Liberty at risk: Amending ICT law
"The aspirations of free peoples are seldom harmful to liberty, because they result either from oppression or from fear that there is going to be oppression."
-- Niccolo Machiavelli, Discourses I.4
ON September 20, 2013 the treasury bench placed a bill in parliament purporting to further amend the current law of the land on information and communication technology, namely 'Information and Communication Technology Act, 2006.' Not withstanding a good deal of protestations, this in all likelihood is going to be made law. Interestingly, however, this comes close on the heels of an ordinance amending the Information and Communication Technology Act, 2006 Act promulgated by the President of the Republic on August 20, 2013. The unease is legible in your face.
The proposed piece of legislation seeks to amend the extant law of the land by providing among other things for a minimum as well as a higher maximum term of imprisonment for law breakers. Whereas the ICT Act, 2006 provides for a maximum punishment of 10 years the proposed amendment increase it to 14 years. The bill tabled on September 20 also proposes handing a minimum incarceration term of 7 years to any offender whatsoever. The law clearly betrays a faith, namely a faith in retribution.
An ominous aspect is the proposed provision for empowering the law officers to arrest a suspect without judicial warrant. As the corresponding provision of the extant law has it, in order to file a case against someone and issue an order of arrest the police are under the obligation to obtain prior permission of authorities concerned. The proposed amendment wants to do away with it. It looks ominously like some pious follower of deterrence at work here. Furthermore, in ICT Act, 2006 these offences were considered as bailable. In the proposed amendment they have, however, been made non-bailable, leaving it at the mercy of the judge.
Where is the new anxiety coming from? It will be evident from what the proposed legislation counts as species of serious offence. These include some aspects of common cyber-crimes, such as destruction of computer data with malicious intent, transferring data without proper authorisation, hacking and releasing vulgar, say pornography, and defamatory information in electronic form.
That high prevalence of cyber-crimes all over the world has prompted almost every country to put some sort of laws against cyber-crimes or information and communication technology acts in place is no surprise. It is what it should be. Society must be defended as an old philosopher would say. There is nothing wrong as such with it, but the devil is in the details, i.e. in the province of jurisprudence so-called.
The proposed law has been already widely critiqued as confusing and unclear. There are at least three orders of confusion, namely that relating to scope of offences, to the process of bringing in charges and, not least, to the enforcement procedure.
Cyber-crimes and other related activities have to be closely identified. A rather lengthy portion of Chapter VIII (namely ss. 54-67) of ICT Act, 2006 provides for identification of cyber offences. Section 57(2), for instance, provides for punishment for 'publishing fake, obscene or defaming information in electronic form'. How to determine an electronic offence? 'If any person,' as s.57(1) provides, 'deliberately publishes or transmits or causes to be published or transmitted in the website or in electronic form any material which is fake or obscene or its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, or causes to deteriorate or creates possibility to deteriorate law and order, prejudice the image of the State or person or causes to hurt or may hurt religious belief or instigate against any person or organisation, then this activity of his will be regarded as an offence.' This is quite a tall order and needless to say, everything is put on the same dish.
How would the government identify an offender under the section? There is more space for discretion than for a principle. Incidents from recent experience bear eminent testimony to that. In February, 2013, as everyone knows, the government was indifferent about, if not lenient to, certain bloggers associated with the Shahbagh protests against certain judgments of the International War Crimes Tribunals. The government, however, decided to go the other way in the case of some bloggers as they were allegedly hurting religious belief. No one can deny a certain degree of arbitrariness in place here. According to the officials of the ICT industry, legal experts and human rights defenders, there is a huge chance that the law could be misused in the name of preventing cyber-crimes. Many have already termed it a "black law".
Involved here is no less than that fundamental question, namely the right of the citizen to freedom of speech and freedom of expression and freedom of the press, the violation of which is considered to be a cardinal sin. Under attack are not only the free peoples of Bangladesh. In the recent times, freedom of expression has been increasingly under attack in virtually all parts of the world. The gap between the reality and aspirations are widening. Machiavelli's sage words seem not at all quaint: 'The aspirations of free peoples are seldom harmful to liberty, because they result either from oppression or from fear that there is going to be oppression.'
How would you have freedom of expression without guarantee for every individual to write and speak openly free of government interference? Individuals or groups can inform the public and advocate in favor of an alternative idea and should be able to provide their opinions about what they think is right or wrong. Freedom of expression also secures other fundamentals of democracy like pluralism and free, fair and transparent elections. Without freedom of expression, political parties also cannot campaign properly which can lead to unfair election contestation.
In addition, the law has been criticised as pretty inefficient. Technical experts argue that the government would not be able to tackle cyber-crimes with this kind of inefficient law. The proposed law, for instance, does not cover a majority of crimes committed through mobiles. It considered emails as evidence, which conflicts with the country's law of evidence. The law should thus have included provisions which empower the government to tackle the growing number of cyber-crimes. But in order to do that, the government should have consulted with all the stakeholders and should come clean by drafting such rules so that they do not hinder fundamental rights like freedom of speech and expression.
The law under discussion has too many loops to violating right to privacy and as well as right to information or freedom of expression. When a citizen expresses something on any social media which the government considers it offensive or suspicious, law enforcers can arrest her without prior notice or issuing a warrant. No individual aggrieved person or victim would be allowed to go to the court according the amended law. Only the law enforcers or the ministry officials would be allowed to do so. An individual may be allowed to go to law enforcement agencies for their protection. In the near future tribunals would be set up for trying such offenders.
The biggest privacy problem for citizens comes from a disturbing and growing trend -- data breaches. This threat to our privacy is also a threat to our security. In the digital age, we are only as safe as our computers. But that doesn't mean that we have to adopt an oppressive law. As we are quite concerned about our privacy, we also are really worried about our security and safety. We don't want oppression in the name of protection.
It is true that cyber-crimes are on the rise and we have to deal with that within a legal framework. So we must adopt new laws as needed. But a law must not defeat its purpose. The proposed amendment to the ICT law is more about violating citizen's constitutional right to freedom of speech than protecting her liberty.
The writer is Researcher at VOICE, Dhaka.