Clearly Pakistan needs a cybercrime law, and Parliament has dithered over it for too long. For years the proposed Bill was languishing in the halls of the Assembly without being tabled. When it was considered, we were told it got rejected out of hand because of the ongoing ‘war on terror.’ It was deemed too ‘weak’, we were told by the lawyer behind the drafting of it, according to whom all manner of stakeholders had agreed to the draft bill.

At Bytes for All’s Cyberpak conference a couple of weeks ago, Mr. Zahid Jamil, the primary architect of the draft told us that it was not being considered by the National Assembly any more for being too soft.

Let’s take a look at the softness all so called stakeholders had come up with (and one is looking forward to the more appropriate private member’s bill the assembly is now said to be considering in its stead):

Various Sections of the proposed (and allegedly civil society stakeholder approved) draft sets up to 3 year imprisonment punishments for interfering with, sabotaging, rendering ineffective etc any ‘information system, program, or data’. The penalty rises to 7 years if the meddling pertains to any government information system, program or data. And the crime is classified as terrorism if the aforementioned offences are ‘designed to coerce, intimidate, overawe, or create a sense of fear, panic or insecurity in the government or the public or a section of the public…..’ or ‘the use of the threat is made for the purpose or motive of advancing a cause whether political, religious, sectarian or ethnic.’

Next, in Section 6 (3), the proposed Bill criminialises circumvention thus: ‘Whoever commits any offence under…..by circumventing or infringing security measures with respect to any information system, program or data shall be punished with imprisonment of either….”

Clearly the bill is ambiguous enough to punish civil society for trying to circumvent government controls over (illegal) blocking of content on the internet as well for active steps to avoid (illegal) surveillance. And if the loosely worded provision on terrorism is made to fit, you or I or the Joe Blogs, could be in prison for 14 years, charged with terrorism for trying to access blocked sites like Youtube over proxy or VPN or for trying to use tools to avoid being surveilled by the government.

Next is the issue of what the bill is actually trying to accomplish. Whilst the architects maintain that it could have been the best thing to happen to Pakistan and its hapless citizens (if approved), the small print says otherwise. Sections of the bill afford the equivalent of Miranda rights to citizens, then taking them right back in its subsection – indeed leaving room open to abuse and torture. For example, the section dealing with the right of the accused to remain silent, the bill provides for legality around being able to use the statements of an accused to incriminate himself in a court of law.

Similarly, the bill grants the citizenry of this country the right to have a lawyer present at the time of grilling by law enforcement agencies. And yet again, it takes away this right and privilege at the beginning of the next sub-section of the bill: the right may be given away lawfully, and the accused’s statements used in a court of law against him, if the accused ‘volunteers’ to give up the right. Not sure why anyone would give up their right voluntarily to either remain silent or to not have an attorney present when the State of Pakistan is questioning them. Yet, the proposed bill deems fit to allow this backdoor to torture to be allowed to be written into law. Of course, people would be beaten and tortured into waiving their rights to lawyers or to remaining silent if the law allowed it. At least in the Pakistani environment.

Then there are the clauses on who can, and who cannot, carry out the investigation of, and surveillance against, those suspected of alleged cybercrimes. At the end of the day, it’s not the Federal Investigation Agency, under whose purview, otherwise by law, falls this ‘duty’ or right. It is any body so mandated by the Federal Govt. In the most intrusive cases, such as of recording live conversations, only the control and/or supervision of intelligence agencies is allowed. Not by anyone else. Not even the FIA. One must ask then, who died and made the ISI queen? Why should it, if anyone is to be mandated with such a crime, be the ultimate authority over our privacies? Why not any other agency? Any civil agency? (Not that one agrees to be surveilled by one).

Did this proposed law further enable empowerment of the intelligence agencies of Pakistan, then? One does know. But there is much more to say on the subject! Anon! Next week!

Except that if this particular bill was shelved for being too ‘nice’, what’s in the offing? We shall have to contend with that too.