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Prevention of Electronic Crimes A Brief Review of Draft Bill, 2015*

With approximately 30 million internet users and what is believed to be among the

highest growth rate of internet users in the region, Pakistan possesses increasing

opportunities for economic development and technological advancement along with a

potential to enhance positive engagement of the masses in the national progress. At the

same time, the threats are numerous and effective regulation of cyber activity is a must.

The resolve of the government to bring the deliberations to a logical end without forcing

its viewpoint and the broad consultation underway is true depiction of a healthy and

democratic environment that is taking roots in the country.

Appreciable objectives: The objectives that are before the legislators and drafters, as

narrated in the interactive session of the learned member of the NA Standing Committee

on IT and Telecom Major (R) Tahir Iqbal, namely: ensuring safe and productive use of

internet; protection of national assets; ensuring robust cyber security; protecting

children against unsuitable material; curbing hate speeches and inappropriate

glorifications; prevention of cyber terrorism, unauthorized interceptions and financial

crimes; and enabling conducive environment for the multinational IT and e-commerce

organizations for business investment and operations in the country, need to be

appreciated.

Technology is being used even by illiterate members of the society. Spreading

necessary information for safe use of cyber space should be among the stated objectives

of the law.

No more undue delay: The law is long overdue and the process of consultation should

not be allowed to hit the snags again. The current draft possesses a number of positive

features but the room for improvement is undeniably there.

Balance is the key: A law needs a balance that on one hand caters with the requirements

of human rights, particularly the freedom of information and freedom of expression and

opens gateways to progress and innovation and on the other hand blocks avenues

towards criminal activity and sabotage. Neither it should make Pakistan a surveillance

or police state nor allow disruption in its critical infrastructure.

Recommendations of IJC, 2013: Important suggestions were part of the declaration

of the International Judicial Conference, 2013, in which the Conference had

recommended (i) accession to multilateral legal assistance treaties including convention

on cybercrime; (ii) institutionalizing FIAs NR3C on permanent basis; (iii) assigning

the task of investigation and prosecution of the cybercrime only to qualified personnel;

* The prevention of electronic crimes bill is under discussion for years. The Institute of Policy Studies

Islamabad (IPS) brought various perspectives on the draft law together in an interactive discussion on

May 13, 2015. This note, prepared by Syed Nadeem Farhat (Research Coordinator at IPS), presents key

outcomes of the deliberations. This note also contains reflections from an earlier IPS seminar on cyber

law held in 2012.

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(iv) Avoiding conflation of cybercrime with telecom offences; (v) building capacity to

enable on-site collection of digital evidence instead of physical seizure and removal of

equipment that negatively impacts rights of other users and continuity of legitimate

businesses; (vi) Ensuring independent judicial supervision to protect fundamental

rights. All these recommendations are extremely important and highlight aspects with

respect to legislation and implementation. These need to be fully incorporated in the

bill.

Application: The law is applicable to every citizen of Pakistan or wherever he may be

and to every other person for the time being in Pakistan. It is not applicable to foreigners

who may be waging cyber-attacks on Pakistan or performing criminal activities like

fraud in Pakistan from abroad. The law needs to provide a mechanism for tracking,

investigating and ensuring action against such individuals as well.

Criminal intent: In many penal provisions of draft law, the presence of mens rea is

not required to make an act punishable. In clauses 3, 4, 5, 6, 7, 8, for example, specific

mention of criminal intent needs to be inserted so that an innocent act may not land a

person into unfounded litigation.

Critical infrastructure: Definition of critical infrastructure (clause 2(i)) is very wide

in its scope and is prone to multiple interpretations. This should either be designated

(as indicated in para (ii) of the clause defining it, or give a definition that can be closely

interpreted. The definition of sensitive electronic systems contained in Prevention of

Electronic Crimes Ordinance, 2007 may offer some help in this respect.

Glorification of accused: True that the crimes and criminals should not be glorified

but since the provided definition of glorification includes all forms of praise, it is fairly

inadequate to disallow a person saying a word in favor of a person who has just been

alleged of a crime and has not been proven to be a criminal.

Pornographic material: The draft is sensitive towards child pornography and makes

it one of the two cognizable offences. This has to be appreciated but confining the

sensitivity to this extent actually resounds western approach where other forms of

pornography have been accepted as a norm. A Pakistani law should disallow all forms

of pornography, prostitution and promotion of extra-marital sexual relations. This

should not merely address producing, uploading and disseminating pornographic

material but it should also put an effective check on access and availability of such

material. Internet service providers have to be bound by law to provide default

mandatory filters to such material. The power to manage, remove or block such content

needs to be incorporated.

Brevity vs Clarity: Current draft has been made briefer than the previous one but on

many occasions this seems to have been done at the cost of clarity of definitions.

Definitions need to be incorporated wherever there is a likelihood of more than one

interpretations and enhanced in clarity with qualifications and provisos, if any.

Deterrence is prevention: The punishments in the draft law have been reduced in

comparison with the PECO, 2007. Keeping in view the general principle that the

deterrence should be put in place with respect to gravity of offence. The extent and

volume of crimes has not decreased and thus the punishments prescribed in this draft

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are disproportionate with the punishments of similar offences in other laws. At the same

time, in certain clauses (like clause 18) the punishments are disproportionately severe

with respect to nature of crime.

Safeguards from political misuse: Safeguard from misuse or politically motivated

abuse of the law should properly be incorporated. Those living a public life are

supposed to be criticized and the law should not be over-sensitive with respect to them.

Distorting the face of a natural person (clause 18(b)) should not invite punishment

which may extend to seven years of imprisonment and fine up to five million rupees or

both. This gives rise to belief that the law carries intent to control and suppress political

dissent.

Empower the common man: While illicit and criminal activities should surely be

checked, the potential of social media to become whistle blower against irregularities

and to raise voice against them should not be undermined.

Separation of investigation and prosecution: The functions of investigation and

prosecution should not be combined in single agency to ensure transparency.

Designating specialized agency and court: While the law has already taken almost a

decade to enter final stages of legislation, no room for further delay should be left in it.

According to the current draft, neither the specialized agency nor the court to function

under this law have been designated. Whether the functions have to be assigned to FIA

or another agency, and the courts empowered under this law should be mentioned in

the law, not only to avoid further delay but also to ensure clarity.

IPS again welcomes the spirit of consultation and hopes that it will bring forward a law

that is balanced, technically sound and takes care of the value framework and overall

welfare and goodwill of the society.

IPS reiterates that no human effort is perfect and the room for improvement always

remains. Once a law is made, the adaptations with implementation, court interpretations

and more particularly later amendments fill in the gaps left originally. This means that

the law should not be indefinitely delayed to make it error free. If utmost effort has been

put in, necessary safeguards have been provided and all relevant stake holders have

been heard on merit then the law should be put in place without undue delay.