Seeking support to prevent PECB from becoming a law in its present form

Dear friends,

Through this communication, the Human Rights Commission of Pakistan (HRCP) wants to bring to your attention the collective view of civil society organizations, on concerns regarding the Prevention of Electronic Crimes Bill (PECB) 2016, as articulated in a consultation in Islamabad on July 25, 2016 as well as earlier deliberations.

I write to share our grave concern that the PCEB’s adoption in its present form has immense ramifications for the practice of the constitutional rights and fundamental freedoms of expression, privacy, human rights and democracy in the country.

HRCP commends and takes pride in the vigorous struggle of civil society organisations and individuals who have dedicated their time and energy in highlighting contentious provisions of the proposed law and sharing recommendations and alternative formulations with the lawmakers in the National Assembly and later with the Senate Standing Committee on Information Technology and Telecommunications.

While we appreciate the committee for listening to the concerns of civil society on the matter, the government seems more interested in questioning the motives of civil society rather than appreciating their efforts, plugging loopholes and addressing flaws in the draft.

One of the main concerns regarding the PECB is that various offences already defined under the Pakistan Penal Code and other laws have been redefined under PECB, often in conflict with other laws and almost always with harsher punishments and lenient processes. Several sections include vague and general formulations and contradictions. It is important to remove such provisions from the law.

Most alarmingly, PECB grants unchecked and overbroad powers of censorship to Pakistan Telecommunications Authority (PTA), an executive body directly under government control. However, a body with such extensive powers has to be made completely independent of government control, which is not the case with PTA. A particularly grave concern is the lack of safeguards and checks on exercise of authority by investigative agency and PTA under the draft law. Absence of judicial and/or parliamentary oversight of the PTA and the power at its disposal in implementing the law can lead to potential abuse of authority and misuse of the law.

PECB contains various provisions that undermine or are in conflict with the various fundamental rights. Particularly, Sections 9, 18, 19, 22, 29, 34, 36 as well as several definitions of the Bill contain text that remains contrary to human rights and international best practices.

Among the key recommendations made by civil society organisations advocating for improvements in the Bill are:

1. Revision of Section 9, regarding glorification of an offence, to remove the word ‘accused’ from the text to ensure that accused are not being treated as guilty. A proviso protecting artistic and political expression should also be included in this section.
2. Section 10 requires extensive redrafting as it deals with an area related more to cyber security than cyber crime. In its current form, the provision does not properly define cyber terrorism and provides life sentence and Rs 50 million in fine for offenses primarily related to illegal access and misuse of critical data.

iii.             Section 18 essentially duplicates provisions of Sections 499, 500 and 501 of PPC besides overlapping of several offences covered under Defamation Act, 2002. It also introduced conflicting punishments and does away with the defenses given in PPC and Defamation Act. This section should be removed from the Bill.

1. Section 19 should be bifurcated into two separate sections, one dealing with crimes against the minors and ensuring child protection against cyber crime. The other section dealing with victims who are not minors should be reviewed in line with human rights standards, should include malicious intent for culpability and contain a proviso protecting artistic and political expression. A formulation for this proviso submitted to the Senate standing committee by media development organization Media Matters for Democracy addresses these concerns.
2. Section 22 deals with spamming, which internationally is not seen as a cyber crime. Currently this provision also makes vulnerable small business owners who might be dependent on sending marketing emails and SMS to publicise their services. Spamming should ideally be dealt with under PTA licensing agreements and Pakistan Telecommunication (Re-organization) Act. However, if it has to be included in the PECB, it should be made a civil offence without criminal liability. An alternative formulation of this clause, submitted by digital rights organisation Bolo Bhi to both the Senate standing committee and to the relevant committee in the National Assembly, could be considered.
3. Section 29, dealing with retention of traffic data, raises human rights and industry based concerns. From a human rights perspective, the retention of one year of traffic data without any determination of its protection, usage and eventual destruction, can lead to invasion of citizens’ privacy. The rules of such retention have to be in line with international standards and protection mechanisms defining the use of this data have to be well-defined. The industry has also expressed concerns about the imposition of criminal liability and recommends dealing with this aspect under the terms of licensing agreements with PTA.

vii.           Section 32, detailing the powers of an investigative officer, when read with various other sections of this law, opens up the possibility of abuse of power by investigative officers and agency. This section should be reviewed to include safeguards and citizens’ protection against abuse of power must be ensured.

viii.          Section 34 has remained the most vehemently opposed provision of this Bill. It has been universally denounced by all civil society groups. The provision borrows language from Article 19 of the constitution, giving the power of interpreting constitutional provisions to an executive authority, thereby, giving it the power to censor the digital media without any oversight. The section should be removed from this Bill in its entirety.

1. Section 36 remains directly contradictory to surveillance procedures described in the Fair Trail Act. Real-time surveillance has extremely serious implications towards privacy rights of people. The section does not deal with these concerns properly and sets a very low threshold for an invasive way of gathering evidence. This section should abide by the standards set in Fair Trail Act. The section also legitamises the use of raw intelligence as evidence. Raw intelligence or surveillance data should not be admissible in court as evidence of an offence and the powers given through this section should only be used to collect further evidence.

The UN Special Rapporteur on the promotion and protection of the freedom of opinion and expression has already expressed his concern over the PECB stating that, “if adopted, the draft legislation could result in censorship of, and self-censorship by, the media”. The proposed law, which will now be put to vote in the Senate, remains a thoroughly flawed measure, which includes certain sections that are so offensive that they would not be inserted into a law in any civilized society.

HRCP seeks your support in preventing the PECB from becoming a law and cautions that allowing it to be adopted in its present form will place unbridled censorship powers in the hands of the authorities. Such curbs on citizens’ right to information, opinion and expression on the new medium, indeed a medium for the future, will not affect just the present citizenry but our future generations as well. We must not let our failings in improving and reforming the deeply flawed PECB to create hurdles and challenges for our coming generations.

Sincerely,

Zohra Yusuf

Chairperson

Category: English