When things get ugly, it’s time to step in
While the scientific and technological advancements have brought myriad of benefits to the humanity, they unfortunately also have a down side which is equally painful and tormenting for vulnerable sections of societies around the world. Internet, which has been instrumental to bringing the world together, opened up infinite vistas of knowledge, given boost to the commerce and industry, expanded avenues of socialisation and solved logistic problems to a great extent, has also provided the criminal elements with an effective tool to exploit its outreach and scope to advance their criminal activities. Cyber crimes have become a great nuisance all over the world and the governments have been forced to introduce legislations and put in place administrative measures to prevent cyber crimes that are having devastating impact on the social lives of the people and the overall well-being of the societies.
The nature and extent of these crimes is such that it is very difficult to check the perpetrators of the cyber crimes in their tracks and bring them to the book through normal channels of dispensing justice. Therefore, the governments perforce have to adopt special legislative and judicial measures to deal with crimes made possible by the new communication dynamics. The governments all over the world are not only engaged in tackling the cyber crimes within their own territories and jurisdictions but are also cooperating with the other countries in dealing with this festering phenomenon, as some of the offences committed also have extra-territorial dimensions and global repercussions.
The usual crimes committed through internet and courtesy the social media are, hacking of personal data and websites, blackmail of women and children, promoting pornography, promoting fissiparous tendencies, fanning sectarianism and terrorism and spreading false information to create discord and panic within the society. In the Pakistani context, internet has been extensively used by the terrorist entities for propaganda and misleading the masses. It was in the backdrop of these developments that the government decided to bring in an effective legislation to prevent cyber crimes and to award deterrent punishments to those who relish the prospect of inflicting misery on others and the society.
The PML(N) governmentsince its inceptionin 2013 has been working on the promulgation of a comprehensive and effective legislation to check and prevent cyber crimes, improving on the Prevention of Electronic Crime Ordinance 2007 which was considered inadequate to serve the purpose. Through an arduous process that involved deliberations and consultations among law enforcing agencies,repeated discussion in the NA committees on the subject and public hearings and the recommendations made therein, an agreed draft bill was prepared and presented in the National Assembly which was adopted unanimously on 16th April, 2016. The senate has also given unanimous assent to the Prevention of Electronic Crimes Bill, 2016 on 29th July 2016.
The legislation purports not only to put in place an effective mechanism to prevent cyber crimes but also proposes adequate punishments for different crimes depending on their severity.It particularly focuses on illegal hacking of data, illegal interference, electronic forgery and fraud, identity crime, special protection of women and cyber terrorism. Issuance of unauthorised SIMs and providing gadgets used for cyber crimes have also been made cognisable offences.
In view of the special nature of the cyber crimes, the bill empowers the investigation officer to enter or search any specified place and secure data, with getting prior permission of the court or warrants, if he thinks that data could be destroyed or lost, if he tries to obtain warrants for search. However the law binds him to bring the seizure to the notice of the court within twenty-four hours. The new legislation also provides the investigation officer with hitherto unavailable powers such as seizure of digital forensic evidence using technological means, production orders for electronic evidences and other enabling powers which are necessary to investigate the cyber crimes.
To assist the investigations, 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 investigation agency. And very rightly the bill also authorises the federal government to cooperate with any foreign government, networks, any foreign agency or any international organisation or agency for the purposes of investigations or proceedings concerning offences related to information systems, electronic communication or data or for the collection of evidence in electronic form of an offence or obtaining expeditious preservation and disclosure of date by means of an information system or real-time collection of traffic data associated with specified communications or interception of data under this Act.
Nevertheless, the proposed preventive measures and punishments are being criticised by the human rights organisations, NGOs and even some media circles, particularly excessive powers given to the investigating officer and the Pakistan Telecommunication Authority to block access to any content it deems unsuitable. It is also contended that the bill will shut down legitimate dissent and clamp down on individual rights. I think the logic given by the human rights entities looks only at one side of the picture. They are worried about the rights of the perpetrators of the crimes and not about those who have to suffer horrible consequences and whose rights are being trampled by these unscrupulous elements. Freedoms and human rights are not without corresponding responsibilities. They are also subject to their positive contribution of the citizens to the well-being of the society. And nobody has the right to cross the Rubicon.
The objections also betray proper understanding of the provisions of the bill.It not only provides for punitive action against the criminals but also contains certain checks on the powers of the investigation officers and implementing authorities. No investigation can be initiated without prior permission of the court except for cyber terrorism, sexual abuse and child pornography. Similarly seizure and search will not be possible without prior order of the court except in case of cyber terrorism. The defense and protections provided in the Pakistan Penal Code will be available to the persons charged with cyber crimes. Even for obtaining traffic data warrants from court of law would be required. The Bill stipulates that rules and regulations to be framed under this law must ensure transparency and prescribe the required safeguards against misuse of authority. The Bill also provides for parliamentary oversight on the implementation of the legislation as it requires the executing agencies to submit biannual reports to the parliament. These are enough safeguards against any misuse of authority as well as making sure that human rights available to the citizens are not trampled. The objections being raised are also pre-mature in view of the fact that it is very difficult to perceive the inadequacies of a legislation before its implementation.
