Analysis – Electronic Crimes Act 2015

Looking at the new Electronic Crimes bill (included below for your review) to be presented in the National Assembly, I see many hallmarks of the US Patriot Act, in terms of the cyber crime, identity theft and other items that I will explain in this article. I also see a number of things that can, and will, be used to quell dissent among the people of Pakistan.

Some Historical Context

Before we get started, let’s all remember that while we like to point to the military dictatorships as the source of censorship and violations of freedom of speech, it has been the civilian governments that have blatantly taken those rights away from the Pakistani.

In recent history, most of us will recall the row between Nawaz Sharif and the Jang Group in 1997 when the newsprint supply was stopped to keep them from printing stories about the family’s corruption and Shahbaz Sharif’s involvement in extrajudicial killings. Our younger lot will recall the blocking of all television channels during the emergency in 2007 by former President Pervez Musharraf. Very few know about Jasmeen Mansoor and Mubashir Lucman being held against their will after an interview of Nawaz Sharif, because they refused to hand over the recording where they had asked sensitive questions about his own corruption.

No one can forget the YouTube ban that Pakistan still has in place even though the offensive film has been removed. Many have said that this ban is not because of the film, but because so many people were uploading embarrassing videos of politicians that they foolishly banned it. As if YouTube is the only way to share embarrassing videos…

We all remember Facebook being blocked because of a single page that was launched to mock the Prophet (PBUH), where again Pakistan became the center of the censorship debate.

Both of these incidents led to the creation of the committee inside the Pakistan Telecommunications Authority, whose membership, selection process and powers are unknown to the Pakistani people. This committee is responsible for blocking any website that is deemed to be offensive to the people of Pakistan. What the definition of offensive is has never been clarified for the populace, nor has the criteria for a website being blocked been made public.

We remember the day last year when the Express Tribune famously ran a blank page in place of the Carlotta Gall story trashing our military. We’ll forget the fact that all of her claims were based on statements from an anti-Pakistan Karzai government and a long list of unnamed or discredited sources that included Ziauddin Butt, the man that was almost Chief of Army Staff on 12 October, 1999. Yes, I have read the book. We’ll also forget the fact that the newspaper of record, the New York Times, had run a story a few months prior connecting the Karzai government with supporting the Tehrik-e-Taliban Pakistan to punish Pakistan.

Many are unaware of the famous memo during the last PPP government issued from PEMRA banning satire of politicians and public personalities. This memo targeted programs like The 4 Man Show and Hum Sub Omeed Say Hai.

I can’t even count the number of times that has been blocked in Pakistan on the orders of the government.

And no one will forget the recent blocking of due to national security issues. The reason given was that there were many websites on the free blogging platform that were projecting the mission and glorification of the Tehrik-e-Taliban Pakistan. But I’ll come back to the national security argument later in this article.

Forgetting all of these incidents and the many more that I won’t list because I enjoy being free from handcuffs and a jail cell, Pakistan has a rich history with censoring the media and the public opinion. This has become part of the national identity. It’s nothing new to wake up one day and find a commonly used website blocked in Pakistan.

National Security Implications

As someone who understands the greater national security argument, I do understand that there are some websites that must be blocked because of their content, but that doesn’t mean that all websites are wrong just because the government says so.

Taking the recent block of as an example, I would agree that there are hundreds, if not thousands, of webpages on the blogging platform that would be considered offensive, but to completely block the entire platform reeks of something more sinister than protecting the nation from the TTP message.

I am also loathed to say that even if you block a platform, it doesn’t mean that you have stopped their message. As per the 20 point National Action Plan, all supporters and spokespeople of terrorist and extremist organizations are not supposed to be shown in the media, but we all know that to be untrue. As a matter of fact, the National Action Plan states that the government will take serious action against these groups, but thus far, it is only the TTP that is having any action taken against them. The other gazetted extremist and terrorist groups are still roaming free and, in some cases, getting police protection at state expense.

