Martial Law in the Cyber Space?
The world we dabble within is not only a fast-paced one, but is also constantly evolving due the advent of information and communication technologies. Such advances within this field have not only brought forth with them a plethora of advantages, ease and accessibility but a multitude of human rights violations. This is because though modern technology has aided the criminal justice agencies, as well as presented various protections for offenders and suspects, however the risk of human rights infringement has increased from the manner in which the law has reacted to cyber crime. In response to the increased risks associated within the cyber space, there has been an emergence of cyber law in Pakistan; encompassing a vast arena of laws and regulations, some of the most significant, and contentious, areas that fall within its ambit include freedom of expression, privacy, jurisdiction, the public/private sphere etc. The vast nature of this bill, which impinges upon a multitude of facets of a Pakistani citizen’s life, needs to be analysed from a critical legal perspective, in order to delineate the ideological underpinnings and view this bill from outside the sphere of the liberal rights-based perspective. Thus, a dispassionate critical legal analysis of the proposed bill is quite pertinent to the contemporary social and legal milieu, surrounding the Pakistani citizens.
The Pakistani State machinery has always functioned in a reactionary manner, whereby even an iota’s worth of anti-State or opposing ideological manifestation is curtailed and crushed by the various institutions under the State’s behest. Blatant violations of the fundamental human rights held by the Pakistani citizenry by virtue of not only their citizenship, but also their humanity, occur on a daily basis and across all strata of society. In a country where Ahmadi’s are not allowed to freely exercise their fundamental rights and are declared non-Muslims and where blasphemy laws can be used as a deadly means to settle personal vendetta, it is no surprise that this Machiavellian State ideology has spread over to the cyber space_. A manifestation of this is the Electronic Crimes Prevention Bill 2015, which has been approved by the National Assembly and has the ability to delve within the private affairs of an individual and charge him with crimes that are violative of his constitutionally guaranteed fundamental human rights. Pakistan Electronic Crimes Bill (PECB), which recently has been passed by the National Assembly and awaits the approval of the Senate, has elicited a motley response from the various segments of Pakistani society.
In order to gain a comprehensive understanding of the Bill, it is pertinent to outline the relevant literature that defines cyber crimes, in order to garner an understanding of what they actually entail. Only then can one delve into pursuing a thorough analysis of the Bill and the literature surrounding it. Computer technology is a phenomenon that has deeply steeped within every facet of our everyday lives, irrespective of our geographical locations. The benefits associated with this technology are undeniable and a significant number of them arise from the advent of the Internet, which has intertwined each corner of the world and made them available to us by just a click of a few buttons_. However, attached to this technology of interconnectivity is a downside; a downside of vulnerability and potential exploitation by criminals who can hack into our personal information, steal our money, invade our privacy etc._ Cyber crimes in a nutshell are criminal offenses committed via the Internet or otherwise aided by various forms of computer technology, such as the use of online social networks to bully others or sending sexually explicit digital photos with a smart phone_. Even though cyber crimes is a relatively new phenomenon, it includes crimes such as theft and child pornography; actions which were committed in person prior to the computer age_ Cyber crimes can take shape in various forms and some of them include: theft of personal data, copyright infringement, fraud, child pornography, cyber stalking, and bullying, sexting and identity theft.
It was during the 2011 general elections in Pakistan that our current Members of National Assembly were chosen. The reason why we need these MNAs is so that they can legislate upon pertinent issues, by getting rid of laws that are no longer suited to meet the needs of society due to their outdated nature, and instead bring forth new legislation that is deemed fit by society. An analysis of the various bills, such as the one on cyber law, that have been passed by the MNAs since 2011 shows that such has not happened. The bills continue to not meet the current needs of society, and rather infringe a citizen’s human rights and violate his privacy. For instance, the private sector, NGOs such as Bolo Bhi, human rights activists and the civil society in general has vociferously tried to cut out from the bill has been incorporated into the current draft, making it similar to the PEC Ordinance of 2007. The private sector’s recommendations were not included whilst drafting this bill, nor was expert legal opinion pertaining to current trends in cyber law taken, which why the bill in and of itself does not cater to the needs of society. What is pertinent to examine is the situation that was existing in Pakistan prior to the enactment of this bill. Such an examination will allow the reader to understand the conceptual framework within this bill will be launched, as this will help him realize the need for this bill within the country, as well as the instances which require it.
A perusal of the latest facts and statistics highlights the growing trend in Pakistan to be connected via the internet, due to cheaper GPRS and WiFi packages. A manifestation of this is the fact that approximately 32 million Pakistani citizens are currently users of the Internet on a regular basis, from which approximately half use the internet from their mobile phones. This is due to the cheap internet bundle offers being given by service providers such as Telenor, Warid and Ufone as well as the introduction of 3G internet packages, that have immensely increased the speed of the internet, thereby making it more convenient and a practical alternative to using WiFi. An analysis of current usage trends shows that more and more mobile users and subscribing to the internet on a regular basis, therefore the trends indicate that a further increase in internet users is likely to surface in the country. Technologies such as 4G internet, currently being offered by Zong and Warid, full further attract individuals to stay connected.
The reason why so many individuals are using mobile internet, or the internet in general, is supported by facts that show approximately 12 million Pakistani internet users are being regular users of social media site Facebook, and approximately two and a half million being regular users of ‘Twitter’. The number for WhatsApp is estimated to be even greater than both Facebook and Twitter combined, which is why provisions within this bill need to be reexamined, given how section 21 allows an individual to be held liable for sharing another’s photo without gaining their consent. Despite being termed as a third world country, Pakistan has cheap and easily accessible internet even in the remote northern areas, and a population which is increasingly becoming connected within the cyber sphere, which is why there was a vacuum for clear cyber laws. However, the laws that propose to be enacted do more to ensnare an individual within potential landmines strewn across his path rather than protect him from harm or invasion of privacy.
In a nutshell, it can be argued that Pakistani state has still not evolved form post-colonial structure and is mired in the same mindset. The state believes that the only way to curb any unwanted activity is by criminalizing it. The state, notwithstanding, the social, legal and economic repercussions that will ensue from such a mighty enforcement of the criminalisation of various cyber activities has tried to go hammer and tongs about this bill. Although, the bill is the need of the hour, however the state has intended to clam down on various civil liberties in order to quell the criminal activities taking place on the cyber space. These fundamental rights are enshrined within Article 19 of the United National Declaration of Human Rights as well as the Constitution of Pakistan and the International Covenant on Civil and Political Rights_. Thus, the bill should be overhauled by the parliament and be formulated in a more practical and rational vein, with a greater focus on the human rights considerations of this legislation.
The blogger – a student of Law and Political Science at the Lahore University of Management Sciences (LUMS) – is currently working in a law firm and teaching at a law school. She will soon be representing Pakistan at New Delhi University, India to discuss law and policy.