Legalising Big Brother

WE are reaching a point where we are unable to count the number of times the expression ‘yet another attempt’ has been used for the state’s efforts to restrict freedom of speech and undermine the right to privacy in Pakistan.

But, here we go again: ‘yet another attempt’ has been made to further tighten the noose around Pakistani citizens through proposed amendments to the already draconian Prevention of Electronic Crimes Act (Peca), which was passed by the PML-N government in 2016.

This attempt consolidates a range of past legislative proposals, ordinances, and rules that have been rolled back by the higher judiciary in Pakistan for being unconstitutional. Presumably, the renewed confidence in passing such a package in the shape of an amendment comes due to a compliant parliamentary majority with questionable legitimacy that also passed the controversial 26th Constitutional Amendment in October.

The proposed amendment will erode democratic civic space and roll back rights in several ways, and give legal cover to several tactics the state has already put in place to clamp down on criticism of the state and the ruling hybrid regime.

First, the amendment adds new definitions to Peca. It expands the definition of social media by including “website”, “application”, and “communication channel” that allow people to access social media and post content. This is presumably being done after the government’s legal opinion that VPNs cannot be blocked under the law due to lack of ambit.

The new definition will bring VPNs under the definitional scheme, hence legitimising the illegal blocking of VPNs, the use of which spiked after the government controversially blocked X after evidence of rigging started to emerge on the platform following the Feb 8 general elections. Additionally, “any person managing a system that allows access to social media” has also been added to the definitions in the law.

The proposed amendment will erode democratic civic space and roll back rights.

Second, the amendment proposes the creation of a new authority called the ‘Digital Rights Protection Authority’, which is ironic given that the authority’s function is the opposite of what the name suggests: it will have the power to ask the government and social media companies to block or remove “unlawful content”.

The definition of unlawful content has also been expanded to include 16 different scenarios, including “fake or false information” and “aspersion” against constitutional institutions and their officers, including the judiciary and the armed forces. This could mean that parliament — the supreme constitutional institution — and its elected members cannot be criticised by those who pay their salaries through taxes and vote them into office in case the DRPA, appointed by the government, thinks the criticism is “aspersion”.

This also means that the judiciary and the armed forces cannot be criticised for established unconstitutional moves such as the 1999 military coup or the 2007 emergency, including the Provisional Constitutional Order of the dictator Gen Pervez Musharraf, under which several judges took oath, while others refused. Hence, perfectly legitimate speech is likely to be censored “lawfully” under the proposed amendments.

The amendment further claims that the authority will incentivise and facilitate social media platforms, but says that it will “enlist” social media platforms to abide by its rules and set conditions for them “in addition to the requirements of this [law]”. It is important to note that platforms have consistently refused to comply with such conditions, which violate international human rights law standards that they and the government are liable to uphold as signatories to the International Covenant on Civil and Political Rights, and the Universal Declaration of Human Rights.

Platforms have made this clear through the Asia Internet Coalition and the Global Network Initiative. Further, the authority will clearly not be independent if the government is appointing the chairperson and three other members out of the total six and relies on majority decisions. It appears that the state wants to continue the judge, jury, and executioner role of the Pakistan Telecommunication Authority (PTA), but through a new authority.

It is worthwhile to take away content regulatory powers from the PTA, which needs to focus on making internet and telecommunication services better and faster instead of the slow and fragmented state they are currently in. However, the solution is not to create a new censorship body with a friendly sounding name.

Third, and very alarmingly, the amendment proposes adding the offence of “fake or false information” as Section 26(A), stating that any person who “intentionally” posts any information “which he knows or has reason to believe to be false or fake and likely to cause or create a sense of fear, panic or disorder or unrest” shall be punished with imprisonment which may extend to five years or with fine which may extend to a million rupees, or with both.

This is dangerous, because an authority appointed by the government cannot make a decision on what is true and what is not. As it is, a large amount of disinformation emanates from government functionaries. It is ironic that they will become arbiters of truth for the entire citizenry and retain the privilege of sending those who disagree with them to jail for five years under the garb of “fake or false information”. As the disappearances and arrests of journalists in the past few years show, this provision will be used to further undermine press freedom protected under Article 19 of the Constitution and the Journalist Protection Act.

In the current context, where police is profiling citizens by checking their phones to see what political party they support and detaining them on the basis of arbitrary findings; where VPNs are blocked without legal cover, damaging the IT industry and privacy in general; where essential apps are slow or non-functional, depending on the whim of the state; and where a controversial and opaque firewall has been installed, the need of the hour is legislation that protects access to quality internet without Big Brother snooping on every click by citizens with the intention of jailing them in complete disregard of their fundamental rights.

The writer is director of Bolo Bhi, an advocacy forum for digital rights.

X: @UsamaKhilji

Published in Dawn, December 12th, 2024