Daily Times

In view of the burgeoning cybercrimes and national consensus on saving society from their awful effects, government has promulgated a law, Prevention Of Electronic Crime Bill 2016, unanimously passed by the National Assembly as well as the Senate. The new law, which replaces the Prevention of Electronic Crimes Ordinance 2007, is the outcome of intensive interaction between law enforcement agencies, legal experts, members of parliament, discussions in the National Assembly committees and recommendations of public. The two houses of parliament also held debates on the issue before passing it into a law. In that respect it is a well thought out piece of legislation that enjoys a kind of national consensus. The intent and purpose of the legislation ostensibly is beyond reproach.

The litany of crimes committed through the Internet and social media includes: hacking of personal data and websites, blackmail of women and children, promotion of pornography, fanning fissiparous tendencies within societies, creation of disorder in society by spreading false and misleading information about events and happenings, and above all, propagating ideologies that foment sectarianism and terrorism. In the Pakistani context, the Internet has been extensively used by terrorist organisations for propaganda. It is in the backdrop of these worrying developments and the need for harmonising efforts with the international battle against cybercrimes that this law has been enacted. Traditionally, crime and punishment are to a great extent local, regional or national, but cyber crimes have a global outreach and impact. In the modern networked world, no island is an island. The battle against misuse of information technology cannot be won without having legal international instruments ready to serve anti-crime efforts.

The enacted law prescribes an effective mechanism to prevent cyber crimes proposing adequate and deterrent punishments for different crimes in conformity with their severity. It mainly focuses on illegal hacking of data, illegal interference, electronic forgery and fraud, identity crimes, protection of women and cyber terrorism, besides making the unauthorised issuance of SIMs and selling of gadgets for cyber crimes as cognizable offences. Due to the special nature of cyber crimes, the law authorises the investigation officer to enter or search any specified place and secure data with prior permission of the court except in cases he considers that this process could be destroyed or lost due to delay in taking action.

However, the law binds the investigation officer to inform the court of law within 24 hours of the taken action. The law also empowers the investigation officer to seize digital forensic evidence using technological means, production order for electronic evidence and other powers that are indispensable to investigate the cyber crime. The bill also proposes the establishment of a forensic laboratory independent of the investigation agency to provide expert opinion before the court or for the benefit of the investigating agency.

With a view to harmonise government efforts with international initiatives, the bill authorises the federal government to cooperate with any foreign government, network or any international organisation. The authorisation pertains to investigations or proceedings concerning offences related to information systems, electronic communication, or data or for the collection of evidence in electronic form in regard to an offence or obtaining expeditious preservation and disclosure of data by means of an information system or real-time collection of traffic data associated with specified communications or interception of data, under the Act.

Nevertheless, human rights organisations, NGOs and even some sections of media have been taking umbrage at the proposed legislation, particularly excessive powers given to the investigation officer and the Pakistan Telecom Authority to block access to any content it deems unsuitable. It is feared that the legislation will curb legitimate dissent, and also infringe upon individual rights. My feeling is that their concerns and fears are rather premature. Agreed that no law is a perfect law, and there is always room for improvement. But it is really difficult to know the inadequacies and flaws in a law before its implementation.

The other aspect of their objections is that they are laying too much stress on the rights of criminals, neglecting the rights of those who become victims of crimes and indiscretions. It is the basic responsibility of the state to ensure peaceful and crime-free environment for its citizens, a duty that takes precedence over all other considerations. Further, freedoms and human rights are not without corresponding duties. Those who trample upon the rights of others and harm the peace and tranquility of society hardly deserve any leniency.

The objections on the legislation manifestly stem from lack of proper understanding of the clauses of the bill. To keep a check on indiscretions of investigation officers and implementing agencies, it rightly stipulates that no action could be initiated without advance approval of the court of law except in case of cyber terrorism, sexual abuse and child pornography. Likewise, seizure and search also needs court permission except in case of cyber terrorism. The avenues of defence under the Pakistan Penal Code are available to the likely culprits. The law also binds the concerned authorities to ensure transparency and safeguards while formulating rules and regulations for implementing the law. The Act on top of all these measures also stipulates parliamentary oversight on the implementing authorities, and makes it obligatory on them to submit bi-annual report to parliament.

What the detractors of the bill conveniently refuse to acknowledge is that the initiative is in consonance with the UN General Assembly recommendations contained in its resolutions 55/63 adopted in 2000, which urges the member countries to: ensure the elimination of safe havens for cybercrimes; coordinate cooperation in the investigation and prosecution of cyber crime; exchange information for fighting cyber crime; train and equip law-enforcement personnel to address cyber crime; protect the security of data and computer systems from cybercrime; permit the preservation of and quick access to electronic data pertaining to particular criminal investigation; ensure mutual assistance regimes for the timely investigation of cyber crimes and timely gathering and exchange of evidence; remind the general public of the requirement to prevent and combat cybercrime; design information technologies to help to prevent and detect cybercrimes; take into account both the protection of individual freedoms and privacy. and the preservation of the capacity of governments to fight cybercrime.

A close scrutiny of the Prevention of Electronic Crimes Bill 2016 reveals that a conscious effort has been made to incorporate the recommendations of the UN General Assembly in regard to prevention of crimes and safeguards for individual freedoms and privacy, while giving government adequate legal powers to strengthen its capacity to combat cybercrimes.

The writer is a retired diplomat, a freelance columnist and a member of the visiting faculty of the Riphah Institute of Media Sciences, Riphah International University, Islamabad. He can be reached at ashpak10@gmail.com