April 18, 2015

On 15th April, a joint press conference was held at the National Press Club in Islamabad to discuss the draft of the cybercrime bill i.e Pakistan Electronic Crimes Bill 2015 (PECB2015). Addressed by heads from the Internet Service Providers Association of Pakistan (ISPAK), Bolo Bhi, and Pakistan Software Houses Association, the conference  also touched on the non-inclusive approach of the government in formulating this law.

Unfortunately, on 16th April, the National Assembly Standing Committee on IT passed the the bill, and PECB2015 will now travel to the National Assembly and Senate. If this bill should pass into law, it will be the end of our freedom as we know it since this draconian bill  tramples over civil rights, including the right to free speech and freedom of expression.

I have an old school-friend, lets call her Rabia. We haven’t spoken in over a year because I once asked her to let me use her Facebook account to go through someone’s profile who I am not friends with on Facebook, i.e. facebook stalking. Let me add here, that I’ve known her since we were both six years old; trust or privacy is not an issue for us. For whatever reasons, Rabia refused, and while I didn’t take offense, certain other statements she made were hurtful and unnecessary. So, we haven’t talked.

Now let’s assume this conversation had happened in person. Suppose Rabia said, “Sure, go ahead, lets stalk this person together,” and I used her Facebook account to stalk someone in her presence. It was all done in fun, and every girl on Facebook has done this at some point in life.  Suppose later on, Rabia and I we had a fight.

Now imagine there is a law which vaguely criminalized unauthorized access to information system or data, and Rabia decides that this law would be a great way of getting back at me, since there is no proof that she allowed me access to her Facebook account. I would be “punished with imprisonment for a term which may extend to six months or with fine which may extend to one hundred thousand rupees or with both” as outlined in Section 3 of the currently proposed cybercrime law. The government obviously believed they didn’t need any stakeholder input on this proposed law at all, as they are perfectly capable of formulating a technical law without assistance from people who are experts or professionals in the industry.

Recently, there was an uproar on social media regarding a panel discussion  on Balochistan at the Lahore University of Management Sciences (LUMS) which, according to the university, was cancelled after the powers that be decided it was an unsavoury topic to discuss. It is never a good idea, after all, to talk of oppression in a country that is an upcoming surveillance state. Suppose you’re utterly outraged by this violation of your constitutional right to free speech as a citizen of Pakistan. You’re sitting with your friends in a cafe, checking your Twitter feed, which is filled with indignation against this incident. So you decide to put out a tweet criticizing the government, as well as the military’s kill-and-dump policy in Balochistan. Guess what? According to the ground-breaking definitions in this proposed law, specifically section (x) sub-clause 4, the cafe would count as a “service provider” because it allows customers access to free Wi-fi. As such, this cafe would be subject to penalization under this law simply for not using a messenger pigeon communication system instead.

That does sound like a fairly brilliant idea though, seeing as Pakistan is stuck in a time vortex that is slowly taking the country back several decades and would eventually stop somewhere around the Medieval Ages, where such a communication system would be the norm.

Don’t forget  supporters of LUMS, that under this new law, the loosely-worded Cyber-Terrorism clause ensures that your support for free speech and the right to discuss issues pertaining to Balochistan, can easily be legally construed as a threat “made for the purpose or motive of advancing a religious, ethnic or sectarian cause.” How can this be, you might wonder? Because by using your cyberspace to support the right of students to have a discussion on rights violation in Balochistan, you are supporting “Baloch militants” who have an “ethnic agenda” and are anti-state. That sounds ridiculous and of course that isn’t true; supporting the right to knowledge, the right to free speech, is not the same as supporting militancy, but thanks to the vague and unclear cyber-terrorism clause, this could be used as a valid legal argument against you.

I used to have a particular local Internet connection, until early this year. But we parted ways  because I had problems with the Internet Service Provider (ISP), and their customer service is reprehensible, to the point that after five months they still have not sent their tech team on a visit to evaluate what the problem is; moreover, their customer care representative convinced me to pay one month’s bill, claiming that non-payment was why my Internet wasn’t working. However, my Internet still didn’t work, and as per policy, the company is supposed to refund my money, which it refuses to do to this day. I have countless emails and Facebook conversations saved on record, as well as several phone-calls which I recorded as well. I also have their customer care representatives telling me in one such recording that they violate Pakistan’s corporate laws by communicating solely through e-mail, whereas they are required by law to have one landline present as a means of communication. Also on record is a floor supervisor telling me that this law does not apply to them as “every company has its own policy” and somehow is magically above the law and doesn’t have to comply with law like the rest of us peasants.

