Prevention of Electronic Crimes Ordinance - Draconian Law
Wahaj us Siraj/MGMT
Dear all,
Today, PILDAT (www.pildat.org) arranged a seminar on PECO 2007 and was attended by, among others, Ms. Marvi Memon, MNA, Mrs. Anusha Rehman, MNA, some other Parliamentarians, Civil Society members, lawyers and FIA officers (including DG FIA).
The Parliamentarians (mostly from opposition benches) were quite concerned about this law which is at the verge of approval by the National Assembly despite the note of dissents by members of National Assembly Standing Committee on IT & Telecom. The draft Act is being placed for the session of the National Assembly somewhere next week and there’s little time left to make final efforts.
Text of presentation delivered by Barrister Ejaz is enclosed.
It is the time for the industry to raise forcefully our voice so that we can synthesize the Parliamentarians on sensitivity of this issue for present and future generations of educated youth, IT, Software and Telecom Professionals in the country. The target should be to involve media fully by arranging press conferences, articles, letters to editor, talk shows, etc., so that message gets across.
We’d be arranging press conference and other events in Islamabad jointly with PASHA, ISPAK and others. Other concerned professionals and citizen are also requested to take this to various forums before it’s too late.
Kind regards….Wahaj
Look before you leap!
And please look deep!
Prevention of Electronic Crimes Ordinance, 2007
Overview
Cyber Offences
Investigation and Prosecution of Offences
Some illustrations…
Cyber Offences
17 New Offences
Of which 14 are already covered under Pakistan Penal Code
Only minor amendments to PPC required
4 pages of definitions for about 20 offences
The Budapest Convention has only 4 definitions
Requires experienced legislative drafting
Loosely drafted offences
Casts a very wide net
See examples at the end
Cyber Offences
} Serious potential of political, commercial or personal victimisation
} Cyber terrorism
} ‘…to act…alarm…frighten…disrupt…any segment of population, the Government of entity associated with it
} An email by a citizen’s rights group to hold a rally on a public street can be ‘cyber terrorism’ since it can ‘disrupt’ or ‘alarm’ the users of that street
} Cognisable offence
} Arrest without warrant
} Exclusion of jurisdiction of other courts (Section 44)
Investigation and Prosecution of Offences
PECO ignores international conventions and best practices
E.g. Article 15 of Budapest Convention 2001 on Cyber Crime – Conditions and Safeguards
‘Ensure…the powers and procedures…are subject to:
safeguards provided for under its domestic law …adequate protection of human rights and liberties…other applicable human rights instruments…
Judicial or other independent supervision
Limitations on the scope and duration of such power and procedure
Consider the impact on third parties
Investigation and Prosecution of Offences
There is no requirement for mandatory grounds being given for obtaining a search and seizure warrant
Impossible to verify or challenge the grounds
The law should provide for written grounds stating:
Information received being the basis for the application for the warrant
Scope of search – limiting it to relevant content or system
Method of search, leaving the larger operations intact
Investigation and Prosecution of Offences
IO can seek disclosure of:
any ‘subscriber information’ (Section 26(2))
You, me, any one…
No search warrant or other judicial permission required
If the IT company resists, its officers can be imprisoned for 1 yr
No right of privacy
All our communications can be spied upon
Other countries have sophisticated privacy regimes
E.g. Office of the Privacy Commissioner of Canada (MP reporting direct to Parliament)
No legal recourse to prevent such spying
Investigation and Prosecution of Offences
CrPC has detailed procedural protections for investigation of crimes
FIR, police diaries, preservation of case property, accused and witness statements, presentation of challan, right of bail, etc.
Over 100 years of case law preserving such protections
Courts are familiar, and preserve these protections
But Section 25 enables Federal Government to change these investigation procedures…
WHY?
Why an accused of fraud, forgery, etc. under PPC has procedural protections against abuse of investigatory powers but one accused of cyber crimes of the same kind hasn’t?