I am also saddened that the Government of Pakistan has not provided Pakistanis with the ability to report these same offensive profiles on Facebook and twitter to them for blocking. Many of us who have reported these group’s, and individual’s, pages to the authorities at Facebook have gotten negative responses back. This may be due to the fact that no one at Facebook knows that these are banned organizations in Pakistan or that they just don’t understand any of the content on these pages because it is in Urdu. Yes, I am giving them the benefit of the doubt. Twitter, on the other hand, is very quick to remove profiles that are rooted in terrorist or extremist ideologies. This is something that I would have expected to see in this bill, but is not there.

Analysis of the Prevention of Electronic Crimes Act 2015

As a whole, the bill itself seems to be a continuation of the Pakistan Protection Ordinance, which was passed last year. The Pakistan Protection Ordinance, or the Patriot Act Plus as I call it, gave the government the ability to arrest and detain anyone that it considered anti-state, gave broad ranging powers to the military and law enforcement agencies for investigation, questioning and prosecution and attempted to strengthen the counter-terrorism effort in the country. I say attempted because once the bill was passed, it was filed in a draw at the National Assembly and never implemented. That bill could have prevented the Army Public School attack and the requirement for the 21st Amendment.

Chapter 1 of the bill focuses on the offensives and punishments, so let’s start there.

There are many sections of the chapter that are open for interpretation because they have not been clearly defined. There is one phrase that is repeated through out the document – malicious intent – which is not defined, which concerns me a great deal. What I consider to be malicious intent and what the Government of Pakistan considers to be malicious intent could be the difference between the moon and the ground, so I am uncomfortable with the use of a word that is not clearly defined in the bill itself.

The bill sets forth the 20 crimes that range from cyber hacking and cyber terrorism to electronic fraud and identity theft, but there are a few that are concerning in terms of their language in the bill.

Chapter 1, point 16 creates the crime of offence against dignity of natural person. Here’s how the bill defines it:

Whoever, with malicious intent, knowingly and publicly exhibits, displays, transmits any electronic communication that:
– harms the reputation of a natural person
– threatens any sexual acts against a natural person
– superimposes a photograph of the face of a natural person over any sexually explicit images
– distorts the face of a natural person
– or includes a photograph or a video of a natural person in sexually explicit conduct,

without the express or implied consent of the person in question, intending that such electronic communication cause that person injury or threatens injury to his or her reputation, his or her existing state of privacy or puts him or her in fear for him or her safety shall be punished with imprisonment for a term which may extend to one year or with fine which may extend to one million rupees or with both.

Thus, no satire of the any person in Pakistan. So all the lovely memes that we like to share of our politicians – crime. All the lovely memes that we like to share of Lollywood and TV serials – crime.

Chapter 1, point 19 creates the crime of spamming. Here’s how the bill defines it:

(1) Whoever 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.
(2) Whoever commits the offence of spamming as described in sub-section (1) shall be punished with fine not exceeding fifty thousand rupees if he commits this offence of spamming for the first time and for every subsequent commission of offence of spamming he shall be punished with imprisonment for a term which may extend to three months or with fine which may extend to one million rupees or with both.

The bill defines “intelligence” as any speech, sound, data, signal, writing, image or video.

So does that mean that the spam messages I get from companies on my mobile and email are now a crime? Since the definition of intelligence is so broad, it could apply to anything from the emails to Candy Crush invites or group surveys.

Chapter 1, point 20 creates the crime of spoofing. Here’s how the bill defines it:

(1) Whoever dishonestly, establishes a website or sends any intelligence with a counterfeit source intended to be believed by the recipient or visitor of the website, to be an authentic source commits spoofing.
(2) Whoever commits spoofing shall be punished with imprisonment for a term which may extend to three years, or with fine which may extend to five hundred thousand rupees or with both.

Does this mean that bloggers are going to be harassed by the government for reporting a story that isn’t public knowledge yet? Will journalists be harassed into releasing names of sources to prove authenticity of the source?

Will this also be used against journalists and bloggers who practice yellow journalism?