So why haven’t I made this information public  yet? Because if I do, and the proposed cybercrime is passed (which it probably will because Pakistanis don’t deserve  good laws) I’d be subject to the cyber-terrorism clause, for using this information “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 community or sect or create a sense of fear or insecurity in society;” It sounds ludicrous, but that’s how this law would impact me, and that’s why I care enough to actively fight the passage of the  bill.

When I was growing up in Karachi in the 90s, our favorite mode of entertainment was Sega. Many an hour was spent playing Sonic the Hedgehog, Street Fighter, Mortal Kombat. Then Playstation came alone, and there were brilliant games such as Metal Gear and Twisted Metal to while away the hours. Today’s gaming systems are far more sophisticated, and from what I’ve seen on television, you can connect to the Internet and speak to players around the world through gaming systems such as Xbox and all the other new-fangled systems. Now, suppose you’re playing on one of these machines one day, and you’re partnered with your friend from Timbuktu who is helping you kill people in the game you’re both playing. In this scenario, you’re both such expert gamers, or your level of concentration is so advanced that you can discuss different topics such as your opinion that the government is complicit in the discrimination against religious minorities in Pakistan. That’s just how you feel about the situation in your country, as you tell Timbuktu Friend. Well, it might not be a good idea to do that anymore, because according to the definitions of the proposed law, “device” includes any physical device or virtual device capable of being connected with any information system.” In other words, your gaming system counts as a device as defined in the bill, and as such, the law could possibly be used to criminalize your activities as a gamer. Shabash, government. Applause!

Suppose you’re a teenager who has a fight with a friend, or you have an arch-nemesis as many of us do at that particular age. You somehow manage to get your hands on their phone and you see that this rival of yours has photos in their phone which their parents would disapprove of.(Because who hasn’t sneaked a cigarette when the folks aren’t home, after all? People like me who don’t want to put cancer sticks in their mouth is who, but that’s beside the point.)

You decide that a good way to get back at this person is to show their parent(s) that image, but you want to be sneakyUnknown-2 about it so you won’ get caught. Fortunately, your rival uses Snapchat! And so you send a ten second photo of your rival smoking a cigarette or wearing a sleeveless dress to their parent(s), using said rival’s phone. Acts such as these are of course, more common with teenagers, it’s an unfortunate part of growing up and children can be incredibly cruel. But thanks to the new bill, this teenager could, according to Section 3, be “punished with imprisonment for a term which may extend to six months or with fine which may extend to one hundred thousand rupees or with both.” This is what people need to understand, that the reason this law is so outrageous is that it can be used to criminalize teenage delinquency or ordinary acts in everyday life! Since when does the state have the right to punish our children for misbehaving as they go through their rebellious teenage phase? Since when does the state have the right to interfere in our personal lives and challenge how we raise our children? Since when does the state have the right to punish you for playing petty pranks on our peers? I’m not justifying the act, but imposing monetary fines or sending someone to jail is definitely a situation that calls for the famous quote from the movie ‘The Anchorman: The Legend of Tom Burgandy;’ “Boy, that escalated quickly.”

Have you heard of how Russia has outlawed celebritiy memes? Now, Russians won’t be able to create funny memes of celebrities or public figures, because it has become a crime. This sounds really ridiculous, and we should thank whichever gods we do, or don’t  believe in, that in Pakistan, we have more freedom than people living in oppressive countries like Russia.

You might want to hold that thought right there. Thanks to Section 16 of this highly intelligent law, creating a humourous meme about Aamir Liaquat or everyone’s favorite Bhai, or the cyber-stalking clause would become a crime. Can you imagine living in such a country? I certainly can, because that will be what happens if the passage of this bill isn’t halted immediately. This bill is supposed to safeguard us, protect our rights, but instead, it is gleefully dancing its way all across said rights, because people do not understand how legal language can be used to create loopholes which allow ordinary everyday acts to be criminalized, thus creating an environment of fear and oppression.

