CYBERSPACE: Crime and Punishment

Spearhead Analysis – 19.08.2016

By ShahBano Khan
Research Analyst, Spearhead Research

Security concept: Lock on digital screenThe Internet, a phenomenon of a post-industrial epoch, has become ubiquitous in everyday life. To say it has transformed modern life would be limiting its vast and instrumental impact; the internet has changed personal identities, revolutionized communication, reconstructed social, political, and economic structures, provided access to a colossal amount of information, and in essence remodeled the very relationship individuals and societies have with the world at large. The internet, to many, is a tool, a place of assemblage, and a persistent state of mind. But its most durable legacy is its construction of a social space, mirroring real world existences and experiences, and the way those new electronic spaces of sociality are then either contextualized through political participation or regulated by governing bodies. A ‘social space’ is less of an abstract idea and more a product of social relations rooted in an everyday experience. But like all spaces, virtual and real, determined by human interaction- the social space on the internet is neither completely neutral nor free of strict controls and enforced censorships.

At present, 17-19% of Pakistan’s population has access to the internet, out of which 8 million regularly use Facebook. These statistics shed light on a strange social force majeure; while Pakistan has one of the lowest literacy rates in the world, 99% of its internet users don’t just visit websites that are in English but are active users of social media sites like Facebook, Twitter, Google, and even WordPress. This means that the nature of computer-mediated communication is influential in setting the tone for public participation, civic awareness, and political engagement.

While over the years the government of Pakistan has encouraged internet usage in the country, the vast space has taken up a narrative of its own. In a country where civil liberties are limited, the internet user sees the social space as an opportunity to connect with like-minded groups, mobilize political opinion, criticize government policies without being necessarily singled out, exchange and retrieve information over long distances, extend virtual support to a number of social and political causes, and even establish online businesses of goods and services. The internet is an alternative yet parallel space of social engagement that has enabled the average citizen to be much more involved in the country’s political, social, and economic future.

As public engagement and open interaction have become the new trends in modern governance around the world, the social arena of the internet is also a place where dangerous terrorists groups can recruit new members, publicize their atrocities of destroying life and property, hack important websites to spread fear and confusion, and misuse information to further nefarious agendas. In addition, if the internet is reflective of real world experiences, then it also has the potential to be a negative space of racism, sexism, political incorrectness, extremism, and intolerance- that too, in abundance. Symbol of online presence, good or bad, has become the order of the day without which companies, media outlets, governing bodies, celebrities, social and cultural institutes, and the general public cannot do without. The internet, and the consequent nature of social media communication, is by far the most important juncture in human development since the discovery of fire, wheels, and agriculture.

The openness of the internet doesn’t just pose a direct threat to authoritarian regimes but also democratically elected governments in power, and governing bodies all over the world are finding ways to control and also counter the vast political impact of its use by either restricting access and filtering information but by also using specific strategies to promote vested interests and priorities. It is within such a context that Pakistan’s new and controversial Prevention of Electronic Crimes Bill 2015 was recently passed by the National Assembly. Although countries worldwide have enacted laws and reformed penal codes to deal with the imminent threat of cyber crimes, Pakistan until much recently lacked any such apparatus. But more importantly, the cybercrime bill was passed amid much controversy and outcry. The balance of power between state and society used the internet medium to maintain a kind of equilibrium, yet the intent behind the recently enacted law seems to be far from noble. According to a Dawn news report, the bill was passed swiftly and without consideration of its critical appraisals after the courts found the Inter-Ministerial Committee for the Evaluation of Websites (IMCEW), an unconstitutional body, was passing directives to block content online, even if not blasphemous or pornographic. However, a mere statement from our Prime Minister not only disbanded the body but also transferred that power to the Pakistan Telecommunication Authority (PTA). But the powers vested in the PTA have to be granted by law instead of a sweeping statement through an executive order.

Noteworthy crimes under the bill include: illegal interference with information system, electronic forgery, cyber terrorism, electric frauds, making supplying and obtaining devices for offenses, identity crimes, unauthorized interception, and special protection against harassment of women. While punishments include: up to three years in prison with a fine of Rs 1 million for unauthorized access to critical infrastructure information system data, the government may cooperate or forward/share information with any foreign government or international agency for investigation or proceedings relating to an offence or for the collection or disclosure evidence, up to seven years or a fine of Rs 10 million for the glorification of an offence relating to terrorism, any person convicted of a crime relating to terrorism or proscribed individuals or groups, up to six months imprisonment or a fine of Rs 50 thousand for producing, making, generating, adapting, exporting, supplying, offering to supply or importing a device for use in offense, and up to three years imprisonment or a fine of Rs 5 million for obtaining, selling, possessing, transmitting or using another person’s identity information without authorization.

It is imperative that enacted laws be clear, comprehensive, and precise. Laws don’t just govern our lives and interaction but provide a framework under which any sort of ethical, religious, social, and psychological discussion can ensue. Clearly defined edicts can limit the scope of ambiguous and malicious interpretation. One of the biggest criticisms of the law is its vague and undefined wording that lays open the very definition of crime.  According to many, its vaguely defined crimes are intended to curb the growing influence of social media that increasingly shapes public opinion and encourages accountability of the ruling class. But in some instances the punishment is too severe for the crime. Under the bill, the state has tacit control over its citizen’s interaction, nullifying ‘innocent until proven guilty’ and replacing it with ‘guilty until proven innocent’; ISPs can retain your data for up to 90 days with access to all your information. But while it criminalizes many things, it also leaves enough things undefined so the law can be stretched to include political dissent and opponents; it can be used to muzzle freedom of speech and opinion in trying to uphold ‘national security’.

More importantly, broad definition of what is deemed permissible and what is deemed punishable vests authorities with too much power to prosecute and censor. Since the inception of this bill, it has been clear that the authorities enacting it don’t fully understand the dynamic and evolving nature of social media and the internet. Firstly, the bill was not released to the public for scrutiny to gauge the reaction. Even recommendations from the civil society was either ignored or willfully avoided. Secondly, it not only gives overreaching powers to law enforcement agencies but is in essence a move towards making Pakistan a highly policed state in which its citizens are under constant surveillance. Thirdly, what seem to be missing from the bill are the procedural methods of implementation where the authority designated under the law is not independent of the executive.

In a democratic set-up, citizens of the state have inviolable rights; freedom of expression is one of them. By enacting ‘draconian’ laws the state is not just controlling information exchanged on the internet, but there is a chance that censorship might permeate societal norms. Pakistan has lived through eras of media control and press censorship, but it has come a long way since then. Society now is not just more connected but also more aware of their fundamental right to information which would then facilitate justice. The country has also made significant strides towards democracy with the help of an independent media. The recent bill has strangulated these collective ‘voices’ instead of regulating it in the interest of all.

Although the President of the country has not yet signed the bill after which it would be effective as law, but the first offender of the Cyber Crime Bill has already been arrested. What is left to be seen is if the law will effectively deal with hate speech, fraud, hacking, and identity theft or will it put a tighter grip on what can be termed as ‘dissent’ and what can be termed as ‘dangerous’. But if the state makes those decisions, who will then protect the rights to freedom of speech and privacy?