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<nettime> Fwd: Electronic Crimes Ordinance 2007 Requires Serious Revisions


From: Pildat News System <News {AT} pildat.org>
Pakistan Institute of Legislative Development & Tranparency

 ________________________________

Electronic Crimes Ordinance 2007 Requires Serious Revisions before it is
passed by the Parliament: PILDAT Legislative Forum

________________________________

Islamabad, October 26: The Prevention of Electronic Crimes Ordinance 2007
requires serious revisions before it is passed by the Parliament. This was
the consensus that emerged out of a PILDAT Legislative Forum on the
Prevention of Electronic Crimes Ordinance 2007 that was held here today.

The Forum included as its speakers Mr. Ejaz Khan, techno-legal expert and
Partner Aqlaal Advocates, Mr. Tariq Khosa, Director General of the Federal
Investigation Agency (FIA), Ms. Anusha Rehman Khan, MNA and Ms. Marvi Memon,
MNA.

Speaking at the occasion, Ms. Aasiya Riaz, PILDAT Joint Director, said that
PILDAT organised the forum in order to generate public debate on this
important piece of legislation before it is adopted by the National
Assembly. Earlier, PILDAT had prepared and issued a legislative brief on the
ordinance both in Urdu and English languages which was widely circulated to
the Parliament, the news media and other stakeholders. The legislative brief
has been part of PILDAT's Legislative Development Programme and its
objective was to assist parliamentarians to understand the context,
objective and issues relating to the ordinance and to enable them to
participate in a more informed debate and take well-considered position on
the subject. Presenting an overview of PILDAT's analysis, she said that
despite the presentation of the report of the National Assembly Standing
Committee on Information Technology on the Ordinance, there remain serious
concerns that the offences outlined in the ordinance are vaguely defined,
despite involving complex technological issues and carrying severe
penalties. The offence of "cyber-terrorism," is very broadly defined and
carries a potential death sentence. Concern has also been expressed as to
the potential overlap of offences within the Ordinance itself and existing
provisions contained in the PPC. She said that the PILDAT Legislative Brief,
also circulated to the participants of the forum, recommends that the
jurisdictional definitions of offences be amended to require a significant
link to Pakistan. The offence of unauthorized interception should be amended
so as to include a requirement of malicious intent and the reversed burden
of proof in relation to sensitive electronic systems must be removed, etc.
She thanked active support from Ms. Anusha Rehman, MNA and members of the
National Assembly Standing Committee on Information Technology for her
support for background information on the ordinance and for organising the
forum.

Mr. Ejaz Khan, the techno-legal expert and Partner Aqlaal Advocates,
presented an overview of the existing ordinance, its provisions and their
shortcomings. He said that in the context of ever increasing cyber crime,
regulation was required, however, he expressed grave concerns over the
existing law in terms of civil liberties, business continuity and the norms
of international best practice. Essentially he proposed a careful amendment
of the Pakistan Penal Code, to ensure coverage of electronic offences in
terms of existing crimes, rather than a specialist law, whilst highlighting
the need for safeguards for civil liberties and fundamental rights. His main
concern related to the discretionary application of normal criminal
processes in cyber crimes cases, which can be dispensed with by the Federal
Government. He also drew attention to the lack of any third party
protections, right to privacy or confidentiality or redress for economic
damage arising from data loss or hardware damage. He proposed the use of the
Budapest Convention as a model for future amendment, legislation and
protection in relation to cyber crime, alongside robust capacity building of
specialist knowledge in terms of the FIA's specialist cyber crime cell.

Mr. Tariq Khosa, Director General of the FIA, spoke from an enforcement
perspective. He explained the existing Special Cyber Crime Branch of the FIA
and its work. He strongly defended the need for a specialist agency to
investigate and prosecute this technical area of criminal law. He asserted
the political independence of the FIA and gave the forum an assurance that
the branch applied the Criminal Procedure Code in all cases and that there
was "no chance of playing with rights" by the FIA.

Ms. Anusha Rehman, MNA, explained to the forum the role of the Standing
Committee, its work in reviewing the Ordinance and the content of its report
to the National Assembly that was presented in the last session.  Ms. Anusha
Rehman and Ms. Marvi Memon added a detailed dissent note on the committee's
report tabled in the House. She indicated that, in some respects, her views
differed from other members of the Standing Committee. She highlighted a
number of major concerns with the existing Ordinance, most notably the
overlap of offences with both the Pakistan Penal Code and Electronic
Transactions Ordinance, and the resulting risk of multiple liability and
punishment. She drew particular attention to the copy of the FIR of the
Khanani and Kalia case that the Interior Minister Rehman Malik provided to
her on the floor of the House in response to her specific question noting
that the FIR carried reference to prosecution under three separate
legislative provisions. She raised particular concern regarding the vague
definitions adopted for offences of cyber terrorism, which, in some cases,
can attract the death penalty. She made clear that in her view the law must
provide protection for basic human rights and freedoms and protect against
possible abuse in the future, rather than placing reliance on good practice
by law enforcement agencies. She also highlighted the need for specialist
expert input to the Standing Committee and Parliament, in order to ensure
that Parliamentarians can adequately understand and tackle technical areas
of legislation.  Finally, she highlighted the critical need for public
debate on such an important issue before the National Assembly passes the
law in its current form during the upcoming session in November 2009.

Ms. Marvi Memon, MNA and also a member of the Standing Committee on
Information Technology, made a strong plea for a public debate on the issue
and cautioned that approval of the Ordinance in its current form would lead
Pakistan towards "a police state." She described the Ordinance as a law
bulldozed through Parliament and the Standing Committee and her view that
efforts at presenting alternatives had been blocked by Government. She
called for the business community, whose interests could be irreparably
damaged, to enter the debate and expressed her view that the issue was now
time-critical as the National Assembly could pass the law in its current
form at any point once the National Assembly session starts on November 2,
2009.  She expressed disappointment at the lack of debate on this critical
issue to-date and said that if the civil society, particularly the Overseas
Investors Chambers and the FPCCI, did not protect its interests by
intervening now, it will be too late. Parliamentarians are doing their job
but the stakeholders must also come forward and present their reservations
now, she urged. She highlighted that a revised law has been proposed by them
the text of which is available at her website: at
http://marvimemon.wordpress.com/category/legislation-bills-introduced/

In the ensuing discussion at the forum, that mainly included representatives
from the IT business community, telecom industry, media and
Parliamentarians, a number of provisions of the law and its practical use
were discussed. It was highlighted by the business community, through the
anecdotal evidence of their experience, that even though the FIA Director
General maintained the agency will never stoop to abusing basic rights, the
law was applied indiscriminately by corrupt officials. It was highlighted
that a badly drafted law can not be left to be implemented on the integrity
of the implementing agency but the job of the Parliament was to ensure that
no unspecific, duplicate or badly-drafted law should be passed that is
liable to misuse at the stage of implementation. The industry deplores this
Ordinance, many participants said, terming the ordinance as an "atrociously
drafted law." Mr. Khurram Dastgir, MNA noted that if the law violates basic
human rights which are enshrined in the Constitution of Pakistan, these
constitutional rights can not be left to be protected or abused on the
discretion of implementers. The session ended with a call for further public
debate and expressions of disappointment that the Interior and Information
Technology Ministries and Standing Committees of both the Senate and the
National Assembly which chose not to participate in the forum despite
invitation.

PILDAT Legislative Brief on The Prevention of Electronic Crimes Ordinance
2007 can be downloaded here.
http://www.pildat.org/Publications/publication/LB/PILDAT%20Legislative%20Brief%206%20-%20PECO%20Sept%2009.pdf

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