Investigation and Prosecution of Offences
CrPC applies to all offences under PPC
But ICT Tribunal can dispense with CrPC ‘…where it deems necessary…” (Section 39)
Why an accused under PPC has trial-procedure protections under CrPC but a cybercrime accused hasn’t?
Will the accused have a right to go in the witness box?
Will the principles of bail under Section 497 and 498 apply to a cybercrime accused?
Can the ICT dispense with the CrPC’s requirements to record an accused’s statement, witness statements, preserve case property (computer data),, etc.?
Investigation and Prosecution of Offences
CrPC is a statute and requires Parliament’s approval for amendments
But the Cyber Crime Cell’s investigation procedure can be amended at will by the Government
The ICT Tribunal can apply or disapply the CrPC at will
NO PARLIAMENTARY SCRUTINY OF INVESTIGATION, PROSECUTION AND TRIAL PROCEDURE
It is not sufficient to leave these to delegated legislation because these are made by the Executive and are screened from Parliamentary scrutiny
OUR CIVIL LIBERTIES DEPEND ON THESE PROCEDURAL PROTECTIONS
Investigation and Prosecution of Offences
BUSINESS AND TRADE SECRETS ARE NOT PROTECTED
} The search and seizure of computers, IT Systems and Data can take place
} At any time and anywhere
} On any number of IT systems, irrespective of whether they also carry the data of non-related persons
} Budapest Convention
} Maintain the integrity of the seized data
} Consider the impact on 3rd parties
Investigation and Prosecution of Offences
BUSINESS AND TRADE SECRETS ARE NOT PROTECTED
} IO can seize commercial data
} without assurance of confidential treatment
} copies of seized data can be made without any chain of custody
} no legal recourse to prevent unauthorised disclosure to competitors
Investigation and Prosecution of Offences
Valuable trade and business data can be lost
} e.g. an ISP, a data warehouse, or a telephone company’s system (or part thereof) is seized for investigation of a suspected crime is given no rights under PECO:
} To retain a verified copy of the data / hard disk
} For protection of its Intellectual Property
} For security, confidentiality and integrity of its data
} Also, no legal guarantees that:
} the computers taken into custody will not later be implanted with fabricated or false evidence
} The computers will not be damaged
} The data in the computers will not be lost or damaged
Potential Scenarios of Abuse (1)
Ahmed is a Professor in a University
His computer gets infected with a virus overnight which results in ‘spam’ being generated from his computer
Under the present law, an IO can arrest him with warrant, seize his computer and the University’s main server
If the spam is received in the computers of a bank, or post office, or any government’s office:
Ahmed can be arrested without warrant
For a non-bailable offence
Any one of us can be in place of ‘Ahmed’!
Potential Scenarios of Abuse (2)
Mr. Ali is a politician
His opponent asks a hacker to infect Ali’s computer with a virus which propagates itself to other computers
The virus results in emails being generated which incite the public to attack a religious sect
Mr. Ali can be charged with “Cyber Terrorism”
Mr. Ali can be arrested without warrant
For a non-bailable offence
It can be years before Mr. Ali is released on bail
Potential Scenarios of Abuse (3)
} Mr. Ali is a politician
} His opponent lodges a false FIR that he received an email from Mr. Ali asking the opponent to join in a public rally that will cause damage to public property
} (it is easy to fabricate such a false email)
} Mr. Ali can be charged with “Cyber Terrorism”
} Mr. Ali can be arrested without warrant
} For a non-bailable offence
} His computer and all information and data can be seized by FIA without warrant
} Later, at the police station, Mr. Ali’s computer can be ‘infected’ by a dishonest IO with various other ‘cyber terroristic’ emails!
