Parliament.
For example, the proposed Article 31 of this bill apparently reads as follows: “Power to issue directions for removal or blocking of access of any intelligence through any information system: (1) The Authority or any officer authorised 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.”
In the above context, the definition of “service provider” includes i) a person acting as a service provider in relation to sending, receiving, storing, processing or distribution of electronic communication or the provision of other services in relation to electronic communication through any information system; ii) a person who owns, possesses, operates, manages or controls a public switched network or provides telecommunication services; iii) any other person who processes or stores data on behalf of such electronic communication service or users of such service; or iv) any person who provides premises from where or facilities through which the public in general may access information systems and the internet such as cyber cafes”.
By including such broad powers (and definitions) in this proposed law, the government is perhaps trying to overcome the constitutional right of the citizens enshrined in Article 4(2) of the Constitution of the Islamic Republic of Pakistan which states that “no person shall be prevented from or be hindered in doing that which is not prohibited by law”.
Perhaps we need to remember that the Constitution also provides in Article 19A (Right to Information) that “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”. Surely, apart from the general expectation that any laws of public importance should be debated publicly, this also puts an obligation on those who proposed Prevention of Electronic Crimes Act to share information regarding this proposed law with the public at large before it is enacted.
Furthermore, the draftsmen of this proposed law seem to have used the wording of Article 19 of the Constitution to draft the controversial Article 31 (mentioned above). Article 19 of the Constitution (Freedom of Speech) states that “every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law 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 problem here is whether we can entrust Pakistan Telecommunication Authority (PTA), and in particular an officer authorised by it, with the responsibility of ascertaining the nature of the ‘reasonable restriction’ to be imposed on our freedom of speech.
In fact, I would argue that the Constitution only permits (reasonable) limits on freedom of speech when such limits are imposed (and hence defined) by ‘law’, whereas Article 31 of the proposed legislation permits“(Pakistan Telecommunication) Authority or any officer authorised by it” to decide on such limits albeit based on directions from the Federal Government. This should make us all very uncomfortable.
Where will we find officers who would have the qualifications and experience to determine what, on a national level, constitutes material contrary to interests 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? Will it be the English newspaper reading public’s idea of decency and morality that would be upheld or that of our comparatively conservative compatriots in FATA? Would it be the PTA that will determine what material is contrary to friendly relations with foreign states or will it be guided by the Ministry of Foreign Affairs in this respect? And one would assume that, at least for some, the recent resolution of the Parliament on intervention in Yemen (and almost all local media coverage in this regard) could potentially be censored.
Accordingly, I have no doubt that the proposed Prevention of Electronic Crimes Act, if promulgated in its current form, will be subject to constitutional challenges as soon as it is promulgated and the opportunity of achieving curbs on actual cybercrimes is also likely to be lost due to the government’s desire to use this legislation as a tool for internet censorship as well. There is still an opportunity to allow public debate on the final draft of the bill and enact a legislation that will actually make Pakistan’s cyberspace safer and stimulate further growth of the country’s nascent internet industry.
Published in the April 16, 2015 issue of Pakistan Today
https://www.pakistantoday.com.pk/2015/04/16/new-cybercrime-bill/