“It’s been almost eleven months but no report has been presented to parliament,” remarked Senator Farhatullah Babar as he expressed annoyance at government’s non-submission of performance reports on PECA to parliament. According to Pakistan Electronic Crimes Act, PECA, the implementing agencies were to submit a six monthly report to the parliament to provide updates on how the law was being implemented. “The purpose of this bi-annual report was to allow parliamentarians to evaluate, to what extent the implementing agency, FIA, had been successful and what challenges it encountered (in implementation of PECA” recalled Senator Farhatullah Babar.
In August 2016, more than a year ago,, when PECA was enacted, a lot of hopes and concerns were expressed about its implementation by various stakeholders. Fervent debates took place on social media, at seminars and in TV talk shows about possible challenges to its implementation. Among the key concerns were capacity issues of judiciary and investigating agencies. For the human and digital rights community, the potential for human rights violations due to loosely defined, subjective sections in the law were of key concern.
A year and a month after the controversial law was enacted, this scribe embarked on a journey to explore answers to many ambiguities pertaining to PECA. A series of background interviews with sources at Ministry of Information Technology, MOIT, Federal Investigation Agency, FIA and Pakistan Telecommunication Authority, PTA revealed where PECA’s implementation stands today.
Growing complaints of cybercrimes:
It was September 1, 2016. PECA had been in place for hardly a week. “The week when PECA was passed, we received more than 250 complaints in two days,” says an FIA official who was directly involved in the implementation of the law. He highlighted the fact that growing number of complaints were related to online harassment. Although, FIA’s cybercrime wing, National Response Centre for Cyber Crime, NR3C, had not been formally designated as the invetigative agency under PECA by that time, he knew what was coming. “FIA is the only investigating agency that has the expertise in cybercrimes.” However, questions about the capacity of the workforce at NR3C to deal with the mammoth task of solving cyber-crimes across the country, appeared to make the FIA official uneasy.
Fast forward to 2017, the number of complaints under PECA has increased. According to The Nation, around 8000 complaints have been filed with FIA in first 10 months of 2017 only. According to a source in FIA, more than 60% of the complaints were related to online harassment and blackmailing. However, with poised confidence, the sources insisted that FIA had no capacity issues at all. “It is always great to have more resources…. But there are no capacity issues or backlog in cases.”
It took more than seven months before 31 Additional Session Judges (ADJ) and Judicial Magistrates (JD) across Pakistan were designated by Law Ministry to deal with cybercrime cases. This included 27 ADJs and JDs in Sindh, one ADJ and a JD each in Islamabad Lahore, Rawalpindi, Peshawar and Quetta. Under PECA, the courts were designated after consultation with Chief Justices of Lahore, Peshawar, Karachi and Islamabad High Court respectively. However, why the government decided to designate an additional session judge and a magistrate to hear cybercrime cases in each district of Sindh, whereas the most populous province Punjab only had courts designated in Lahore and Rawalpindi to hear cybercrime cases remains a mystery.
“The number of presiding officers on PECA was decided in the light of suggestions from Chief Justices of their respective High Courts,” connived a senior official at Ministry of Information Technology adding that Ministry had no role in finalizing the number of judges.
Since the enactment of PECA, there have been concerns among legal experts about the capacity issues of legal fraternity and how it would play out as cases were taken to courts pertaining to cybercrimes. The rights activists have repeatedly expressed concerns about the lack of understanding about cybercrimes in judiciary. They said that without training of judges, there was a higher chance that justice might not be dispensed. There are five judicial academies in Pakistan including one each in Islamabad, Lahore, Karachi, Quetta and Peshawar. However, it is only the Khyber Pakhtunkwha Judicial Academy where judges had so far been educated about cybercrimes and their nature, according to Aleena Alavi, a Karachi based lawyer specializing in cybercrimes.
According to another MoIT official, they were still in the process of planning training for designated judges. “The Course outline is being prepared for training of judges, at Federal Judicial Academy” he said adding that provincial judicial academies had also requested for content on cybercrimes. However, he believed that FJA should primarily take care of the training. “Since it is a federal subject, we would want FJA to take the lead.”