} There is no protection in the law currently against such ‘fabricated’ electronic evidence
} It can be years before Mr. Ali is released on bail
Potential Scenarios of Abuse (4)
} Coso is a data operations company with multiple servers in a data center, which also include the data servers of a bank
} Coso’s network is hacked, enabling access to the banks’ data servers and transferring millions of dollars to a fake account
} In the morning, FIA can:
} raid without warrant
} Arrest the CEO, CTO and other officers
} Seal and/or remove all data servers (grinding to a halt the operations of other corporates who also have data servers at Coso)
} ALL data, business information, confidential information, etc. will become exposed to the IOs
} There is no assurance under the law:
} that the business information of other companies will not be compromised
} The equipment and data in the data servers will not be damaged
} Which company will want to do business in this environment?
Potential Scenarios of Abuse (4)
Najma is a poor IT student
She belongs to a non-influential family
She is given a ‘source code piece’ by a friend who had stolen it from University’s archives
Najma incorporates it in her software program for her thesis, and markets her program
Najma can be charged with “Unauthorised Access to Code”, and
Can be arrested with warrant
Her computer and all information and data can be seized by FIA
The MYTH
That all other countries have passed the same laws:
PECO is much more sweeping in its language
Developed Jurisdictions with cyber crime laws
Do not exclude Procedural Protections
} US Patriot Act an exception
} Has earned bad press and criticised by its own judiciary
robust judicial system for accountability of investigation agencies
data protection and preservation laws
The MYTH
We do not need rights-throttling laws to combat cybercrime
Rather
robust IT forensic training programme and budget for the investigation agencies
sophisticated IT equipment and facilities
Public education on cybercrimes
Industry Code enforced by PTA
Conclusions
} Without building substantive and procedural protections for the accused;
} Without ensuring integrity of investigations;
} Without ensuring integrity, confidentiality and safety of the systems and data seized by FIA;
} Without Parliament’s scrutiny of the investigation procedures;
} Without careful review by the country’s leading criminal lawyers under the aegis of the Parliament’s sub-committee;
} The Potential For Abuse, Injustice, Violation Of Fundamental Civil Liberties, Victimisation Of Opponents And Underpriveleged Sections Of The Society And Detriment To Investment And Research In The IT Industry Is Much Greater Than The Potential Harm This Law Is Supposed To Avert!
Thank You
From: Shahida Saleem
[mailto:shahida...@gmail.com]
Sent: Wednesday, July 22, 2009 1:20 PM
To: pakistan...@yahoogroups.com
Cc: 'Ammar Yasir'; 'Wahaj us Siraj/MGMT'; 'Zia Imran'; 'Awab Alvi';
'Aslam Hayat'
Subject: RE: [pakistanictpolicy] PECO - Joint Statement
Dear Shahzad,
Developing a joint statement would definitely have a much better impact, in addition to showing maturity ion part of the industry overall. I believe this issue is one that impacts everyone, and goes beyond the individual organizations etc. If P@sha can take the lead, and get everyone on board to sign off, I think it would be a huge achievement.
Kind regards,
Shahida Saleem
Chairperson
FPCCI- SC on IT& T
From:
pakistan...@yahoogroups.com [mailto:pakistan...@yahoogroups.com] On
Behalf Of Shahzad Ahmad
Sent: Wednesday, July 22, 2009 10:26 AM
To: pakistan...@yahoogroups.com
Cc: 'Ammar Yasir'; 'Wahaj us Siraj/MGMT'; 'Zia Imran'; 'Awab Alvi';
'Aslam Hayat'
Subject: [pakistanictpolicy] PECO - Joint Statement
Shouldn't we develop a joint statement highlighting our general concerns and the fact that what Minister Interior had been saying on TV doesn't substantiate in the document so why he is spreading terror through media...
best wishes
Shahzad
__._,_.___
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Babar
is to raise awareness. Here's a tweet from Ms. Memon, asking the ICT
community to jump in
RT @marvi_memon whr is IT community.We r fighting on peco n nt 1 tweet
from the real experts. When politicians work u dont! Silent majority!
