By Jehan Ara, Advisor P@SHA / Shahzad Ahmad, Bytesforall Pakistan,Published on
Page last updated on
The Ministry of IT & Telecom, Government of Pakistan, has drafted a draconian Electronic Crime Bill, which has already been approved by the Cabinet as submitted by the Ministry of Law. It is now being tabled in the Parliament for a vote. Authorities plan to get hold of final approval on this bill by November 2007.
Business people, civil society representatives, bloggers and trade associations have been raising their voices in mainstream media, email lists, blogs and other online fora against the approval of this Bill. There is a lot of debate going on in various blogs but you may like to access current discussion threads at Pakistan ICT Policy mailing list accessible here (you must log in as a Yahoo member to view).
Feedback regarding the first and second draft of this Bill was sent to the Ministry of IT & Telecom in the form of a 67-page document that was put together by Barrister Zahid Jamil, a lawyer who focuses on IT, Corporate and human rights legislation. This was accompanied by a letter from the Pakistan Software Houses Association (P@SHA), the International Chamber of Commerce (ICC) and other business people from the private and public sector.
The Bill has seen several iterations since it was first drafted, and although at each step, people within the Ministry assured stakeholders that their concerns would be addressed, the Bill, in its current form, is still a piece of legislation that, according to Barrister Zahid Jamil, is only 20% compatible with any international standards.
Questioning different parts of the proposed Bill, attendees at two different events in early September asked how criminal law could contain vague terms like ‘immoral’ and ‘vulgar’. Definitions of terms like cyberstalking, spoofing, spamming, malicious code, etc. are incorrect and do not conform to any acceptable international definitions.
Broad search and seizure powers have been given to agencies without any grounds being necessary to issue arrest warrants, which will not be issued by the Judiciary. Law enforcement agencies can walk into offices or homes and seize computers and hard drives containing essential and important data, without providing a back-up, without any chain of custody being established or any safeguards being provided. Hypothetically, if computer equipment is seized and incriminating evidence added, and a person framed, he/she has no recourse or right to challenge the accuser. Intellectual Property is not protected under this Bill.
IT professionals, designers, writers, doctors, film-makers, photographers and bloggers present at the early September events or having knowledge about this, all expressing fear over the possible misuse of such legislation because it gives overall powers to agencies without providing necessary safeguards.
Many recalled the Faisal Chohan case where the young entrepreneur was arrested and kept behind bars for six weeks, his computer equipment seized and the tragic circumstances that followed in the death of his unborn child and the impact the seizure had on his business – all due to a case of mistaken identity.
The Cyber Terrorism section of the Bill is even more frightening. What it amounts to is that if you happen to Google for Nuclear weapons or any dangerous chemicals – whether it be part of your research for a paper or for any educational reason, you can end up in jail for 10 years up to life imprisonment.
Another part of this Bill, which has put the fear of God into entrepreneurs and business people, states: A corporation shall be held liable for a criminal offence committed on its instructions or for its benefit (i.e. without their knowledge).
Barrister Zahid Jamil shared with attendees The Council of Europe Convention on Cyber Crimes Budapest 2001, which clearly states in its preamble that the Law has been drafted keeping in mind:
- A proper balance between the interests of law enforcement and respect for fundamental human rights
- Right of everyone to hold opinions without interference, as well as the right to freedom of expression, including the freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, and the rights concerning the respect for privacy
He also informed the attendees that the UK Regulation of Investigatory Powers Act states that the authorities:
Must give Notice & Warrant:
(a) in writing or produce a record of its having been given;
(b) describe the protected information;
© specify the matters;
(d) specify the office, rank or position held by the person giving it;
(f) time by which the notice is to be complied with (allowing for a reasonable period of compliance); and
(g) set out the disclosure that is required by the notice and the form and manner in which it is to be made;
These acts and laws specify that data seized shall be described, protected, retained or destroyed. It also clearly mentions the number of persons the data will be disclosed to and any breach of any of these conditions shall be actionable – i.e. the accused can challenge it in a court of law.
Lack of clarity is one of the many problems in the Electronic Crime Bill drafted by the Ministry of IT & Telecom in Pakistan. Experience and record shows that when laws are vague, the only ones that take advantage of the loopholes are hardened criminals and the government. Honest citizens can get entrapped into rigmarole – on grounds of someones’ political opposition or personal vendetta – for long and unaffordable periods, with great personal losses, financial and emotional, that they cannot ever recuperate from.
None of the activists dispute the fact that good legislation is required with the increased use of the Internet for business and commerce. However, they insist that international best practice needs to be followed and safeguards need to be built in to protect fundamental human rights. In its current form the bill is against civil liberties.
For more information:
This is the 90-minute presentation that Barrister Zahid Jamil made at T2F (broken into 30-minute portions for convenience).
Part 1 – http://tinyurl.com/3ymfz3
Part 2 – http://tinyurl.com/3bde7e
Part 3 – http://tinyurl.com/2wfhbh
A copy of the presentation by Barrister Zahid Jamil, as well as more discussion on the problems with this Bill, are available on the following blogs:
We seek your support and guidance.
Follow the discussion on the Pakistan ICT Policy mailing list
Watch a discussion on the bill from the Dawn News Television station