Towards public interest digital laws

The rushed passage of the Investigation for Fair Trial Bill by the National Assembly is raising legitimate concerns over privacy and surveillance. One of the many justifications for the bill is that existing laws do not regulate “advance and modern investigative techniques such as covert surveillance”. These ‘modern’ techniques cover all computer or ‘cell-phone based’, i.e., digital communications: emails, SMS, chats, mobile phone conversations and so on.

These laws may in a way be useful to take the state to court over unlawful intercepts of our phone conversations, a practice alarmingly common in Pakistan. But for every one successful case of that, there will be countless ones where our rights to expression and privacy will be infringed upon by corrupt and incompetent security officials. Interestingly, the legislators, in all their wisdom, removed the FIA from the list of agencies that can have access to our information when the same agency is a key stakeholder in the related electronic crime bill which covers misuse of access to information systems.

The much delayed Prevention of Electronic Crimes Bill (PECB) 2012 has actually been in the works since 2006 when a different bill was tabled in parliament. Deliberations on that did not move forward until the emergency of 2007, where the Internet turned out to be yet another medium that needed urgent regulation. (President General (retd) Pervez Musharraf had already passed the Pemra Ordinance in the summer of 2007 in an attempt to control critical coverage of the state on television). Within weeks of lifting the emergency, the President promulgated the Pakistan Electronic Crime Ordinance (PECO), a law that had very loose definitions of cyber terrorism which carried very harsh punishments including death. PECO also set up the science fiction-esque named NR3C (National Response Centre for Cyber Crimes), the FIA’s special wing that deals with cyber crime. Not getting any support from the industry that it sought to protect or the then new democratically elected government, the ordinance lapsed.

There are currently no laws in Pakistan that cover electronic or digital crime. The NR3C, whose own existence may be in question considering that the law that gave birth to it is no more, uses ingenious jugars to get the job done. There is no denying that Pakistan needs a law but it is equally imperative that such a law is fair, balanced and in the public interest. PECO and the powers it gave to the FIA were rightly rejected. The Pakistan Software Houses Association has been putting up a stiff fight in the NA select committee on Information Technology, which is finalising the PECB, against the FIA having these powers and for it to protect civil liberties. Ordinarily, industry bodies are not really known to be fighting for public interest but stranger things happen in Pakistan.

It is important that these battles are being fought in NA committees so laws are not rushed through like the Fair Trial bill was. Our legislators, eager but naïve, must be supported by activists, academia, industry and civil society in framing electronic communications and digital laws, especially those that have to do with the internet so that they do not restrict citizens’ ability to learn, innovate and safeguard themselves from surveillance and theft.

The current government has had a very bad record of digital censorship — the ongoing ban on YouTube, now in its third month, banning encryption last year and advertising for URL filtering and blocking systems are just few examples. As it gets close to finalising the PECB, it is important that the government remembers its democratic credentials. Pakistan needs healthy digital laws that encourage expansion of minds and businesses. With elections around the corner, it is important that citizens have rights to information and expression promised to them in the Constitution. It must remember that in an attempt to regularise a sector which has been ignored or illegally restricted so far, the state shouldn’t impinge on digital human rights. Laws need to be fair and balanced and not criminalise free speech and restrict access.

Published in The Express Tribune, December 28^th, 2012.