Link to blog post:
http://telecompk.net/2009/10/27/pakistan-electronic-crimes-ordinance-requires-serious-revisions-pildat-legislative-forum/
Babar
On Oct 26, 9:31 am, "Wahaj us Siraj/MGMT" <wa...@dsl.net.pk> wrote:
> Dear all,
>
> Today, PILDAT (www.pildat.org) arranged a seminar on PECO 2007 and was
> attended by, among others, Ms. Marvi Memon, MNA, Mrs. Anusha Rehman, MNA,
> some other Parliamentarians, Civil Society members, lawyers and FIA officers
> (including DG FIA).
>
> The Parliamentarians (mostly from opposition benches) were quite concerned
> about this law which is at the verge of approval by the National Assembly
> despite the note of dissents by members of National Assembly Standing
> Committee on IT & Telecom. The draft Act is being placed for the session of
> the National Assembly somewhere next week and there's little time left to
> make final efforts.
>
> Text of presentation delivered by Barrister Ejaz is enclosed.
>
> It is the time for the industry to raise forcefully our voice so that we can
> synthesize the Parliamentarians on sensitivity of this issue for present and
> future generations of educated youth, IT, Software and Telecom Professionals
> in the country. The target should be to involve media fully by arranging
> press conferences, articles, letters to editor, talk shows, etc., so that
> message gets across.
>
> We'd be arranging press conference and other events in Islamabad jointly
> with PASHA, ISPAK and others. Other concerned professionals and citizen are
> also requested to take this to various forums before it's too late.
>
> Look before you leap!
> And please look deep!
>
> Prevention of Electronic Crimes Ordinance, 2007
>
> Overview
>
> Cyber Offences
>
> Investigation and Prosecution of Offences
>
> Cyber Offences
>
> 17 New Offences
>
> Of which 14 are already covered under Pakistan Penal Code
>
> Only minor amendments to PPC required
>
> 4 pages of definitions for about 20 offences
>
> The Budapest Convention has only 4 definitions
>
> Requires experienced legislative drafting
>
> Loosely drafted offences
>
> Casts a very wide net
>
> See examples at the end
>
> Cyber Offences
>
> } Serious potential of political, commercial or personal victimisation
> } Cyber terrorism
> of entity associated with it
>
> } An email by a citizen's rights group to hold a rally on a public street
>
> can be 'cyber terrorism' since it can 'disrupt' or 'alarm' the users of that
> street
>
> } Cognisable offence
> } Arrest without warrant
> } Exclusion of jurisdiction of other courts (Section 44)
>
> Investigation and Prosecution of Offences
>
> PECO ignores international conventions and best practices
>
> Safeguards
>
> 'Ensure.the powers and procedures.are subject to:
>
> safeguards provided for under its domestic law .adequate protection of human
> rights and liberties.other applicable human rights instruments.
> Judicial or other independent supervision
>
> Limitations on the scope and duration of such power and procedure
>
> Consider the impact on third parties
>
> Investigation and Prosecution of Offences
>
> There is no requirement for mandatory grounds being given for obtaining a
> search and seizure warrant
>
> Impossible to verify or challenge the grounds
>
> The law should provide for written grounds stating:
>
> Information received being the basis for the application for the warrant
>
> Method of search, leaving the larger operations intact
>
> Investigation and Prosecution of Offences
>
> IO can seek disclosure of:
>
> any 'subscriber information' (Section 26(2))
>
> No search warrant or other judicial permission required
>
> If the IT company resists, its officers can be imprisoned for 1 yr
>
> No right of privacy
>
> All our communications can be spied upon
>
> Other countries have sophisticated privacy regimes
>
> E.g. Office of the Privacy Commissioner of Canada (MP reporting direct to
> Parliament)
>
> No legal recourse to prevent such spying
>
> Investigation and Prosecution of Offences
>
> CrPC has detailed procedural protections for investigation of crimes
>
> FIR, police diaries, preservation of case property, accused and witness
> statements, presentation of challan, right of bail, etc.
>
> Over 100 years of case law preserving such protections
>
> Courts are familiar, and preserve these protections
>
> But Section 25 enables Federal Government to change these investigation
> WHY?