Powers of the Investigative Agency

Forgetting the fact that we have numerous investigative agencies in Pakistan, we will now have one more just to investigate crimes related to this bill. Most countries establish a division for cyber crimes under existing federal and provincial agencies, much like the FBI’s cyber crimes division, but in Pakistan, we are creating a new investigative agency.

If past history is any indication, the agency will be headed by a political appointee that has no understanding of technology other than how to turn on a computer and log into their email. This will lead to the misuse of this law on a grand scale, so terrorists and extremists will continue to pass their information to the general public and people like you and me will be in jail for speaking against the government of the day.

The investigative agency will also have access to the past 90 days of your history, phone calls, text messages, etc through the service provider (mobile and/or internet provider). Now, for someone like me, who write fictional novels about spies and terrorist activities, that kind of data would put me behind bars for a long time. Especially since I am pro-Army, which is a no-no in Pakistan’s democratic establishment.

I do wonder, however, if the warrant application for the search, seizure and disclosure of this data will be similar to the US FISA courts, where the government only needs to make a tacit argument to get the warrant issued or if the courts will require a significant amount of evidence before they allow an investigation to proceed to arrest and prosecution. That point could be the difference between how many people are penalized for their opinion and how many are penalized for speaking against the government’s decisions and policies.

Overall Analysis and Conclusion

I have listed the points of concern for me, as a writer, political analyst and commentator on current affairs. Looking at the base of the legislation, I will spend a great deal of time in the Pakistani jails and spend a great deal of money in fines to the state.

There are many things within this legislation that need to be further explained in greater detail before it is presented before the National Assembly and the Senate for a vote. It also needs to have technology specialist brought in to make the legislation more proactive against crimes that are happening in other countries and have the potential to start in Pakistan. We have some very talented technology experts in the general public, but the government always choses to use their own blue-eyed boys when it comes time to pass legislation like this. If nothing else, put this to PASHA for review and comment before moving forward with the vote.

I also find a great deal of problems with the language in the legislation. It is very broad and I believe it is done intentionally so that the government can use varying interpretations to punish those it sees as anti-government or anti-state, rather than taking on the true anti-state elements in the country. As I said in my opening, there is a great deal of confidentiality in the way the government operates when it comes to the rights of the citizens. While the media is quick to jump on the military for the same confidentiality, they are eerily silent on the government operating the same way. The military requires confidentiality to achieve successes in its objectives, the government requires transparency to gain the support and compliance of the people.

I also don’t like the fact that an electronic crimes bill makes no mention of financial crimes at all. The use of online payment gateways, credit cards online and other methods are not discussed or planned for within this legislation at all. Yes, I am sure that the multiple references to electronic fraud, electronic forgery and other broad terminology can be used for this purpose, but electronic crimes typically include the financial element otherwise they are toothless in nature and application.

As we have seen in recent years, as more details of the US Patriot Act emerge, more American and global citizens are taking offense to the powers given to the US government, spy agencies and military to monitor and track their activities. This legislation, if properly discussed with technology and legal experts, will find the same offense among the general populace.

This is nothing more than a coded attempt to give the government the power to silence dissent. Many of the clauses included in this legislation are part of other legislative acts, but will be superseded by this legislation, rather than enhanced in the original legislation. It would make a great deal more sense to me as Pakistan for the relevant clauses of the PTA Act, for example, to be enhanced, rather than this legislation be enacted. I cite the PTA Act because that is the broad ranging legislation that covers the powers of the Pakistan Telecommunication Authority who, at the end of the day, will be the ones dealing with the bulk of the implementation of this new legislation.

Am I against an Electronic Crimes legislation? Not at all.

What I am against is using the cover of electronic crimes to silence the people of Pakistan who, in a true democratic dispensation, have the right to voice their opinions without fear of punishment or prosecution. I am also fearful that this new legislation will do nothing to stop cyber terrorism, violence against minorities and others, and electronic crimes.

The Electronic Crimes Bill of 2015

Bolo Bhi Analysis of the Electronic Crimes Bill of 2015

This article originally appeared on Khalid Muhammad’s Agency Rules website.

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