Clause 16 addresses the problem of sexually explicit media being disseminated without a person’s consent. One would assume that this is a good thing, but a closer look at the clause tells a different story. The crux of the clause rests on the statement that, any communication is disseminated “conduct, without the express or implied consent of the person in question.” The purpose of this statement is to clarify that disseminating sexually explicit content involving a person without gaining their consent to publicize this material, and with the intention of humiliating or blackmailing the person, is a crime. The problem here is  the issue of implied consent. What exactly is implied consent? How is “implied” consent actually consent? The answer is that it isn’t. When we talk about rape culture, we talk about how consent given under the influence of drugs or alcohol does not count as explicit consent, or how a pre-existing relationship with a person does not mean that they have implicit consent to perform sexual acts when


you are unable to consent to the act, for example if you’re asleep. Or in cases of date rape where previous sexual relationships are used as an alibi to justify “implied consent.” In all these cases, so-called implied  consent is not morally, ethically, and in most cases legally considered as actual, explicit consent. Is is therefore highly illogical to insert any concept of implied consent in a clause which is supposed to protect people from sexual cybercrimes. Logically, the clause should simply say “without the express/explicit consent of the person in question.” By inserting implied consent in this clause, the geniuses behind the cybercrime law have created a loophole which would allow perpetrators to get away with committing sexual cybercrimes.

As if problematic language wasn’t bad enough, there is nothing in this clause which allows someone else to represent the aggrieved party in a case of sexual cybercrimes, or to file a case on their behalf, unless the victim is a child. Considering the socio-cultural implications for women who come forward in cases of sexual crimes, is there even a point to creating a specific legal clause on sexual cybercrimes, when women are not guaranteed privacy in the process?

Another gem in this proposed law is Section 18 on cyber-stalking, which says that taking someone’s photos without permission is cyber-stalking. So the next time I’m at a public event such as Karachi Literature Festival, and I am annoyed by photographers who do not ask me before taking photos of me browsing through book stalls, I can simply file a case against them accusing them of cyber stalking. Sure, the liberals might claim that a court of law would throw out such a case, but I’d still have managed to harass the photographer not to mention the financial cost of hiring a lawyer.  So he’d definitely think twice before taking photos of people without their consent at public events. God bless the cybercrime bill!

And the next time someone sends you a link on a Facebook message asking you to fill out a survey or share a link to help them win an online competition, remember; the proposed cybercrime bill has a clause on spamming which is so vaguely worded that even that Facebook message would count as spam, and  you can always teach your friend a lesson by filing a case against them.

And then there is Section 31. Glorious, awe-inspiring Section 31. “Power to issue directions for removal or blocking of access of any intelligence through any information system” is a barely veiled way of legalizing censorship. It would “ remove any intelligence or block access to such intelligence if it considers it necessary”; and if that isn’t bad enough, the reasons which would be grounds for legally censoring content are even worse. “In the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, commission of or incitement to an offence.” So in other words, if you want to debate on Islamic theology in a peaceful manner, you’re most probably harming the glory of Islam. If you point out the links between intelligence agencies and militants, or if you express sympathy for the oppression of the Baloch, your right to free speech will effectively cease to exist, because your opinion must be censored for  the “integrity, security, or defence of Pakistan.” If you want to criticize Saudi Arabia for the flogging of Raif Badawi, you risk harm to “friendly relations with foreign states” and you will be censored. Basically, if you even breathe in when you’re supposed to breathe out instead, you’ll be censored.

No one wants to read the dry, dull language of a law. No one wants to read an even duller analysis of a law. Most people would struggle to understand legal language, or understand why there is a problem with the language or clauses of a law, and that’s understandable. But none of the examples given in this article are fanciful exaggerations. They are realistic scenarios of how the various flaws of this law can be exploited, and how the problematic clauses of the law would impact ordinary citizens, if that is, the law is passed.

Therefore it is of vital important to create awareness of how this law violates our rights, and to push back and demand that the proposed cybercrime law be redrafted. There is no denying that there is a definite need for a cybercrime law, but it must be one that is comprehensive, progressive, and safeguards the rights of Pakistan’s citizens, instead of violating those rights.

If this bill actually becomes a law, then we would lose many of our freedoms. Pakistan might be the country where YouTube is blocked, but we have greater freedom online than many other countries throughout the world. We should be pushing for more freedom and  better legislation to protect us, rather than accepting that we are destined to become the new China.

Not on our watch, we won’t.

Ghausia Rashid is a Research Associate at Bolo Bhi