>
> Why an accused of fraud, forgery, etc. under PPC has procedural protections
> against abuse of investigatory powers but one accused of cyber crimes of the
> same kind hasn't?
>
> Investigation and Prosecution of Offences
>
> CrPC applies to all offences under PPC
>
> Sent: Wednesday, July 22, 2009 1:20 PM
> To: pakistanictpol...@yahoogroups.com
> Cc: 'Ammar Yasir'; 'Wahaj us Siraj/MGMT'; 'Zia Imran'; 'Awab Alvi'; 'Aslam
> Hayat'
> Subject: RE: [pakistanictpolicy] PECO - Joint Statement
>
> Dear Shahzad,
>
> Developing a joint statement would definitely have a much better impact, in
> addition to showing maturity ion part of the industry overall. I believe
> this issue is one that impacts everyone, and goes beyond the individual
> organizations etc. If P@sha can take the lead, and get everyone on board to
> sign off, I think it would be a huge achievement.
>
> Kind regards,
>
> Shahida Saleem
>
> Chairperson
>
> FPCCI- SC on IT& T
>
> [mailto:pakistanictpol...@yahoogroups.com] On Behalf Of Shahzad Ahmad
> Sent: Wednesday, July 22, 2009 10:26 AM
> To: pakistanictpol...@yahoogroups.com
> Cc: 'Ammar Yasir'; 'Wahaj us Siraj/MGMT'; 'Zia Imran'; 'Awab Alvi'; 'Aslam
> Hayat'
> Subject: [pakistanictpolicy] PECO - Joint Statement
>
> Shouldn't we develop a joint statement highlighting our general concerns and
> the fact that what Minister Interior had been saying on TV doesn't
> substantiate in the document so why he is spreading terror through media...
>
> best wishes
>
> Shahzad
>
> __._,_.___
>
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Arsalan Tariq Mir
Arsalan Tariq Mir
http://www.linkedin.com/in/arsalanmir
http://www.telecompk.net
From: Babar <babar....@gmail.com>
To: Telecom Grid Pakistan <telecom-gr...@googlegroups.com>
Sent: Tuesday, October 27, 2009 18:42:54
Subject: Re: Prevention of Electronic Crimes Ordinance - Draconian Law
Wahaj us Siraj
The National Assembly today has decided to send back the PECO to the
Standing Committee for public debate, comments and revision. This is a
great success for the industry and we salute the efforts made by all
stakeholders, particularly the Parliamentarians Anusha Rahman, Marvi
Memon and others, PASHA, ISPAK, Cellular Operators, lawyers, IT/
telecom professionals, civil society activists, bloggers, PILDAT,
friends from media and all others.
This also shows that sincere efforts for betterment of the society
don’t go waste and ultimately, the voice of right gets heard by the
decision makers. So let’s keep this spirit and struggle live so that
we can leave a better, prosperous, educated and judicious Pakistan for
our future generation.
We now need to work closely with the NA Standing Committee on IT &
Telecom so that all necessary changes in the draft Bill are
incorporated before the draft is tabled again on the floor of National
Assembly.
Kind regards….Wahaj
On Oct 27, 7:51 pm, Arsalan Tariq Mir <arsalan.t...@yahoo.com> wrote:
> And we must do it at the earliest, as it reflects from Marvi Memons discussion that the National Assembly could pass a law in its current form at any point once the National Assembly session starts on November 2, 2009.
> Regards
> Arsalan Tariq Mirhttp://www.linkedin.com/in/arsalanmirhttp://www.telecompk.net
>
> ________________________________
> Sent: Tuesday, October 27, 2009 18:42:54
> Subject: Re: Prevention of Electronic Crimes Ordinance - Draconian Law
>
> Thanks for posting, Siraj. We need to get working on it - first thing
> is to raise awareness. Here's a tweet from Ms. Memon, asking the ICT
> community to jump in
>
> RT @marvi_memon whr is IT community.We r fighting on peco n nt 1 tweet
> from the real experts. When politicians work u dont! Silent majority!
>
>
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>
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