“As it stands today the case law on PECA is being developed. It is being developed by judges who have received no formal training on the subject of cyber crime and remain largely unaware of how the subject is dealt with globally”, says Sadaf Khan, Director Programs at Media Matters for Democracy, MMfD, who was one of the activists who was a part of continuous advocacy against the regressive sections of the law, “We categorically raised this issue while PECA was being drafted and warned the government that capacity issues within the judiciary and the legal fraternity can lead to serious challenges in the implementation of the law”.
The role of intelligence agencies:
One criticism on the cybercrime act was that it had wrongly incorporated issues of cyber security with cyber crime – for example those dealing with hate speech, glorification of terrorists and recruitment for terrorism using internet, cyber terrorism. During the public consultation process on PECA, the possibility of the legitimisation of the intelligence agencies, particularly for surveillance was raised as a concern. Initially, the IT ministry denied that the implementation process would include anyone other than civilian law enforcement agencies. However, later media reports demonstrated that the agencies would be involved in taking action against those involved in ‘cyber crime against the state’.
During an interview conducted by the scribe, FIA officials acknowledged that security agencies would remain involved in cases of cybercrime that were related to the state or could have an impact on national security. However, MoIT representatives, who were involved in the drafting of the law, continue to hold that the law does not allow intelligence agencies to play role in prosecution and investigation. “There will be cooperation with intelligence agencies under JIT mode (for prosecution and investigation),” he said, However, assistance from intelligence agencies will be actively sought for real time collection of information under PECA. But the government official noted, “There will be a proper notification whereby any intelligence agency having capacity could be asked to do the job.” He emphasized that PECA was not bound to nominate only one agency to perform the task.
PECA-Scuffling Political Dissent
“Criticism regarding the bill is baseless as proposed amendments have been included. Non-governmental organisations and civil society representatives are opposing the bill due to a certain agenda.”
This was stated by IT Minister Anusha Rehman during consultation process on PECA last year. However, the multiple incidents crackdown against those engaged in advocacy over social media has only confirmed that the fears around the misuse of law have not been as exaggerated as had been portrayed earlier.
In January, 2017 four bloggers mysteriously went missing only to later resurface and flee the country for their lives. Later, during May-July 2017, dozens of political activists mostly belonging to PTI were taken in for interrogation by FIA for allegedly criticizing the Army on social media. Even journalists have not been spared. Taha Siddiqqui, a journalist, was repeatedly summoned by FIA’s counter terrorism department to appear before them for hand account for his social media activities. Siddiqui has challenged FIA’s action in Islambaad High Court. During one of teh hearings the judge was told that Taha’s ‘case’ had been transfered from anti terrorism wing to cybercrime wing. The case is on going.
In response to crackdown against political and social media activists, a petition was filed in Sindh High Court by activists including Jibran Nasir, Zohra Yusuf from Human Rights Commission Pakistan and Farieha Aziz from Bolo Bhi. The petition highlighted how people were being summoned without an FIR and ordered to surrender their devices. It also pointed out that there were reports that Section 20 (crime against modesty of a person) of PECA was invoked to nab people for criticizing military despite that there was no provision in PECA to prevent criticism of state institutions.
Sharing updates on the petition, Farieha said that during the hearings the FIA shared copies of three FIRs despite the fact that dozens of people were allegedly summoned. She also expressed disappointment at the “ad-hoc” manner in which activist vocal on social media were summoned by FIA. “Initially, the FIA’s counter terrorism wing was summoning dozens of people but on record they said that the case had been transferred to Cybercrime wing”, said Farieha.
Amidst all these concerns and issues, on September 19, 2017, Interior Minister Ahsan Iqbal assured the Senate that the implementation report on PECA’s performance will be shared within a week. A commitment that remains unfulfilled. Officials at FIA, IT ministry and Interior have chosen to remain tight lipped. Will the government be able to present itself for open accountability in parliament over PECA? Will it be able to prevent further misuse of law against activists and journalists? Only time will tell.